U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meaghan F.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Motor Carriers Safety Administration), Agency. Appeal No. 2020004724 Hearing No. 570-2018-00392X Agency No. 2016-27132-FMCSA-02 DECISION On August 7, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Administrative Judge’s March 24, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-13, at the Agency’s Federal Motor Carrier Safety Administration Office of Acquisitions Management facility in Washington, District of Columbia. On November 8, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and/or disparate treatment on the bases of disability and reprisal for prior protected EEO activity (requesting a reasonable accommodation) since about August 2016 and continuing. In so doing, Complainant provided the following examples of the hostile work environment: 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. 2020004724 2 a. On September 8, 2016, immediately after reading Complainant’s doctor note and medical documentation in support of her request for a reasonable accommodation, her supervisor asked her if she had considered getting another job; she then said that she is “just playing [Complainant’s] game…” b. On September 21, 2016, Complainant was denied an anti-glare screen protector, which was part of her reasonable accommodation request. c. On September 23, 2016, Complainant’s supervisor requested another copy of her medical note; Complainant believes that her supervisor needed another copy because Complainant’s supervisor threw the doctor’s note that Complainant gave her in the trash; Complainant believes the carelessness in which her supervisor handled her medical information is a violation of her right to confidentiality and disclosure. d. On or about September 28, 2016, during a meeting in the Civil Rights Office, in an attempt to assassinate Complainant’s character, Complainant’s supervisor accused her of stealing her doctor’s note from her supervisor’s office. e. On October 13, 2016, Complainant’s supervisor stopped communicating with her verbally and began to excessively “mark up” her work, making it extremely difficult to have her work approved by her supervisor; it seemed like Complainant’s supervisor found something wrong with all of her work submissions and was trying to make her appear incompetent. f. On October 17, 2016, Complainant overheard her supervisor and the Acting Associate Administrator discuss her as a “bad employee,” the Acting Associate Administrator said that the worst thing a bad employee could do is file an EEO complaint; this is an example of how Complainant has been defamed by management. g. Complainant’s supervisor would not allow her to make up time for her late arrival on October 27, 2016; making up time for a late arrival is a normal practice and culture for her office. h. On October 31, 2016, in a non-compassionate tone, Complainant’s supervisor asked her what was wrong her with, and if there is something wrong with her eyes or brain. i. Complainant’s supervisor continuously displays irritated stares and facial expressions “as if [Complainant] is bothering her.” The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Complainant identified her first-line supervisor (Supervisor) as the manager responsible for the hostile work environment. Complainant attested that her disability is a neurological condition/tumor. She attested that she told Supervisor about her disability about two years prior, when Supervisor was a Team Lead. Complainant attested that she subsequently provided Supervisor with medical documentation. 2020004724 3 Supervisor acknowledged that Complainant had a disability but attested that she did not know what Complainant’s disability is. Supervisor attested that Complainant has indicated her disability does not impact her work and Supervisor thinks Complainant can perform the essential functions of her job. Complainant indicated that her prior protected EEO activity was her request for a reasonable accommodation. She attested that, on September 8, 2016, she requested a reasonable accommodation of an anti-glare screen protector for her computer from Supervisor. The Acting Associate Administrator (Manager) attested that he learned about Complainant’s medical condition in September 2016, after an anti-glare screen protector was removed from a supply order because staff was unaware that the order was part of a reasonable accommodation request. Manager attested that he recalled discussing Complainant’s frustrations that the screen protector was cancelled, and he explained that this was done without knowledge of the importance of the request and that it was part of a reasonable accommodation. He attested that the matter was immediately rectified. He also attested that he did not recall Complainant’s reporting of a hostile work environment or harassment or describing such a situation. An email dated August 9, 2016, from the Agency’s OCR to Supervisor indicates that, on that date, Complainant requested a reasonable accommodation. The e-mail instructs Supervisor to begin the interactive process and indicates that Complainant must provide appropriate medical documentation. An email dated September 8, 2016 from Complainant to Supervisor indicates that she provided the requested medical documentation and that she was requesting the following reasonable accommodations: screen protector for her computer, breaks (if necessary to regroup), maxiflex work schedule, flexible leave, and relocation to a quiet area with a closed door. A physician’s note dated August 5, 2016 indicates that Complainant had a history of pituitary tumor and needed periods of rest until her work-up was completed. Complainant attested that she gave this note to Supervisor on August 9, 2016 and advised Supervisor that she was sick and might need assistance. A physician’s letter dated August 30, 2016 indicates that Complainant had a neurological condition which can cause limitations. It indicates that, while she had not had a recent relapse, she may experience fatigue and headaches and was being reevaluated. It also indicates that, when experiencing periods of pain and fatigue, she may require short to moderate periods of rest and recuperation. Complainant attested that, on September 8, 2016, she provided Supervisor the August 30, 2016 physician’s letter and Supervisor asked her if she had considered another job. Complainant attested that she explained that she liked her job and has been performing it for years with this same medical condition with no problem, but Supervisor continued to speak negatively and accused Complainant of playing a game. 2020004724 4 Complainant attested that she informed Supervisor that she was sick, and the medical documentation was in case she had to be off from work or experienced a medical emergency. Complainant attested that Supervisor became agitated, threw the doctor’s note onto her desk, leaned back in her chair, and started waving her arms and said, “I’m not playing your game.” Supervisor denied these allegations. Supervisor specifically denied throwing the doctor’s note into the trash. She acknowledged that it was missing from her desk and indicated that she did not know what happened to it. Complainant alleged that, on September 23, 2016, Supervisor requested another doctor’s note and, on or about September 28, 2016, during a meeting with OCR, Supervisor accused Complainant of stealing her own doctor’s note. Supervisor denied these allegations as well. Emails between Complainant, Supervisor, and other employees dated in August and September 2016 reflect conversations about budgets and ordering office supplies. An August 24, 2016 email from Complainant to Supervisor and another employee indicates that Complainant provided a list of requested supplies, including a computer screen protector. A September 21, 2016 email from Complainant to Supervisor indicates that a screen protector was not ordered for Complainant and asks when it would be ordered. An email in reply, from Supervisor to Complainant, indicates that Supervisor was not sure when a screen protector would be ordered and references an email from the Acting Associate Administrator regarding funding for the next fiscal year. Complainant attested that, on or about September 22, 2016, Supervisor gave her a screen protector that was too large for her computer. Complainant attested that she received another one in October 2016. Supervisor attested that Complainant did not initially request an anti-glare computer screen through her and she did not know if Complainant requested an anti-glare computer screen as a reasonable accommodation. However, she acknowledged that some supplies, including an anti- glare screen for Complainant were cut because the office was over budget and on a continuing resolution. Supervisor attested that, when Manager informed her that Complainant needed an anti-glare screen, she gave Complainant her personal anti-glare screen and someone helped Complainant attach it to her computer. She attested that, as of October 13, 2016, Complainant had everything she requested. Complainant attested that, beginning on October 13, 2016, Supervisor stopped verbally communicating with her and began marking up her contract Review Sheet excessively, making it extremely difficult for her to have her work approved. Supervisor denied these allegations. Complainant attested that, on October 17, 2016, she overheard Supervisor and Manager talking about her, including calling her a bad employee and stating that the worst thing a bad employee could do is file an EEO complaint. Supervisor and Manager denied that their conversation was about Complainant. Manager attested that they were speaking generally about a difficult employee and he remembered saying something along the lines of having an employee file a complaint was not the worst thing that could happen. 2020004724 5 Complainant attested that, on October 27, 2016, she arrived at work late, but she made up the time at the end of her day, which, she attested, was normal practice and culture for the office. Complainant attested that Supervisor called her and said she needed prior approval before making up her time and, consequently, Complainant requested annual leave for the time she was late. Supervisor explained that there is no such policy and when an employee is late, the employee is supposed to request leave. Complainant attested that, on October 31, 2016, Supervisor received a call from the Disability Resource Center regarding Complainant’s reasonable accommodation request, after which she stated to Complainant, “What’s wrong with you?” and “I’m trying to figure out if there is something wrong with your eyes or brain.” Supervisor denied these allegations. Complainant attested that Supervisor displays irritated stares and facial expressions on a daily basis, as if Complainant is bothering her. Supervisor attested that she does not know what her face looks like, but her expressions not directed at Complainant. During the investigation, Complainant attested to several other events not expressly mentioned in the acceptance of the complaint. She attested that, on November 28, 2016, she returned from a two-week vacation to find that Supervisor had placed on contract file on her desk that Supervisor had signed on November 8, 2016, which made it appear 20 days late. Supervisor denied which contract was at issue. Complainant also attested that, on August 18, 2015, when Supervisor was a Team Lead, she told Complainant to “watch her back” because “the new bitch,” referring to the Director, Acquisitions, was going to clean house, which caused Complainant stress. Director, Acquisitions (Director) attested that she recalled that, in June 2016, Complainant told her that Supervisor said these things. Director also attested that Complainant reported that Supervisor said, “You have to watch her,” referring to Director, “because she is light-skinned, and you know how those light- skinned people act.” Director attested that Supervisor denied making these comments. Supervisor attested that she did not make these comments. Complainant also alleged that, on October 16, 2016, Supervisor allegedly made a comment during a team meeting that all AIDS/HIV positive people working at the Agency should disclose their illness, for fear of them spitting in other’s food. Director attested that, while she did not witness this, she was told to counsel Supervisor about this alleged comment, which she did. However, Director attested that Supervisor denied making the comment. Supervisor attested that she did not make the comment. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 2020004724 6 Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on March 24, 2020.2 When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal, Complainant argues that the AJ’s decision should be reversed on several reasons, including that the AJ initially declined the case for a hearing and then later reversed that decision and scheduled the hearing, the AJ made no attempt to evaluate the evidence presented despite Complainant presenting overwhelming evidence that the actions taken were in retaliation for her protected activities, the AJ failed to address the August 2017 events which indicate the failure to accommodate within 35 days of Complainant’s request, and the AJ disregarded email evidence and testimony regarding the August 2017 events that indicate Supervisor knew that Complainant needed medical help and accommodations for her medical needs. In response, the Agency argues that Complainant’s appeal was untimely. It also argues that the AJ correctly applied the law to the facts that were fully developed by the investigation and testimony provided. ANALYSIS AND FINDINGS Summary Judgment We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2 The AJ conducted an in-person initial conference but not a full hearing. 2020004724 7 Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Denial of Reasonable Accommodation Claim Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The Agency may choose among reasonable accommodations, if the chosen accommodation is effective. An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). For the purposes of analysis only, we shall assume, arguendo, that Complainant is an individual with a disability. 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). 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). Here, Complainant alleged that the Agency denied her a reasonable accommodation of an anti- glare screen protector. However, the record shows that she initially requested a reasonable accommodation from OCR on August 9, 2016. That same day, OCR notified Supervisor of this request and instructed her to begin the interactive process. Supervisor began the interactive process, including requesting Complainant provide sufficient medical documentation. On September 8, 2016 Complainant provided the medical documentation and specifically requested the anti-glare screen protector. While there was an error in failing to order a screen protector in September 2016, Complainant acknowledged having received one in October 2016. We find this to be an appropriate amount of time to have satisfied Complainant’s request. Accordingly, we find that the Agency did not deny her request for an anti-glare screen protector as a reasonable accommodation.3 3 We also note that the Agency fulfilled Complainant’s other reasonable accommodation requests. 2020004724 8 Harassment Claim In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. We find that some of Complainant's harassment allegations can generally be described as workplace disagreements with managerial decisions, including matters related to signing off on or returning her work for revision and policies regarding late arrival and leave. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We find that Complainant’s remaining harassment allegations can generally be described as relating to being spoken to or treated in a harsh or unfriendly manner by Supervisor. We recognize that some of the statements allegedly made by Supervisor and/or Manager were inappropriate or insensitive. However, even if these allegations were true, we find they are insufficiently severe or pervasive to have altered the conditions of Complainant’s employment. The incidents involved are of a type that typically arise out of petty disputes, personality conflicts, or poor communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). See also Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the assertion that Complainant's race or EEO activity played a role in the incidents at issue. Thus, Complainant's allegations, even if true, are insufficient to support a claim of discriminatory harassment. 2020004724 9 Disparate Treatment Claim 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). 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). In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Here, Complainant’s allegations regarding having been required to use leave for being late give rise to a claim of disparate treatment. However, we find such time keeping and attendance matters are managerial decisions, which, absent discriminatory animus, will not be second- guessed by the Commission. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). The Agency explained that there was no policy allowing employees to arrive late and stay late to make up the time and, when late, employees must request leave. We find this to be a legitimate, nondiscriminatory reason for the Agency’s actions. Furthermore, although Complainant has alleged that the Agency discriminated against her, the record does not establish by a preponderance of the evidence that Complainant’s disability or prior EEO activity played a role in these actions. Therefore, we find she has failed to prove her claim of disparate treatment. 2020004724 10 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 decision. 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. 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. 2020004724 11 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 May 24, 2021 Date
