U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margeret M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2020003007 Agency No. 54-2017-00218 DECISION On April 4, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 6, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as an Information Technology Officer, GS- 2210-13 at the Agency’s Green Bay, Wisconsin Weather Forecast Office, National Weather Service, National Oceanic and Atmospheric Administration (NOAA) in Green Bay, Wisconsin, subsequently reassigned to Silver Spring, Maryland. On November 2, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against her based on disability, sex (female) and in reprisal for protected EEO activity (prior activity) when: 1. She has been subjected to abusive comments verbally and writing by the Meteorologist in Charge, also Complainant’s supervisor (S1). Examples include the following matters: 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. 2020003007 2 a. S1 has made false, subjective statements against her. For example, in a June 9, 2017 email to her, S1 stated. “…your interpretation of events is consistently unrealistic and regularly impacts the efficiency of service here.” b. In June 2017, S1 incorrectly blamed her for not monitoring the “file accumulation issue, which could slow down the Advance Weather Interactive Process (AWIPS) functionality,” when she had been monitoring them and had advised the rest of the Systems Group of such. When she corrected S1 and said that she had been monitoring the issue, S1 then blamed her for blaming others. Complainant comments that she cannot provide “factual, corrective information” without S1 accusing her of “complaining” or “blaming,” but others do so and are not corrected or publicly admonished, as she is. c. In a June 2017 email, S1 referred to male employees of the Systems Group as “experts” whom she should consult, even though she is an expert on the matter, as well as a member of the Systems Group. d. S1 has made comments about her “complaining.” For example, in a June 20, 2017 email message, S1 wrote. “No more complaining about this now, get focused on your work.” e. On July 26, 2017, S1 accused her of “complaining.” Complainant stated that S1 that makes such accusations whenever she attempts to tell him about significant, operational, office or personnel issues and that he publicly admonishes her for bringing issues to his attention or reporting it to a co- worker, while not “berating” males for bringing issues to his attention. f. On July 26, 2017, S1 responded to her with sarcasm, “we’re kinda busy in here” when there was an issue with the door. g. On August 31, 2017, S1 stopped the morning meeting, which was occurring in the Operations Area, for which attendance was not mandatory, when she came to sign the sign-in log located in the Operations Area, and publicly humiliated her for coming into the Operations Area to sign in. Complainant notes that she has never seen S1 publicly humiliate anyway else like this. h. S1 publicly thanks and acknowledges others, while not doing the same for her. For example, in a September 22, 2017 email to several parties, S1 thanked an Agency employee, even though Complainant coordinated and was on the same call as he was, and provided additional and follow-up information. i. S1 admonished her in front of co-workers for not refilling paper towels. 2020003007 3 j. S1 admonished her in front of the Administrative Support Assistant for reporting that the back door was “blocked open.” k. S1 made reference to her “complaining” in her performance appraisal. l. S1 falsely accused her of making an accusation against the Electronic System Analyst, but when S1 made an accusation against her, S1 did not publicly admonish him. m. S1 has denigrated her for not getting information she needed from other employees to do her job, despite being aware that these employees were not giving her the needed information, and even though her requests were polite and professional. 2. Complainant has been subjected to abusive comments verbally and in writing by the Electronic Systems Analyst and other co-workers. Examples include the following: a. The Electronic System Analyst sent her “condescending and patronizing” email correspondence on June 26, 2017. b. On July 6, 2017, the Electronic System Analyst falsely accused her of doing a tech order that was to be done by him. c. The Electronic System Analyst accused her of “pretending” (i.e., lying) about not being informed as to what happened with the computer for the Administrative Support Assistant, when in reality she never received his email. d. Co-workers have made derogatory comments about her work ability. 3. Complainant’s job duties have been interfered with and she has been excluded from work assignments. Examples include the following: a. In June 2017, Senior Meteorologist reported something to S1 as if she had not been doing her job. b. Senior Meteorologist has ignored her requests for updates on areas that he has made changes in, concerning information technology issues. c. The Electronic Systems Analyst has excluded her from work assignments, such as the velocity software installation. d. Another Senior Meteorologist (Senior Meteorologist 2) refused to provide her information she requested needed for her to do her job. 2020003007 4 4. S1 requires Complainant to provide him with “Work Items” twice weekly, once on what is anticipated and then what is done, while not requiring the same of other employees. 5. S1 is uncooperative when she requests time for “EEO work” and refuses to allow her to telework to do her EEO work. 6. Complainant was given a direct reassignment to Maryland. 7. Agency management continued to pursue Complainant’s directed reassignment, despite being aware that her mother has severe medical problems, and despite begging them to reconsider or find an acceptable alternative, such as telework. Additionally, her current supervisor and another manager denied her requests or did not even respond to some of her communications. 8. Complainant’s requests to be allowed to apply for the Department of Commerce/NOAA Coaching Program were denied by S1 on October 16, 2017. She notes that S1 similarly denied her offer to volunteer for Regional Operations support at Central Region Headquarters. 9. Complainant was denied a cash award on October 30, 2017. She states that Peer Awards information, which she had to request (even though it was supposed to be provided to staff), showed that her nomination was interpreted falsely by an Agency manager. 10. S1 “continued to put unsubstantiated, derogatory remarks” in Complainant’s appraisal and closeout appraisal. 11. On November 6, 2017, S1 denied her request for compensatory time to complete office clean out. 12. After her mother had a stroke while Complainant was at her directed reassignment location of Silver Spring, Maryland, she returned home to Green Bay, Wisconsin. Because the supervisor would not allow her to simply use her own accrued leave to remain at home in Green Bay, Wisconsin, she had to request leave under the Family and Medical Act. 13. Complainant’s new supervisor in Silver Spring, Maryland, is directing her to send medical leave information to a Human Resources Specialist, which she believes is a conflict of interest. 14. S1 has failed to take appropriate corrective action to address Complainant’s concerns. Complainant cites the following: 2020003007 5 a. S1 has not responded to her June 6, 2017 “Memo for the Record” concerning “false accusations” and a “false written warning” made against her. b. Since June 20, 2017, S1 has refused to respond to her legitimate questions concerning her job performance and her appraisal. c. S1 has failed to respond or acknowledge any corrective action taken against the Electronic Systems Analyst for his “condescending and patronizing” behavior towards her. As an example of the Electronic Systems Analyst’s behavior, she cites his June 26, 2017 email correspondence to her. d. Despite being aware of the Electronic Systems Analyst’s mistreatment of her, S1 has failed to take appropriate corrective action whereas when she was falsely accused of making a derogatory comment about Complainant’s co- worker, she was given a written warning. e. S1 failed to take corrective action regarding the Senior Meteorologist, even though S1 knew that he was refusing to provide Complainant important information needed for her job. She further states that S1 also did this previously with respect to other employees. 15. The Agency denied her request for reasonable accommodation. 16. The Agency has unnecessarily delayed its response to her request for reasonable accommodation. 17. On April 6, 2018, Complainant sent her current supervisor an email message requesting advanced leave. However, the current supervisor has never responded to her leave request. Additionally, on April 11, 2018, she sent the current supervisor a follow-up email which was also ignored by the current supervisor. 18. Changes to Complainant’s time and attendance were made by Senior Meteorologist and supported/directed by S1. To date, time and attendance issues related to back pay and/or credit hours remain unresolved. 19. On May 24, 2018, her request for an extension for time allowed in temporary quarters was denied by the current supervisor. After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on February 6, 2020, pursuant to 29 2020003007 6 C.F.R. § 1614.110(b), finding no discrimination.2 The decision dismissed two claims for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). For the remaining claims, the Agency determined that management articulated legitimate, nondiscriminatory reasons for its actions. The instant appeal followed. ANALYSIS AND FINDINGS Ongoing Harassment by Supervisors and Coworkers To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her disability, sex or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Management witnesses, including S1, stated that many of Complainant’s claims either simply did not happen at all or were actions taken out of context, contain exaggerations or falsely characterize actions and intentions). S1 explained that Complainant regularly criticized colleagues and it became a distinct challenge to be patient and listen to each of her numerous complaints. He stated that he worked hard to listen to Complainant’s complaints but was compelled to counsel her when the criticisms became excessive and had a negative impact on the work environment. S1 acknowledged recommending Complainant for a directed reassignment to the NWS Central Region because he did not think the situation could improve between Complainant and her co- workers. Specifically, S1 stated that after three and one-half years of attempting some sort of resolution, but seeing that Complainant was basically incapable of cooperating in a small-team 2 Complainant identified her disability as anxiety and panic attacks. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2020003007 7 environment, the reassignment became the option management hoped would resolve the issue and provide Complainant with a fresh start. He noted that Complainant was unhappy at Green Bay and, when she repeatedly stated how much she hated her co-workers, he genuinely thought she would be happier once the reassignment was complete. S1 stated that during the relevant period Complainant and an identified Electronic Systems Analyst (male) had a long history of exchanging incivilities and accusations and he had counseled both of them many times to be respectful of each other. He stated that while the Electronic Systems Analyst occasionally lapsed, he was satisfied with his continuing improvement. S1 stated, however, he did not see any improvement on Complainant’s part as she continued to criticize and blame other co-workers for multitudes of perceived offenses. We have careful reviewed the evidence developed during the investigation but have found no evidence that the events at issue were motivated by Complainant’s sex or disability, or were the result of unlawful retaliatory animus. The image which emerges from considering the totality of the record is that there were a longs series of conflicts and tensions with management and her coworkers that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment unless that treatment is the result of discriminatory factors. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her disability, sex and/or prior EEO activity. Her claim of harassment/hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Denial of Reasonable Accommodation: Claims 15 and 16 Complainant claimed that she was denied reasonable accommodation during the relevant period and the Agency unnecessarily delayed its response to her request for reasonable accommodation. In a Request for Reasonable Accommodation form which Complainant prepared, Complainant stated that she needed an accommodation for “[a]nxiety and panic attacks induced by enclosed or confined areas in which I feel I could be trapped.” The specific accommodation that Complainant sought was “to be allowed to telework full-time, from my home in Green Bay WI, for the position to which I was given a directed assignment, or be reassigned back to my previous position of ITO and the WFO in Green Bay, WI.” Complainant thereafter requested possible reassignment to La Crosse, Wisconsin, as well. Regarding full-time telework, Agency management found the accommodation was not feasible, because Complainant’s position at the National Weather Service Headquarters was responsible for alpha testing the AWIPS and that the test platform is a closed system that cannot be accessed remotely. Complainant could not perform the essential functions of her position while 2020003007 8 teleworking. Complainant asserted that other Agency employees were able to access AWIPS remotely. However, she has not shown that these employees accessed the test platform remotely or that they were responsible for the same equipment-testing duties as she was in her IT Specialist position. Regarding her request to be reassigned back to positions in Wisconsin, the Agency asserts, and there is no other evidence presented to the contrary, that the requested positions were no longer vacant and had been encumbered. As the Agency was under no obligation to create a position for Complainant, we find that the Agency did not violate the Rehabilitation Act in failing to reassign Complainant to her desired positions. See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Q. 24 (as revised October 17, 2002). Moreover, given that Complainant’s requested accommodation was, in her own words, motivated by anxiety and panic attacks induced by “enclosed or confined areas” in which she felt she could be entrapped, we are unable to discern how the environments in the offices in Wisconsin were any different from the one in Silver Spring. We concur with the Agency’s conclusion that there is no evidence that the Agency violated the Rehabilitation Act by failing to provide Complainant her requested accommodation. Moreover, we discern no undue delay in the Agency’s decisions on the accommodation request. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. Since the Commission has decided to affirm the Agency’s decision on the merits, we decline to address the procedural dismissal of two claims, on the grounds of failure to state a claim. 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 2020003007 9 (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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 2020003007 10 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 30, 2021 Date
