[Redacted], Gwendolyn G., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2021000463 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gwendolyn G.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2021000463 Hearing Nos. 570-2019-00928X 570-2019-01527X Agency Nos. HHS-OS-0063-2018 HHS-OS-0020-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s (AJ’s) September 30, 2020 decision which effectively became the Agency’s final action2 concerning the two formal complaints that claimed unlawful 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.3 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 Pursuant to 29 C.F.R. § 1614.110(a), where, as here, the Agency does not issue a final order within the prescribed timeframe, the EEOC Administrative Judge’s decision becomes the Agency’s final action. 3 On May 1, 2020, the EEOC Administrative Judge granted Complainant’s motion to consolidate her two formal complaints. 2021000463 2 BACKGROUND During the period at issue, Complainant worked as a Process Improvement Specialist and Master Black Belt, GS-14, at the Agency’s Office of Assistant Secretary for Preparedness and Response in Charleston, South Carolina. On September 28, 2018 and March 28, 2019, respectively, Complainant filed two formal complaints claiming that the Agency discriminated against her based on race/national origin4 (African American), sex (female), disability and in reprisal for prior protected EEO activity (in 2016 and 2017) when: 1. On or around June 2018 and continuing, management failed to take part in the interactive process regarding her request for a reasonable accommodation for her disability. 2. On August 6, 2018, Complainant was denied a request for a reasonable accommodation and instructed to provide more medical documentation or be charged as Absent Without Leave (“AWOL”) by the Branch Chief, Organizational Effectiveness Branch. 3. On a continuing basis since 2015, Complainant has been harassed by the Executive Officer which has negatively impacted her career as evidenced by the following incidents: a. In the spring of 2018, the Executive encouraged the Chief of Staff not to respond to Complainant’s information and ideas about possible reassignments under the realignment; and b. In May 2018, the Executive Officer denied Complainant’s training request. 4. On or about October 21, 2018, Complainant was subjected to harassment and retaliation when her reasonable accommodation request was deliberately delayed which exacerbated her medical disability (untimely reasonable accommodation determination). 5. On or around November 2018, and continuing, she was charged with being AWOL. 6. On November 19, 2018, management denied her second request for reasonable accommodation. 4 In her affidavit during the investigation of her complaint, Complainant withdrew national origin as a basis. 2021000463 3 7. On November 19, 2018, management did not engage in the interactive process for her reasonable accommodation request. 8. On February 1, 2019, management denied her request for reconsideration of a request for reasonable accommodation. After its investigation, the Agency provided Complainant with a copy of the report 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 Summary Judgment. Complainant responded to the motion. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Complainant stated that she was diagnosed with Major Depressive Disorder in 2016 and noted the condition was expected to last for six months to a year. She related, however, that the condition resurfaced in June 2018. Complainant, however, indicated that the condition did not significantly impair her overall ability to work. Prior to the events at issue, Complainant was permitted to work a 50% telework schedule where she teleworked one week from her home in South Carolina and worked the next week from the Washington, D.C. office. In or around June 15, 2018, Complainant submitted a reasonable accommodation request to change her schedule to allow her to telework 100% of the time. She requested the accommodation “due to a hostile and intimidating work environment.” Complainant’s reasonable accommodation request was submitted to the Federal Occupational Health Service (“FOH”), and on July 31, 2018, FOH provided its review to the Agency. FOH concluded that, “[w]ith respect to work [Complainant] is not able to interact with other individuals in her current assignment but does not appear to be otherwise impaired.” According to Complainant’s physician, Complainant was able to perform her duties, but she needs to be outside of her work environment. FOH explained that “her limitation is not being able to work in her current office. There is no medical documentation of a substantial limitation on her working in other environments.” Moreover, FOH recommended resolving the matter outside the reasonable accommodation process. 2021000463 4 Complainant’s first level supervisor (“S1”) (Caucasian, female) at the time asserted she was the decision-maker concerning Complainant’s reasonable accommodation request. However, she stated that she had just become Complainant’s supervisor and had never even met her. She was unable to talk to Complainant about the matter because Complainant was on an extended leave and “when an employee is on leave, a supervisor is not allowed to contact an employee.” On August 6, 2018, S1 denied Complainant’s reasonable accommodation request. S1 explained she did so because FOH determined Complainant’s medical condition did not appear to significantly impair her overall ability to work, and Complainant’s job duties precluded her from full-time telework. She asserted that Complainant’s position required her to interact with and train many individuals, some of whom were high-level employees in the Agency, which had to occur in the office in Washington. S1 said she did offer, and Complainant accepted, more time off using Family & Medical Leave Act (FMLA) leave and leave without pay. S1 acknowledged asking Complainant to provide additional medical information but clarified that she did so as it related to Complainant’s FMLA leave, not Complainant’s accommodation request. She also said she offered to provide assistance to resolve Complainant’s concerns regarding her interpersonal relationships with her co-workers through counseling, the Employee Assistance Program (“EAP”) or mediation services. Complainant was approved for 144 hours of FMLA, which she used beginning July 2018. As of August 9, 2018, Complainant had used 160 hours of FMLA, and indicated she required additional leave through September 21, 2018. S1 requested additional medical documentation to support this request with a due date of August 24, 2018. On September 13, 2018, Complainant was approved to use a total of 480 hours of FMLA in any one twelve-month period. Complainant was reminded that she had already used 416 hours of FMLA. Complainant was approved for LWOP until November 9, 2018 for absences which exceeded her 480 hours FMLA entitlement. In total, Complainant was approved for a total of 800 hours of leave, including 480 FMLA hours and 320 LWOP hours. On October 26, 2018, Complainant emailed S1 a doctor’s note which stated, “Please extend FMLA an additional 3 months.” On November 7, 2018, S1 advised Complainant that she had exhausted the maximum number of hours under FMLA for a twelve month-calendar period and that this doctor’s note was not administratively acceptable for her continued request for LWOP. S1 instructed Complainant to submit updated medical documentation by November 21, 2018. S1 stated if she did not do so, she was required to report to duty on November 26, 2018. Complainant did not submit the requested medical documentation. Beginning on November 26, 2018, S1 charged Complainant as AWOL because she did not provide medical documentation to support her leave and did not report to work. On September 21, 2018, Complainant submitted a new accommodation request, again asking for 100% telework and a reassignment. Her request was forwarded to FOH for review. 2021000463 5 Complainant also submitted medical documentation from her physician who indicated stated that Complainant had difficulty managing interpersonal interactions with co-workers, and “due to recent conflicts in the workplace, the patient feels very easily overwhelmed and anxious about going to the workplace.” After a review of Complainant’s request, FOH concluded that her limitations related only to interacting and working with her colleagues in her current office environment. FOH also recommended that Complainant be offered counseling services or EAP to assist in resolving the interpersonal conflicts. On November 19, 2018, S1 denied Complainant’s request based on the FOH medical review. Thereafter, Complainant requested reconsideration of the denial on November 27, 2018. On January 24, 2019, FOH provided their review of Complainant’s request to Agency’s Reasonable Accommodation Specialist indicating their opinion remained unchanged. Based on this opinion, on February 1, 2019, S1 denied Complainant’s request for reconsideration. The unrebutted evidence developed during the investigation of the complaint indicates that Agency officials promptly processed Complainant’s reasonable accommodation requests and, while interaction was hampered by the fact that Complainant was out on extended approved leave, they invited her to provide new information for consideration. Complainant submitted information, including doctor’s notes, relating to her requests which seem to amount to a request to remove her from an undesirable workplace. Management had the request reviewed by medical experts at FOH who opined that Complainant’s disability did not impact her performance of the essential functions of her position. Rather, it appeared that Complainant was having interpersonal conflicts with coworkers that could be resolved outside the accommodation process. Based on this advice, we agree with the AJ’s conclusion that management was reasonable in its denial of her request for 100% telework and a reassignment. See Donna S. v. Dep’t of Defense, EEOC Appeal No. 0120160652 (May 16, 2018) (a request for a reassignment to a new supervisor does not constitute a reasonable accommodation request). There is no evidence to support a finding that Complainant needed these particular accommodations in order to perform the essential functions of her position. Instead, management offered Complainant alternative accommodations, including approving many months of leave using FMLA and LWOP after her accrued leave was exhausted, as well as offering to provide assistance in resolving Complainant’s concerns regarding her interpersonal relationships with her co-workers through counseling, EAP, or mediation services. We affirm the AJ’s conclusion that the evidence of record did not support Complainant’s claim that the Agency failed to provide her with needed accommodations in violation of the Rehabilitation Act. Harassment/Hostile Work Environment To prove her harassment/hostile work environment claim, 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 bases - in this case, her race, sex, disability or prior EEO activity. 2021000463 6 Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). In addition to the issues already discussed in this decision, Complainant also asserted that on January 31, 2018, the Chief, Decision Analytics Branch informed the team that the Branch had a budget of $10,000 for the full team for training that year. Complainant requested three trainings, totaling over $10,000. The Chief initially informed Complainant he would approve her requested Change Management course. This training was estimated to cost $5,000 plus $1,200 in travel costs. However, on May 21, 2018, the Chief informed Complainant that her training request was denied due to high costs in relation to the total budget. Beyond her bare speculation, Complainant produced no evidence that this decision was based on discriminatory factors rather than budgetary concerns. In sum, the evidence fully supports the AJ’s determination that there was simply no evidence that discriminatory or retaliatory animus played a role in the disputed actions. Her claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, we AFFIRM the Agency’s final action, which was the AJ’s decision finding no discrimination. 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. 2021000463 7 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. 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. 2021000463 8 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 21, 2022 Date