U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belinda K.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency. Appeal No. 2020002776 Agency No. NCN-17-KSC-00017 DECISION On February 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 24, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Executive Assistant, GS-0318-08, at the Agency’s Engineering Directorate Front Office, in Kennedy Space Center, Florida. On February 1, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), color (Black), disability, and reprisal (present protected EEO activity) when: 1. On or about December 2016, her requests for reasonable accommodation were denied. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020002776 2 2. From November 2014 to November 2016, Complainant’s supervisor made “hostile comments,” Complainant’s mail was stolen, she was denied opportunities for career advancement, and she was relocated back to her office after hurricane damage, causing health problems for her. 3. On May 2016, her detail was terminated. 4. In January 2017, a Diversity and Equal Employment Opportunity (DEEO) employee created a “chilling effect” on the EEO process by telling Complainant to stop talking about her medical issues as it may lead to her being blocked from ever getting another federal job, and that involving Human Resources was a “sure fire” way to get fired. 5. On unspecified dates she was not selected for multiple positions. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination on the merits of most claims, while dismissing others, as more fully discussed in our analysis below. The instant appeal followed. On appeal, Complainant lists colleagues who were present for and witnessed the purported harassment. She also states that two of her colleagues commented on how Complainant was being verbally attacked, and one of them overheard a conversation regarding Complainant’s detail request. Complainant states that, while other supervisors had permitted otherwise, her first-line supervisor (S1) (Race - Caucasian, sex - male, color - White) required that she stay at her desk, making the attendance of her therapy sessions and work outs impossible. ANALYSIS AND FINDINGS Dismissed Claims Claim 3 The Agency dismissed Claim 3 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(b) and 1614.110(b). A complainant must make EEO Counselor contact within 45 days of the effective date of the action. Complainant’s detail was terminated in May 2016, and she did not make EEO Counselor contact until December 13, 2016, well beyond the 45-day limitation period. As such, we affirm the Agency’s dismissal of this claim as a discrete act, but will consider it as part of the larger claim of harassment. 2020002776 3 Claim 5 The Agency dismissed Claim 5 for failing to bring this claim to the attention of an EEO counselor, pursuant to 29 C.F.R. § 1614.107(b) and 1614.110(b). The record shows that Complainant was referred to an EEO Counselor, by the Agency, on June 30, 2017. Complainant alleged that she was not selected for six or more positions for which she applied. However, Complainant failed to provide documentation relating to any of the positions for which she allegedly applied and did not allege that her non-selections were related to or involved any officials named in the instant complaint. We affirm the Agency’s dismissal of this claim, noting that Complainant does not address claim regarding the non-selections on appeal. Reasonable Accommodation - Claim 1 Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). The Agency properly found that Complainant’s reasonable accommodation (RA) requests were not supported by any medical documentation. We determine, moreover, that the record supports a finding that Complainant failed to engage in the interactive process and withdrew both of the RA requests that are the subject of this complaint. First, around approximately November 14, 2016, Complainant contacted the Associate Director of Engineering (ADE) (Hispanic, male, White, none, unknown) regarding an RA. ADE, in turn, contacted the Disability Program Manager (DPM) (White, male, White, none, unknown) who provided ADE with information regarding the RA process. DPM testified that he met with Complainant and ADE, on November 22, 2016. DPM stated that Complainant requested a flexible schedule. Complainant filled out and submitted the necessary Agency Form 1699, on November 29, 2016, and requested a flexible work schedule on Mondays, Wednesdays, and Fridays and telework on Tuesdays and Thursdays. DPM stated that ADE informed him that he needed clarification regarding the flexible schedule, telework, and how those RAs were going to assist Complainant in her medical and therapy appointments. On December 8, 2016, ADE informed DPM that Complainant withdrew her RA request. Second, Complainant later submitted another RA request on or around January 23, 2017, and requested a flexible work schedule on Mondays, Wednesdays, and Fridays starting between 7:30 and 9:00 a.m., and on as on needed basis, as well as telework on Tuesdays and Thursdays. DPM stated that there were difficulties in arranging another meeting with Complainant and that he was subsequently informed on February 13, 2017, that Complainant intended to resign. 2020002776 4 Following another meeting with Complainant where there seemed to be ongoing need for documentation and clarification about her RA request, Complainant withdrew her RA request again on February 23, 2017. The record does not support Complainant’s assertion that her RA request was denied. Rather, the record indicates that Complainant disengaged from the interactive process both times after initially requesting an RA. Harassment To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In addition, since Complainant has alleged reprisal, she must prove that the Agency’s actions were harmful to the point that they could dissuade a reasonable person from making or supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B) (Aug. 25, 2016). Only if Complainant satisfies her burden of proof with respect to all of these elements, intent and either hostility or chilling effect, will the question of Agency liability for harassment present itself. The record does not reflect that Complainant has shown by a preponderance of the evidence that she was subjected to harassment, or that the events occurred as she states. The Agency articulated a variety of explanations for its actions. We note specifically, S1’s comments about Complainant’s performance. S1 testified, and Complainant’s performance review indicate that Complainant was not meeting her required level of performance. Complainant allegations include conclusory statements, as opposed to providing specific language used by S1, in her harassment allegations. Complainant indicated that several employees and supervisors engaged in conversations about her disability. However, they all denied any knowledge about these conversations or telling her to stop speaking about her disabilities. A co-worker testified to having to attend to mail regarding the office coffee fund that was sent for Complainant from the local credit union. There was no evidence that anyone stole Complainant’s mail, nor was there evidence that any mail was stolen Complainant fails to substantiate her claims or demonstrate by a preponderance of the evidence that the Agency’s articulated rationale is pretext for discriminatory animus against her on the bases of her statutorily protected bases. 2020002776 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination and its dismissal of several claims STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020002776 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 18, 2021 Date
