[Redacted], Grace H., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Apr 6, 2022

Appeal No. 2021000452 (E.E.O.C. Apr. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grace H.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 2021000452 Agency No. DOI-BLM-17-0148 DECISION On October 22, 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 September 22, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND Complainant has worked almost thirty years of federal employment with various agencies in different seasonal, temporary, and permanent positions. In July 2015, the Agency hired Complainant in to work an Archeologist, Grade GS-9, in the Multiple Resource Program in the Agency’s Farmington Field Office in New Mexico. As a Schedule A hire, Complainant was subject to a two-year trial period before receiving permanent status. Complainant’s position had both field duties, such as mapping, in addition to office duties that included reviewing and generating site reports. 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 2021000452 Complainant’s first-line supervisor and performance rater was the Range Manager, Grade GS- 12. Complainant’s second-line supervisor was the Assistant Field Manager, Grade GS-13. Complainant’s third-line supervisor was the District Manager, Grade GS-14. Complainant was assigned a mentor/trainer who was a senior Archaeologist, Grade GS-11. In January 2016, upon her request, Complainant was assigned another mentor/trainer who was an Archaeologist, Grade GS-9. Among Complainant’s co-workers was a part-time Student/Intern, Grade GS-3. Effective January 11, 2017, the Agency terminated Complainant during her trial period for deficient work performance. On April 14, 2017, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against her based on disability (TBI, PTSD and Guillain-Barre Syndrome paralysis),2 age (58), and in reprisal for prior protected EEO activity (opposing harassment) when, from May 2015 until her probationary termination, Complainant’s direct supervisor, the Supervisory Natural Resource Specialist: 1. failed to provide Complainant with a reasonable accommodation for her disabilities; 2. issued Complainant an unfavorable Employee Performance Appraisal Plan (EPAP); 3. failed to provide Complainant with proper training; and 4. terminated Complainant during her probationary period on January 11, 2017. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew the request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was proven. The instant appeal followed. On appeal, through legal counsel, Complainant argues that the Agency failed to support Complainant’s performance and arbitrarily denied her requests for reasonable accommodation. Specifically, Complainant states that in early 2016, she had requested a GPS tablet in lieu of a hand-held GPS mapping device. Complainant asserted that the Agency’s “information security” reasoning for denying her request for a GPS tablet was disingenuous. Complainant states that Agency archaeologists in other offices used tablets for similar field work. Complainant maintains that the Agency could have resolved the security issue, but it declined to do so. Complainant also asserts that the Agency’s delays in responding 2 We presume for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 3 2021000452 to Complainant’s reasonable accommodation requests constituted additional wrongful denials. Complainant’s counsel further argues that Complainant had continuously requested written, step- by-step instructions for her review-writing and report-writing duties, but the Agency failed to do so in a manner that met Complainant’s needs. Complainant argues that she would have succeeded and would not have been terminated if she had received the more favorable mentorship and training provided to a the younger, non-disabled, Student-Intern, Grade GS-3. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). As an initial matter by withdrawing her request for a hearing, Complainant forfeited her opportunity for further development of the evidence that might have resolved any possible credibility issues in the record. Cristobal v. U.S. Postal Serv., EEOC Appeal No. 0120180756 (June 19, 2019) (finding that “by choosing not to request a hearing before an AJ, a complainant waives the opportunity to develop the record through discovery and to cross-examine witnesses”). We have reviewed the record in this case and find the investigation was adequate and permits a reasoned adjudication of Complainant’s claims. Claim 1: Denial of Reasonable Accommodations To establish that the Agency’s conduct violated the Rehabilitation Act, Complainant must show: (1) that she was an individual with a disability; (2) that she was a qualified individual with a disability; and (3) that the Agency failed to provide a reasonable accommodation. Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such 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). Agencies are required to make reasonable accommodation to the known physical or 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), (p). U.S. Airways, Inc. v. Barnett, 535 U.S. 391 at 402 (2002). It is undisputed that Complainant was an individual with physical and mental disabilities. The Agency determined that Complainant did not demonstrate that she could perform the duties of her position at the Farmington Field Office especially regarding written work products. 4 2021000452 The record discloses that Complainant had an acrimonious relationship with the Archaeologist who was originally assigned to be her mentor/trainer. In January 2016, Complainant emailed her supervisor, the Range Manager, and formally requested a training style that fit her disability. Specifically, Complainant reported that her original mentor/trainer had unreasonable expectations and that he chastised her in the presence of the entire office in a manner that left her in tears. As a result, on January 12, 2016, the Range Manager assigned another Archaeologist to be Complainant’s second mentor/trainer. Complainant expressed appreciation for the second mentor/trainer for being more patient and kind to her. In response to Complainant’s requests for reasonable accommodation, the Agency directed Complainant to provide medical documentation to support her reasonable accommodation request. In March 2016, Complainant provided doctor’s examination notes. The Agency requested more specific and detailed medical recommendations tailored to her needs at work. In April 2016, Complainant provided a letter from her physician that recommended the Agency provide Complainant a work environment that was calm, predictable and to allow her the space to learn and process information. In addition to assigning her a new mentor, the Agency authorized Complainant to use a walking stick in the field, provided her a footstool, helped her adjust her keyboard and provided opportunities for her to take online classes. Complainant was also offered a different office cubicle in a quieter area, but Complainant declined this offer. Between May 2016 and August 2016, Complainant requested a tablet in lieu of the GPS hand- held device that had been provided for her field work. In November 2016, a human resources specialist for the Agency’s New Mexico State Office began an inquiry into acquiring such a tablet. In an email to the Range Manager, dated December 2016, the Agency’s New Mexico State Office GIS expert explained that providing Complainant a GPS tablet device would require purchasing software to improve accuracy and obtaining a low risk security determination in order to use the tablet (as opposed to the hand-held device originally provided) for archaeological data. The second mentor/trainer explained the reason for denying Complainant’s request for a GPS tablet was due to the sensitive nature of security of the cultural data under the National Historic Preservation Act. In other words, because Complainant’s archeological field work covered areas of cultural sensitivity, procuring a GPS tablet for Complainant created information security risks. In his sworn statement the Range Master further justified his rationale in denying Complainant’s request for a tablet: [Complainant’s] ability to use a tablet or [the hand-held device] was not having any effect or bearing on her ability to write reviews and reports without error. The Range Manager testified that the majority of Complainant’s work in 2016 consisted of writing reviews and cultural reports. The Range Manager and other Agency witnesses stated that despite multiple efforts to create a conducive environment for Complainant, her work still often contained an unacceptable amounts of critical errors. The record showed that Complainant struggled with saving her work and making corrections in tracked changes. 5 2021000452 Based on the foregoing, we find that the Agency genuinely engaged in an interactive process with Complainant in order to provide her a reasonable accommodation. Ultimately, even with accommodations, Complainant failed to satisfy the individual qualifications for successful performance of her duties of her trial position within the Farmington Field Office. Claims 2, 3 and 4: Disparate Treatment and Hostile Work Environment / Harassment We consider Complainant’s claims in the context of disparate treatment discrimination. We applied the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination - that a prohibited consideration Complainant’s disability, age, or EEO-protected activity unlawfully factored in an Agency's employment action decisions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden 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 (1981). If the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). We dispense of the prima facie case, where the Agency articulates legitimate and nondiscriminatory explanations for its actions; then our analysis proceeds directly to whether Complainant demonstrated with preponderant evidence, that any of the Agency's actions were discriminatorily motivated. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). As discussed below, the Agency has articulated justifications for the adverse actions Complainant has alleged to be discriminatory. Regarding Claim 2, the record contains sufficient evidence to support the Agency rating Complainant’s performance unsatisfactory on her Employee Performance Appraisal Plan (EPAP). As the second mentor/trainer explained: “[Complainant] failed to correct errors identified in her work without multiple reviews, repeated the same errors identified previously in reviews of her work, could not work independently, would not utilize training resources presented to her, and did not appear to have the skills as presented in her resume.” Through her chain-of command, Complainant formally rebutted the Range Manager's unsatisfactory rating on her EPAP. Complainant’s Unsatisfactory rating on the EPAP was upheld by the District Manager who concluded that Complainant's work did not meet expectations for a GS-9 Archaeologist despite approximately 18 months in the position. One of the reasons, the Range Manager had rated Complainant unsatisfactory was because of Complainant’s failure to proofread written reports and reviews before turning them in. The District Manager also noted that Complainant had failed to correct grammatical errors in her rebuttal of the EPAP. Regarding Claim 3, the record does not support Complainant’s claim that she was denied the supportive training that was provided to the Student/Intern. Moreover, we find that the Student/Intern based on pay grade and level of expectations, the Student/Intern was not a proper comparator. 6 2021000452 Throughout Complainant’s employment at the Farmington Field Office, the Agency made a concerted effort to provide Complainant on-the-job training. In his sworn statement, Complainant’s second mentor/trainer described his efforts to provide Complainant with clear instructions and templates to help her meet the standards for her work products. In support of this statement, the second mentor/trainer listed a list cataloguing over three-dozen email strings in which Complainant received guidance, instructions, templates, corrections and answers to her questions. We further find that Complainant was not denied the opportunity to take an in-residence GIS class at a local college. Instead, the Range Manager had explained that the Agency could not fund such classes and that the particular class was not required. In any event, Complainant stated that she did, at some point, complete the in-residence GIS class on her own time, using her own resources. Regarding Claim 4, the Agency based its determination to issue Complainant a termination prior to completion of her trial period on deficient work products. On May 11, 2016, Complainant turned in a Record of Review. Even after Complainant's revisions, on May 19, 2016, Complainant's second mentor/trainer still found an unacceptable number of errors requiring correction. On June 6, 2016, Complainant again turned in a review project that contained an unacceptable amount of errors. Despite other verbal counsellings in July 2016 and August 2016, Complainant continued to submit her written work products with too many errors. The Range Manager emphasized that the errors were more writing as opposed to mapping ones. In sum, we find that the Complainant’s termination was appropriate based on her failure to improve in writing reviews and reports. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant's disability and age or based on retaliation. We additionally considered Complainant’s claims in the context of harassment/hostile work environment. To prevail, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her age, disability or her EEO-protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Even if Complainant were able to establish hostility, Complainant’s harassment claims are precluded upon our previous findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. Oakley v. U.S. Postal Serv., EEOC Appeal No. 019982923 (Sept. 21, 2000). 7 2021000452 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination or unlawful retaliation. 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. 8 2021000452 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. 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 April 6, 2022 Date