[Redacted], Jazmine F., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2021003863 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jazmine F.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021003863 Hearing No. 531-2014-00423X Agency No. 63-2013-00214 DECISION On June 23, 2021, 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 May 25, 2021, final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Statistician, GS- 1530-13, in the Agency’s Population Division at the Agency’s Headquarters in Washington, D.C. On December 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on her disability (severe migraines) and reprisal (prior protected EEO activity) when: (1) beginning in June 2013, the Branch Chief (S1), and the Agency's Diversity and Inclusion Office (DIO) repeatedly 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. 2021003863 2 delayed or denied her requests for reasonable accommodation, which entailed teleworking the maximum number of allowable days per pay period (four days); (2) in May 2013, S1 forced her to use leave that she had earned through an incentive award, rather than granting her request(s) for sick leave; (3) in or around mid-November 2013, she was granted 20 hours of advanced sick leave, rather than the 104 hours of advanced sick leave she had requested; (4) since she initiated the EEO process, S1 and the Assistant District Chief (S2) have scrutinized her behavior with constant emails, telephone calls, and disciplinary threats, criticizing every task she performs; and (5) she received a "Level 3" or “minimally acceptable” rating on her annual performance rating for Fiscal Year 2013 with no warning.2 At the conclusion of the 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 her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. The instant appeal followed. FACTUAL BACKGROUND Claim 1 - Reasonable Accommodation On or around May 16, 2013, Complainant first contacted the DIO seeking information about requesting an accommodation. Complainant initiated a formal request for an accommodation on June 4, 2013 by submitting a completed request form and an unsigned and undated doctor’s letter (RAR1). Complainant subsequently provided a Request for Medical Information (RMI) form with information from her treating medical provider, signed and dated May 30, 2013. The signed and dated RMI form from Complainant’s medical provider (P1) recommended that Complainant be allowed to telework two days per week, with no more than two days per week on-site, as well as one day off per week. On June 11, 2013, the DIO notified S1 that Complainant had requested an accommodation consisting of telework. On June 27, 2013, S1 emailed the DIO to follow up on the request. On July 2, 2013, the Reasonable Accommodation Coordinator within the DIO (RAC) met with S1 and S2 to discuss the essential functions of Complainant’s position, and the effect of telework on Complainant’s ability to complete those functions. RAC, another DIO representative and a representative from the Employee Relations Branch met again with S1 and S2 on July 24, 2013, to discuss the accommodation request. On July 25, 2013, RAC sent S1 a draft of the accommodation approval letter for review. On July 31, 2013, S1 emailed RAC with questions related to how the accommodation would be administered. 2 The Agency initially dismissed three additional claims. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. The Commission will, however, consider these claims as background evidence in support of Complainant’s hostile work environment claim. 2021003863 3 On August 9, 2013, RAC responded in detail to S1’s questions on the administration of Complainant’s accommodation. On August 12, 2013, S1 notified RAC that both she and S2 approved of the accommodation letter. An accommodation approval letter was issued to Complainant on August 13, 2013. On August 12, 2013, Complainant’s requested accommodation was approved in full which included maintaining a 4/10 work schedule with two telework days per week, with no more than two on-site days per week, and one day off per week, as well as restricting her on-site days to two consecutive days per week. The record shows that during the period between June 4, 2013 and August 12, 2013 when management evaluated Complainant’s request and engaged in the interactive process to determine an appropriate and effective accommodation, Complainant was permitted to use at least 133 hours of leave in various forms. The record also shows that Complainant was permitted to telework approximately 157 hours during that period. The undisputed record further shows that of the 400 work hours between June 4, 2013 and August 12, 2013, Complainant recorded 110 hours in which she reported to her duty station, amounting to approximately one quarter of her time. On or around August 27, 2013, Complainant submitted an additional RMI form from P1, constituting a second request for accommodation (RAR2) due to an exacerbation of Complainant’s condition. In this second accommodation request, P1 recommended six days per pay period of telework, as well as a flexible schedule to accommodate Complainant’s treatments and doctor’s appointments. On August 30, 2013, RAC notified S1 that Complainant had requested another accommodation. On September 5, 2013, S1 advised RAC that she would like to meet to discuss the new request. RAC asserted that she advised S1 that DIO had additional questions regarding RAR2 and that she would contact S1 once they were answered. On September 6, 2013, RAC emailed Complainant to set up a meeting to discuss the additional questions. On September 19, 2013, Complainant provided a medical letter from a second medical professional which reiterated P1’s recommendations for six telework days per pay period, and a flexible schedule. On October 1, 2013, the Federal government experienced a shutdown, lasting until October 17, 2013. On or before November 6, 2013, RAC contacted the Agency’s contract doctor (P3) regarding the sufficiency of Complainant’s medical documentation pertaining to RAR2. P3 indicated that the documentation medically justified the requested accommodation. A November 7, 2013 email reveals that RAC was in contact with the Chief of the Budget Division regarding the RAR2. The documentary record establishes that the Agency had been discussing RAR2 with Complainant’s union representatives (U1 and U2) for a period of time. The record establishes that on November 14, 2013, U1 agreed with management’s proposed accommodation. On November 14, 2013, DIO communicated approval of RAR2, in full, which allowed Complainant to telework fulltime, with the requirement that she report to the office when her presence was necessary for presentations, meetings, training, or other matters. The accommodation also allowed flexibility of Complainant’s schedule within core hours. 2021003863 4 On November 26, 2013, the Agency accepted Complainant’s application into the leave donor program so that other employees could donate their leave for Complainant’s use. Between the date of Complainant’s second request for an accommodation (August 27, 2013) and the date of approval (November 14, 2013), Complainant was approved for 119 hours of various forms of leave and teleworked 156 hours. Of the 360 total work hours during the period, Complainant reported to her duty station 80 of those hours (i.e., less than a quarter of the time). Claims 2 & 3 - Leave Issues On or around May 3, 2013, Complainant requested six hours of advanced sick leave for treatment. The record shows that S1 asked Complainant to use her accrued leave before granting advanced sick leave. S2 testified that this was Division policy for all employees. According to S2, on May 29, 2013, she advised Complainant that each request for advanced sick leave was anonymously discussed and handled at a weekly Assistant Division Chief meeting to ensure consistency among the branches in the Population Division. According to S2, on or about November 19, 2013, Complainant requested an additional 130 hours of advanced sick leave. S2 asserted that Complainant was granted 20 hours of advanced sick leave on or about November 20, 2013, in order to stay consistent with what had been granted to other employees in the Population Division. S2 noted that at the time, the request for advanced leave was not connected to any reasonable accommodation request. However, in early December 2013, after the DIO and Agency executive staff got involved in Complainant’s request for advanced sick leave, the decision was made to grant an additional 104 hours of advanced sick leave to Complainant. The record shows that during the period in which Complainant first requested advanced sick leave until she was granted 104 hours of advanced sick leave, she was permitted to use a combination of various forms of leave and Family and Medical Leave Act- protected leave in the amount of approximately 401 hours, not including the 20-hour grant of advanced sick leave from November 20, 2013. Claim 4 - Harassing Emails, Telephone Calls, and Disciplinary Threats S1 testified that the allegations raised in Claim 4 are not true or accurate. Specifically, S1 stated that in 2013, she had to communicate with Complainant about various aspects Complainant’s performance and/or behavior during the year, but it had nothing to do with Complainant’s EEO activity. S1 further asserted that many of the incidents she spoke to Complainant about occurred prior to her knowledge of Complainant’s EEO activity which occurred on August 12, 2013. S2 testified that she was not present when most of the alleged incidents occurred so she could not comment on them. However, S2 stated that she believes S1 was justified bringing certain concerns to Complainant’s attention. 2021003863 5 Claim 5 - Performance Rating Level 3 or Minimally Acceptable S1 asserted that Complainant received a Level 3 rating for Fiscal Year (FY) 2013, which was a decrease from the Level 4 rating she received for FY 2012. S1 noted that she counseled Complainant verbally during the year about concerns she had with Complainant’s performance in two of her performance elements, so the lower rating should not have come as a surprise. S2 affirmed that she was the approving official for Complainant’s rating for FY 2013. S2 further asserted that Complainant’s work during the rating period was inconsistent. She explained that Complainant’s performance started strong and became weaker as the rating period went on. S2 further testified that there was a decrease in the quality and timeliness of Complainant’s work and there were also some concerns about her communication about work projects. S2 stated that this resulted in S1 having to take over some of Complainant's projects in order to bring them to a close and to meet deadlines. S2 asserted that Complainant’s work was a consistent Level 3 performance, which is an acceptable level of work. 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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”). Claim 1 - Reasonable Accommodation Under the Commission's regulations, an Agency is required to make reasonable accommodation 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. A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which she needs a reasonable accommodation. Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. 2021003863 6 After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. It is undisputed that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act and that during the interactive process she provided the necessary medical documentation to support her requests for accommodation. The undisputed record establishes that within approximately two months from the initiation of RAR1, the Agency fully granted Complainant’s accommodation request. The undisputed record also establishes within 2.5 months from the initiation of RAR2, the Agency fully granted Complainant’s accommodation request. The parties dispute whether each accommodation was unduly delayed. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for a reasonable accommodation, relevant factors include: (1) the reason(s) for delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Enforcement Guidance on Reasonable Accommodation, Question 10, n. 38. Upon review of the record, we find that the two-month timeframe to review the medical documentation and resolve substantive and logistical questions raised by management with respect to both RAR1 and RAR23 was not unreasonable. While we agree with Complainant that the granting of paid or unpaid leave cannot replace a reasonable accommodation that allows an employee to remain on the job, the fact that Complainant was provided a combination of leave and telework during the interactive process adds support to the conclusion that the two-month delay was not unreasonable. Accordingly, we find that the Agency did not violate the Rehabilitation Act. 3 The two-and-a-half-month interactive process for RAR2 included a two-week government shutdown, over which the Agency had no control. 2021003863 7 Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). With respect to claims 2, 3 and 5, we find that management articulated legitimate, non- discriminatory/retaliatory reasons for their employment actions. Regarding claim 2, management followed Agency policy and requested that Complainant use her accrued leave to cover her absence. As to claim 3, Complainant’s first request for 130 hours of advanced sick leave was partially denied and she was granted 20 hours of advanced sick leave to be consistent with what was granted to other division employees. Complainant’s second request for 104 hours was originally denied again for the same reason; however, it was subsequently granted after discussions with DIO. With respect to claim 5, management officials confirmed that Complainant’s work during the rating period was inconsistent and declined as the rating period went on. There was a decrease in the quality and timeliness of Complainant’s work and there were also some concerns about her communication regarding work projects. S1 noted that she counseled Complainant during the rating period about her concerns she had about Complainant’s work performance. Both S1 and S2 affirmed that Complainant’s work performance was consistent with the Level 3 rating she received. We also find that the preponderance of the record does not establish pretext or discriminatory/retaliatory animus on the part of any management official. Accordingly, we agree with the Agency and find insufficient evidence of unlawful discrimination or reprisal. Hostile Work Environment To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021003863 8 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the record evidence supports the Agency’s determination that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Rather, to the extent that the record supports a finding that the alleged conduct occurred, such incidents reflect common workplace disagreements between supervisors and subordinates that relate to managerial decisions and processes, including work schedule, leave and performance evaluations. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as to all claims alleged. 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. 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. 2021003863 9 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. 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. 2021003863 10 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 October 26, 2022 Date