[Redacted], Raquel M., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 17, 2021

Appeal No. 2020003605 (E.E.O.C. Nov. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raquel M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003605 Hearing No. 420-2019-00343X Agency No. ARCEHUNTV17APR01181 DECISION On May 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 23, 2020 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 period at issue, Complainant worked as a Workforce Development Specialist, Grade GS-11, in the Business Management Office at the Agency’s Huntsville Center, Alabama. In the Business Management Office, Complainant’s direct supervisor was Chief, Human Capital, Grade GS-13 (Supervisor) (female, race not specified). At that time, Complainant’s second-line supervisor was the Business Director, Grade GS-15 (male, race not specified). 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 2020003605 On July 6, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of pregnancy, sex (female), and disability (complications from high-risk pregnancy including low blood pressure, nausea/light-headedness, blurred vision, vomiting, fatigue/drowsiness, frequent restroom visits, pancreatitis and side effects of medication). The Agency articulated Complainant’s claims as follows: 1a. On August 29, 2016, Complainant received notification that her job descriptions/job series would arbitrarily change; 1b. Beginning January 16, 2017, Complainant’s reasonable accommodation packet, submitted in January 2017, was subjected to a higher level of scrutiny than similar reasonable accommodation requests; 1c. On April 3, 2017, Complainant’s access to her duty station was denied; and 2. On April 17, 2017, Complainant’s reasonable accommodation request submitted in January 2017, was not approved. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On March 5, 2020, the Agency moved for summary judgement. On March 20, 2020, through her non-attorney representative, Complainant objected to the Agency motion. On March 24, 2020, the AJ issued a decision by summary judgment in favor of the Agency. On April 23, 2020 the Agency issued its final order adopted the AJ’s decision that no discrimination was established. The instant appeal followed. On appeal, Complainant, through her representative, contends the Agency scrutinized otherwise sufficient medical evidence that had recommended Complainant work from home until the birth of the child. Complainant accused the Agency of slow-rolling the interactive process and then making onerous requests for additional documentation in order to approve more than eight hours of telework each week. Meanwhile, Complainant stated that management permitted her pregnant coworker (Caucasian) to telework without limit. According to Complainant, this comparator’s request had been granted after only submitting a single piece of paper from a prescription pad with handwritten words to the effect of “can work from home.” Complainant asserted that her comparator should have been interviewed and subpoenaed. The appellate brief included Complainant’s response opposing summary judgment, wherein Complainant reiterated that locking her out had been unnecessary but Supervisor had done so only to harass and humiliate Complainant. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when the AJ finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 3 2020003605 This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate where an AJ determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. In ruling on a motion for summary judgment, the AJ's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). At the summary judgement stage, the evidence of the non-moving party must be believed and all justifiable inferences must be drawn in the non-moving party's favor. See Id. at 255. Summary judgment is precluded if Complainant was denied discovery of information essential to her opposition. See Id. at 477. An issue of fact is “genuine” if evidence is such that a reasonable fact finder could find in favor of the non-moving party. See 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 this proceeding, the AJ determined the record was adequate. Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Career Program Classification: Claim 1a Regarding Claim 1a, Complainant learned that, her career program classification changed from “general administration” to “human resources.” Complainant emailed Supervisor expressing concerns that this change was inconsistent with their prior discussions about career progression goals. Complainant asserted that Supervisor resented her for questioning Supervisor’s role in the change. Supervisor and Business Director denied substantively altering Complainant’s job series or position description. Apparently, this was an Agency-wide re-designation of employee categories for possible training courses. To the extent that Complainant was dissatisfied with Supervisor’s explanation, this record otherwise failed to evidence any unlawful motive. Accommodation Request: Claim 1b and Claim 2 Regarding Claim 1b and Claim 2, we noted that Complainant named a Caucasian female coworker who, upon request, was allowed full-time telework during pregnancy. However, a follow-up inquiry by the EEO investigator revealed that this Caucasian coworker, who was also pregnant, had worked for a different supervisor. Consequently, because they were not under the same supervision, we determined Complainant did not prove that she was subjected to less favorable treatment than a similarly-situated comparator. 4 2020003605 In the context of the Rehabilitation Act, we assumed Complainant qualified as an individual with a disability. Complainant explained that, in January 2017, she contacted the EEO office to request telework on an as-needed basis during pregnancy. On March 22, 2017, the Agency issued a decision memorandum that approved eight hours of telework per week or sixteen hours of telework each pay period through July 2017. Moreover, the memorandum provided instructions for Complainant to request additional telework or to take leave. If Complainant were unable to work in the office on non-telework days, then she was advised that she could immediately email Supervisor or Business Director on that particular day. If Complainant had an unexcused absence for medical reasons, then Complainant was required to request sick leave upon her return. In order to take more than eight hours of telework within a week, Complainant had to obtain advance approval with a medical statement that specified the additional hours of telework needed for each week. Whereas Complainant interpreted the Agency’s response to her accommodation request as excessively restrictive, the decision memorandum fell within management discretion. Here, Complainant was not entitled to unlimited telework just because it was the accommodation of her choice. Rather, the Rehabilitation Act obligated the Agency to undertake an interactive process with Complainant in good faith. Although Complainant would have preferred unlimited telework throughout her pregnancy, there was insufficient evidence to support Complainant’s position that eight hours of telework was not an effective accommodation. Access to Duty Station: Claim 1c Regarding Claim 1c, the record revealed that on March 28, 2017, Complainant informed management that she would be leaving the office because she had accepted a GS-12 promotion at the Agency’s Installation Management Command at Redstone Arsenal, Alabama. On March 31, 2017, Complainant notified Supervisor that she would be on military leave for the next two weeks. Supervisor then asked whether Complainant would return to the Business Management Office to undergo “out-process” before transferring to her new civilian job before April 14, 2017. Near the end of the workday, on March 31, 2017 Complainant had not responded. The Supervisor therefore consulted with the Huntsville Center’s legal counsel. It was determined that Supervisor believed that Complainant would not return to the duty station before completing military leave or starting the new job. As a result, Supervisor contacted Huntsville Center security to revoke Complainant’s building access. At least two witnesses gave sworn statements that, the revocation was unusually expeditious because Complainant had accepted a promotion within the Agency. However, while Supervisor’s actions may have caused unnecessary inconvenience for Complainant, there is no evidence of a discriminatory motivation. In sum, Complainant did not prove, with preponderant evidence, that any of the Agency’s explanations for the employment decisions at issue were pretextual. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000). 5 2020003605 CONCLUSION For the reasons discussed above, we AFFIRM the Agency’s final action based on the AJ’s summary judgment concluding no discrimination was established. 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit 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 her request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. 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. 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). 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. 6 2020003605 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. 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 November 17, 2021 Date