[Redacted], Nita H., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Sep 28, 2021

Appeal No. 2021003559 (E.E.O.C. Sep. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nita H.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. Appeal No. 2021003559 Hearing No. 451-2020-00061X Agency No. BFS-19-1241-F DECISION On June 4, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 17, 2021 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Debt Recovery Analyst, GS-0301-09, at the Agency’s Bureau of the Fiscal Service in Austin, Texas. On September 27, 2018, Complainant filed the instant formal complaint. Complainant alleged that the Agency discriminated against her on the bases of race (Caucasian), disability (asthma and sensitivity to strong scents), and in reprisal for prior protected EEO activity2 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. 2 According to Complainant, her prior EEO activity relates to a sexual harassment allegation filed in July 2017 against a Security Guard because she thought his body search was inappropriate. 2021003559 2 A. During a June 24, 2019 training, Complainant was not provided a call-in number, had to sit on the other side of the room from the other attendees and eventually was told she could take the course online. B. On June 21, 2019, Complainant was directed to remove her plants, while no other employee received the same direction. C. On June 11, 2019, her supervisor offered her a cubicle with high walls and informed her that if this accommodation is not sufficient, she would “no longer have a job.” D. The accommodation provided was insufficient. E. On April 18, 2019, her supervisor disclosed her medical condition during a meeting with employees, including two new employees. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ issued an Order requesting that the parties brief him on whether the case was appropriate for summary judgment. Both Complainant and the Agency filed responses to the Order in a timely manner.3 On May 5, 2021, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its May 17, 2021 final order, the Agency adopted the AJ’s decision. The instant appeal followed. 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). 3 The record reflects that the AJ noted Complainant’s response consisted of only two sentences. 2021003559 3 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 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. Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas Department of Community 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. During a June 24, 2019 training, the AJ found the Agency officials adequately explained that Complainant was not provided a call-in number for the training because the training had been planned to be completed in-person and the training vendor was not organized for trainees to attend via teleconference. All employees, including Complainant, received notice of the scheduled, in-person training via email on July 18, 2019. Complainant, despite knowing that the training was scheduled to be in-person for approximately one week, did not request a call-in number as an accommodation. Further, the AJ noted that on the morning of the training, Complainant indicated that she could not attend the training with the other employees because it was dangerous for her due to her disability. However, nowhere in the Complainant’s affidavit did she state that there was, in fact, harmful odors present inside of the in-person training room. The AJ stated that it appears Complainant simply assumed that the harmful orders would be present during the training. However, the record also shows that once Complainant raised the issue, the Director, Debt Collection Services, also Complainant’s third-level supervisor (“S3”) (African American), arranged for Complainant to attend a comparable online training course at a later date. 2021003559 4 With respect to Complainant’s allegation that on June 21, 2019, she was directed to remove her plants while no other employee received the same direction, S3 explained that the Support Services Supervisor contacted management that pest control identified that a bug infestation was caused by the Complainant’s plants. He stated that they were requested to remove Complainant’s plants. S3 noted that initially, Complainant refused to remove her plants but eventually removed them. The record reflects that S3 authorized Complainant to bring in other plants that were not infested with bugs. Based on this evidence, we conclude there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claims that her treatment was the result of her race, sex and age. Denial of Reasonable Accommodation The 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’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (October 17, 2002). Here, presuming that Complainant is disabled for purposes of the Rehabilitation Act, she has alleged that she was denied a reasonable accommodation. Complainant identified her disability as asthma and a sensitivity to strong scents like perfumes, colognes, and chemical odors such as cleaning products, air fresheners, and hair spray. As background, the evidence showed that several years prior to the events at issue, in March 2017, Complainant requested that she be permitted to sit in a different section away from other employees as an accommodation to her disability. On April 7, 2017, Complainant sent an email to the Disability Employment Program Manager indicating that her management had moved her to a location where nobody sat near her and that it had improved her breathing “tremendously.” In addition, in April 2017 and again in May 2019, the Support Services Supervisor sent a general email to facility employees informing them that all scented items in the restrooms would be removed and requesting that employees refrain from using perfumes and colognes and/or scented items in common areas. In December 2018, the Agency determined that it would be necessary to hire additional contractors to assist with the increasing workload. The contractors were expected to arrive in April 2019 and remain within the Agency’s employment for the next 18 to 24 months. It appears Complainant became concerned that the new contractors would be located near her work station with the potential for triggering her asthma. Complainant raised her concerns with her supervisor, which resulted in the suggestion by the supervisor to look into raising the walls of her cubicle. The supervisor denied making the statement about Complainant losing her job and there is no other evidence to support Complainant’s allegation of this statement. 2021003559 5 In the end, the Agency did not implement the high-walled cubicle option. Instead, S3 accommodated Complainant by providing her with her own private office safe from any irritating odors. Complainant was also offered telework as a reasonable accommodation, which she declined due to her home’s poor internet connection. In addition, in August 2019, at Complainant’s suggestion, the supervisor reminded the new contractors not to use Lysol cleaning wipes. At Complainant’s suggestion, the Agency also posted a “no smell zone” sign on her office door plate. In sum, based on the evidence discussed above, we concur with the AJ’s conclusion that there is no evidence that the Agency violated the Rehabilitation Act by failing to provide Complainant with appropriate reasonable accommodations for her known medical condition. Improper Disclosure of Confidential Medical Information The Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R. § 1630.14. By its terms, this requirement applies to confidential medical information concerning “any employee,” and is not limited to individuals with disabilities. Hampton v. U.S. Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000). Here, the evidence does not establish that an improper disclosure by management occurred. According to Complainant, on April 18, 2019, during a meeting to introduce the new contractors to the rest of the call center employees. the Program Manager was pointing around the room having everyone introduce themselves and that when it came to Complainant, he pointed at her and said something to the effect that “this is the lady I was telling you about not to get close to her with perfume or cologne on. She has a severe allergy.” The Program Manager explained that Complainant’s desk was located right in the center of the call center surrounded by twenty new contractors and, “I was trying to help protect Complainant from exposure to all those scents. Based on the evidence of record, we conclude that Complainant had, in effect, waived confidentiality about disclosing her sensitivity to strong smells to her new coworkers. In fact, she had actively asked that management help protect her by asking her colleagues to refrain from engaging in activity that might trigger her disability, and had specifically expressed concern about the new contractors. She, in fact, authorized management to place a special sign concerning strong scents on the door to her private office. Under these circumstances, while this was perhaps not the best method or setting to convey the message about exercising care around Complainant, we agree with the AJ that the disclosure did not amount to a violation of the Rehabilitation Act. 2021003559 6 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding of 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. 2021003559 7 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 September 28, 2021 Date