[Redacted], Doris F., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001820 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doris F.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2020001820 Hearing No. 570-2018-00711X Agency No. DOI-OS-17-0425 DECISION 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 September 20, 2019, final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Financial Systems Analyst, GS-12, in Herndon, Virginia. On August 25, 2017, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against her based on disability (bilateral hearing impairment),2 age (57 years old at 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 For purposes of analysis only, we assume, without finding, that Complainant is an individual with a disability. 2020001820 2 the time of the alleged events), and in reprisal for prior protected EEO activity (requesting a reasonable accommodation, and the instant complaint). By letters dated September 29, 2017 and December 5, 2017, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. Since January 2017, Complainant has been subject to disparate treatment and a hostile work environment; 2. Since February 2017, the Agency has failed to provide Complainant with an effective reasonable accommodation; 3. On or about June 7, 2017, Complainant received a negative FY 2017 mid-year performance review; and 4. On or about November 30, 2017, the Agency issued and supported a Notice of Denial or Termination of a Telework Agreement to the Complainant without justification. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found no discrimination. Regarding claim (1), the Agency found that management articulated legitimate, non-discriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination and/or retaliation. Regarding Complainant hostile work environment claim, the Agency found that the alleged incidents were not based on her protected classes. Regarding claim (2), denial of a reasonable accommodation, the Agency found Complainant was continuously provided with a reasonable accommodation. Specifically, the Agency stated “[e]ven after Complainant indicated in May 2017, that the combination of the amplified phone and real-time transcription was effective, she and her [first-level supervisor, S1] continued to have discussions related to accommodation.” Final Agency Decision at 22. Regarding claim (3), the mid-year performance rating, the Agency found that Complainant’s second-level supervisor asserted that Complainant posted notes from her conference calls late, she did not finish training by a date she set forth herself, and was not sufficiently independent. Final Agency Decision at 24. Finally, regarding claim (4), termination of her telework agreement, the Agency found that S1 stated that the agreement was revoked due to Agency policy which provides that employees whose performance is below “Fully Successful” are ineligible to telework. 2020001820 3 The instant appeal followed. On appeal, Complainant reasserts her claims. In addition, regarding having her workspace located near S1’s office, Complainant states that S1’s testimony that the that the entire team is near her office is not true. Complainant states that most of the staff are on the other side of a wall. Complainant also states that other employees were allowed to choose the location of their offices, prior to the move. Complainant states some of her co-workers are allowed to make up time at the end of the day, while she is charged leave. Complainant states that she herself initiated her own accommodations, such as through the Virginia Department for the Deaf and Hard of Hearing. Complainant further states that she eventually did receive an accommodation of 48 hours regarding the note-taking function but that other employees were also provided with this additional time. In addition, she asserts that subsequently the Agency no longer required note-taking. In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency asserts that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish was pretext for discrimination. Regarding Complainant’s denial of a reasonable accommodation claim, the Agency asserts that it engaged in the interactive process with Complainant and requested from her medical documentation clarifying whether her disability prevented her from taking notes. Moreover, the Agency states that Complainant was eventually excluded from taking notes. 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”). Claim (1)-Disparate Treatment Analysis 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction 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). 2020001820 4 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 Center v. Hicks, 509 U.S. 502 (1993). 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 Serv. Bd. 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). Complainant made various allegations that due to her protected classes she was subjected to increased scrutiny, given an increased workload, placed in a workspace near S1’s office, not allowed to make up time at the end of her workday if she arrived late, and needed to take leave if she left a worksite early. While we may not discuss expressly herein all of Complainant’s allegations related to claim (1), upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish, by a preponderance of the evidence, was pretext for discrimination and/or retaliation. Regarding Complainant’s assertion that she was assigned more work than her peers, the record contains an affidavit from S1. Therein, S1 asserts that Complainant is assigned the same amount of work as the other members on her team. Report of Investigation (ROI) at 84. Specifically, S1 states that Complainant is “a part of the three-member Procure to Pay Team. So if there is a document on that team to review, each member of the team gets the exact same document for review and comment.” Id. Regarding Complainant’s workstation being moved near S1’s office, S1, states in her affidavit that the department moved to a new building in May 2017, and that Complainant’s entire team is located near S1’s office. Specifically, S1 states “[i]n our new building our entire organization is co-located in a wing of an office space with Complainant’s team being situated in my office. So, everyone on the team sits near my office.” ROI at 82. Regarding Complainant’s assertion that she was not allowed to work late to make up time if she arrived late, S1 addresses this matter in her affidavit. Therein, S1 states that she initially permitted Complainant to make up her late arrival to work at the end of the day. “But, I then began noticing a pattern of her arriving to work after her 9:30 a.m. start time… I told her she had to abide by the Department policy, which is employees are required to work their eight hours between 6:00 a.m. and 6:00 p.m., meaning she is not permitted to routinely make up time after 2020001820 5 6:00 p.m., if she reports to work after 9:30 a.m.3 I had to take to take this action because although I previously permitted her to make up time at the end of the day due to her late arrival to work in the morning, I saw where she was abusing that privilege.4 The employees on my staff did not have a tardiness problem and very rarely needed to put in extra time at the end of the workday to make up for late arrival to the office.” ROI at 82-83. Regarding Complainant’s assertion that she was charged leave after leaving a worksite when the meeting ended early, S1, in her affidavit, asserts that Complainant, unlike her co-workers, did not have a telework agreement during the relevant period. Specifically, S1 stated, in her affidavit, that “[t]he Department’s policy is that employees work eight hours a day. At that point in time, each member of my staff was operating under a telework agreement authorizing them to work from home. So, in instances, where meetings with contractors at a remote location were ending early, the employees were going home and logging in and finishing their workday using their telework capabilities. But, because the Complainant did not have an assigned telework agreement in place due to her not having internet at her home at the time, she did not have the option of going home and finishing her workday there.” ROI at 83. Regarding claim (3), a negative mid-year review, the record contains an affidavit from Complainant’s second-level supervisor (S2). Therein, S2 asserted that she provided the rating at issue, “Minimally Successful.” Specifically, S2 stated that she issued the rating “due to deficiencies in the timeliness of her work, the lack of thoroughness in her work and her inability to work independently…I was informed by… [S1] and [a named Team Lead] that there were serious issues with the quality of Complainant’s reviews and comments on technical design documents5…I was informed that Complainant’s comments on the documents were minimal to none and her feedback on documents was insufficient and not detailed enough for us to be able to meet customer requirements.” ROI at 106. Regarding claim (4), the revocation of Complainant’s telework agreement, S1, in her affidavit, asserts that she was the Agency official who revoked the agreement. 3 The record contains an email from S1 to Complainant dated February 1, 2017. Therein, S1 asserts that Agency policy provides that Complainant “need[s] to arrive at work by 9:30 a.m. in order to complete [her eight] hour work schedule by 6 p.m…The basic 8-hour workday must be completed between the hours of 6:00 a.m. to 6:00 p.m. on core days with a minimum 30 minute lunch period taken within these hours.” ROI at 129. 4 The record contains an affidavit from one of Complainant’s co-workers. Therein, he asserts that he worked three cubicles away from Complainant and could see her workstation. He states that Complainant had a tendency to arrive at work after 9:30 a.m. ROI at 98-99. 5 The record contains an affidavit from the Team Lead. Therein, she asserts that the documents Complainant reviewed had very few or no comments whereas her co-workers provided her numerous, complex comments on the very same documents. ROI at 95. 2020001820 6 S1 states that according to Agency policy, any employee who receives a performance rating below fully successful ceases to be eligible for telework. ROI at 90. S1 states that Complainant received both a mid-year and end-of-the-year 2017 performance rating of Minimally Successful. Id. The record contains a copy of the Agency’s Telework Policy. Therein, the policy provides, in pertinent part, that employees who receive a less than Fully Successful rating are not eligible to telework. ROI at 149. Complainant failed to establish, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretext for discrimination and/or retaliation. To the extent that Complainant asserts that the statements of S1 or her co-workers are not truthful, we note that Complainant withdrew her request for a hearing. Thus, we do not have the benefit of an AJ’s credibility determinations or an AJ overseeing the further development of the record. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discrimination occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. Claim (2)-Denial of a Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Guidance). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (“the word ‘accommodation’. . . conveys the need for effectiveness”). That is, a reasonable accommodation should provide the individual with a disability with “an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.” 29 C.F.R. Part 6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the essential functions of his or her position, “the preference of the individual with a disability should be given primary consideration. 2020001820 7 However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” Id.; see also Guidance at Question 9. “The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 29 C.F.R. Part 6130 app. § 1630.9. Under the Rehabilitation Act, it is anticipated that, to the extent necessary, the employer will engage in the interactive process with the individual requesting accommodation to clarify the individual's needs and identify the appropriate reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). The record reflects that the Agency engaged in the interactive process with Complainant. Complainant tried various assistive devices (various special phones, relay service etc.) to assist her with her duties, which included note-taking. In addition, the record reflects that Complainant reached out to Department of Defense’s Computer/Electronic Accommodations Program (CAP) and went through an assessment. Complainant also contacted the Virginia Department for the Deaf and Hard of Hearing. ROI at 47-48. These contacts resulted in Complainant receiving various assistive devices to assist her in her job functions, including various phones and a relay service. While Complainant asserts that she is the one (rather than the Agency) who initiated contact with these organizations, this fact alone does not lead to a finding that the Agency violated the Rehabilitation Act. The record reflects that Agency management repeatedly followed up with Complainant regarding her contacts with the above referenced organizations, the various assistive devices with which she was provided, and encouraged her to attend an assessment with CAP. ROI at 187, 198, 281-283. In addition, the Agency provided technical assistance to Complainant for her various pieces of equipment in an attempt to find/provide an effective accommodation. ROI at 107, 221-222. In an email from Complainant to S1 dated May 18, 2017, it appeared that Complainant had found an effective accommodation for note-taking between the use of her amplified phone and the relay service. Regarding the relay service, she stated that a transcript comes up when talking and while she asserted that on occasion it would type inaudible if it could not hear someone, she stated that for the most part it was good and “for now it serves its purpose.”6 ROI at 177. The record reflects that S1 communicated to Complainant’s team that employees would be required to post meeting notes within 24 hours of a meeting. 6 The record also reflects that prior to her May 18, 2017 email, Complainant raised with management the possibility of using Dragon Naturally Speaking. S2 asserts that around May 1, 2017, she exchanged numerous emails with the Office of the Chief Information Officer (OCIO) to obtain information about the software for Complainant. S2 states that she asked Complainant to provide her with the version number and the pricing information in order to purchase the software. However, S2 did not receive a “firm answer” from Complainant on this matter. ROI at 282-283. 2020001820 8 ROI at 291. In an email to S1 dated September 14, 2017, Complainant stated in pertinent part that “the work accommodation I am requesting is note-taking…I also am not in a position to suggest any work substitution because I also know about critical tasks, etc. and I feel a [human resources] person is the better person to know what can be done.” ROI at 173. However, Complainant, in this email, did not explicitly set forth what type of accommodation she was seeking with note-taking (i.e., additional time to perform the task, to completely remove the task of note-taking etc.).7 In response, the Agency requested Complainant to provide medical documentation regarding her need for an additional accommodation given the accommodations she was already using (amplified phone, relay service which provided a transcript). ROI at 220- 225. While Complainant, on appeal, suggests that the Agency should not have requested documentation because her impairment was obvious, the Commission has held that an employer may ask an individual for documentation when the disability and/or need for the accommodation is not obvious. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002), Question 6. In the instant matter, while the record reflects that Complainant’s first and second- level supervisors were aware of her hearing impairment, it was not obvious what additional accommodations (in addition to her amplified phone and the relay service she was already using) Complainant needed in order for her to perform her duties. Thus, we do not find that the Agency’s request was improper. Complainant’s physician responded to the Agency’s information request via letter dated December 4, 2017, that Complainant is able to complete all tasks set forth by the Agency and “real time captioning, which [Complainant] has already been able to obtain, is helping her complete these tasks more efficiently. It would be advisable to allow [Complainant] additional time to compile notes and/or written correspondence in conjunction with meetings and conference calls given her severe hearing disability. The use of real time [captions] will require organizing and translating the transcripts to formats required.” ROI at 226. Complainant, in a statement dated August 1, 2019 and on appeal, asserted that the Agency subsequently extended the timeframe to post notes for meetings from 24 to 48 hours.8 In addition, Complainant stated that eventually the Agency withdrew the task of note-taking. 7 S1, in her affidavit, asserts that she interpreted Complainant’s email to be a request to be exempt from the duty of note-taking. ROI at 85-86. S1 states that she worked with human resources to draft a request for medical documentation regarding Complainant’s accommodation request. ROI at 85. 8 While Complainant asserts that the Agency also extended the timeframe for posting notes to 48 hours for other employees (rather than just her), this assertion does not result in a finding that the Agency was in violation of the Rehabilitation Act. The medical documentation provided by Complainant’s physician suggested the Agency provide Complainant with additional time for taking notes, which it did for Complainant, as well as all employees, when it extended the timeframe for this duty from 24 to 48 hours. 2020001820 9 Based on the foregoing, we find that the Agency engaged in the interactive process with Complainant and she has not established, by a preponderance of the evidence, that the Agency violated the Rehabilitation Act by failing to provide her with a reasonable accommodation. Hostile Work Environment Analysis To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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). The Agency properly found that Complainant failed to establish a prima facie case of harassment. Specifically, Complainant has failed to establish that the Agency’s actions were based on her protected classes. As set forth above, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not establish was pretext for discrimination. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2020001820 10 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. 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. 2020001820 11 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 July 12, 2021 Date