[Redacted], Oda H., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2021004163 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oda H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021004163 Hearing No. 410-2019-00039X Agency No. HS-ICE-00578-2017 DECISION On July 2, 2021, 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 3, 2021, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a GS-1802-08 Enforcement and Removal Assistant (ERA) in Enforcement and Removal Operations in the Agency’s Field Office in Atlanta, Georgia. On March 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical), age (born in 1952), and reprisal for prior protected EEO activity (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. 2021004163 2 1. On October 19, 2016, Complainant’s October 13, 2016, request for Family and Medical Leave Act (FMLA) sick leave for October 12, 2016, was denied, and she was charged absent without leave (AWOL); 2. On November 1, 2016, Complainant was issued an annual Performance Work Plan (PWP), which rated her Interpersonal Skills as “Unacceptable,” and she was rated as “Needed Improvement” in four of the 11 criteria for the Interpersonal Skills critical element; 3. On November 2, 2016, Complainant received a Letter of Counseling for misrepresenting her medical condition; 4. On November 4, 2016, Complainant was required to take multiple “email etiquette” classes, she was restricted from sending group emails, her Supervisory ERA (SERA) berated her, and the SERA made hostile and intimidating statements accusing Complainant of throwing her team “under the bus”; 5. On November 15, 2016, Complainant was accused of being AWOL on November 10, 2016, and lost four hours of pay; 6. On November 16, 2016, a Supervisory Mission Support Specialist and an Assistant Field Office Director denied Complainant’s request for reasonable accommodation to have a parking space nearer the building to comply with her handicap sticker. Instead, Complainant was instructed to seek reassignment to a lower graded position; 7. On December 1, 2016, Complainant’s request for reasonable accommodation to not be exposed to individuals who may be in transit from other countries because of her autoimmune disease and her medication were denied, and she was required to work window duty. Complainant reported the incident to another ERA and to the SERA, but both failed to take action; 8. On December 6, 2016, Complainant received a Letter of Reprimand documenting her alleged AWOL on November 10, 2016. This punishment was in addition to her previous loss of pay; and 9. On December 14, 2016, Complainant was required to work the third floor window without the approved ergonomic setup, and she suffered physical discomfort. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, and Complainant submitted a response to the Agency’s motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions and that Complainant failed to establish that the proffered reasons were pretextual. The AJ also determined that the alleged harassment consisted of personality conflicts and general workplace disputes that did not rise to the level of a hostile work environment. Finally, the AJ concluded that Complainant did not establish that she was denied a reasonable accommodation. 2021004163 3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant did not submit a statement or brief in support of her appeal. 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. (Aug. 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. The Agency initially denied Complainant’s request for advanced sick leave for October 12, 2016, because Complainant informed the Acting Deputy Field Office Director that she would not be coming into work because she was tired after returning from a personal trip, she had a negative sick leave balance, and the request was not based on a medical issue. Although Complainant asserted that her supervisors should have known that she was tired because of her medical condition and processed it as a request for FMLA leave, she does not contest that she initially informed the Acting Deputy Field Office Director that she would miss work because she was tired from the trip. Moreover, after Complainant clarified why she missed work, her request for FMLA leave for October 12, 2016, was granted retroactively. On November 2, 2016, Complainant received a Letter of Counseling because she informed the SERA that the Field Office Director had already approved FMLA leave for October 12, 2016, which was not accurate. The Field Office Director had informed Complainant that she could submit a request for FMLA leave, which would be considered, but he had not granted FMLA leave for the date in question. The SERA rated Complainant as “Unacceptable” for Interpersonal Skills and rated her as “Needed Improvement” for four of the Interpersonal Skills criteria because of her lack of cooperation in supporting new policies, plans, and procedures; her failure to handle complaints and concerns with tact and diplomacy; her failure to exercise careful deliberation before making 2021004163 4 judgments; and her failure to demonstrate good judgment in selecting the proper mode of communication. The SERA received complaints about Complainant, including regarding group emails she sent. As a result, the SERA told Complainant she was no longer permitted to send group emails and required her to take email etiquette classes. Although Complainant alleged that requiring her to take email etiquette courses amounted to harassment, she acknowledged that she had not previously been trained on email etiquette and her email communication improved after completing the training. On November 10, 2016, Complainant saw the SERA as she was leaving work early. According to Complainant, she told the SERA that she had submitted a leave request for the afternoon, which Complainant alleges was in accordance with the usual practice that leave needed to be approved before time and attendance was validated. The SERA stated that she asked Complainant to wait until she checked if the leave had been approved and that it was required for leave to be approved in advance. Complainant disputes that the SERA asked her to wait. It is undisputed that Complainant left work before the SERA checked to see if Complainant’s leave request had been approved and that Complainant did not respond to the SERA’s call to her cell phone after she left work. Even assuming for the purposes of summary judgment that Complainant did not hear the SERA ask her to wait, Complainant could not establish that the Agency’s legitimate, nondiscriminatory reason for charging her AWOL was pretextual. There was no evidence of other employees whose leave requests were not approved in advance of taking leave yet were not charged AWOL. On December 6, 2016, Complainant received a Letter of Reprimand for failing to follow leave procedures and for being AWOL. In February 2016, the Agency approved Complainant’s request to park in a handicapped spot in the building’s parking deck through April 29, 2016, while recovering from knee surgery. Complainant sought an extension, and the Agency requested additional medical documentation, which Complainant submitted on May 16, 2016. The Agency continued to allow Complainant to park in a handicapped spot in the parking deck through November 2016, although it did not formally approve the extension. On November 7, 2016, the Agency denied Complainant’s request based on medical documentation that showed Complainant could not walk more than 100 feet, and the handicapped spots in the parking deck were more than 100 feet away from Complainant’s workspace. Because the documentation reflected medical restrictions that rendered Complainant unable to perform the essential duties of her job, the Agency recommended reassignment as a reasonable accommodation of last resort. Complainant subsequently submitted additional medical documentation, which stated that Complainant could walk 1,500 feet and lifted some of the other medical restrictions, and the Agency granted Complainant’s request to park in a handicapped space in the parking deck. Complainant also alleged that she was denied a reasonable accommodation when she was forced to work window duties where she was exposed to the public and forced to work at a non- ergonomic workstation. According to Complainant’s position description, interacting with the general public was an essential duty of Complainant’s ERA position. 2021004163 5 Complainant stated that she could not work at the window because she had an autoimmune condition and would be exposed to people transiting from other countries who might have diseases to which she would be susceptible. However, it is undisputed that the Agency provided Complainant with masks, gloves, and sanitizer and that Complainant’s physician stated that providing Complainant with masks, gloves, and sanitizer would effectively mitigate Complainant’s risk of exposure. Complainant also alleged that the Agency failed to provide her with an ergonomic workstation while performing window duties. However, the record establishes that the Agency continuously worked with Complainant, providing multiple ergonomic setups in an effort to accommodate Complainant. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021004163 6 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. The court has the sole discretion to grant or deny these types of requests. 2021004163 7 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 February 2, 2023 Date