U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glinda M.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2019005971 Hearing No. 490-2017-00072X Agency No. HS-FEMA-24540-2015 DECISION On August 29, 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 July 30, 2019, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as an Information Management Group Supervisor, AD-301-D3, at the Agency’s Field Office in Little Rock, Arkansas. In an EEO complaint filed on September 15, 2015, Complainant alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of disability (Arthritis, Back Condition) and in reprisal for prior protected EEO activity when: 1. From June 30, 2015 until on or about July 27, 2015, after numerous attempts to have an ergonomic chair supplied to her as a reasonable accommodation, the 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. 2019005971 2 accommodation was not supplied in a timely manner, and no one would assist her in having the request filled; 2. On or about July 17 and 18, 2015, the Disability Integration Specialist informed her there was meeting in which her medical condition and reasonable accommodation, were disclosed and discussed, without her consent. She claims that the Disability Integration Specialist told her about the meeting after he realized that the discussion was about her; 3. On or about July 21, 2015, the Individual Assistance Branch Director failed to give her a reason why her reasonable accommodation request was not yet granted. Furthermore, she states in the same conversation, the Individual Assistance Branch Director told her she would not be paid for her overtime hours because the Arkansas Joint Field Office (JFO) did not pay overtime.; 4. On or about July 24, 2015, the Equal Rights Advisor (ERA) told her that she was being unfair when she called to get an update on her reasonable accommodation request; 5. On or about July 27, 2015, she contacted an ERA to tell him her reasonable accommodation had not yet been granted. However, she claims that he would not take time to speak with her because he was being demobilized to the Emergency Management Institute (EMI); 6. On July 27, 2015, Complainant received an unsatisfactory performance appraisal; and 7. On August 21, 2015, Complainant learned that she would not be reimbursed for her travel home from deployment.2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 2, 2018 motion for summary judgment and issued a decision without a hearing on June 20, 2019, finding that Complainant was not subjected to discrimination or reprisal. The Agency subsequently issued a final order fully adopting the AJ’s decision. According to the Regional Disability Integration Specialist (IS) and the Individual Assistance Branch Director (BD), Complainant had been deployed to Arkansas between July 1 and July 27, 2015. 2 The Commission has reordered Complainant's claims into chronological order for ease of reference. 2019005971 3 The BD was Complainant’s immediate supervisor during the deployment. Complainant’s duties during the deployment included: providing the branch with individual assistance daily summary reports; preparing weekly situation reports; maintaining files for the event that resulted in the deployment. IR 91, 93, 100-02. Incident (1): Complainant testified that she had been diagnosed with Lumbar Spinal Stenosis and Rheumatoid Arthritis, and that she had had these conditions for close to 20 years. She admitted that while her condition did not prevent her from performing any major life activities, she no longer played sports and weather changes affect her at times. She stated that on July 15, 2015, her reasonable accommodation request was granted for her deployment to Arkansas from July 1 through July 27, 2015. The accommodation in question was an ergonomic chair with lumbar back support. The BD averred that the chair had arrived on July 23, 2015. IR 74-78, 103-05; Transcript of Oral Deposition taken on May 29, 2018 (DT) 30-31. Incident (2): Complainant claimed that on July 22, 2015, she was informed by the IS that a meeting had been held on July 15, 2015 at which her medical condition and accommodation request were discussed, which resulted in everyone involved in the deployment knowing about her condition. She characterized what had occurred as a breach of confidentiality with respect to her medical information. According to sworn statements made by the IS, the BD, an Equal Rights Officer (ERO), and the Deputy BD, the purpose of the meeting was to assess Complainant’s accommodation request, but her medical condition was not brought up. IR 79-80, 93-95, 100, 115- 16. Incident (3): Complainant alleged that on July 21, 2015, she asked the BD what was holding up the processing of her reasonable accommodation request, and that the BD failed to give her a reason why her reasonable accommodation request had not yet been processed. Complainant also claimed that the BD informed Complainant that the Arkansas JFO did not pay overtime. Complainant herself admitted, however, that the chair had arrived on July 23, 2015. As to overtime, the BD did not recall Complainant telling her that she had worked for more than eight hours. The BD also stated that the size of the event for which they were deployed did not warrant longer hours, that she did not have the authority to approve overtime requests, and that overtime decisions were made by the Federal Coordinating Officer. IR 73, 78, 105, 107-08, 117, 129-132; DT 36-37. Incidents (4) & (5): Complainant claimed that on July 23, 2015, she had contacted the ERA to inquiry about the status of her request for an ergonomic chair and that when the ERA got back to her the following day, the ERA told her that she was “not being fair.” Complainant further alleged that on July 27, 2015, the ERA would not take the time to speak with her about filing an EEO complaint because he, the ERA, was being “demobilized.” As previously noted, the chair had arrived on July 23, 2015. The ERA affirmed that he had never handled a request for an ergonomic chair for Complainant as a reasonable accommodation. As to Complainant’s request for information about filing an EEO complaint, the ERA stated that Complainant wanted him to inform her supervisor that she was not feeling well but he had declined her request. IR 72, 29, 84- 87; DT 37. 2019005971 4 Incident (6): Complainant claimed that on July 27, 2015, the BD had given her appraisal ratings of “unsatisfactory” on all of the elements comprising her performance plan for the deployment. IR 71. According to the BD, the reports submitted by Complainant were inaccurate and untimely, and had continued to remain so throughout the deployment, despite numerous notifications that her performance needed to improve. The BD averred that on one occasion Complainant told her, the BD, to do the reports herself. IR 108-111, 127, 134-136, 141, 147-148. Incident (7): Complainant alleged that on August 21, 2015, she became aware that she would not be reimbursed for her travel home from the Arkansas deployment. She maintained that she should have been paid the standard eight hours for travel. The BD claimed that she was not involved in approving her travel voucher and consequently had no knowledge of the matter. The BD stated that she had verified to the Human Resources Office that Complainant had checked out of the Arkansas event and was paid for her return trip home. IR 69, 112. ANALYSIS AND FINDINGS Standard of Review The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since the various named officials already articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incidents (1) and (3), Complainant had received the accommodation she had requested, the ergonomic chair, and according to the Federal Coordinating Officer, the 2019005971 5 Arkansas deployment was not large enough to justify overtime pay. With respect to incident (2), several participants in the meeting held on July 15, 2015 reported that although Complainant’s need for an accommodation had been discussed, her confidential medical information had not. As to incidents (4) and (5), the ERA stated that he had only declined Complainant’s request to tell the BD that she was not feeling well. Regarding incident (6), the BD based Complainant’s “unsatisfactory” rating during the deployment on her documented performance deficiencies, including inaccuracies and missed deadlines. Concerning incident (7), the BD stated that as far as she knew, Complainant had been reimbursed for her return trip expenses. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether the Agency's explanations for the incidents in question are pretexts for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that the BD and other officials were motivated by unlawful considerations of her medical condition and her initiation of the instant EEO complaint, Complainant replied that she had been denied other deployments, and that the BD and other officials had been made aware of her complaint. But when asked to identify employees to whom she could compare herself, Complainant admitted that she did not have an answer. IR 70, 72-73, 79. Beyond her own assertions however, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by the BD and other officials. Thus, we can find no basis to disturb the AJ’s findings and conclusions based on the evidentiary record before us. Hostile Work Environment 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 is likewise insufficient to raise a genuine issue of material fact. 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 raise a genuine issue of material fact as to whether 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). Denial of Reasonable Accommodation To the extent Complainant claims she was denied reasonable accommodation, the Commission notes that 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 2019005971 6 disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2 (o) and (p), Enforcement Guidance on Reasonable Accommodation; Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). We assume for purposes of this decision that Complainant is an individual with a disability. Here, the record establishes that Complainant arrived at JFO on June 30, 2015 and requested an ergonomic chair as an accommodation. Management officials believed that Complainant had an ergonomic chair while she was in Oklahoma and attempted to have it shipped to Arkansas; however, Complainant had left that assignment before the request could be fully processed. In the meantime, Complainant was given a chair with additional cushioning and support while an ergonomic chair was on order. By July 23, 2015, Complainant was provided the requested accommodation of an ergonomic chair. Complainant has presented no evidence that the provided accommodation was ineffective or that Agency officials otherwise delayed granting the requested accommodation. Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Unauthorized Disclosure of Confidential Medical Information Finally, the Commission notes that the Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record. 29 C.F.R. § 1630.14(c); Gianikos v. U.S. Postal Serv., EEOC Appeal No. 01A21992 (Oct. 16, 2003), req. for recon. den’d EEOC Request No. 05A40208 (Jan. 22. 2004). Again, Complainant has not provided any evidence apart from her own conclusory assertions which contradicted the sworn statements made by the officials who attended the July 15, 2015 meeting that Complainant’s confidential medical information had not been disclosed. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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. 2019005971 7 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). 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. 2019005971 8 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 December 17, 2020 Date
