[Redacted], Ellan C., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2020002000 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellan C.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2020002000 Agency No. HUD-00119-2018 DECISION On January 10, 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 December 19, 2019 final decision 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-13, at the Agency’s National Servicing Center (NSC) in Tulsa, Oklahoma. Notably, in 2016, Complainant worked at the Agency’s Housing Office in Philadelphia, Pennsylvania and requested transfer to Oklahoma City, Oklahoma, to be near her adult daughter for mutual familial support. On March 31, 2016, the Agency deemed Complainant eligible to receive noncompetitive consideration for reassignment and, in November 2016, it transferred Complainant from its Philadelphia office to a vacant position in its Tulsa NSC.2 On May 24, 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 Philadelphia, Pennsylvania, is approximately 1300 miles from Tulsa, Oklahoma. Tulsa, Oklahoma, is approximately 110 miles from Oklahoma City, Oklahoma. 2020002000 2 2018, Complainant requested an office transfer, effective September 10, 2018, from Tulsa to Oklahoma City, citing “ongoing stress” caused by a “hostile work environment.” Complainant stated that there was no alternative solution. Subsequently, on June 30, 2018, Complainant requested a transfer from Tulsa back to Philadelphia, citing hardship when her daughter relocated from Oklahoma City to Philadelphia. On October 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (high blood pressure and gastrointestinal issues), age (65), and reprisal for prior protected EEO activity (witness in 2019 EEO complaint of colleague) when: 1. on June 27, 2018, management delayed Complainant’s hardship transfer request, 2. September 27, 2017 to present, management failed to engage in interactive process or provide reasonable accommodation, 3. May 24, 2018 to present, management failed to address Complainant’s claim of hostile work environment harassment, and 4. on April 1, 2019, management placed Complainant on administrative leave.3 The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, Complainant stated, due to personal family hardship, she asked to be “out-stationed” to Philadelphia, Pennsylvania, to perform the same Management Analyst duties. Complainant stated that the Agency delayed processing her request and then, when it approved her request, stated that no vacancies were available. Complainant stated her initial request for transfer was on April 30, 2018. Complainant stated that she has developed hypertension and gastro-intestinal issues due to her stressful work environment and that her requested transfer would help relieve stress by allowing her to be near her family for support. Complainant stated that she made the request as one of hardship and reasonable accommodation.4 Further, Complainant alleged that a male coworker (C1) treated her poorly and spoke unkindly and unprofessionally to her. Complainant also stated that she was labeled a “troublemaker” in the workplace. Lastly, Complainant stated that she posted a non-threatening animated video on social media and referenced the workplace. The post was circulated in the office and management placed her on administrative leave. 3 Incident (4) was an amendment to Complainant’s October 2018 complaint. 4 Separately, Complainant stated, in December 2017, she requested a replacement ergonomic chair for chronic back pain because her original chair was broken in shipping from Philadelphia to Tulsa in 2016. Complainant stated that she also requested an adjustable work-station. However, in her denial of reasonable accommodation in the instant complaint, the focus is on Complainant’s request for reassignment/transfer. 2020002000 3 The Tulsa Supervisory Housing Program Director (S1) stated, since January 2018, she is aware that Complainant has chronic back pain and, since May 2018, is aware Complainant has hypertension. Complainant was approved for the hardship transfer program but there was no vacant position into which she wanted to transfer. Management believed that Complainant refashioned her hardship transfer request to one of reasonable accommodation once she learned there was no vacant position for her in Philadelphia. S1 stated that Complainant asked to move to Oklahoma City and then Philadelphia due to a hostile work environment and she informed Complainant that she could not approve a transfer because the work in their office is not done in any other office. Specifically, reverse mortgages are only handled at the Tulsa NSC. S1 stated that Complainant expressed concern about interacting with her coworkers, with one in particular - C1. S1 stated that she sought to help Complainant with alternative options to reduce stress, including adding telework days and relocating C1’s workstation. S1 stated that she placed Complainant on administrative leave due to “concerns of a potential threat to the health and safety of the office.” S1 stated that a Tulsa employee showed her a social media post by Complainant stating, “Me at work next week. Inside joke only for those that [know] me.” S1 stated that the post contained an animated video of a female character pointing her finger as if a gun at a male character who then grabbed his chest and fell backwards in the video. S1 stated that the female character then raised her index finger to her lips. S1 stated that she had to alert and consult the appropriate offices about next steps and placed Complainant on administrative leave. C1, the coworker, stated that he rarely speaks to Complainant outside of work-related issues. Further, C1 stated that Complainant never expressed concern of harassment to him, but she told colleagues she hates him. He stated that the animated video Complainant posted on social media was directed at him. The record shows C1 used to sit near Complainant, but S1 moved his workstation over a couple of aisles away from Complainant. In pertinent part, the investigative record contains a letter from Complainant’s daughter stating that she had to return to her hometown of Philadelphia unexpectedly and she and her mom need each other for support. It also contains an April 30, 2018 letter from Complainant’s doctor stating: [Complainant] recently came to my clinic for follow up of her elevated blood pressure that was recurrent since one month ago. Upon discussion it was clear that a stressful work environment, no ability to transfer to be closer to her daughter and sleeplessness was contributing factors. Home readings have improved since starting St. John’s wort for stress. It is noted that readings are much higher in the pm after work and better in the mornings. After discussion, she will continue with a healthy lifestyle, exercise and take supplements to help with stress but I would ask that you consider allowing her to transfer to Oklahoma City, to be closer to her family and have a less stressful environment at her work place that will help improve her blood pressure readings and further improve her health. 2020002000 4 At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. 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”). Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). 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 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, 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 Service, EEOC Appeal No. 01931005 (February 17, 1994). The gist of Complainant’s claim is that the Agency denied her request to move from its Tulsa office to another Agency office (Oklahoma City, then Philadelphia) based on hardship of being physically distant from her adult daughter. In this instance, her claim is not truly one of denial of reasonable accommodation. With that said, even if we assume, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to provide her reasonable accommodation. 2020002000 5 Complainant stated that she experienced hypertension and gastrointestinal issues due to workplace stress and needed to move physically closer to her daughter for emotional support. Complainant requested reassignment to Oklahoma City and then, shortly thereafter, Philadelphia. Management stated that it moved the workstation of the coworker Complainant cited as harassing, offered Complainant additional telework days, and sought to address the cause of Complainant’s stress. Complainant stated that reassignment to an Agency office near her daughter was the only solution. Complainant provided medical documentation stating that she presented with a month of high blood pressure readings, she had some success with homeopathic remedies in lowering her readings, other lifestyle changes might be helpful in reducing her stress, and transfer to an office closer to her family could be helpful. We find that it was not unreasonable for the Agency to attempt to address Complainant’s allegations of workplace stress with solutions other than reassignment. Reassignment is the accommodation of last resort. See Enforcement Guidance on Reasonable Accommodation. The Agency noted that the duties of Complainant’s Tulsa position were not performed elsewhere. Assuming Complainant was entitled to reasonable accommodation, she was not necessarily entitled to an accommodation of her choice. Castaneda, supra. Based on the circumstances present in the instant case, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. 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). Here, we find that Complainant failed to establish discriminatory harassment based on denial of reasonable accommodation, alleged actions by her coworkers and management, or placement on administrative leave. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on sex, age, disability, or reprisal. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. 2020002000 6 Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory 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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on sex, age, disability, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that it approved Complainant for hardship transfer but there was no available position Complainant would accept. The Agency stated that it could not approve a transfer for Complainant to perform the duties of her Tulsa Management Analyst position somewhere else. The Agency tried to work with Complainant to address her workplace stress including relocating the workstation of the coworker she complained about most, C1 and adding telework days. The Agency stated that it placed Complainant on administrative leave based on a social media post that was potentially threatening to staff and the workplace. We find that Complainant failed to show that the Agency’s actions were based on discriminatory motives. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 2020002000 7 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). 2020002000 8 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 30, 2021 Date