[Redacted], Matilda H., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2019005253 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilda H.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2019005253 Hearing No. 430-2016-00262X Agency No. P4-15-0152 DECISION 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 June 19, 2019 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney-Advisor, GS-0905-14 at the Agency’s Headquarters facility in Fort Lee, Virginia. On July 6, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. from October 2014 to the present, the Chief Counsel (CC) and the Executive Director (ED) have denied her reasonable accommodation requests; 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. 2019005253 2 2. on or about October 3, 2014, Complainant’s access to classified materials was suspended and she was removed from the Secured Compartmented Information Facility (SCIF) work area based on an alleged false complaint filed against her; and 3. in March 2015, Complainant’s co-workers and friends were inappropriately questioned about her physical capabilities and social activities based on the false complaint filed against her and management has failed to reinstate her access to classified information and provide her a workspace in the SCIF work area. Complainant explains that, as a result of service-connected injuries to her hip and foot, diagnosed in 2007, and injuries to her back and leg from a car accident in 2011, she has difficulty walking and sitting. Complainant uses a motorized scooter, wheelchair, and a crutch or cane to assist with mobility, and uses a foot stool, chair, or boxes to elevate her right leg to relieve pressure, pain, and swelling in her leg. Complainant also benefits from cushions on her chair to help with her lower back. Complainant completed an ergonomic assessment of her workstation, in which she said that she needed assistance with the area below her desk. Specifically, she needed room to elevate her right leg to use an ice pack. Complainant asked to move her computers to make room for a foot rest and sought a better seat cushion. Complainant alleged that CC refused to sign the ergonomic assessment when she gave it to him in January 2013. However, another Agency employee signed the evaluation on May 22, 2013, and Complainant’s workstation was thereafter adjusted. CC denied refusing to sign the evaluation. In June 2014, ED advised Complainant that she was being moved out of her office and into a cubicle. Complainant alleged that the cubicle was “woefully inadequate” to accommodate her condition and scooter. ED explained that he had two GS-14 employees who were sharing an office, and they needed private offices because they dealt with classified contractors and were supervisors. ED noted that Complainant objected on the basis that she was an attorney, but the Agency’s general counsel confirmed that the Agency did not require attorneys to have their own offices. Complainant argued that ED did not give the general counsel all the facts, including her limitations, and therefore should not have relied on the general counsel’s advice. In an email on August 25, 2014, the Agency’s EEO office asked Complainant to complete a formal reasonable accommodation request for her cubicle. In response, Complainant said she did not want to do that because she had never made such a request. In the email, Complainant wrote, “Not sure I can fill out your form as I did not request an accommodation. . . . My current office has my workstation already configured so I can keep my leg elevated. They are taking this existing accommodation away from me. The only accommodation I would ask for would be to leave me where I am and move one of the other GS-14s to a cube.” 2019005253 3 Complainant argued that her scooter would not fit into her cubicle, which meant she would not be able to charge it. Complainant contended that her supervisors and employees were angry that she would not move to the cubicle, and that the Director of Mission Support Operations (DMSO) told the Agency’s occupational safety and health office that the cubicle was modified to fit Complainant’s needs. Complainant asserted that occupational health employees visited the cubicle several times and said it needed to be changed. DMSO averred that a “new desk top and foot stool were ordered and the desk surface was raised in order to meet the requirements.” However, Complainant never moved into the cubicle, but instead moved into the General Counsel suite, and eventually transitioned into a position in the Personnel and Ethics division. The record contains a request for reasonable accommodation dated February 24, 2015, seeking similar accommodations to what Complainant had in her office. However, in an email exchange, the Agency’s EEO disability program manager informed Complainant that he did not have any medical documentation on file. The record does not reveal any further evidence regarding this request, nor does Complainant suggest that the Agency failed to act on it. Complainant contended that ED and DMSO filed an anonymous complaint against her alleging that she was faking her injuries. Complainant conceded that Agency policy requires that an employee’s access to classified information be suspended during the pendency of an investigation against that employee but asserted that the Agency went further in her case, telling her to pack up and escorting her out of the office. ED explained that Complainant’s access was temporarily suspended because she was under investigation. Because of the investigation, Agency policy prohibited Complainant from being in the SCIF. ED disclaimed filing the anonymous complaint and asserted that he does not know who filed the complaint because it was anonymous. Additionally, Complainant’s access was not reinstated because Complainant said she did not want to return to the SCIF. ED further added that he has suspended access for five other employees. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency’s motion for summary judgment and issued a decision without a hearing on June 13, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). 2019005253 4 A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Denial of Reasonable Accommodation - Claim (1) Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is a qualified individual with a disability. The Commission further notes that under the Rehabilitation Act, an employee is not required to use the magic words “reasonable accommodation” when making a request. See Enforcement Guidance on Reasonable Accommodation, Question 1. Instead, the employee or the employee’s representative need only inform the agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006), req. for reconsid. den’d, EEOC Request No. 05A60859 (Sep. 19, 2006); see also Geraldine B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090181 (Oct. 13, 2015). In this case, the Agency was put on notice that Complainant required some accommodation when she completed an ergonomic evaluation related to her workspace. After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See 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); see also Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). 2019005253 5 Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Through the ergonomic evaluation, Complainant sought accommodation related to her desk so that she could elevate her leg and have a more ergonomic chair. Notably, Complainant did not seek an evaluation or modification that included her scooter. Complainant does not dispute that the Agency appropriately adjusted her office to accommodate her needs. Complainant only began her objections when the Agency sought to move her to a cubicle. However, DMSO averred that he undertook all necessary steps to ensure that her desk and foot stool were at the same height as her previous office. When Complainant continued to object, the Agency then asked Complainant to complete a reasonable accommodation request. Through her email refusing to submit a formal reasonable accommodation request, Complainant only stated she wanted to remain in her office. When Complainant declined the opportunity to complete a formal request for accommodation and submit medical documentation in support, the interactive process broke down. The Commission has found that an individual is not entitled to a reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Soc. Sec. Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012). Accordingly, the Commission finds that Complainant has not established that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment - Claims (2) and (3) To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). As more fully detailed above, CC explained that the Agency was obligated to investigate the anonymous complaint it received against Complainant, and that it was normal procedure for the Agency to temporarily suspend access for the subject of a complaint. Complainant’s co-workers were also questioned in the normal course of investigating the anonymous complaint. There is no evidence indicating that the investigator asked Complainant’s co-workers any inappropriate or irrelevant questions related to her condition. 2019005253 6 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanations for its actions were pretext intended to mask discriminatory or retaliatory motivation. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant claims that the alleged incidents constitute a claim of harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency management were motivated by discriminatory or retaliatory animus on any of her alleged bases. 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 herein, we AFFIRM the Agency’s final order. 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. 2019005253 7 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. 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. 2019005253 8 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 March 8, 2021 Date