[Redacted], Mirtha H., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Mar 31, 2021

Appeal No. 2020002369 (E.E.O.C. Mar. 31, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirtha H.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2020002369 Hearing No. 480-2019-00073X Agency No. 2017-DPAA-055 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 16, 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. 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 International Travel Specialist, GS-09, at the Agency’s Joint Base Pearl Harbor-Hickam facility in Hawaii. On September 29, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of disability (mental) and reprisal when: 1. On June 23, 2017, Human Capital Division Chief (HC1) informed Complainant that she would be charged AWOL for June 12-13, 2017; 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. 2020002369 2 2. On March 10, 2017, Complainant's Volunteer Leave Transfer Program (VLTP) request was denied due to HC1 previously placing Complainant on Absent Without Leave (AWOL) status; 3. In January 2017, HC1 and an Agency official failed to address inappropriate behavior by Coworker One (CW1) reported by Complainant; 4. From January 13 to February 27, 2017, Complainant was forced to use Leave Without Pay (LWOP) due to the denial of her reasonable accommodation; and 5. On January 13, 2017, HC1 denied Complainant's reasonable accommodation. The Agency dismissed Complainant’s complaint for untimely EEO contact and failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and ordered the Agency to process the complaint in accordance with 29 C.F.R. § 1614.108 et seq. Mirtha H. v. Dep’t of Defense, EEOC Appeal No. 0120180537 (Feb. 7, 2018). 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). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 13, 2019, motion for a decision without a hearing and issued a decision without a hearing on January 7, 2020, finding no discrimination. In the decision, the AJ pointed out it was apparent from the record Complainant and CW1 harbored a longstanding mutual disdain, but contentious working relationships amongst coworkers alone is not evidence of discrimination. The AJ found Complainant failed to produce any evidence that the Agency’s or CW1’s actions were motivated by Complainant’s disability or protected activity. With regard to Complainant’s reasonable accommodation request to relocate to other buildings to avoid CW1, the AJ found Complainant’s request was unreasonable and Complainant failed to establish special or extreme circumstances which could rebut the presumption and make such a request reasonable. Rather, the evidence showed Complainant’s stressful but nevertheless quite ordinary encounter with CW1 and her drastic request to effectively remove herself from the workplace was totally disproportionate to the underlying incident. Despite finding her request unreasonable, the AJ noted the Agency granted her request and found any delay in granting the request to relocate to other buildings was not unreasonable. With regard to Complainant’s accommodation request to telework, the AJ found Complainant could not perform the essential functions of her position as a passport agent while teleworking. If teleworking, Complainant would be unable, in her personal residence, to physically meet with customers, or review the sensitive personal documents attached to passport applications that needed to be physically inspected like someone’s birth certificate or citizenship documentation. Accordingly, the AJ found Complainant produced insufficient evidence to prevail on any of her claims and the Agency was entitled to summary judgment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 2020002369 3 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). 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision 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. 2020002369 4 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. 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. 2020002369 5 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 March 31, 2021 Date