[Redacted], Gala B., 1 Complainant,v.Deb Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 23, 2021

Appeal No. 2020002943 (E.E.O.C. Mar. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gala B.,1 Complainant, v. Deb Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020002943 Hearing Nos. 550-2019-00483X 550-2018-00407X 550-2017-00131X 550-2017-00446X Agency Nos. NPS-18-0559 NPS-17-0483 NPS-16-0194 NPS-16-0434 DECISION On March 10, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 25, 2020, final order 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., 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, we AFFIRM the Agency’s final order. 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. 2020002943 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Personnel Security Assistant, GS-0203-07, at the Agency’s Alaska Regional Office in Anchorage, Alaska. On February 12, 2016; August 17, 2016; November 2, 2017; and September 21, 2018, Complaint filed formal complaints alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (physical), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights. Following several amendments, the Agency accepted the following claims for investigation. Agency No. NPS-16-0194, filed February 12, 2016 Whether Complainant was discriminated against because of her physical disability (dysphonia) and subjected to reprisal when: 1. On January 25, 2016, Complainant was informed that her request for a reconsideration of her 2015 annual appraisal was rejected. NPS-16-0434, filed August 17, 2016 Whether Complainant was subjected to harassment and discrimination on the bases of disability (dysphonia) and reprisal for prior protected EEO activity when: 1. On March 7, 2016, Complainant requested to use sick leave or telework, and her supervisor responded with an inappropriate comment; 2. On April 14, 2016, and June 10, 2016, Complainant’s supervisor told Complainant that she [Complainant] needed to check with him for approval prior to Complainant making her medical appointments; 3. On April 15, 2016, Complainant was accused of not doing her timecard; 4. On April 18, 2016, Complainant believed there was a breakdown in communication and she was chastised by her supervisor; 5. On May 16, 2016, Complainant requested to go to an appointment, and her supervisor asked her “what kind of appointment, hair or medical?”; 6. On June 1, 2016, Complainant’s supervisor charged her with additional duties which went against medical advice; 7. On June 28, 2016, and July 13, 2016, Complainant’s supervisor caused a delay in timesheet certification and pay; 8. On July 7, 2016, Complainant’s supervisor entered Complainant’s locked office when Complainant was absent, which Complainant viewed as another way her supervisor was trying to intimidate her; 9. On July 7, 2016, Complainant was refused the opportunity to see a medical specialist by the Employee Resources case manager, although she had an email from her doctor giving approval; and 2020002943 3 10. On July 12, 2016, after being approved to attend training, Complainant’s supervisor showed up and asked Complainant to leave the class. Whether Complainant was subjected to sexual harassment and discrimination on the bases of race (African-American) and reprisal when: 11. On March 29, 2016, Complainant’s supervisor touched Complainant inappropriately and made negative comments about her disability and race. Whether Complainant was discriminated against on the bases of disability and reprisal when: 12. On March 29, 2016, Complainant’s request for annual leave was denied; 13. On April 11, 2016, Complainant received a Letter of Warning; 14. On May 24, 2016, Complainant became aware that she was not selected for a GS- 07/12 position; and 15. On June 20, 2016, Complainant because aware that her desk audit had been delayed since August 24, 2015. Whether Complainant was discriminated against on the bases of disability and reprisal when: 16. On April 20, 2016; April 21, 2016; April 29, 2016; and June 10, 2016, she was denied a reasonable accommodation. Whether Complainant was subjected to harassment and discrimination on the bases of disability and reprisal when: 17. On May 19, 2016, Complainant’s reasonable accommodation (telework) was rescinded; 18. On June 29, 2016, and July 7, 2016, Complainant’s supervisor requested more documentation about her request for reasonable accommodation; and 19. On July 7, 2016, Complainant’s supervisor left a large stack of documents in Complainant’s chair, although Complainant was on light duty. Whether Complainant was subjected to reprisal when: 20. While Complainant was on leave without pay status, her office was stripped, and her personal items were rummaged through; 21. On February 6, 2017, Complainant requested leave, but received no reply. She followed up on February 10, 2017, and her supervisor requested information that was covered under the Health Insurance Portability and Accountability Act; 22. On January 24, 2017, Complainant was told she would soon receive her 2016 performance appraisal, but she had not received it by March 2017; 23. On February 10, 2017, Complainant’s supervisor put a sign on her door for her to use to indicate whether she was available; and 2020002943 4 24. On March 2, 2017, Complainant’s supervisor asked her why she was not using the availability sign and told her that she would receive disciplinary action if she did not use the sign. Agency No. NPS-17-0483, filed November 2, 2017 Whether Complainant was subjected to harassment and discrimination on the bases of race, disability, sex, and reprisal when: 1. As of April 13, 2017, Complainant’s supervisor failed to respond to her February 21, 2017, request for leave under the Family and Medical Leave Act; 2. In June 2017, Complainant’s medical documents were shared without her consent; 3. On June 7, 2017, Complainant’s supervisor addressed her adjudication request in a defensive and condescending tone; 4. On April 25, 2017, Complainant’s supervisor instructed Complainant to use annual leave after previously agreeing to allow her to switch her regular day off to attend a mandatory meeting; and 5. On September 27, 2017, Complainant’s supervisor issued her a proposed suspension. Agency No. NPS-18-0559, filed September 21, 2018 Whether Complainant was subjected to harassment and discrimination on the bases of race, sex, age, disability, and reprisal when: 1. On June 11, 2018, Complainant’s supervisor directed her to remain at a meeting despite Complainant wanting to end the meeting; 2. On June 14, 2018, Complainant’s supervisor instructed her to meet with him in his office after he used a Sharpie despite knowing she is allergic to Sharpies; 3. On October 4, 2018, the Agency failed to grant a reasonable accommodation for Complainant to attend a training class; 4. On October 19, 2018, Complainant’s supervisor postponed her travel to attend a training class; 5. On November 23, 2018, the Agency failed to submit documentation for Complainant to receive payment from the Office of Workers’ Compensation Programs. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing The AJ subsequently issued a decision by summary judgment in favor of the Agency. On February 25, 2020, the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2020002943 5 The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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 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. 2020002943 6 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. 2020002943 7 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 March 23, 2021 Date