[Redacted], Detra S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal No. 2020003218 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Detra S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003218 Agency No. ARUSMA16SEP03556 DECISION On April 15, 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 9, 2020,2 final agency decision (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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal concern whether the Agency subjected Complainant to discrimination on the bases of disability and reprisal when it did not select Complainant for several positions, allegedly denied her reasonable accommodations and awards, and allegedly allowed her to be harassed. 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. 2 Complainant’s attorney states that Complainant received the Agency’s final decision on or around April 6, 2020 but did not reveal when he received it. The Agency did not challenge the timeliness of the appeal. 2020003218 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Assistant, GS-0203-06, at the Agency’s Civilian Personnel Advisory Center (CPAC) in West Point, New York. On October 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (back injury, depression/anxiety) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973. Following Complainant’s requests to clarify her claims, the Agency accepted the following allegations of discrimination for investigation: 1. From July 2014 through the present, she has not received training and career enhancing opportunities; 2. In December 2014, she was denied a disability reasonable accommodation; 3. From December 2014 to present, a coworker (C1) was allowed to harass her; 4. In July 2015, she did not receive a performance award; 5. In January 2016, she was denied a disability reasonable accommodation; 6. On July 14, 2016, she was not selected for the position of HR Specialist (Labor and Employment Relations), GS-0201-05/07/09/11, Vacancy Announcement No. NEBR16318361676617; 7. On July 15, 2016, she was investigated for losing office keys; 8. On July 24, 2016, her second level supervisor (S2 - Human Resource Officer) did not select her for the position of HR Specialist (Classification/Recruitment and Placement), GS-0201-05/07, Vacancy Announcement No. NEBR163183341676637; 9. In August 2016, she did not receive a performance award; 10. In July 2016, her request for a flexible schedule as a reasonable accommodation was ignored; 11. In July 2016, her request for compensatory time was ignored; 12. On September 6, 2016, she discovered the position of HR Specialist (Recent Graduate), GS-05/07 (promotion potential to GS-11), Vacancy Announcement No. NEBR165697141789549PRG, was announced in a way to prevent her from applying; 13. On November 28, 2016, the Supervisory HR Specialist (Classification/Recruitment and Placement) did not select her for the position of HR Specialist (Recent Graduate), GS-0201-05/07 (promotion potential to the GS-11), Vacancy Announcement No. NEBR163183341778912PRG; and 14. She was not selected for the position of HR Assistant (Classification/Recruitment and Placement/Office Automation), GS-0201-05/07, Vacancy Announcement No. NEBR178123351875332. 2020003218 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Accordingly, the AJ remanded the complaint to the Agency for the issuance of a decision on the merits of the complaint. On March 9, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. With regard to claims 2, 5, and 10, concerning the denial of reasonable accommodations, the Agency found that management did not improperly deny Complainant’s requests. As for Complainant’s allegations of disparate treatment discrimination in claims 1, 4, 6, 8-9, and 11-14, the Agency found that Complainant’s chain of command had legitimate, nondiscriminatory reasons for taking the alleged actions, which Complainant did not persuasively rebut. Lastly, the Agency found that the alleged incidents of harassment were insufficiently severe or pervasive to create a hostile work environment based on Complainant’s protected classes. The Agency ultimately concluded that Complainant did not prevail on the merits of her complaint. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of her appeal. The Agency opposes the appeal and requests that the Commission affirm its final decision. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). 2020003218 4 To establish that the Agency denied Complainant a reasonable accommodation, Complainant must show that: (1) she was an individual with a disability; (2) she was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). Assuming arguendo that Complainant was a qualified individual with a disability during the relevant period, we find that the probative evidence fails to show that the Agency improperly denied her requests for reasonable accommodation. We begin with claims 2 and 5, wherein Complainant alleged that the Agency violated the Rehabilitation Act by improperly denying her requests for noise cancelling headphones and a standing desk. With regard to Complainant’s reasonable accommodation request for noise cancelling headphones, Complainant stated that she initially requested the headphones in December 2014,3 and reiterated her request, in writing, in 2016. Complainant added that she followed up her request the next year by submitting a medical note, dated March 21, 2017. In the note, her physician simply requested that Complainant “be allowed to wear noise cancelling headphones at her place of employment.” ROI at 000635. When Complainant met with S1 regarding her doctor’s recommendation, S1 advised her to make the reasonable accommodation request through the EEO Office. Id. at 000637. Instead, Complainant asserted that she became fed up with the Agency’s response and bought noise cancelling headphones that same day at her own expense. Id. at 000910. Based on the facts here, we decline to find any violation of the Rehabilitation Act. The probative evidence shows that Complainant ended the interactive process prematurely when she denied the Agency the opportunity to respond to her request, including the consideration of alternative accommodations. We further find that the Agency was under no obligation to reimburse Complainant for her purchase, as Complainant’s physician only requested that Complainant be “allowed to wear noise cancelling headphones at her place of employment.” As the record fails to show that Complainant was denied such an opportunity, we conclude that she was not improperly denied a reasonable accommodation. As for Complainant’s request for a standing desk, the record shows that Complainant submitted a medical note in October 2016 stating that she needed a standing desk to address her back problem. In response, management initially borrowed a standing desk from another department for Complainant’s use until the desk that management specifically ordered for her arrived in April 2017. 3 While Complainant contends she verbally asked management for headphones in December 2014, there is no evidence that this request was made. 2020003218 5 Given that management provided Complainant with her requested accommodation, we also find no violation here. Furthermore, we find no evidence that Complainant requested a standing desk in December 2014. In claim 10, Complainant argued that the Agency improperly denied her request for a flexible schedule. According to Complainant, she first verbally requested the accommodation in December 2014 and repeated the request in writing sometime in 2016. The Agency, however, emphatically denied that Complainant made such request in December 2014, and the record contains no evidence of this earlier request. The Agency maintained that she only asked for an alternate work schedule (regular day off) in August 2016, which was granted in full even in the absence of any supporting medical documentation. Complainant has not shown that she was subjected to discrimination as alleged. Disparate Treatment Discrimination For Complainant to prevail in a claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In non-selection cases, a complainant can demonstrate pretext by showing that his or her qualifications for the position were plainly superior to those of the various selectees. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Claims 6, 8, 12, 13, and 14 - Non-selections Assuming arguendo that Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the positions at issue. 2020003218 6 For claims 6, S1 asserted that she did not select Complainant for the position of HR Specialist, GS-0201-5/7/9/11, due to Complainant’s failure to provide an updated resume. Complainant’s resume began with her job as a Metal Forming Machine Operator. It did not include her current HR position and duties. Contrastingly, the selectee’s resume reflected an entire career in HR and her current job duties. S1 also noted that the selectee currently worked for her. Similarly, in claim 8, S2 believed that Complainant’s outdated resume demonstrated a lack of attention to detail, an essential skill for the position. For this reason, she chose not to interview Complainant. Additionally, S2’s observations of Complainant led her to believe she was not a team player and resistant to management guidance. Although the selectee was a Mechanic, S2 found his ability to obtain a psychology degree while working full-time to be remarkable. S2 also thought his interview was impressive. For claims 12 to 13, the Agency announced the vacancies under the Pathways Program, which was limited to individuals who had graduated within the previous two years. Complainant acknowledged that she did not qualify for the program. The Agency had been hiring candidates through merit promotions and management wanted to use a variety of recruitment methods. Complainant admits that she did not apply to the vacancy announcements. As for claim 14, the Supervisory HR Specialist who oversaw this vacancy announcement maintained that Complainant was offered the opportunity to interview for the position. However, Complainant declined to be interviewed when she learned that the first year in the position would have to be at the GS-5 level. In arguing pretext for claims 6 and 8, Complainant contends that she was more qualified than the selectees and had a more outgoing personality. While she attested that she had not seen the resume included in the complaint file “in years” and wondered “how they got that?”, Complainant does proffer evidence that it was not the resume she put forth for the vacancies. With regard to claims 12 and 13, Complainant argues, without supportive evidence, that the Pathways Program was used to preclude her from applying. As for claim 14, Complainant believes she should have been permitted to skip the GS-05 level. Having reviewed the record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by a preponderance of the evidence that she was subjected to discrimination. The record persuasively shows that Complainant’s non-selections were due to either her failure to apply for the positions at issue or failure to provide a complete resume. We further find no evidence that the Agency discouraged her from applying, utilized an informal/secretive selection process, or took other affirmative steps to harm her candidacy. For these reasons, we conclude that Complainant’s non-selection for the positions at issue was not discriminatory. 2020003218 7 Claims 1, 4, 9, and 11 As before, we shall assume arguendo that Complainant established a prima facie case of discrimination based on disability and reprisal. The record shows that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, concerning Complainant’s allegation that the Agency discriminatorily denied her training and career enhancing opportunities, Complainant’s first level supervisor (S1) asserted that Complainant received all the training that she needed for her position. While S1 acknowledged that Complainant wanted to attend training designated for HR specialists, S1 maintained that Complainant could not attend the requested training due to budgetary reasons. S2 added that the purpose of training is to prepare an employee to perform the duties of his or her job and not to prepare an employee for the possibility of promotion. With regard to claims 4 and 9, S2 maintained that Complainant was not given a performance award in 2015 because Complainant had not been “assigned to the organization long enough to receive an award for the 2014 rating cycle.” S2 stated that Complainant received an award in 2016 for the 2015 rating cycle. When Complainant asked management to rescind the award, because Complainant believed that management was trying to “bribe” her into overlooking her non-selection, S2 declined to do so since Complainant had earned it. Complainant received the same monetary award as her colleagues. As for claim 11, concerning the alleged denial of Complainant’s request for compensatory time, S1 stated that she did not recall Complainant’s request. Nevertheless, S1 emphasized that managers in her office were not authorized to grant compensatory time and could only offer employees overtime. S1 maintained that she allowed Complainant and her colleagues to work overtime almost every pay period. In arguing pretext for claim 1, Complainant maintained that the Agency allowed others to attend training and receive on-the-job training. For claims 4, Complainant asserted that she could not understand why she did not receive an award in July 2015 and did not know whether others received an award. As for the award in 2016, claim 9, Complainant maintained that she should not have received the award, as it was a bribe for not selecting her for the position that she sought. With regard to claim 11, Complainant asserted that S1 denied her request for compensatory time was ignored in reprisal for requesting a reasonable accommodation. Yet, Complainant was unable to show that similarly situated individuals outside her protected basis were permitted to earn compensatory time. Having reviewed the record, we find that Complainant’s assertions to be speculative and unsupported by the record. Her efforts to show pretext are insufficient to rebut the Agency’s articulated legitimate, nondiscriminatory reasons. Furthermore, there is no evidence that Complainant was treated less favorably than her colleagues with regard to the alleged incidents. As such, we conclude that Complainant cannot prevail on her allegations of discrimination. Harassment 2020003218 8 Lastly, we shall address Complainant’s harassment claim. As an initial matter, we find that with the exception of claims 3 and 7, a finding of harassment is precluded on the remaining claims due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 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 his statutorily protected class; (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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). Even if we assume arguendo that the alleged events occurred as described and were unwanted, we find that Complainant cannot prevail on her claim of harassment because she has not shown that the conduct occurred because of her protected classes. With regard to Complainant’s allegations about C1, claim 3, the record reflects that Complainant accused C1 of harassing her by making untrue/negative statements, threatening comments, and nasty faces. Complainant also accused C1 of engaging in prohibited personnel practices by helping other candidates get the positions that Complainant wanted. C1, in turn, accused Complainant of making inappropriate comments about her, such as referring to her as “fat-ass midget” and asking colleagues, “Where is that little midget?” Having reviewed the record, we find that the probative evidence fails to show that C1 harassed Complainant because of Complainant’s protected characteristics. For claim 7, that Complainant was subjected to harassment when she was investigated for losing her assigned keys, we find such allegation, even if true, to be insufficiently severe or pervasive to constitute harassment. Moreover, the record shows that management had a legitimate reason for initiating the inquiry: Complainant had lost her work keys. We find no evidence in the record to suggest that management initiated the investigation because of Complainant’s disability and/or in reprisal for Complainant’s prior protected EEO activity. For these reasons, we conclude that Complainant cannot prevail on her complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2020003218 9 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. 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). 2020003218 10 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 24, 2021 Date