[Redacted], Chanelle B., 1 Complainant, Alejandro N. Mayorkas, Secretary U.S. Department of Homeland Security, (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020003240 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chanelle B.,1 Complainant, Alejandro N. Mayorkas, Secretary U.S. Department of Homeland Security, (U.S. Coast Guard), Agency. Appeal No. 2020003240 Agency No. HS-USCG-00645-2019 DECISION On April 26, 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 March 31, 2020 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Specialist/Associate Director for Marketing, GS-0301-13, at the Agency’s United States Coast Guard (USCG) Academy in New London, Connecticut. On March 6, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (Immune Disorder) and in reprisal for prior protected EEO activity when: 1. From September 26, 2018 to the present, management failed to accommodate her condition; 2. From September 26, 2018 to February 1, 2019, the Agency detailed Complainant to work at home, instead of on campus, and failed to document the reason for denying her request to relocate to another office on campus; 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. 2020003240 2 3. From September 21, 2018 to the present, the Agency failed to take sufficient action to mitigate the building hazards to allow Complainant to participate in the office professional and social activities, and the Agency lied to her regarding the extensive remediation efforts that took place; 4. From October 22, 2018 to January 8, 2019, the Agency failed to provide Complainant with the indoor air quality reports in a timely manner; 5. On November 30, 2018, the Agency only partially accommodated the Complainant’s request for equipment and supplies; 6. On January 4, 2019, the Agency failed to accommodate Complainant’s three maintenance requests and failed to respond to her January 28, 2019 request for the status; 7. On November 15, 2018, the Commanding Officer of Enlisted Personnel convened an investigation alleging that the Complainant harassed the Facilities Engineering Head, and Complainant was not made aware of the final outcome; 8. On November 15, 2018, the Commanding Officer abused his authority by acting as the convening official for the inquiry, although he was the subject of her own complaint; and 9. On May 1, 2019, Complainant received a “downgraded” performance rating.2 Complainant is a Program Specialist and served as the Associate Director for Marketing in the Admissions Office. She reports to the Deputy Director of the Admissions Office, GS-14 (DDA). Her second level supervisor is the Director of Admissions (DA). Other management officials identified by Complainant as responsible for the alleged discrimination include: the Chief, Mission Support Division(C-MSD); the Commander, Mission Support Engineering (MSE), the Captain, Coast Guard Academy (C-CGA), who is a Commanding Officer; and the head of Building Facilities. Claims 1 and 2: Denial of Reasonable Accommodation Complainant has service-connected conditions including asthma and sinusitis, as well as an allergic reaction to mold. Investigative File (IF) at 114. Complainant averred that her managers were aware of her medical conditions. She stated her immediate supervisor (DDA) became aware of her condition in 2010 and DA and C-MSD became aware in September 2018. (IF at 78- 80). Complainant was assigned to Waesche Hall. Complainant stated that she found mold in Waesche Hall on September 21, 2018. 2 In its final decision, the Agency dismissed claims 7 and 8 for failure to state a claim as a collateral attack on the proceedings of another forum. We believe that this was in error; however, we need not remand those claims, however, because we find that the record contains sufficient information for us to consider the claims on the merits, along with the rest of her claims. 2020003240 3 She stated she made a verbal request to DDA to relocate to a safe and healthful work environment elsewhere on campus on or about September 21, 2018. Complainant noted the onset of her symptoms on September 25, 2018. (IF at 427-445). DDA affirmed he issued the directive for Complainant to work from home, which was to protect Complainant and to allow management the time to do some air quality testing and find an alternative work site for her. When DDA told Complainant to work from home, Complainant expected that her work from home would be for a few days, not months. DDA also acknowledged Complainant preferred to be in Waesche Hall; however, he maintained management provided a safe space for her to work. (IF at 280-281, 283). She maintained working from home was very difficult for her, and stated she never wanted to work from her home, which was 12 miles from the campus. (IF at 82, 89). Complainant conceded management allowed her to work in Chase Hall, Hamilton Hall, and the Dry Dock Café, but after she claimed her symptoms remained, she was sent to work at home again. Meanwhile, Complainant submitted maintenance requests to have the area cleaned. Management acknowledged that several buildings on the campus, including Waesche Hall, developed a mold problem in the summer of 2018. A Mold Action Team had been established in July 2018. The record shows that she formally submitted her reasonable accommodation request on January 28, 2019. (IF, 292-293). Complainant acknowledged management placed her in an office in Smith Hall on February 1, 2019; however, she argued that management unreasonably delayed her relocation. (IF at 82-84, 87, 89). She reasoned the office had been vacant since at least September 2018, and that she should have been moved there from the beginning. She averred that she believed that the Agency had accommodated two other individuals with disabilities in a faster manner than it accommodated her, but she stated that she was not aware of any other individual who had the same medical condition that she had. Claim 3 - Hazards Mitigation DDA affirmed that all affected spaces were assessed and remediated for mold. (IF at 356). Complainant acknowledged management contracted Mystic Air Quality Consultants to perform air inspections on October 10, 2018, November 15, 2018, and December 11, 2018. Complainant averred that management failed to act on their recommendations. In addition, management contracted with Talevi Enterprises in December 2018, to remove insulation and to install three air filtration units. Complainant claimed that those efforts were not suitable for the office and that the office was not otherwise thoroughly cleaned. Complainant stated that on December 14, 2018, management announced the mold problem was remediated; however, she argued the space had not been properly cleaned and maintained and that management perpetuated a hazardous work environment by lying about their efforts. (IF at 91-92). 2020003240 4 In response, DA explained that he believed that management could not immediately assign Complainant to another building, as a number of the other buildings experienced higher concentrations of mold and no other building had had the air quality tests done. He asserted he made the decision to have Complainant work from home in the interim, because it was the only space that was safe for her at the time. DA acknowledged there were delays in securing a safe work area for Complainant on campus due to the air quality tests and the scope of the job. In addition, he explained the process was in the hands of Facilities Engineering staff and that the government shutdown (from December 21, 2018 to January 28, 2019) also impacted the process. In addition, the record reflected email evidence that DDA remained in limited communication with Complainant during the period at issue and submitted documents on her behalf to request accommodations. (IF at 130-131, 294-295). DA averred Complainant’s requests were not denied. (IF at 304). Complainant asserted that DA was misled by DDA, who indicated that management considered all of the suitable alternative offices. Management believed that it had located a space that was safe; however, Complainant experienced the same symptoms upon her return to work on January 28, 2019. DDA declared he resumed looking for a suitable alternate space for Complainant after her symptoms resurfaced, and stated he located a vacant office in Smith Hall in February 2019. DDA asserted Complainant was relocated on February 1, 2019, and she has not had any issues since. Complainant alleged management failed to document the reasons why she could not be relocated to another office and was left to struggle working from home. (IF at 89-90). The email evidence in the record showed DA made arrangements to accommodate Complainant in November 2018, and he indicated that her home was the only suitable work location until another location could be identified for her. (IF at 696-700). Further, DDA asserted the C-MSE and the head of Facilities Engineering oversaw the efforts to make Waesche Hall safe for Complainant. In addition, he added that he was unaware of anyone lying or trying to deceive her. (IF at 285). Moreover, he stated management kept Complainant informed of their efforts through meetings and remarked she participated in campus events often. DA denied lying to her, and he asserted all information he passed on he believed to be true. (IF at 305). He remarked management conducted visual inspections and air quality testing, removed insulation with mold on it, installed HEPA filters in and around the tiles with VCT tiles, and wiped down the walls of her former office. (IF at 372). The Building Facilities personnel affirmed DDA submitted multiple maintenance requests, which included a request dated October 3, 2018. He averred that, in response, his department inspected her office and hired a professional indoor air quality specialist to perform air quality testing on October 10, 2018. He stated the results were delivered on November 7, 2018, showing no mold. A second test was conducted on November 7, 2018, confirming the earlier test and reflecting a perfect air cleanliness score. He stated the Agency subsequently installed HEPA filters and conducted a third test on November 15, 2018, reflecting no mold issues. He further explained the Agency had removed any insulation that had mold on it. 2020003240 5 He stated another air quality test was conducted on December 11, 2018, that did not indicate a need for any response; however, in January 2019, management still installed an additional air return to increase airflow to office. He maintained the Agency spent a considerable amount of time in their response to her requests. (IF at 390-391, 394-396). Claim 4 - Failure to Provide a Copy of the Indoor Quality Reports The record shows that air quality tests were conducted on October 10, 2018, November 14, 2018, and December 11, 2018, following remediation efforts; however, DDA asserted Facilities Engineering was in charge of the air quality tests and all he could do was to make requests for the information. (IF at 306). Complainant alleged she made repeated verbal requests for air quality reports to DA and DDA; however, C-CGA made the decision to withhold the information from her. DDA noted Complainant was very interested in getting the results, but he stated she did not articulate a need for them in order to conduct her duties, and instead expressed she needed them to provide to her doctors. (IF at 285). The record showed DDA emailed Complainant some of the reports on February 1, 2019. (IF at 691). However, the record reflects evidence that the Agency provided Complainant all of the air quality reports on February 8, 2019. (IF at 576). Claim 5 - Partial Accommodation of Equipment Requests DDA stated Complainant made a November 9, 2018 verbal request for supplies over the phone. He then emailed her request to the Commander, IT Department (C-IT). He stated Complainant was issued equipment and instructions on November 30, 2018. (IF at 308). He sent her everything she requested with the exception of a scanner, which he did not have. Complainant acknowledged management provided a monitor, printer, ink, and paper on November 30, 2018, in response to her request; however, she argued DA failed to provide her with a scanner and something to hold the files. Claim 6 - Failure to Comply with Maintenance and Status Requests Complainant alleged that, on January 4, 2019, she submitted maintenance requests to have the office carpet HEPA cleaned or ripped out; the walls and furnishings to be wiped down with an appropriate solution; and the porous ceiling tiles in her office removed and replaced. However, she alleged management ignored her requests. C-MSE confirmed Complainant submitted a maintenance request on January 4, 2019. He stated that, in response, the Engineering Office inspected her office and attempted to perform all actions requested. He noted that, they could not take down the walls and the walls were not wiped down at the time because there was no visual evidence of mold, but he remarked they had previously been wiped down. (IF at 390, 394-396). 2020003240 6 DDA acknowledged Complainant submitted maintenance requests; however, he explained Facilities Engineering handles maintenance requests and he was not otherwise involved. (IF at 282). DA corroborated that maintenance requests are handled by Facilities Engineering. He stated he was not informed of the initial work order Complainant submitted via the automated system until after Facilities Engineering copied him on their response to Complainant. He responded that management continued to work with Complainant after she continued to have difficulty working in the cleaned space. (IF at 300). Claim 7 - Investigation of Harassment Complaint by Facilities Engineering Head The Director of Admissions asserted he became aware Complainant requested the reports on or around November 7, 2018. In response, he directed the “C-MSE to request a Freedom of Information Act request from Complainant in order to have a record of the request.” He remarked Agency Counsel had concerns that it could be inappropriate and possible illegal to disseminate the reports. Complainant averred that the meetings occurred without her presence, although the meetings were about her. Complainant and he met with the C-MSD on November 7, 2018; however, the C-MSD directed Complainant to request the reports in the proper fashion. He stated the C-MSD directed him to ask Complainant to put her request in writing and he would respond formally. Once it was determined Occupational Safety and Health Administration (OSHA) regulations required the release of reports, he provided them to Complainant on November 26, 2018, and again on February 8, 2019. (IF at 357, 373-274). When he (C-MSE) forwarded the response to Complainant, she became verbally abusive and threatened him in her response. She told him that the Agency was in violation of the OSHA regulations and that she intended to file an EEO complaint on the matter. She told him he needed to “grow a pair.” (IF at 398- 399. Subsequently, Complainant was counseled about her remarks. She signed the counseling letter acknowledging receipt and that she had been counseled about the incident. Complainant objected. She stated that she was angry at the time she angrily confronted C-MSE. She also stated that the Agency tolerated much worse verbal attacks from upper management, noting DA’s outbursts. Claim 8 - Commander Abused his Authority Complainant claimed a management official abused his authority when he instigated an investigation and did not recuse himself from the aforementioned investigation, noted in Claim 7. The investigation found that the “harassment” claims against Complainant were not supported. Claim 9 - Downgraded Performance Rating The record showed the rating reflected an overall “Exceeds Expectations.” (IF at 713). DDA asserted he issued Complainant an evaluation reflecting Exceeds Expectations on all sections except Teamwork, which reflected “Meets Expectations.” Complainant argued she deserved a higher rating based on her performance. 2020003240 7 DDA noted that he had given her a Letter of Counseling over her conduct in connection with an incident with C-MSE, after which C-MSE lodged a complaint against Complainant. DDA maintained the rating was fair and based on her performance. (IF at 289). In response, DDA stated Complainant “sometimes exceeded expectations, and at times fell below meeting expectations.” (IF at 311-312). DDA conceded she produced high quality work; however, he stated she acknowledged having engaged in the conduct charged in the counseling letter. (IF at 289-290). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to show that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9(a). We will assume, without finding, that Complainant is a qualified individual with a disability. In this case, however, we find that the record showed management provided her the necessary accommodations in a timely manner, which Complainant accepted. Initially, the Agency assigned Complainant to work from home while it addressed her condition and the facility’s issues. While Complainant argued her original requests should have been answered, she acknowledged she received responses to the maintenance requests made on her behalf and that management subsequently placed her in an office on the third floor. (IF at 84). Complainant acknowledged DA texted her on January 27, 2019, and reported the office was cleaned. (IF at 84). 2020003240 8 The head of the Building Facilities unit affirmed Complainant submitted the maintenance requests through the automated system. He remarked the C-MSE responded to her requests, and noted her floor was HEPA vacuumed. Complainant disputes that the areas were properly HEPA vacuumed. He acknowledged the ceiling tiles were not removed because it would affect the way the airflow was designed to function for the space, and would negatively impact the heating and air conditioning systems; moreover, he stated the walls were not wiped down again because there was no visual evidence of mold. (IF at 368). Further, the record confirmed DA made arrangements to obtain equipment for Complainant by November 29, 2018. (IF at 696- 700). While Complainant maintained management failed to provide her a scanner, management testimony explained one was not available nor was one needed for her duties. Complainant has not rebutted management’s testimony in this regard. On January 31, 2019, DDA issued an Acknowledgment of the Reasonable Accommodation Request (that he said was received on January 30, 2019). IF 295. Moreover, the evidence in the record showed management located a permanent office for Complainant in February 2019, which she ultimately accepted. (IF at 576, 691). Meanwhile, the alternative accommodations provided by management enabled her to work while remediation efforts were conducted, and an alternative work site could be secured. To the extent that Complainant argues that the Agency was obligated to remediate every inch of the building in order to comply with her needs, we find that request is unreasonable. Her own documentary submissions show that mold occurs naturally, and it is not possible to totally eradicate mold from every surface. Similarly, it is also not realistic to expect the Agency to test all of its buildings for mold in order to accommodate Complainant. In this case, we find that the Agency worked in good faith and in a timely fashion to provide Complainant reasonable accommodation and Complainant has failed to show that the accommodations provided were ineffective. Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2020003240 9 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency management articulated legitimate, non-discriminatory reasons for its actions as discussed more fully above. Complainant was not returned to the office earlier because management stated that it was unable to locate or prepare a safe workspace. Regarding the rating, S1 provided the rating he thought was warranted, which included consideration of a complaint that was raised against her for her admitted conduct. We recognize that Complainant disagreed with the Agency’s reasoning for not relocating her sooner or issuing her a lower rating. However, she did not show that the actions were a pretext for unlawful animus against her. Consequently, we find that this record does not show, by a preponderance of the evidence, that the Agency delayed the remediation of her office or her return to campus for unlawful reasons, or that there were any other individuals similarly situated to Complainant who were treated better. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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). 2020003240 10 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. 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. 2020003240 11 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 June 7, 2021 Date