[Redacted], Natalie B., 1 Complainant,v.Kelu Chao, Acting Chief Executive Officer, U.S. Agency for Global Media, Agency.

Equal Employment Opportunity Commission

Mar 30, 2021

Appeal No. 2020002602 (E.E.O.C. Mar. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie B.,1 Complainant, v. Kelu Chao, Acting Chief Executive Officer, U.S. Agency for Global Media, Agency. Appeal No. 2020002602 Hearing No. 570-2017-00212X Agency No. ORC-16-05 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s January 10, 2020 final order concerning her complaint alleging 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. and 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Program Analyst, GS-11, at its Office of Human Resources, Operations Division, in Washington, D.C. On February 11, 2016, Complainant filed an EEO complaint alleging discrimination and harassment on the bases of disability and in reprisal for prior 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. 2020002602 2 1. She was allegedly subjected to incidents she believed adversely affected her employment, to include: a. Between April 27, 2015, and September 8, 2015, the Agency failed to pay her while she was on the periodic rolls; b. Beginning September 8, 2015, being verbally abused, harassed, berated, yelled at, and called a liar and a cheat by her supervisor, the Director of Human Resources (HR); c. On or about September 8, 2015, being denied a reasonable accommodation; d. On or about November 23, 2015, her supervisor started demanding she provide a daily report of accomplishments, but to her knowledge other employees were not required to provide the same list; e. Since November 2015, she suffered inconsistent and conflicting directions with regard to the requirements and nature of taking leave; f. Not receiving a pay increase in November 2015, upon completion of her third year of employment; g. Being placed on Leave Without Pay (LWOP) in November 2015, for attending medical appointments involving a work-related injury; h. Around December 2, 2015, during a staff meeting, her supervisor made an inappropriate gender and age-related statement intended for her; i. On or about October 7, 2015, after being approved to telework one day a week, she was told she could not telework without completing two courses; j. Beginning October 15, 2015, being treated less favorably than her coworkers by her supervisor when she was informed she had to use her own leave on more than one occasion for matters involving a Workers' Compensation related injury; her supervisor was abrupt and rude to her when she asked to discuss a work program; her supervisor sent her harassing emails regarding her injury; her supervisor made a comment that implied her job could be in jeopardy due to her disability; and beginning February 2016, her immediate supervisor began deleting her email responses in an effort to make it appear as though she was an uncooperative employee; k. On October 23, 2015, she reported her supervisor's increasingly hostile behavior, but the Agency failed to take sufficient corrective action to stop the behavior; l. Beginning November 4, 2015, she was required to provide additional medical documentation in excess of what is typically required; she was instructed to provide a doctor's note for being out due to a work related injury, but later instructed to provide documentation pertaining to the Family Medical Leave Act (FMLA) instead; she was informed her medical documentation was not acceptable after she had been notified by email that it was sufficient; and since January 2016, she has been requested to submit medical documentation for her work related injury even though she submitted this documentation in November 2015; and m. Beginning November 19, 2015, she was informed she would have to take either LWOP, be placed on Absence Without Leave (AWOL) status, and/or be required to invoke the FMLA. 2020002602 3 2. On or about October 5, 2015, she was required to complete two online courses in order to telework that no other staff was required to complete. 3. On multiple occasions, beginning October 23, 2015, her requests to telework were denied, to include, revoking her temporary telework privileges and denying her telework application more than once. 4. On November 20, 2015, she noticed $235 was being deducted from her pay each pay period. 5. On November 23, 2015, she was denied the opportunity to work from home two times per week, while other employees were permitted to do so. 6. On November 25, 2015, she was not authorized two hours of administrative leave as was granted to the other employees, but instead was required to make up previously approved administrative leave she was granted and had used to attend a medical appointment. 7. Beginning January 25, 2016, she has been placed on AWOL status when she was absent from work. Complainant does not challenge the framing of the claims. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant presented no evidence that the Agency’s actions were motivated by discrimination. The AJ also found that Complainant failed to show that there were any similarly situated employees not in her protected groups not required to take two-hour telework training courses. Regarding her claim of harassment, considering all the events, the AJ found that Complainant failed to show that it was related to any protected basis of discrimination or that it was severe or pervasive to alter the conditions of her employment and create an abusive working environment. Regarding the claim of denial of a reasonable accommodation, the AJ found that Complainant did not submit a request and/or submit adequate medical documentation to support a need for a reasonable accommodation. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2020002602 4 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 adopting 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. 2020002602 5 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. 2020002602 6 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 30, 2021 Date