[Redacted], Lara G., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020000640 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lara G.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020000640 Hearing No. 520-2015-00127X Agency No. NPS130507 DECISION On September 25, 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 20, 2019 final decision (FAD) 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Park Ranger, GS- 0025-09, at the Agency’s Floyd Bennett Field/Gateway National Park in Staten Island, New York. On December 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (glaucoma), age (66), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 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. 2020000640 2 1. On August 15, 2013 Complainant was reprimanded for a flyer she had made; 2. On an unspecified date in May 2012, Complainant was reassigned to a different facility across town in Brooklyn, New York; 3. On an unspecified date Complainant was denied a reasonable accommodation; 4. Following her reassignment, Complainant’s duties were denigrated.2 At the conclusion of the investigation into the complaint, 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that Agency officials articulated legitimate nondiscriminatory reasons for their actions. With regard to claim 1, the FAD found that Complainant’s first-level supervisor (“S1”) (46 years old) “averred that while she critiqued the Complainant's work product, she would not consider it a reprimand.” With regard to claim 2, the FAD found that Agency officials explained that Complainant’s prior work facility had been closed down and five employees including Complainant had been transferred to other facilities. With regard to claim 3, the Agency found that the Agency accommodated Complainant’s medical restrictions with regard to travel but that Complainant did not submit any medical documentation indicating she had any “issues related to computers or [viewing] screens.” Finally, with regard to claim 4, the FAD found that management officials denied that Complainant’s duties changed and indicated that Complainant never communicated to them that her duties were denigrated. The instant appeal followed. 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”). 2 The Agency characterized the claims differently, consolidating claims 2 and 3 into a single claim. 2020000640 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 claim 1, S1 averred that: I asked Complainant to do a flyer and she sent me a version of it. I printed it out and the next time I saw her, I basically said this is not what I wanted. I told her that I wanted all the dates of the programs on the flyer that were being offered. That is what happened. I would not consider this a reprimand. As her supervisor, I should be able to critique her work. It was not an issue. I think she is blowing this out of proportion, and if she thought this was an issue, she should have asked to talk to me about it. With regard to claim 2, Complainant’s third-level supervisor (S3: no claimed disability), averred that Complainant: Had originally been assigned to work at Ft. Wadsworth in Staten Island. When the Staten Island Interpretive Supervisor left his position, it was the decision by Park Managers to close the Fort Wadsworth Visitor Center where she had been stationed and to re-deploy the staff to the other visitor centers and other sites within the park. There were several people reassigned to work in other locations 2020000640 4 and she was reassigned to the Ryan Visitor Center at the Floyd Bennett Center in Brooklyn. Additionally, the record contains an Agency memorandum dated June 1, 2012 and addressed to Complainant notifying her about the planned reorganization and explaining that the reorganization affected numerous employees at her facility, not just Complainant. With regard to claim 4, S1 averred that: Her denigration of duties had to do with her ability to get to work. For July and August we were doing interpretative programs in Staten Island. That was the facility that was shutdown. Complainant lead the programming on Staten Island during the summer. The decision to change her work days was a part of her accommodation request. There is a shuttle that runs Monday through Friday. In order to accommodate her [prior reasonable accommodation] request for not having to work on Saturdays and Sundays her workdays changed. The side-effect of giving her those days off affected the number of programs she presented to the public. She is not doing the same duties because she is not working on the days the programs are offered. She has never been denied to do [sic] programs. Complainant has never been told that she could not do a program. Any program she wanted to do, she did. I did ask her to train one of the seasonals and lead up and coordinate the Interpretation Program at [another facility]. 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. With regard to claim 1, Complainant averred that when she was reprimanded “I replied that I did not make the mistake in question and that it was an oversight by someone else.” Even assuming that being reprimanded states a valid claim, we find that Complainant has not shown that the Agency’s articulated reason for its action is a pretext or that Agency officials harbored discriminatory animus towards her protected bases. Complainant did not rebut S1’s articulated reason for her action and even if S1 incorrectly blamed Complainant for someone else’s oversight, that does not establish that S1’s motives were based on discrimination or reprisal as opposed to, for example, simple error. With regard to claim 2, the record clearly establishes that the reorganization affected numerous employees at Complainant’s prior facility and that Complainant cannot thus show that she was treated differently. Furthermore, Complainant’s rebuttal and her comments on appeal address her belief that she was treated differently in that her duties changed following the move, but that issue is addressed in claim 4. With regard to the transfer itself, however, Complainant has not shown that the Agency’s articulated reason for its action is a pretext. 2020000640 5 With regard to claim 4, Complainant averred that “there are huge differences” between what her responsibilities were before and after the move, stating: I would coordinate activities for living history. I wrote flyers, brochures, bulletins, worked with the Scout groups. I worked with school groups and programs. I was acting site ranger a number of times. . . . At present I sit at the desk and answer the phone, talk to people in the visitor center and give tours in the hangar and school group tours. Occasionally, I did some reading programs with children and here and there a program. Complainant however also averred that because of an earlier accommodation provided by the Agency, “I am limited to working Monday to Friday and programs sometimes require weekend dates. Visitation is heavier on weekends and can have an impact on visitor participation, this limits my career” which supports S1’s contention that there were fewer programs for her to work on based on the schedule negotiated to accommodate her prior reasonable accommodation request concerning commuting to work on weekdays only when an Agency bus shuttle was able to transport her to work. Complainant also complained that her computer was not transferred to her new office and that her prior workplace “was ruined, even though I was given assurances . . . that notice (via email) would be given for removal of things and effects would be secure. They were not secure. I found papers in the garbage and scattered on the floor.” We note however, that Complainant also admits that another work colleague from the same office who “was also reassigned to Brooklyn . . . did not have his computer follow and his desk and office was also trashed.” Such an admission does not support her argument that she was treated differently. While Complainant may understandably be frustrated at the fact that her duties changed, and that her transfer was poorly handled, she has not shown that Agency harbored discriminatory animus towards her protected bases or that the Agency’s articulated reason for its action is a pretext. Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See, e.g., Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). 2020000640 6 An individual with a disability is ““qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Reasonable accommodation includes “[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(ii). “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. pt. 6130 app. § 1630.2(o). Assuming Complainant is a qualified individual with a disability, we find no persuasive evidence that she was denied a reasonable accommodation. The record establishes, and Complainant admits on appeal, that following her transfer she requested and was granted an accommodation to her schedule because her new location required commuting a long distance, sometimes at night, and her glaucoma made such travel dangerous by car. As such her schedule was changed to weekdays only when an Agency shuttle bus, which only ran on weekdays, could be used to aid in her commute. Complainant on appeal also contends that she desired an accommodation for her computer to let her better view the screen, stating, “I had asked for my computer and its hard drive, for a year, and did not receive the computer or an answer. The computer at the new site was in the front desk and shared, in a dark spot and has a small screen. With limited adjustment capability and hard for me to see.” Complainant, however, has not shown that management was aware of her need for an accommodation with her computer or that she ever requested an accommodation for the shared computer that she did have, until August 15, 2013. Instead Complainant has not shown that any requests to management about her computer prior to that date were framed as being related to her disability as opposed to requests to have her own computer that she would not have to share with a coworker. Complainant maintains that she told management that if she made mistakes with the flyer (referenced in claim 1) they were because “I could not see the computer at the desk (it is placed flat inside the desk, with glare, etc.) and that my computer with a screen I could see did not follow me when I was reassigned” to her current facility. This is the earliest date in the record where Complainant links her request to her disability. We note, however, that such a comment was made on or about August 15, 2013, and an email between Complainant and the EEO Counselor indicates that Complainant said she had finally received her old computer sometime prior to September 27, 2013, which means that Management took, at most, five weeks to comply with any such request. We do not find such a delay to be so unreasonable as to constitute a denial of her request. To the extent Complainant maintains she made earlier requests she has not specified when such requests were made. 2020000640 7 Nor has she specified whether or not she indicated in those requests that her need for her old computer was related to her disability or simply a preference so that she would not to have to share the computer at the new location with a co-worker. As such, we find that Complainant has not shown any accommodation request was denied. 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, by a preponderance of the evidence, that discrimination or reprisal occurred. We therefore 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). 2020000640 8 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 June 15, 2021 Date