[Redacted], Lael G., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.Download PDFEqual Employment Opportunity CommissionJul 15, 2021Appeal No. 2019005931 (E.E.O.C. Jul. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lael G.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2019005931 Hearing No. 531-2018-00054X Agency No. HHS OS 0036 2017 DECISION On September 17, 2019, 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 August 16, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to a hostile work environment and discrimination based on her disability and religion. 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. 2019005931 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist at the Agency’s Office of the Secretary, Assistant Secretary for Public Affairs (ASPA), Digital Communications Division (DCD) in Washington, District of Columbia. On March 9, 2017,2 Complainant made initial EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On June 2, 2017,3 Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of religion (Jewish) and disability (physical) when: 1. on September 16, 2016, October 16, 2016, and January 31, 2017, Complainant’s requests to earn religious compensatory time (RCT) was denied; 2. from January 10, 2017 to March 7, 2017, Complainant was excluded from the Engagement Team meetings; her feedback was ignored; her responsibilities were reduced; and, she was not assigned priority projects or other duties; 3. from January 22, 2016 to March 7, 2017, Complainant was verbally harassed; 4. on February 8, 2017, Complainant’s HHS.gov/secretary was removed from her portfolio; and, 5. on March 11, 2017, Complainant was terminated from her Public Affairs Specialist Position. The investigative record reflects the following pertinent matters relating to the subject claims. Responsible Management Officials (RMO) Complainant listed the following individuals as responsible management officials: the Supervisory Public Affairs Specialist, GS-15, Digital Engagement Branch Manager (RMO1, Jewish, disability status not provided); the Acting Content Branch Manager and Deputy Director, Digital Communications Division (RMO2, religion and disability status not provided); and, the Director, Administrative Operations (RMO3, Jewish, no disability). 2 Parts of the record incorrectly state this as occurring on March 20, 2017. 3 Initially stated as June 5, 2017 in the Initial Acceptance letter. However, Complainant asserted that it was filed on June 2, 2017, and the Agency accepted the contention. 2019005931 3 Religious Compensatory Time (RCT) - Claim 1 On May 29, 2016, Complainant was hired to work full-time (forty-hours per week) as a Public Affairs Specialist at the Agency’s Office of the Secretary, (ASPA), Digital Communications Division (DCD). Complainant was to serve a probationary period starting from her hire date. The ASPA digital work is focused on and defined by quick turnarounds as news breaks on social media and other media platforms. This meant many projects necessitated fast-paced responses by ASPA employees. On July 25, 2016, Complainant was in a car accident that led to a series of reduced hours as a temporary accommodation for her. Complainant’s reduced work schedule was initially set at 20 to 25 hours a week. While on a reduced schedule, Complainant maintained the position title and benefits of a full-time employee. In anticipation of religious observances in September and October, Complainant requested religious compensatory time (RCT), but was told by RMO3 that she was not eligible to earn RCT because she was not working full-time (forty-hour work week). The Agency policy stated that employees could earn RCT based on hours worked over a regular shift. A full-time employee could then earn RCT, with permission, for any hours worked after a normal forty-hour work week. Complainant asserted that these denials were unjustified since Agency policy allowed part-time employees to earn RCT. Complainant also requested permission to work on Sundays and Federal holidays but was denied. Complainant noted that following the accident, she received a large portion of donated leave and alleged that RMO3 told her that she could earn RCT or use donated leave, but not both; that to ask for both was “greedy;” and that the Human Resources (HR) staff told her she was the “most complicated employee” they have ever had. RMO3 testified that she reached out to the Office of Human Resources (OHR) and asked if the accrual of RCT was possible for Complainant given her circumstances. RMO3 was informed that it was not possible. OHR noted that Complainant was in Leave Without Pay Status for the time she was not working as part of the temporary accommodation. OHR noted that anytime worked beyond her medically reduced hours would have gone towards her regular pay. RMO3 noted that Complainant’s weekend and holiday work request was discussed, and eventually denied as it was not suitable to the work required of the office. RMO2 testified that he never treated Complainant differently and noted that Complainant was provided with more flexibility than other employees. RMO2 testified that Complainant was not eligible to earn RCT because she could not meet the conditions for accruing RCT. RMO4 testified that “[e]xtraordinary efforts were made to accommodate the Complainant’s requests” and that “comp time can only be accrued after an employee works over forty hours in a week.” Complainant noted in her rebuttal affidavit that she was not working full-time due to her medical disability. Complainant asserts that this meant she was essentially forced to choose between an accommodation for her disability or for her religion. 2019005931 4 Complainant noted that accruing RCT was possible for part-time employees, and that since she was essentially working part-time, the Agency should have allowed her to earn RCT beyond the set reduced work schedule hours. RMO3 noted that Complainant’s timekeeping requirements were new and challenging for the staff, which required more attention to ensure Complainant was paid on time. However, she denied that she, nor any HR staff, ever called Complainant a “complicated employee”. RMO3 also denied informing Complainant that she had to choose between donated sick leave or ability to earn RCT. RMO3 asserted that she informed Complainant that she could use any of the donated Voluntary Leave Transfer Program hours to help fulfill the forty-hour work week requirement, and thus allow her to earn RCT. RMO3 noted that the option was declined so details were never worked out. Assignments & Work Conditions - Claims 2 - 4 From January 10, 2017 to February 8, 2017, Complainant asserted that she was excluded from the Engagement Team meetings, her feedback was ignored, her responsibilities were reduced (such as the removal of the HHS.gov/secretary from her portfolio), and she was not assigned priority projects or other duties. Complainant asserted that RMO1 informed her that she did not know how to manage someone who worked remotely; that RMO1 often failed to acknowledge her during team meetings; and/or didn’t share the white board via either a web cam or photos when Complainant was on the phone which made working difficult for Complainant. RMO1 denied the allegations and stated that she had previously informed Complainant of her desire to try to find a mutual method to visually communicate when Complainant was teleworking. RMO1 noted that she did not deny webcam usage, but that it was not possible with the office’s phone set up. RMO1 noted that employees often sent Complainant pictures of the white board when Complainant wasn’t in the office as an alternative. RMO1 acknowledged that assignments were frequently moved around but denied changing Complainant’s assignments because of her religion or disability. RMO1 asserted that any assignment changes were due to the nature of the office and how fast paced it could be. RMO1 noted that she had previously managed numerous teleworking employees and never had an issue with teleworking schedules. Complainant rebutted RMO1’s denials. Complainant noted that her teleworking schedule was given as a reason for her termination, and a clear indication that the Agency harbored discriminatory animus towards her based on her disability required accommodation. Complainant also noted that RMO1 made her teleworking situation more difficult than it needed to be. For example, Complainant asserted that she repeatedly requested photos of the white board during team meetings and rarely, if ever, received any. Regarding the portfolio removal, RMO1 testified that she moved Complainant’s HHS.gov/secretary portfolio to a higher-grade employee, CW1, after the administration changed. RMO1 provided that the work product requirements changed for the Secretary’s page, and a high-profile section needed to be rebuilt with new functionalities. 2019005931 5 This required a close coordination with the new incoming political team. CW1 had a record of immediate responsiveness to management and political leadership requests. The portfolio was therefore moved to CW1 because of her ability to quickly turnaround requests, and the high- profile and time-sensitive requirements of the project. RMO2 testified that it was not unusual for portfolio assignments to change, and that he concurred with the decision to move Complainant’s portfolio. RMO4 also noted that portfolios were frequently changed due to ASPA’s need to accommodate shifting priorities, client needs, workloads, breaking news, and staff availability. Complainant rebutted RMO1’s statement that she did not clearly communicate her work schedule. For example, Complainant asserted that she always informed RMO1 when she was starting work on days she teleworked, and that she never arrived later than 10:30am on days when she worked in the office. Complainant also noted that she planned any breaks around scheduled meetings and argued that she was always transparent with her schedule. Complainant also refuted the Agency’s reasons for shifting the project to CW1 and asserted that CW1 received preferential treatment. Reasonable Accommodation & Termination - Claim 5 On July 25, 2016, Complainant was involved in a car accident where she sustained whiplash and a concussion. Her doctor initially believed recovery would be fairly quick. Based on the doctor’s recommendation Complainant was placed on a temporary medical accommodation that allowed her to work less than eight-hours (approximately four to five hours depending on Complainant’s ability) a day, take as many breaks through the day as necessary, and to telework four days a week. On September 20, 2016, Complainant was reminded of the expiration of her temporary accommodations. Specifically, that it was set to expire on October 4, 2016, and that if needed, the accommodations could be extended, or modified. On September 22, 2016, Complainant provided updated medical documentation to management seeking to extend the same temporary accommodations, which were approved. On November 17, 2016, Complainant provided an updated letter from her doctor. The update stated that Complainant could now work four to seven hours per day, with the same remaining accommodations. In December 2016, Complainant again requested to extend her accommodations as they were. On December 30, 2016, Complainant’s request was approved. The approval arranged for Complainant to provide a status update on her progress at the end of January. The approval also noted that temporary accommodations would expire on March 31, 2017 and could be revisited then. 2019005931 6 On January 19, 2017, Complainant submitted a doctor’s note re-evaluating her condition for continued temporary accommodation. The note requested that Complainant be allowed to work five to eight hours a day; breaks as necessary; telework four-days a week; and, that the accommodations would likely need to be in place for another two to three months. By letter dated March 7, 2017, Complainant was terminated during her probationary period with an effective termination date of March 11, 2017. The termination letter provided that Complainant was terminated due to several reasons, including, unreliable work schedule; failure to complete the full ninety-day telework probationary period; and unresponsive to work needs. The termination letter stated that Complainant’s full-time position required her to have reliable time management skills; to react quickly and appropriately when reacting to news about the Agency on social media; and, to collaborate closely with other teams and team members. Additionally, it noted that the position required an employee to be actively engaged on their computer the entire workday, except for scheduled meetings, necessary breaks, or lunch breaks. The letter notated that Complainant’s “unreliable work schedule has had an unfair impact on the assignments, projects, and tasks of other ASPA DCD employees; reducing the effectiveness of individual employees and the division as a whole”. It detailed the difficulty of relying on Complainant as an available and consistent resource. RMO1 stated that the termination was a team decision, involving RMO2 and RMO4, and made with consultation from the OHR. Management stated that Complainant’s religion and disability were not considered in the decision to terminate her. The termination letter also references Complainant’s accommodation and stated that “as a permanent accommodation it is not reasonable or feasible in fulfilling the duties of [her] position.” RMO1 noted that Complainant had a flexible schedule of working hours as an accommodation. She recognized that and asserted that Complainant was not terminated based on the need for her to have the continuing accommodation. RMO1 said that Complainant’s unreliable schedule and frequent unavailability factored into the termination decision. RMO1 stated that when Complainant was working, she was not always available, even if she marked herself as available on the Agency’s instant messaging system (IM). The IM system is relied upon by management and employees for communication, particularly when an individual is not in the office. RMO1 noted that at times, Complainant would be marked available, but would not respond, and/or when she called Complainant would find out that she was not working. For example, RMO1 noted an incident on January 27, 2017, in which Complainant messaged her at 10:15am. RMO1 was away in a meeting and responded back at 11:15am. By 11:45am, Complainant had not yet responded so RMO1 called Complainant. Complainant informed RMO1 that she had been called to the doctor’s office and had initially contacted her to let her know. RMO1 stated that this highlighted an issue with Complainant’s schedule. Specifically, the issue was not that Complainant needed to go to the doctor’s office, but that she had not notified her that she was not working prior to leaving, and more importantly had not updated her status so others would know that she was unavailable. 2019005931 7 The Maintenance of Certification and Projects Manager4 (S1) served as Complainant’s supervisor from August until October 2016. She noted Complainant, along with others, was reassigned to the Engagement Branch in October 2016 because the work more closely aligned with the Engagement Branch. While Complainant worked with her, she assigned Complainant priority and time sensitive projects, but only ones with flexibility around due dates to accommodate her schedule and the needs of the projects. She noted that there were certain assignments that she did not assign because they required immediate action and/or personal presence in the building. S1 stated that Complainant completed the work that was assigned to her, but that a part-time schedule made it difficult to balance the workloads of an entire team. S1 found the situation reasonable but not sustainable as a permanent solution. She did not find Complainant’s schedule to be necessarily unreliable. However, since Complainant’s schedule was frequently unpredictable, it made it difficult at times to assign work. Overall, S1 believed that management worked with Complainant to accommodate her. S1 did not observe any management official be aggressive or unwillingly to accommodate Complainant. S1 especially noted how frequently RMO3 went out of her way to be helpful to Complainant. Regarding overall work environment, S1 noted that the office had to frequently change employee assignments for several reasons, such as achievement of better workflow balance, or to meet a client’s needs. She noted that the work was very high profile, extremely time sensitive, often unpredictable, and paired with inflexible deadlines. S1 asserted that if there was a high-profile project assigned to one employee, who could not make an inflexible deadline for whatever reason, it would have been reassigned. S1 did not believe that Complainant’s religion or disability were direct factors in her termination. However, she noted that Complainant’s disability did not allow her to work the full-time position that she was initially hired to do. S1 asserted that Complainant’s inability to work the full-time position likely caused her termination. Complainant’s coworker, the Public Affairs Specialist (CW) did not know if the basis for the termination was based on Complainant’s religion or disability, but she believed that management was frustrated with Complainant’s accommodation. Specifically, Complainant’s teleworking schedule and limited hours. CW said it seemed that the requests were not well received by management, or possibly even believed. CW was surprised that management chose to terminate Complainant instead of working with her as the office did not have authority to re-hire. CW noted that at the time of the investigation, the office still had not replaced Complainant’s role. 4 At the relevant time, S1 was the Digital Engagement Branch Manager, and then the Digital Content Branch Manager. 2019005931 8 Harassment In addition to what was alleged, Complainant asserted that Agency officials further harassed her when the Agency contested her unemployment application. The Agency purportedly stated that Complainant was terminated for “gross misconduct”. Nonetheless, Complainant was provided with unemployment compensation. The RMOs noted were not involved in Complainant’s unemployment claims. Post Investigation On November 20, 2017, Complainant received a copy of the Report of Investigation (ROI) and expressed several concerns to the Agency, including that she did not have a chance to submit her rebuttal affidavits. On December 11, 2017, the Agency addressed Complainant’s concerns and stated that any rebuttal affidavit would be provided to the AJ if a hearing was requested or would be considered in the FAD if that was requested. On December 13, 2017, Complainant timely requested a hearing. In early March 2019, Complainant withdrew her hearing request. On March 13, 2019, the Administrative Judge (AJ) issued a Memorandum and Order of Dismissal dismissing the hearing request and remanded the case to the Agency for a Final Agency Decision (FAD) within sixty days of receipt of the dismissal order without prejudice. On August 16, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed claim 1 for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1). However, the Agency stated that the January 31, 2017 request within claim 1 was analyzed under harassment and disparate treatment theories, whereas the September and October 2016 incidents were considered in the context of a hostile work environment as they were untimely. The FAD determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant failed to demonstrate that the reasons were pretext for discrimination. Regarding Complainant’s termination, the FAD noted that the termination letter suggested that the Agency’s reasons for termination included, amongst other detailed reasons, an undue hardship on the Agency. The FAD determined that the termination letter satisfied the undue hardship requirement as it considered an individualized assessment of Complainant’s circumstances that demonstrated that Complainant’s unreliable work schedule had an unfair impact on the assignments, projects, and tasks of other ASPA DCD employees. Notably, it discussed the importance of being quick and responsive due to the requirements of working with breaking news, social media, and other engagement team colleagues. The decision concluded that Complainant failed to prove that the Agency subjected her to harassment or discrimination as alleged. On August 19, 2019, Complainant’s attorney requested that the Commission sanction the Agency for failing to timely issue a FAD. A brief was attached detailing the request. 2019005931 9 On September 10, 2019, Complainant’s attorney wrote to the Agency detailing deficiencies in the FAD and requesting that the Agency rescind its initial FAD. CONTENTIONS ON APPEAL Complainant asserts that when she initially pursued a reasonable accommodation, her former manager, S1, was supportive and made an effort to ensure Complainant remained an integral team member. However, Complainant asserts that when RMO1 became her manager, her workplace changed dramatically. Complainant asserts that RMO1 informed her that she was not comfortable with Complainant’s reasonable accommodation because she was unsure how to supervise someone who teleworked. Complainant also notes that she was never informed of any performance deficiencies or provided with any opportunities to remedy any concerns prior to her termination. Regarding the quality of processing, Complainant asserts that there were a variety of errors made during the investigation. Complainant notes that the EEO Investigator was initially given the wrong acceptance letter, and she had to correct both the Agency and the EEO Investigator. Complainant also asserts that she had reserved a right to submit a rebuttal affidavit to the Agency’s responses during the investigation. However, Complainant states that the EEO Investigator prematurely closed the investigation prior to allowing Complainant a chance to rebut. Nonetheless, while Complainant was later able to submit a rebuttal, she found the EEO Investigator’s actions to be improper. Complainant also asserts that the EEO Investigator improperly determined that Complainant’s various witnesses lacked relevant information and therefore did not interview them. Regarding dismissal of the FAD as deficient, Complainant asserts that the Agency made numerous errors in its FAD that warrants a dismissal based on deficiencies. For one, there were statements of how Complainant did not rebut certain findings, when Complainant in fact had. Additionally, Complainant argues that it was clearly error for the Agency to dismiss claim 1 for untimely EEO counselor contact. Complainant notes that the dismissal is based on the Agency’s previously corrected error of notating when Complainant first contacted an EEO counselor.5 Complainant states that her attorney had to repeatedly correct errors made by the Agency. Overall, Complainant details various errors that the Agency made that materially affected the FAD. Complainant asserts that the errors alone are enough to dismiss the FAD as deficient. Regarding Complainant’s request to sanction the Agency, Complainant asserts that the Commission should award default judgment in Complainant’s favor due to the Agency’s error in its untimely issuance of the FAD. Complainant argues that the Agency’s mistakes, coupled with the errors stated above, warrants a default judgment in her favor as a sanction. 5 Complainant’s initial EEO counselor contact was initially marked as March 20, 2017, and later corrected to March 9, 2017. 2019005931 10 In response, the Agency provided two response briefs that essentially reiterate the FAD and assert that its prior analysis was appropriate and that no discrimination had occurred. Regarding the delayed FAD issuance, the Agency states that while it issued the FAD beyond the sixty-day deadline, it provided reasonable justification for the delay, namely, staffing issues. Additionally, the Agency asserts that it issued the FAD just eighty-nine days after the deadline and that Complainant was not prejudiced by this delay. The Agency asserts that the delay certainly does not warrant a sanction of default judgment in Complainant’s favor. Regarding Complainant’s concerns about processing her complaint, such as not including rebuttal briefs in the ROI, the Agency asserts that the concerns are without merit. The Agency notes that it informed Complainant on December 11, 2017 that she could provide a rebuttal affidavit. Instead of timely providing a brief, Complainant waited six months to provide one as she had requested a hearing in the interim. Nonetheless, the Agency states that as a courtesy it uploaded the rebuttal affidavit to FedSEP where it could be addressed at the hearing stage. Overall, the Agency argues that a sanction, such as default judgment, is not warranted for either an isolated or collective incident. The Agency requests the Commission to affirm its finding of no discrimination. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Delay in Issuance of Final Agency Decision (FAD) On appeal, Complainant requests that the Commission sanction the Agency for its failure to timely issue a final agency decision within the prescribed 60 days pursuant to 29 C.F.R. § 1614.110(b). EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure 2019005931 11 that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here, the AJ issued a March 13, 2019 Memorandum and Order of Dismissal (Order), ordering the Agency to issue a FAD within sixty-days of the Order. This meant the Agency had until May 13, 2019 to timely issue a FAD. The Agency issued its FAD on August 16, 2019, approximately three months after the deadline for its issuance. The Agency stated that the delay was due to temporary staffing shortages and asserted that Complainant was not prejudiced by the three- month delay. The record demonstrates that Complainant repeatedly argued that the delay was prejudicial and impacted her rights. We disagree and find that Complainant has not made a showing that she was prejudiced by any Agency delay. In this case, we find that the Agency did not act in a manner to warrant a default judgment. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den'd, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay). Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). While we will not impose a sanction in the present case since the delay in issuance of the FAD did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. As a result, we will notify the Office of Federal Operations’ Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decision. Complaints Processing Complainant raised concerns with the processing of her complaint. Complainant claims on appeal that the investigation was inadequate, citing the EEO Investigator’s decision to close the investigation prior to receiving Complainant’s rebuttal. Complainant asserts that even though the Agency accepted her rebuttal statement, the investigation was clearly inadequate because it did not initially contain her rebuttal statement. Moreover, due to this error, her rebuttal statement was not considered in the FAD. Complainant notes that this ultimately made the FAD deficient because it repeatedly notated that Complainant never submitted a rebuttal when she clearly had. Complainant also had contentions with the EEO Investigator’s decision to not interview the entirety of her witness list. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper due to the EEO Investigator’s decision to close the investigation prior to receiving Complainant’s rebuttal statements, and the decision not to interview everyone on Complainant’s witness list. 2019005931 12 We note that the Agency accepted Complainant’s rebuttal statement after the fact and uploaded it in FedSep. Despite Complainant’s appellate statements, the Commission determines that the investigation was properly and adequately conducted. In reviewing the rebuttal statements, we also find that it was not grave error that the statements were not reviewed in the FAD. Untimely EEO Counselor Contact - Procedural Dismissal of Claim 1 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, the alleged discriminatory events in claim 1 occurred on September 16, 2016, October 16, 2016, and January 31, 2017, but Complainant did not initiate contact with an EEO Counselor until March 7, 2017. The March 7, 2017 contact was more than forty-five days after the alleged discriminatory events on September 16, and October 16, 2016. Therein, the Agency dismissed the first two dates of claim 1 for untimely EEO Counselor contact but accepted them as part of the overall hostile work environment claim. Additionally, the Agency accepted the January 31, 2017 portion of the claim for analysis under both harassment and disparate treatment theories. Based on the record, we find no reason to disturb this procedural decision, and find it was appropriately reviewed. Religious Accommodation Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires complainant to demonstrate that: (1) she has a bona fide religious belief, the practice of which conflicted with his employment; (2) she informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against her. Baum v. Soc. Sec. Admin., EEOC Appeal No. 01A05985 (March 21, 2002) (citations omitted). “A refusal to accommodate is justified only when an employer … can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation.” 29 C.F.R. § 1605.2(c). Pursuant to 29 C.F.R. § 1605.2(d), alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. To show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Baum, supra. 2019005931 13 In claim 1, Complainant essentially alleged that she was denied a religious accommodation when she was not allowed to earn religious compensatory time (RCT) while on a temporary reduced work schedule based on a car accident. Complainant argued that since part-time employees could earn RCT, she should have been able to earn RCT given her essentially part-time schedule. The record demonstrated that employees could earn RCT based on the status of the employee, and any subsequent overages. Accordingly, since Complainant was hired as a full-time employee, and was always, even while on the reduced schedule, considered a full-time employee, she could only earn RCT for time worked over forty-hours. Despite her arguments, the Agency determined, and we agree, that she was ineligible to earn RCT given her full-time status and medically mandated reduced schedule. We note that while she could not work an actual 40 hours, she was provided with an alternative to earn RCT by using her donated leave. However, because the option was purportedly declined, there were no further details into that option. Based on the record, there is no indication that the Agency subjected Complainant to religious discrimination when they would not consider her as a part- time employee for purposes of earning RCT. As for Complainant’s request to work Sundays and Federal holidays, the Agency stated that the denial was based on the needs of operational efficiency and employee management. Aside from her assertions, Complainant has not provided any evidence that the Agency’s denial to work off-shift was based in discriminatory animus. Furthermore, there is no indication that management denied any religious accommodation request such as allowing Complainant the ability to take paid or unpaid leave for religious observations. Disparate Treatment Based on Disability Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. 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. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993). Additionally, to establish a prima facie case of disparate treatment based on disability, complainant must show that: (1) she meets the regulatory definition of a person with a disability , 29 C.F.R. § 1630.2(g); (2) she is a qualified person with a disability, 29 C.F.R. § 1630.2(m); and (3) she was subjected to an adverse personnel action under circumstances giving rise to an inference of discrimination, i.e. complainant must make a plausible showing that there is a nexus or causal relationship between the disabling condition and the disputed adverse 2019005931 14 action. See Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981); Bridges v. U.S. Postal Serv., EEOC Appeal No. 01891679 (Jan. 24, 1990). 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 the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). We will assume, for the sake of argument only, that Complainant established a prima facie case of disability6 and religion-based discrimination. However, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant detailed numerous ways in which she was discriminated against based on her protected bases in claims 2 through 4. Complainant asserted that she was frequently excluded from the Engagement Team meetings; her feedback was ignored; her responsibilities were reduced; and, she was not assigned priority projects or other duties. Based on the record, there is no clear exclusion of Complainant’s participation in Engagement Team meetings. Complainant was teleworking four days a week, and RMO1 and her colleagues worked around technical issues by taking pictures of the meeting white board and sending it to Complainant. Additionally, the Agency detailed the importance of quick and efficient engagement with employees and assignments. It was noted that at times, it was difficult for management to depend on Complainant as a reliable source and so, when needed, projects and assignments were shifted or assigned to meet Agency needs. This was demonstrated in Complainant’s portfolio change where the HHS.gov/secretary was removed from her portfolio on February 8, 2017. The record was clear that an incoming administration was making high profile changes that required an individual who would be available for quick turnaround. CW1 had a history working on high-profile projects and was considered highly reliable and efficient. Still, Complainant argued that the removal was indicative of discriminatory animus towards her. However, aside from her assertions, Complainant again failed to demonstrate that the reasons provided was pretext for discrimination. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including how assignments and duties are assigned, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). 6 For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019005931 15 In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048. Based on the record, there is insufficient evidence to demonstrate that management’s actions were motivated by discriminatory animus. Reasonable Accommodation & Termination As a preliminary matter, we note that although the Agency made references to reasonable accommodations, the focus of its analysis was disparate treatment. However, we determine that Complainant’s claim, that she was terminated based on her disability and need for an accommodation, would be better examined under a reasonable accommodation framework. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. An agency is therefore required to make reasonable accommodation(s) 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. See 29 C.F.R. §§ 1630.2(o),(p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). A “qualified individual with a disability” is one who satisfies the requisite skill, experience education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). The function may be essential because the reason the position exists is to perform that function. 29 C.F.R. § 1630.2(n). In this matter, the Agency argued that Complainant was not a qualified individual with a disability because she was unable to maintain a regular full-time work schedule, as she was initially hired to perform. The Agency also provided that the termination was based on Complainant’s performance not meeting the needs of the Agency. The Agency noted that responsiveness and quick turnaround was highly valued given the work covered by the Agency. However, Complainant’s schedule, even considering the circumstances, were unpredictable and unresponsive. The Agency also argued that the reduced hours and telework accommodation were only meant to be temporary accommodations, and that it was not considered or feasible as a permanent accommodation. The Agency argued that it would have been an undue hardship given the nature of the work required of the employees of the Agency for it to continuously maintain such accommodations. 2019005931 16 Complainant has the threshold burden of establishing that she was a qualified individual with a disability, and that there was a nexus between her disability and her termination that would have violated the Rehabilitation Act. Complainant argued that she was indeed qualified, that she was not appraised of deficiencies in her work, and that she regularly updated RMO1, and other relevant individuals, of her schedule as necessary. Despite her arguments, we find that during the relevant time period, Complainant suffered ongoing after-effects of a car accident that made performing the essential functions of her job difficult. As noted earlier, to be a “qualified individual with a disability,” Complainant must be able to perform the essential functions of her position, with or without an accommodation. 29 C.F.R. § 1630.2(m). The Commission’s Enforcement Guidance explains that an employer does not have to eliminate an essential function of a position to accommodate an individual with a disability. Enforcement Guidance at “General Principles”; Gerald L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130776 (Nov. 10, 2015). Some of the essential functions the Agency listed were the ability to work a full-time forty-hour shift, to be responsive to time sensitive, often unpredictable projects with inflexible deadlines, and to have a reliable schedule, whether in or out of office. Based on the record, we find that Complainant has not established that she was a qualified person with a disability who could perform the essential functions of her position, that of a Public Affairs Specialist, with or without an accommodation. We note that in this matter, there were various conflicting statements between Complainant and the responsible management officials. However, Complainant decided not to pursue a hearing before an EEOC AJ, and as a result we do not have the benefit of an AJ's credibility determinations of these conflicting statements. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet her burden of persuasion. Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014) (citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012)). Based on the foregoing and having construed the evidence in a light most favorable to Complainant, we conclude that the preponderant evidence does not establish that the Agency violated the Rehabilitation Act when Complainant was terminated from her position during her probationary period. Hostile Work Environment In her harassment claim, Complainant generally alleged that management subjected her to a hostile work environment through a variety of incidents as detailed above. To prove her harassment claim, Complainant had to 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 basis - in this case, her religion and disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2019005931 17 Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). As already concluded above, there is no evidence to support a finding that Complainant’s disability or religion played any role in the Agency’s actions. Moreover, the responsible management officials provided legitimate, non-discriminatory explanations for its actions. In sum, Complainant failed to prove that her protected classes played any role in the incidents she proffered as evidence of her harassment claim. Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate or retaliate against Complainant as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2019005931 18 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, 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. 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. 2019005931 19 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 July 15, 2021 Date Copy with citationCopy as parenthetical citation