[Redacted], Elizabeth T.,1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020000989 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elizabeth T.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2020000989 Agency Nos. 18-56-72, 19-56-60 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated October 11, 2019, finding no discrimination concerning his/her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Executive Assistant, GS-11, with the Agency’s Trademark Trial and Appeal Board (TTAB). On August 2, 2018, and February 25, 2019, Complainant filed her EEO complaints, which were later amended and consolidated for processing, alleging that she was subjected to discrimination and a hostile work environment on the bases of race (African-American), disability, and in reprisal for prior 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. 2020000989 2 1. Beginning in 2015 and ongoing, she was reprimanded; subjected to increased scrutiny, unreasonable demands and disparaging comments; and was required to provide additional documentation in order to obtain approval for travel, teleworking, and leave requests; 2. On or about May 27, 2018, she was reassigned to a supervisor whom she had previously complained about; 3. On or about June 4, 2018, she was removed from a flexible work schedule, and placed on a set hourly schedule with additional restrictions on lunch times and office presence; 4. On or about June 7, 2018, she was denied telework and access to telework equipment because of her Family Medical Leave Act (FMLA) leave request, which culminated in July 30 - 31, 2018, removal from the telework program; 5. On June 12, 2018, and other unspecified dates, she was denied FMLA leave and forced to attend meetings while on sick leave; 6. On July 30 - 31, 2018, she was placed under investigation and removed from the telework program for violating her telework agreement and for unspecified misconduct; 7. In October 2018, she was denied a reasonable accommodation for telework and a flexible schedule; 8. From around October 5, 2018, through November 21, 2018, she was reprimanded for not completing tasks and not reporting to campus despite her medical limitation; denied Leave Without Pay; placed in Absent Without Leave status; subjected to unreasonable deadlines, and given increased reporting requirements and leave approval requirements; 9. On October 23, 2018, she received a “Marginal” performance rating for Fiscal Year (FY) 2018; 10. On January 9, 2019, she was issued a letter of proposed five-day suspension for 13 charges of improper conduct; 11. Since November 2018, Complainant has been spoken to in a demeaning tone, shunned, ignored, reprimanded, and counseled on various occasions; 12. From March 25, 2019, through March 29, 2019, she served a five-day suspension, which was originally proposed on January 9, 2019; 13. On April 25, 2019, Complainant received a negative mid-year FY 2019 review; 14. On or about April 25, 2019, Complainant received a Notice of Proposed Removal; 2020000989 3 15. Since June 6, 2018, and ongoing, Complainant has not been provided with a reasonable accommodation; 16. On an unspecified date, an Agency manager was provided with Complainant’s confidential medical information; and 17. On an unspecified date, Complainant was reprimanded for the use of approved FMLA leave. At the conclusion of the investigation, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant files the instant appeal. 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 (EEO MD-110), Chap. 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"). Management indicated that many changes to Complainant’s work, her assignment to her supervisor (S1), an Administrative Officer, and work schedule (implementing core work hours, a minimum of three days working on campus, and restriction from working past 8:00 pm for TTAB employees) were a result of the TTAB’s reorganization in order to improve its business which was recommended by the Office of Human Resources (OHR). S1 indicated that as a supervisor, S1 asked for daily reports from Complainant to ensure coverage of time-sensitive duties and required her to participate in meetings. S1 granted Complainant’s FMLA as requested and followed the Agency’s leave policy concerning Complainant’s leave requests, i.e., asking for medical documentation when she missed a mandatory meeting or took three or more consecutive days of non-FMLA leave. The record reveals that Complainant was placed under investigation for violating a telework agreement. The investigation found that there were five hours Complainant claimed to work at home, but she did not. As a result, S1 issued Complainant a Letter of Reprimand on August 29, 2018, removing her from the telework program for at least a year. 2020000989 4 However, we note that S1 granted Complainant two days of telework as a reasonable accommodation on August 31, 2018. S1 also indicated that she received Complainant’s medical information from the OHR in order to provide her requested accommodation. S1 rated Complainant’s FY 2018 performance marginal due to her lack of communication, her failure to effectively collaborate with other TTAB employees, and delayed administrative tasks. S1, considering the August 2019 Letter of Reprimand and a poor performance rating, issued Complainant a five-day suspension because she failed to follow supervisory instructions regarding her duties and failed to follow Agency policies. S1 indicated that Complainant was issued a negative mid-year FY 2019 review because: she did not consistently deliver quality of work product; she failed to properly maintain electronic judge performance files; her work products required revisions; and she delayed routine administrative tasks and lacked communication. S1 indicated that Complainant was issued the notice of a proposed removal due to deficiencies in her performance in that she was unable to perform the essential functions of her position due to her debilitating medical condition. Complainant had been absent from the workplace for the vast majority of the past year, i.e., reported to the campus only 51 hours from May 2018, to April 2019. This absence of Complainant caused an increased need for on-site administrative support and finding others to perform her essential job duties. The TTAB had to hire a contractor to provide office coverage because of Complainant’s absence. Complainant does not claim she was actually removed from her employment at the Agency. Turning to her reasonable accommodation request, Complainant indicated that she had annular tear of lumbar disc, degenerative disc disease, lumbar herniated disc, sciatica, depressive disorder, and panic disorder with anxiety. On June 26, 2018, Complainant requested a reasonable accommodation seeking telework due to her major depressive disorder and panic disorder with anxiety. Complainant also requested flexible work hours allowing her to work between 5 am to 10 pm; and to work a maximum 12 hours each day in order to shorten another workday for emergencies or personal matters. Complainant provided her medical provider statement dated August 8, 2018. Therein, her doctor stated that Complainant’s major depression disorder and her panic disorder with anxiety occurred 5 - 7 times per week, 4 - 24 hours per episode. On August 31, 2018, the Agency granted telework up to two days per week for up to a total of 22 hours but denied additional telework because the essential functions of her Executive Assistant position could not be performed exclusively by telework. As an Executive Assistant, Complainant’s duties involved direct administrative and executive support to the Chief Judge and the Deputy Chief Judge who worked in the office on campus. Complainant was responsible for: receiving high-level visitors; screening phone calls; maintaining records and files; securing resources such as conference rooms, supplies, and equipment; receiving and reviewing incoming correspondence; making credit card purchases; and arranging travel. Complainant was also TTAB’s primary purchase card holder that must be stored in a locked drawer on campus. 2020000989 5 In October 2018, Complainant requested reassignment to another position as an accommodation. After its search, on November 30, 2018, the Agency offered Complainant a Trademark Information Specialist, GS-11 position which would provide her fulltime telework. However, Complainant turned it down because its core hours were not flexible, i.e., 8:30 am - 5 pm, Monday through Friday. The Agency indicated that there was no further vacant, funded position which would be suitable for Complainant. We find that Complainant was not denied a reasonable accommodation. Complainant was granted some telework but was unable to perform the essential functions of her position by full time telework. After a review of the record, we find that Complainant failed to show that she was denied a reasonable accommodation or that any Agency actions were motivated by discrimination. Further, we find that Complainant failed to show that Agency management’s reasons for its actions were pretext for unlawful discrimination. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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 animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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). 2020000989 6 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. The court has the sole discretion to grant or deny these types of requests. 2020000989 7 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 June 9, 2021 Date