[Redacted], Dolly H., 1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2021000879 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dolly H.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 2021000879 Hearing No. 430-2019-00592X Agency No. HS-USCG-02700-2018 DECISION On November 17, 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 October 20, 2020, final order 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 an Accounting Technician, GS-0525-07, at the Agency’s USCG Finance Center facility in Chesapeake, Virginia. On November 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical and mental) when, on September 13, 2018, management failed to address the harassing behavior of a co-worker (CW1). The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: 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. 2021000879 2 Complainant was diagnosed with primary fibromyalgia syndrome, degenerative disc disease, and carpal tunnel syndrome. Her symptoms included chronic pain and numbness and tingling to the bilateral wrists and elbows. Her reasonable accommodations included a specialized ergonomic chair and headrest. She attested that she also suffered from Post-Traumatic Stress Disorder (PTSD). Complainant’s first-line supervisor (Supervisor1) attested that he was aware of Complainant’s back problems and PTSD. On September 13, 2018, Complainant was talking to Supervisor1 and another co-worker (CW2), when CW1 interrupted their conversation and started talking to Supervisor1. CW1’s interruption led to a verbal confrontation between Complainant and CW1, with Complainant repeatedly stating, “excuse me,” to CW1, who ignored her until she responded by stating that she had manners. Following their verbal exchange, CW1 returned to her desk. Later that same day, CW1 returned to Complainant’s work area. Complainant attested that she felt a force push on the back of her chair, which caused her to fall into her desk, and when she turned around to see who pushed her chair, she saw CW1. CW1 acknowledged touching Complainant’s chair, attesting that she gently shook it. Following CW1’s contact with Complainant’s chair, Complainant and CW1 proceeded to argue about the matter. Complainant attested that she called out for Supervisor1 and Supervisor2 to remove CW1 from her work area, but neither responded. She attested that she left her desk to find a supervisor and CW1 continued to argue with and yell at her. Complainant attested that she reported the event to Supervisor1 and indicated that she was afraid of CW1, was in pain, and was going to leave for medical care. Medical evidence indicates that Complainant experienced new neck pain and tightness after the incident, there was an aggravation of her previously existing back problems, and she was diagnosed with cervical and lumbar strain. Complainant also attested that CW1’s actions were intimidating and triggered her PTSD. Complainant attested that, in response to the incident, Supervisor1 told her not to have any contact with CW1 unless it was work related, but CW1 continued to come into Complainant’s area for reasons other than official business. Supervisor1 attested that, following the first incident when CW1 interrupted his conversation with Complainant and CW2, he was called into a meeting and, when he returned, CW2 informed him that there was another incident between CW1 and Complainant. Supervisor1 attested that he spoke to Complainant and she told him that CW1 came into a cubicle and shook her chair and CW2 stated that she was just playing. Supervisor1 attested that, after he spoke to Complainant, he spoke to CW1’s supervisor (Supervisor2) and she described overhearing an elevated conversation between Complainant and CW1. Supervisor1 reported the matter to his supervisor (Supervisor3). Supervisor3 attested that she spoke with Supervisor1 about the incidents and they met with the Section Chief, who then told them to work with the Command Staff Advisor and Human Resources Staff. 2021000879 3 She attested that they were instructed to obtain written statements from employees who witnessed the altercation and she met with Complainant and asked her to type up what she remembered. She attested that, on September 17, 2018, she and Supervisor1 spoke to Human Resources and they indicated that CW1 could be moved to a different location or she could telework four days a week. She also attested that on September 17, 2018, she sent an email to CW1 indicating that she should stay away from Complainant. She explained that CW1 is required to work with employees in the general area where Complainant sits, but she told her not to have any contact with Complainant. She attested that, to her knowledge, CW1 had not made any contact with Complainant. CW1 attested that, on September 17, 2018, she received an email from Supervisor3 indicating that, due to the events on September 13, 2018, she should avoid working or communicating with Complainant and should go through her supervisor. CW1 also attested that her first and second- line supervisors asked her not to go on the aisle when Complainant is in the office and she agreed to this request. An October 15, 2018 incident report from an Investigating Officer indicates that there was an investigation into Complainant’s allegations of harassment and workplace violence. It describes the September 13, 2018 incidents at issue and indicates that Complainant, CW1, members of management, and other employees were interviewed. It concludes that the reported actions were not likely harassment or workplace violence and the situation seemed to stem from personality conflicts. The transcripts of the witness interviews are of record. A December 13, 2018 fact-finding memorandum indicates that an administrative investigation was completed as to Complainant’s allegations of harassment based on disability by a co-worker. It indicates the allegations were unsubstantiated and no actions would be taken. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 20, 2019, motion for a decision without a hearing and issued a decision without a hearing on September 17, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant reiterates her contentions, including her alleged injuries from having been pushed while seated in her chair. The Agency has not submitted a statement or brief in response. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 2021000879 4 The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non- moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Here, Complainant’s allegations are that she was discriminated against when the Agency failed to address Complainant’s harassment. Thus, she must first establish that she was subject to hostile environment harassment. To establish a claim of hostile environment 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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2021000879 5 Complainant’s allegations include her arguments with CW1. We find these allegations are petty annoyances or personality conflicts that are insufficient to support a claim for harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Regarding her allegation that CW1 pushed her chair, we find that the record establishes that CW1 shook or otherwise touched Complainant’s chair. However, we do not find the record establishes she did so because of Complainant’s disability. Therefore, we find Complainant has failed to establish that she was subjected to discriminatory harassment. Furthermore, insofar as Complainant alleges the Agency was treating her disparately in failing to respond to her complaints about CW1, we also find that Complainant’s claim fails. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty, Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The record establishes that, following Complainant’s reporting CW1’s actions to management, the Agency directed each employee to not go into each other’s area and conducted an administrative investigation. The investigation resulted in a memorandum advising that Complainant’s allegations of assault and harassment were not substantiated. Upon review of the record, including the documents relating to the investigation, we find the Agency’s actions were reasonable and sufficient to address Complainant’s allegations. Therefore, we find Complainant has not established a prima facie case of discrimination. 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. 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 2021000879 6 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). 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. 2021000879 7 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 January 8, 2021 Date