[Redacted], Kathleen P., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2021000660 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathleen P.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021000660 Agency No. DEPT-2019-00664 DECISION On October 2, 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 1, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-0343-09, at the Agency’s Departmental Management, Office of Operations, Customer Service in Belstville, Maryland. On June 24, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (rheumatoid arthritis) and reprisal for prior protected EEO activity when: 1. On October 31, 2019, Complainant’s Supervisor (S1) issued Complainant her Fiscal Year (FY) 2019 Performance Appraisal rating of Fully Successful; 2. On April 18, 2019, S1 charged Complainant with four hours of Absent Without Leave (AWOL); 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. 2021000660 2 3. On an unspecified date, Complainant's Reasonable Accommodation request to extend her telework days from 2 to 3 per week was denied; 4. On an unspecified date in June 2019, Complainant learned management revoked her assigned handicapped parking space, which required Complainant to walk a long distance to work; 5. On unspecified dates, a management official included Complainant's colleagues on email message exchanges that contained sensitive information relating to Complainant's health issues; and 6. On various dates, Complainant was subjected to harassment. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision (FAD) concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD indicated that Agency officials articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that such reasons were pretextual. With regard to Complainant’s 2019 FY appraisal, S1 and Complainant’s second level supervisor (S2) explained that Complainant’s performance did not warrant a higher rating. With regard to the AWOL charge, S1 explained that Complainant, while working from home, was unavailable for four hours during the workday. With regard to the parking space, S1 explained that there were parking spaces for people with disabilities at the front of the building. With regard to sharing emails with sensitive information, S1 and S2 denied any knowledge of the matter and Complainant provided insufficient evidence that the incident occurred. With regard to the denial of a reasonable accommodation, Agency officials explained that Complainant’s position required on-site customer support and hence the FAD essentially found that Complainant was not a qualified individual with a disability because she was unable to perform one the essential functions of the position. Finally, with regard to harassment, the FAD found that the actions complained of were insufficiently severe and or pervasive to constitute harassment. 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”). 2021000660 3 Disparate Treatment Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. We next find that Agency officials articulated legitimate nondiscriminatory reasons for their actions. With regard to Complainant’s FY 2019 Performance Appraisal, S1 averred that she gave Complainant a “Fully Successful” evaluation because she “did not go above and beyond but she also did not go below the standard level,” while S2 averred that the evaluation Complainant received “was strictly based on her performance throughout the performance year against her established, agreed upon performance standards.” With regard to the four hours of AWOL, S1 averred that, “Complainant was teleworking [from home] at the time. Information was needed from [her] and calls and emails were made and sent to her. She was unavailable for four hours while teleworking without advising supervisor prior to absence unavailability.” With regard to the disability parking space, S1 averred that: The Loading Dock entrance of the George Washington Carver Center was closed to pedestrian traffic in Spring of 2019. The main entrance of the building is now used for everyone at GWCC. Additional handicap spots were added to the front of the building. The decision to close the Loading Dock was made by the Director of the Office of Operations and the Director of the Safety and Sustainability Office. . . . No one revoked handicap parking, but the Loading Dock entrance was closed to pedestrians and that was the entrance Complainant used to access and exit the building. . . . [Complainant’s handicapped parking space] was not [revoked]. The 2021000660 4 spaces remain on the loading dock but the loading dock is no longer an entrance for personnel not working the dock or delivering to the dock. Complainant does not fit either of those categories. With regard to management transmitting emails that contained Complainant’s confidential health information, both S1 and S2 denied any knowledge of this matter. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. We note initially in this regard that Complainant failed to provide testimony to the investigator and declined to provide a rebuttal statement despite being given the opportunity to do so. On appeal, Complainant maintains that, with regard to her personnel evaluation, S1 began “dropping my performance ratings every time I have any surgeries, due to being absents [sic] during my surgeries, my supervisor always dropping my ratings.” Complainant, however, does not address S1’s articulated reason that the evaluation Complainant received for her FY 2019 was appropriate considering her performance during that period. With regard to the four hours of AWOL, Complainant explained in her informal complaint that the reason she could not be reached on the date in question was because while working from home her son alerted her to a water leak into the bathroom from the ceiling above and that she was focused on trying to stop the leak and getting someone in to repair it. On appeal, Complainant further explains that she did not hear her work cellphone ring when management tried calling her. Even assuming that the emergency was so dire that for four hours Complainant could not afford to send a quick email to S1 explaining the situation, Complainant has not shown that management’s actions in charging her with AWOL were retaliatory or based on discriminatory animus against her protected basis. With regard to the parking space, Complainant stated during informal counseling that her “assigned handicap parking space was taken from her and opened to other disabled employees in the building.” On appeal, Complainant stated that: On June 14, 2019, my Rheumatologist put a letter in writing requesting reasonable accommodations for me, Assigned Handicap Parking spot closer to the building, A Flexible/Part-Time work-schedule and 3 days of Telework before the Pandemic happened. I’ve submitted my documents to my HR department to [_______] (name omitted) as requested by [S1]. We schedule [sic] a meeting and [an HR Representative] was working along my supervisor side to deny my reasonable accommodations. I resubmitted my updated reasonable accommodations through email back in on December 31, 2019, to a different HR specialist [_________] (name omitted) regarding my updated Reasonable Accommodations documents. It’s very challenging for me to walk far, when I get to work later all of the Handicap Parking Spaces [sic] are taken, even after we 2021000660 5 added more spaces. I used to have my own assign [sic] handicap parking since 1999 when I was moved from downtown Washington, DC to the George Washington Carver Building in Beltsville Maryland. Because of changes my co- workers and I had to start parking in the front of the building. I really need my own assigned handicap space because I can’t walk far, I walk with a cane. I need another knee and right hip replacement. Complainant’s more detailed comment on appeal is indicative of a claim of denial of reasonable accommodation rather than one of disparate treatment, but since she declined to provide testimony during the investigation, testimony that would have put the Agency on notice that she was alleging denial of reasonable accommodation, this matter was only investigated as a claim of disparate treatment. To the extent Complainant is arguing that she was subjected to disparate treatment when her parking space was taken away, her own statements indicate that the action affected all employees, including all disabled employees, and hence she cannot show that she was treated differently. With regard to divulging Complainant’s health information, Complainant stated in her complaint that S1: Sends emails oversharing [Complainant’s] personal information. [S1] is insensitive to [Complainant’s] health issues and knows she has a hard time in the morning. [S1] doesn’t have to keep everyone on emails that [Complainant] sends out, she could take them off. She is putting them on the emails to retaliate against [Complainant]. On appeal, Complainant indicates that S1 divulged personal information about Complainant by asking a coworker of Complainant’s to measure the distance from the nearest handicapped parking space to the front door of the facility. Had Complainant provided testimony during the investigation she may have been able to better explain how these incidents constituted unauthorized divulging of her medical information but without such testimony we find that Complainant has not shown, with regard to this claim as well as her other claims of disparate treatment, that the Agency’s articulated reasons for its actions were pretextual or that Agency officials harbored discriminatory or retaliatory animus. Denial of Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “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 2021000660 6 accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). The term “reasonable accommodation” means, in pertinent part, modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of the position in question. See 29 C.F.R. §1630.2(o)(1)(ii). Reasonable accommodations may include but are not limited to: job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. Id. We assume, without finding, that Complainant is an individual with a disability. After a complainant has shown that she is an individual with a disability, the complainant must then establish that she is a “qualified individual with a disability,” an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). S1 and S2 both testified that one of the essential functions of her position was to be present on site to provide in-person customer support to coworkers who might need her assistance. The FAD concluded that since Complainant maintained she could not perform this function, she was therefore not a qualified individual with a disability. We note that the Agency did not provide a copy of Complainant’s position description confirming that being physically present on site was an essential function of the position. We further note, however, that by failing to provide testimony during the investigation, Complainant was unable to challenge the claims of S1 and S2 that being on-site was an essential function. We further note that Complainant has not addressed this matter on appeal. We therefore find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that she was denied a reasonable accommodation when she was not allowed to telework for a third day of the week. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was issued a rating of Fully Successful, she was charged with four hours of AWOL, her assigned disability parking space was revoked, and management divulged sensitive health information, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). 2021000660 7 A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: from June 20, 2019 to the present, Complainant was harassed about her absences from work pursuant to a car accident; and on unspecified dates, management threatened her and attempted to force her to resign. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of were sufficiently severe and/or pervasive to alter the terms and conditions of Complainant’s employment. 2021000660 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the FAD. 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. 2021000660 9 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 21, 2022 Date