U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joya Y.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021000342 Hearing No. 520-2019-00641X Agency No. HS-FEMA-01348-2018 DECISION On October 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 16, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Hazard Mitigation Assistant Specialist at the Agency’s FEMA Region I Office in Boston, Massachusetts. On April 17, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful retaliatory harassment based on her prior protected EEO activity when: 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. 2021000342 2 1. On January 31, 2018 and May 16, 2018, management rejected Complainant’s requests for reasonable accommodations. 2. On May 1, 2018, management ignored Complainant’s commendation. 3. On May 31, 2018, the Agency served Complainant with a termination notice and sent Complainant personnel documents with changes and whiteout applied in several places. 4. On May 31, 2018, management restricted Complainant from entering her hours into WebTA, resulting in those hours not accruing in her final pay period. 5. On June 1, 2018, management offered to withdraw the May 31, 2018 termination notice if Complainant chose to voluntary retire and recalled Complainant’s retirement documents without notifying her. 2 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 a decision without a hearing. Complainant did not submit her response to the motion. The AJ subsequently issued a decision by summary judgment finding no unlawful retaliation was established. The Agency issued its final order adopting the AJ’s summary judgment decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 2 During an April 16, 2020 Pre-Hearing Conference, the AJ granted the Agency’s March 16, 2020 motion to dismiss some of Complainant’s other allegations because they were not timely raised with an EEO counselor. In reaching this result, the AJ found these additional allegations involved different management officials and were not part of the same unlawful employment practice alleged in the timely counseled claims. In addition, the AJ dismissed allegations that predated March 16, 2011, pursuant to the terms of a settlement agreement signed by Complainant on that date. On appeal, Complainant has not expressly challenged these rulings so these matter will not be addressed further. 2021000342 3 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Reasonable Accommodation: Claim 1 While Complainant has only asserted a claim of unlawful retaliation, we will also address her denial of reasonable accommodation claim in asserted violation of the Rehabilitation Act. 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. The Commission will assume without deciding that Complainant is an individual with a disability. On November 6, 2017, Complainant had an on-the-job injury when she bumped her knee on a file cabinet under her desk. On January 3, 2018, Complainant requested an accommodation for her medical condition. Specifically, Complainant requested: Commute schedule revised: on days working in the Boston office to take the 2:30 bus from South Station to return to Worcester. When I arrive home, I put in the additional time to fill my hours Compressed Work Schedule (CWS). Due to my knee injury it is difficult walking up to Beacon Hill and would be rushing to get there in sufficient time for the 4:15 return bus. Telework days remain as is for the CWS. Complainant’s supervisor approved an interim reasonable accommodation on January 31, 2018, allowing Appellant to alter her work schedule based on the commuter bus schedule and earn compensatory time when she was in the office to allow her to leave work early. On February 7, 2018, on the recommendation of the Agency’s reasonable accommodation program, S1 approved the following accommodation: 2021000342 4 When working in the Boston office, the employee can depart the office at 2:00 p.m. and complete her remaining tour of duty at home as two hours of telework. The reasonable accommodation is effective for six months from February 2018 through August 2018, at which time the employee should provide updated medical documentation regarding her current diagnosis and prognosis. This accommodation was still in effect at the time of Complainant’s separation from federal service. In May 16, 2018, Complainant sought full-time medical telework. This request was still being considered when Complainant’s employment with the Agency ended two weeks later on May 31, 2018. In sum, based on the undisputed evidence of record, the AJ correctly determined that Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within her documented medical restrictions pursuant to its obligations under the Rehabilitation Act. Disparate Treatment: Claims 2 - 5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2021000342 5 During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions relating to disparate treatment. Regarding claim 2, Complainant claimed that on May 1, 2018, management ignored Complainant’s commendation. Specially, Complainant stated that she received a “You Rock!” message from another employee on or about May 1, 2018, concerning a volunteer project. Each of the FEMA employees involved with the project received an identical “You Rock!” message. The record reflects that “You Rock!” correspondence was an informal way for employees to recognize their colleagues’ contributions. Complainant did not notify S1 or S2 about the “You Rock!” They both stated they were not aware of the commendation. Regarding claim 3, Complainant asserted that on May 31, 2018, the Agency served Complainant with a termination notice. Management witnesses testified that Complainant’s employment was terminated due to long-standing attendance problems, particularly frequent late arrivals at work. The record contains extensive evidence prior efforts had been made to hold Complainant accountable for adhering to her established work schedule, and the process which ultimately led to her removal. The record does confirm that the Agency sent Complainant personnel documents with changes and whiteout applied in several places. However, there is no evidence that this harmed Complainant. The record further reflects that Complainant’s access to WebTA was restricted because her employment was terminated, and she was paid for all hours she worked on May 31, 2018. Regarding claim 4, the AJ noted that the undisputed facts reflect that Complainant initiated a retirement application prior to her termination. The Agency gave Complainant the courtesy of retiring instead of termination, a courtesy Complainant first accepted then refused, in favor of litigation. However, Complainant changed her mind and the Agency sent the retirement documents to Complainant who then submitted them. To date, Complainant continues to draw retirement benefits. Regarding claim 5, the record shows that on March 15, 2018, the Agency received Complainant’s completed retirement package in the mail. On May 31, 2018, after Complainant’s employment was terminated, she contacted a FEMA Retirement and Benefits Specialist and instructed her to proceed with her retirement for May 31, 2018. Thereafter, S1 wrote to Complainant stating that after a meeting the day before “it was brought to my attention by Benefits and Retirement that on March 13, 2018, you submitted a retirement application effective May 31, 2018. In light of that, I am rescinding the Notice of Termination of Appointment. As a result it will not be in your OPF and the SF-50 documentation your separation will reflect that you voluntarily retired.” Complainant responded on the same day, with copy to her attorneys stated, “any attempts on your part to force a retirement will be viewed as a constructive discharge and discrimination on the basis of age.” As a result, on June 4, 2018, the Agency notified the National Finance Center that Complainant’s retirement package was rescinded by the employee. 2021000342 6 The retirement package was then sent to Complainant, who subsequently filed again for retirement and is currently drawing federal retirement benefits. The record evidence supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the suspension were a pretext designed to mask a retaliatory motivation. CONCLUSION We AFFIRM the Agency’s final agency decision, implementing the AJ’s summary judgment decision finding no 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. 2021000342 7 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. 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 11, 2022 Date
