[Redacted], Mary T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003798 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mary T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003798 Hearing No. 450-2018-00062X Agency No. ARMEPCOM17MAR00821 DECISION On June 17, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 2, 2020 final order 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., 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 During the relevant time, Complainant worked as a Mission Support Specialist at the Agency’s Military Entrance Processing Station in Dallas, Texas. On May 8, 2017, Complainant filed a formal complaint, claiming that the Agency subjected her to discriminatory harassment based on race (African American), disability (heart condition), age (over 40), and in reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020003798 2 a. on or about February 15, 2017, her supervisor (“S1”) did not respond to her text acknowledging her doctor’s excuse; b. on or about February 16, 2017, S1 ignored her request for sick leave; c. on February 28, 2017, S1 directed her to wait in an uncleaned alternate work location until the Commander arrived; and d. On March 15, 2017, S1 and the Commander failed to provide her with a reasonable accommodation. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the AJ issued a Notice of Proposed Summary Judgment. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final action adopting the AJ’s decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Harassment/Hostile Work Environment To prove her harassment/hostile work environment 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 race, age, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). 2020003798 3 Complainant’s work area on the fourth floor underwent renovation beginning February 2017. As a result of the construction, Complainant asserted that she began experiencing respiratory problems which required her to be out of the office on February 14 and 16, 2017. On February 13, 2017, Complainant sent a text to S1 requesting sick leave for the following day, but her message was ignored. S1 acknowledged receipt of Complainant’s February 13, 2017 text but explained that because he was out sick. There is no indication that Complainant was not granted approved leave for the dates in question. S1 stated that on February 28, 2017, he showed Complainant various options for alternate workspaces. However, Complainant complained that the alternative spaces were dirty and wanted to telework instead. Thereafter, S1 stated that he sent an email to the Legal Unit letting them know that Complainant only wanted to telework. In sum, there is absolutely no evidence to support Complainant’s claim that that the events in question were in any way motivated by Complainant’s race, age, disability or unlawful retaliatory animus. As correctly determined by the AJ, Complainant’s harassment claim is precluded based on our findings that she 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. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that she was denied reasonable accommodation to work full-time telework until the completion of the renovation project at her work area. Although Complainant claims that the physician recommended full-time telework to ameliorate her physical symptoms, the medical documentation she provided the Agency did not support this position. Instead, the physician identified working from home as only one of the options available to address Complainant’s respiratory issue caused by the construction. The record reflects that Agency management offered Complainant three alternative work locations: on the first floor, mezzanine level, and third floor that all tested safe for air quality. However, Complainant rejected all three options, declaring that she considered working at home as the only viable alternative. We find that Complainant is not entitled to the accommodation of her choice. See e.g., Casteneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to an effective reasonable accommodation). Complainant has not presented adequate evidence to support a finding that the alternative accommodations offered her by the Agency would not have been effective and comport with her physician’s recommendations. 2020003798 4 Thus, the undisputed evidence of record fully supports the AJ’s conclusion that she was not denied reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020003798 5 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 November 4, 2021 Date