[Redacted], Dixie K., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020002910 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dixie K.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency. Appeal No. 2020002910 Hearing No. 550-2018-00141X Agency No. DOT-2017-27282-FHWA-06 DECISION On February 29, 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 31, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented whether the Agency discriminated against Complainant based on race (Caucasian), sex (female), age (over 40), disability (chemical sensitivity), and reprisal when Agency officials failed to accommodate her, suspended her twice, and subjected her to various harassing actions. 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. 2020002910 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist, GS-501-12, at the Agency’s California Federal Aid Division, Financial Services facility in Sacramento, California. She worked in that position from 2005 until she retired from federal service, effective August 31, 2017. Shortly prior to her separation, Complainant filed a formal EEO complaint on May 15, 2017, alleging that the Agency subjected her to discrimination based on her race (Caucasian), sex (female), age (over 40), disability (chemical sensitivity), and reprisal for prior protected EEO activity in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act. Following her separation, Complainant amended her complaint to include a claim of discriminatory constructive discharge. The Agency ultimately accepted the following claims for investigation:2 A. Whether Complainant was discriminated against based on her race, sex, age, disability, and reprisal for prior protected EEO activity when, since December 2016, management failed to address her request for a reasonable accommodation; B. Whether Complainant was discriminated against based on her race, sex, age, disability, and reprisal for prior protected EEO activity when: 1. On December 22, 2016, Complainant received a three-day suspension; and 2. On March 27, 2017, Complainant received a 10-day suspension. C. Whether Complainant was subjected to a hostile work environment (harassment) based on her race, sex, age, disability, and reprisal for prior protected EEO activity, examples of which include: 1. On March 27, 2017, Complainant received a 10-day suspension; 2. On December 22, 2016, Complainant received a three-day suspension; 3. On November 21, 2016, and January 17, 2017, Complainant’s supervisor verbally accused Complainant of being racist and failed to maintain confidentiality regarding her two suspensions; 4. During one-on-one meetings, Complainant’s supervisor constantly made negative comments towards Complainant such as: “You’re negative, no one likes you; no one wants to work with you; if she did not stop her investigation regarding the first suspension, there would be no end to the charges she could bring against you; you are going to be terminated, etc.”; 5. On November 3, 2016, during a diversity presentation, a presenter stated, “Baby boomers are technologically challenged”; 2 For ease of reference, we refer to the claims in a similar manner as the Agency. 2020002910 3 6. Issuing her a proposed suspension on November 21, 2016, to coerce her into retirement, approximately six days after she became eligible to retire; and 7. On August 31, 2017, Complainant was constructively discharged. D. Whether Complainant was subjected to a hostile work environment (harassment) based on her race, sex, age, disability, and reprisal when on August 31, 2017, Complainant was constructively discharged. Thereafter, during the EEO investigation, the EEO investigator obtained an affidavit from Complainant, wherein Complainant raised additional instances of harassment. Based on Complainant’s affidavit, the Agency added the following instances of harassment to claim C, concerning Complainant’s hostile work environment claim: 8. An employee who wore excessive perfume was allowed to move closer to Complainant after Complainant complained to management about how that employee’s use of excessive perfume was affecting her health; 9. Complainant’s supervisor surveyed coworkers regarding perfume usage in determining whether Complainant should be reasonably accommodated; 10. Complainant’s supervisor violated her privacy and confidentiality, re: adverse actions and her disability; 11. Complainant’s supervisor did not allow her to interview coworkers and collect affidavits regarding her three-day suspension; 12. Complainant’s supervisor ruined or interfered with Complainant’s work relationships and friendships; 13. Complainant’s supervisor mishandled her suspensions resulting in garnishment (i.e., salary debt payment) of her wages for nine months; 14. Complainant’s supervisor mishandled her Family and Medical Leave Act (FMLA), resulting in garnishment of her wages; 15. Complainant’s supervisor retaliated against Complainant for filing a grievance against another employee by misprocessing Complainant’s FMLA in 2016; 16. Complainant’s supervisor purposely scheduled personnel discussions long in advance, and over weekends, to inflict emotional distress; and 17. Management allowed staff to make comments at office meetings for which Complainant would receive adverse actions. Because Complainant’s constructive discharge claim involved matters under the jurisdiction of the Merit Systems Protection Board (MSPB), the Agency processed the complaint as a mixed case complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and then issued a final decision on Complainant’s constructive discharge claim with appeal rights to the MSPB.3 3 Following Complainant’s appeal to the MSPB, the Agency filed a motion to dismiss for lack of jurisdiction. On May 29, 2018, the assigned MSPB AJ issued an initial decision dismissing the matter for lack of jurisdiction, as Complainant failed to show that her retirement was not 2020002910 4 The Agency also notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) for her remaining claims. Complainant timely requested a hearing. Following the initial conference with the assigned AJ, the parties engaged in discovery. Due to Complainant’s failure to fully participate in the discovery process, the Agency filed a motion with the AJ seeking to dismiss the complaint, or in the alternative, compel and/or sanction Complainant for her failure to cooperate in the discovery process. Complainant did not oppose the Agency’s motion. On November 20, 2019, the AJ issued an order remanding the complaint to the Agency for the issuance of a final decision, due to Complainant’s continuous failure to prosecute her case. Though Complainant subsequently attempted to petition the AJ to reconsider the dismissal, the AJ rejected Complainant’s petition and reaffirmed her earlier decision to dismiss the complaint and remanded the complaint to the Agency for the issuance of a final decision on the merits of the complaint. On January 31, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), which concluded that Complainant failed to prove her allegations of discrimination. In finding no discrimination, the Agency found that it had reasonably accommodated Complainant and had legitimate, nondiscriminatory reasons for issuing Complainant the two suspensions. As for Complainant’s harassment claim, the Agency addressed the incidents of harassment that Complainant raised in her affidavit (i.e., claims 8-17), as part of claim C, which Complainant had originally raised in her formal complaint. Having reviewed the record, the Agency concluded that Complainant’s allegations were either patently false or unattributable to her protected classes. The instant appeal followed. CONTENTIONS ON APPEAL As reflected in her Notice of Appeal/Petition, Complainant seeks review of the Agency’s final decision. She offers no 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 involuntary. Complainant then filed a petition for review with the full MSPB. As Complainant’s constructive discharge claim is not before us, we will not consider it. 2020002910 5 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 Denial of Reasonable Accommodation (Claim 1) Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p), 1630.9; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Here, our review of the record shows that in December 2016, Complainant asked her supervisor to address the excessive perfume smell that was intruding into her workspace. Complainant claimed that the excessive perfume smell was exacerbating her chemical sensitivities. In response to Complainant’s request, Complainant’s supervisor asked Complainant’s colleagues to use less perfume in the workplace. Complainant’s supervisor also allowed Complainant to select a different cubicle and work additional days from home. Though Complainant found these accommodations to be ineffective, she did not raise any concerns with her supervisor and simply filed an EEO complaint in March 2017, alleging that the Agency failed to reasonably accommodate her. After being notified of Complainant’s EEO complaint, Complainant’s supervisor met with Complainant to see what could be done to address Complainant’s needs. Following the meeting, Complainant’s supervisor granted Complainant’s request to again move to another cubicle and provided Complainant with an industrial strength air purifier on June 5, 2017. Complainant, however, believed that none of the provided accommodations were effective because her colleagues still wore perfumed products in the workplace. Assuming arguendo that Complainant was a qualified individual with a disability during the relevant period, we find that the Agency did not fail to reasonably accommodate her. 2020002910 6 While we certainly understand Complainant’s concerns regarding her coworkers’ use of perfumed products in the workplace, we fail to see how the Agency violated its obligation to reasonably accommodate her, as the record shows that the Agency granted all of her requested accommodations. While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Dep’t. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). As Complainant has not persuasively shown that the accommodations offered and provided by the Agency were ineffective, we conclude that the Agency fulfilled its obligation under the Rehabilitation Act. See Garvich v. U.S Postal Serv., EEOC Appeal No. 01A43925 (July 7, 2005) (complainant with migraines and fragrance sensitivity did not demonstrate that she was denied a reasonable accommodation where agency allowed Complainant to move around the facility when a fragrance bothered her, told employees to be mindful of wearing strong fragrances, and asked employees wearing strong fragrances to wash it off or change their clothes). Disparate Treatment (Claim B) We turn now to claim B, wherein Complainant alleged that she was subjected to disparate treatment when the Agency issued her a three-day suspension and 10-day suspension. For Complainant to prevail, 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 Constr. 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); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination based on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for suspending Complainant. With regard to the three-day suspension, the record shows that Complainant’s supervisor initially proposed to suspend Complainant for five days for loudly blurting out during a diversity presentation, “Jesus, why the fuck do we have to listen to this?” However, the proposal was subsequently mitigated to a three-day suspension. As for the 10-day suspension, the record shows that Complainant’s supervisor proposed to suspend Complainant for 10 days because Complainant was rude and disrespectful during a meeting to discuss Complainant’s complaint regarding her colleagues’ use of perfume. That proposal was upheld in full by the deciding official due to Complainant’s prior disciplinary history and unwillingness to be accountable for her actions. 2020002910 7 In arguing pretext, Complainant denied the accusations and claimed that the Agency treated other employees who committed the same infractions more favorably. Having reviewed the record, we do not find Complainant’s arguments on pretext to be persuasive given that several people attested that they heard Complainant make the alleged remark during the diversity presentation and was rude and disrespectful during meetings. The record also shows that Complainant’s comparators were not in the same supervisory chain as Complainant and/or did not commit similar infractions. For these reasons, we conclude that Complainant cannot persuasively show that she was subjected to discrimination as alleged. Harassment/Hostile Work Environment Claim (Claim C and Claims 8-17) As an initial matter, we find that a finding of harassment on claims A and B is precluded due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). We turn now to claims C and 8-17, concerning Complainant’s hostile work environment claim. In reviewing claim C, we decline to consider claims C(1) and (2) as part of Complainant’s harassment claim given our earlier determination that the Agency did not act discriminatorily in issuing Complainant the two suspensions. See Oakley, supra. 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 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). Having reviewed the record, we agree with the Agency that Complainant failed to persuasively show that the alleged actions occurred and/or were related to her protected bases. For example, in claims C3 and 4, Complainant alleged that her supervisor made critical comments towards her; however, the record reflects that Complainant’s supervisor denied making the alleged comments. Similarly, in claims 8, 9, and 10, Complainant failed to show that these incidents occurred. For claim 13, while the record shows that Agency took the alleged action, the Agency had legitimate, nondiscriminatory reason for seeking to recoup an overpayment caused by last minute changes to Complainant’s suspension dates. With regard to the remaining claims, we find no causal link between the alleged incidents and Complainant’s protected bases. As such, Complainant cannot prevail on her harassment claim. 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. 2020002910 8 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). 2020002910 9 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 9, 2021 Date