[Redacted], Hiroko V., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 6, 2021

Appeal No. 2019002317 (E.E.O.C. Dec. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hiroko V.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2021003931 Appeal No. 2019002317 Hearing No. 451-2017-0036X Agency No. ARFTSAM16JAN00156 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019002317 (May 24, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). BACKGROUND During the period at issue, Complainant worked as a Chemist, GS-09, at the Agency’s Brooke Army Medical Center in Fort Sam Houston, Texas. On March 3, 2016, and amended on August 9, 2016, Complainant filed an EEO complaint alleging the following two claims: 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 2021003931 Claim 1: The Agency discriminated against Complainant based on disability (severe facial flushing) when: a) On January 25, 2016, Complainant was not selected for a GS-1320-11 Chemist position. b) On January 12, 2016, Complainant was denied the reasonable accommodation of a phone interview for a GS-1320-11 Chemist position. c) On April 10, 2015, Complainant was not selected for a GS-1320-11 Chemist position. d) In January 2015, a management official denied Complainant the reasonable accommodation of a phone interview for a GS-1320-11 Chemist position. Claim 2: The Agency unlawfully retaliated against Complainant when: a) From February 5, 2016 to present (August 9, 2016) her reasonable accommodations were not provided. b) On July 16, 2016, Complainant was not selected for a GS-1320-11 Chemist position. 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 (AJ). Complainant timely requested a hearing. The AJ held a hearing on September 18, 2018 and issued a bench decision. Regarding claim 1(a), the AJ determined that Complainant was a highly qualified applicant, but that she could not demonstrate that her credentials were so plainly superior to the selectee’s that discrimination could be inferred. The AJ found that the interview process was central to the selection process and that the selecting officials determined that the selectee had performed very well during his interview and had the qualities they were seeking in an applicant. The AJ noted that, while Complainant did not get a chance to be interviewed by phone, she had declined to be interviewed when offered an alternative to a normal interview setting. Thus, the AJ found that the evidence did not support the assertion that pretext existed. Regarding claim 1(b), the AJ determined that Complainant was an individual with a disability as she had a skin condition with severe facial flushing that resulted in her need to avoid heat and claustrophobic situations, such as crowds. The AJ also determined that Complainant was a qualified individual with a disability as she was able to do her job with or without reasonable accommodation. 3 2021003931 The AJ further found that the Agency failed to provide a reasonable accommodation regarding Complainant’s request for a phone interview. The AJ found that these actions impeded access to the application process, and as such, Complainant had been denied a reasonable accommodation. In terms of liability for claim 1(b), the AJ found that Complainant was not entitled to compensatory damages because, even though the Agency denied her request for a phone interview, the Agency made a good faith effort to accommodate Complainant by offering to have the interview in a larger room. Thus, the AJ found that Complainant was not entitled to compensatory damages. The AJ, however, ordered the Agency to post a notice and to provide relevant training to Complainant’s supervisor (S1). Regarding claim 2(a), the AJ determined that Complainant was not denied a reasonable accommodation regarding this claim. The AJ acknowledged while there was a delay in processing Complainant’s reasonable accommodation request, this delay was due to the Disability Program Manager’s own medical diagnosis of a terminal condition. The AJ noted that during this period Complainant continued to use pre-existing accommodations. Regarding claim 2(b), the AJ determined that the record adequately compared the qualifications of the selectee to Complainant’s and found that she did not demonstrate that she was so better qualified than the selectee that discrimination could be inferred. Finally, the AJ dismissed claims 1(c) and 1(d) for untimely EEO Counselor contact reasoning that these events occurred in January and April 2015. On December 3, 2018, the Agency issued a final order fully implementing the AJ’s findings and order. Complainant appealed. Complainant raised various arguments that the AJ confused the circumstances of her 2015 and 2016 denial of a reasonable accommodations (phone interview) and non-selections and that she was entitled to compensatory damages. Complainant also reiterated that claims 1(c) and 1(d) should be deemed timely raised. In EEOC Appeal No. 2019002317 (May 24, 2021), we affirmed that Agency’s final order implementing the AJ’s decision. Complainant filed a request for reconsideration. Complainant reiterates various arguments made below. Complainant reiterates that the AJ and our initial appellate decision confused the circumstances surrounding her 2015 and 2016 denials of a phone interview and subsequent non- selections. Complainant asserts that the record reflects that an alternative accommodation to a phone interview was not offered to her for the 2016 claim. Complainant therefore asserts that she is entitled to compensatory damages. 4 2021003931 In addition, Complainant states that two Agency officials were involved in her denial of a reasonable accommodation (phone interview) with respect to claim 1(b), but the AJ and the initial appellate decision only ordered one Agency official to undergo training. Finally, Complainant reiterates that claims 1(c) and 1(d) were improperly dismissed for untimely EEO Counselor contact. ANALYSIS As an initial matter, we again affirm the dismissal of claim 1(c) and 1(d) for untimely EEO counselor contact. Our initial appellate decision properly reasoned that these incidents occurred in January and April 2015, but Complainant did not initiate EEO contact until January 2016. Moreover, “even if Complainant did not have evidence of discrimination, she had the opportunity to investigate the reason for her non-selection and to question the reasonable accommodation denial.” EEOC Appeal No. 2019002317. Regarding claim 1(b), denial of a reasonable accommodation (phone interview), Complainant asserts that the testimony regarding an alternative accommodation being offered was in reference to the 2015 reasonable accommodation request, and not the 2016 request set forth in claim 1(b).2 We acknowledge that the record contains hearing testimony from the Director of the Laboratory (D1) that she denied Complainant’s request for a phone interview in January 2016 and did not offer Complainant an alternative accommodation because Complainant then asserted that she should not have to be interviewed for the position at all (but rather considered based solely on her resume). Hearing Transcript (Hr’g Tr). at 38-39. The record, however, also contains testimony from the hearing from a different Agency official, Complainant’s supervisor, who was on the interview panel for the January 2016 position. Complainant supervisor sets forth, in her hearing testimony, that while she denied Complainant a phone interview for the 2016 position, she did discuss with Complainant an alternative accommodation in January 2016, similar to the one offered in 2015 (interview to be conducted in a larger conference room, etc.) Hr’g Tr. at 226-228, 261. Complainant’s supervisor asserts that Complainant declined this alternative for the January 2016 position. Hr’g Tr. at 228. We do not find this testimony to be in conflict with D1’s testimony because one Agency official (Complainant’s supervisor) could have discussed an alternative accommodation with Complainant, while D1 did not offer such an alternative after Complainant stated to D1 that she should not have to interview at all. Based on the foregoing and Complainant’s supervisor’s efforts to provide an alternative accommodation, we find that the Agency made a good faith effort to accommodate Complainant and the decisions below correctly determined that Complainant was not entitled to compensatory damages with respect to claim 1(b). 2 The record reflects that Complainant requested a phone interview for a position in 2015 but subsequently had a face-to-face interview in a room in which the lights were dimmed and she sat at a distance from the interview panel. 5 2021003931 Complainant asserts that the prior orders only refer to training for one Agency official with respect to the finding of a denial of a reasonable accommodation for claim 1(b). However, Complainant asserts that two Agency officials were involved in the denial of her reasonable accommodation for claim 1(b). We concur with Complainant that the record reflects (and as discussed above) that two Agency officials, Complainant’s supervisor and the Director of the Laboratory, were involved in this denial of a reasonable accommodation. Thus, we will modify the language in our Order to reflect that two agency officials were involved with this claim. Finally, we find that Complainant failed to establish reversible error in the previous decisions conclusion that no discrimination was established regarding the remaining claims. We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. However, we slightly modify the Order in EEOC Appeal No. 2019002317 as discussed above. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER To the extent it has not already done so, we ORDER the Agency to take the following actions regarding claim 1(b): 1. Within ninety (90) calendar days from the date this decision is issued, the Agency shall provide two (2) hours of training to the two responsible management officials with a focus on reasonable accommodation processing for managers. 2. Within sixty days (60) from the date this decision is issued, the Agency shall consider taking disciplinary action against the two responsible management officials. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 3. The Agency shall post a notice in accordance with the paragraph entitled “Posting Order.” The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation that the corrective action has been implemented. 6 2021003931 POSTING ORDER (G0617) The Agency is ordered to post at its Office of Food Analysis and Diagnostic Laboratory in Fort Sam Houston, Texas copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 7 2021003931 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 December 6, 2021 Date