U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donna W.,1 Complainant, v. Thomas J. Vilsack, Secretary, U.S. Department of Agriculture (USDA Food Safety and Inspection Service), Agency. Appeal No. 2020001701 Agency No. FSIS-2019-00312 DECISION On December 27, 2019, 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 November 21, 2019, 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. and 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Inspector, GS- 1863-07, in the Agency’s Food Safety and Inspection Service at the Tyson's Foods facility in Pine Bluff, Arkansas. Complainant also worked at various other processing facilities. On March 11, 2019, 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 and in reprisal for prior protected EEO activity when: 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. 2020001701 2 1. Beginning on September 15, 2018 to present, management failed to acknowledge Complainant’s need for a reasonable accommodation; 2. Beginning on October 17, 2018, to November 30, 2018, management assigned her to a duty station while she was on medical leave; and 3. On October 6, 2018, she was subjected to harassment when a management official confronted her to make a selection for a duty location under the New Poultry Inspection System (NPIS). Claim 1 - Reasonable Accommodation Complainant asserted that beginning around September 15, 2018, and continuing through November 2018, she requested a reasonable accommodation for sickness due to chemical exposure that raised her blood pressure and irritated her sinuses, eyes, nose, and throat. Complainant claimed that her doctor recommended that she be treated at the Occupational Health Clinic for her symptoms. Complainant alleged that management refused her requests to seek medical care multiple times. The Agency has a procedure for requesting a reasonable accommodation. Complainant did not request an accommodation through the formal process and the Agency’s Reasonable Accommodation Office has no record of Complainant making a reasonable accommodation request. Report of Investigation (ROI), pp. 642 to 644. The Searcy Circuit Frontline Supervisor testified that he would have been the one to approve a reasonable accommodation, but she never requested a reasonable accommodation. ROI, Ex. 8, p. 291. Two management officials indicated that Complainant complained of sinus or medical issues related to chemical exposure. The record evidence shows that Complainant’s leave requests were granted. ROI, pp. 171-172, 733-734, 736, 741-742. In addition, Complainant’s supervisor (S1- 1) testified that everyone was exposed to a foul odor when the roof was being repaired at the Pine Bluff facility. She notes that Complainant began to complain about the chemical exposure only after the NPIS was implemented, and she was instead detailed to a different plant. ROI, Ex. 10, pp 304-306. Claims 2 and 3 - New Duty Station The Agency’s Office of Human Resources informed Complainant that her duty station no longer needed GS-1863-7 Food Inspectors. On August 17, 2018, Complainant was issued a letter and election form, notifying her of the reduction in operations at her work location and notifying her that she had been identified for a reassignment to a position outside the local commuting area. ROI, at p. 749. She was offered five different locations in her same position, with an effective date of November 11, 2018. She was advised that there was a deadline of September 5, 2018, to make an election, to resign, or to provide no response in which case, she would be reassigned. ROI, at p. 750. 2020001701 3 Complainant averred that she did not select an option, because she did not feel well enough to decide between the options. Instead, Complainant returned the form with a note saying “I need an extension and appeal rights. This letter is Intimidation, Harassment.” She asked to be put in the Springdale Circuit. She also stated, “I believe this is unjust and I will not Resign - August 28, 2018.” ROI at page 757. The Agency did not grant her request for an extension to respond. On September 19, 2018, Complainant was issued a letter stating she was reassigned to the National Beef Packing Company in Liberal, Kansas with a start date of December 10, 2018. ROI, p. 755. Complainant responded on September 28, 2018, starting she would accept, but also saying “I have no choice, but to accept the position, ROI, p. 434. Complainant was on leave, starting in October 2018, but she formally took medical leave on or before November 18, 2018. The record includes Complainant’s request for medical leave, which the Agency granted. Complainant’s medical documentation did not include a medical diagnosis and only prescribed follow-up visits. Complainant returned to duty on March 28, 2019, and, after receiving training for beef inspection, she reported to her new duty station in Liberal, Kansas on April 29, 2019. Complainant’s fourth-line supervisor (S4) explained that Complainant was reassigned because her current duty station converted to NPIS, which eliminated the Food Inspector positions and that other Food Inspectors experienced similar conditions. Meanwhile, she was assigned to temporary duty stations (while she was on medical leave) while awaiting reassignment. Similarly, another management official noted that others were assigned to temporary duty stations as well. ROI, Ex. 10, p. 306-07. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency failed to accommodate her and has not argued hardship as a reason for not accommodating her. She also contends that the Agency placed her in unsanitary and a “rigorous environment” as an act of reprisal. Complainant argues that she was subjected to serious employment consequences that adversely affected or undermined her ability to work . Accordingly, Complainant requests that the Commission reverse the final decision. 2020001701 4 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 Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §1630.9. We will assume, without so finding, that Complainant is an individual with a disability. Here, Complainant alleged that management officials failed on several occasions to grant her a reasonable accommodation for her sinus-related condition. The record does not demonstrate that Complainant requested an accommodation through the Agency’s procedure. Nonetheless, Complainant claimed that she verbally requested one to management officials. The only identified accommodation Complainant claimed she requested was leave to receive medical treatment. Complainant’s medical documentation in the record does not indicate any work limitation or specific accommodation needed. The record shows that the Agency granted Complainant’s requests for sick leave and provided her with a temporary duty station during the time between the reduction in force and her permanent placement in a new position. Based on the record evidence, we do not find that Complainant was denied reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation 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). 2020001701 5 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. 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find the record shows the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), as discussed above, Complainant did not request a reasonable accommodation and her need for an accommodation was not self-evident. Management granted Complainant’s leave requests. Regarding claims (2) and (3), Complainant was subject to a reduction in force and given notification while she was on leave because her position was being eliminated and the Agency was offering her an opportunity to select a new location. She also had received an earlier notification prior to going on leave. Complainant requested a 30-day extension and Agency officials reached out to Complainant after she expressed concerns in a handwritten letter about the matter. Ultimately, the Agency was able to place her in a permanent position closest to her home which she accepted. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory or retaliatory motivations. As a result, we find that Complainant was not subjected to any unlawful discrimination or reprisal as alleged. Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2020001701 6 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2020001701 7 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. 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 4, 2021 Date
