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

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2020004852 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheryl S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004852 Hearing No. 430-2019-00575X Agency No. ARFTEUST18DEC04984 DECISION On September 1, 2020, 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 August 18, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS- 0510-12, at the Agency’s Training and Doctrine Command (TRADOC) Security Assistance Training Field Activity (SATFA) facility in Fort Eustis, Virginia. On January 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of disability when: 1. On October 9, 2018, Complainant’s first-line, second-line, and third-line supervisors denied her request to telework for reasonable accommodation; and 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. 2020004852 2 2. On October 9, 2018, Complainant’s first-line supervisor issued Complainant a Notice of Termination during her probationary/trial period and refused her documents for a reasonable accommodation request. The Agency accepted these claims and conducted an investigation into the matter. The investigation showed that Complainant was hired by the Agency as an Accountant, GS-0510-12, on July 10, 2017. Her appointment was subject to completion of a two-year initial probationary period. Complainant asserts she has a service-connected disability related to her feet, causing plantar fasciitis, tendonitis, and other issues. Complainant states the Agency is aware of this because she was hired as a disabled veteran. She also asserts she has hip problems related to a fall at work and that the Agency is aware of this because she filed for worker’s compensation. Complainant’s first performance evaluation was issued at the end of the 2017 fiscal year. She demonstrated success but not excellence. The evaluation noted Complainant “has demonstrated she has the ability to be a great asset to the organization with time and more training.” (ROI, p. 176). The Agency stated that if Complainant had been rated any lower, she would have been terminated immediately due to her probationary status. Complainant was issued her next performance review at the end of April 2018. This evaluation used a new rating scheme and Complainant was rated “Fully Successful” but not “Outstanding.” The evaluation stated Complainant “has the potential to be a valuable employee with a more dedicated and deliberate approach to accomplishing her task”, but that she “accomplished assigned task with supervision.” It also noted Complainant was “making appropriate strides in her development and understanding of the Security Cooperation program and its nuances. She is able to complete task with some assistance.” However, it also stated that she “continues to grow as a valued asset to SATFA.” Again, the Agency stated that it she had been rated any lower, she would have been terminated immediately due to her probationary status. The Agency contended it wanted to give Complainant time to develop in her position. However, at some point after this review, but at least by on or about August 15, 2018, the decision was made to terminate Complainant because her performance had failed to improve, and she exhibited behavior that her supervisors perceived to be borderline insubordinate. On August 8, 2018, Complainant’s third line supervisor (“Supervisor 3”) notified the Union that it was temporarily removing 10 employees, including Complainant, from working a compressed work schedule from September 2, 2018 through September 29, 2018. (ROI, p. 691-692). This was due to year end activities. On August 20, 2018, Complainant was counseled by her first line supervisor (“Supervisor 1”) regarding taking leave without approval and not completing assigned tasks by a given date. Complainant contends she had called in sick due to her disability. Additionally, on that day, Complainant did not have access to her computer because she had not completed Information Awareness training as required so IT had removed her from the network. On September 7, 2018, Complainant asked Supervisor 1 if she needed to report for mandatory compensatory time/overtime on Saturday, September 8, 2018. 2020004852 3 Supervisor 1 told Complainant that she did, and Complainant said she was not working on year end close. Supervisor 1 noted that Complainant’s second line supervisor (“Supervisor 2”) had told Complainant what to work on during Saturday. Complainant then called out of work on that Saturday. On September 13. 2018, the Union was notified that Complainant’s compressed work schedule was being discontinued permanently effective October 1, 2018 due to not completing tasks on a timely basis and requiring supervision to accomplish her daily duties. (ROI, p. 690). Complainant was then counseled regarding possible insubordination on September 18, 2018 by Supervisor 1. Supervisor 1 noted that Complainant had not shown up on Fridays and Saturdays for mandatory year end compensatory time/overtime, she had been aggressive in her responses when asked about completion of assignments, and she did not leave when instructed after being asked what she was working on while on compensatory time on September 17, 2018. Complainant stated that she needed more training and questioned why others went on TDY for training and she did not. Supervisor 1 informed Complainant that when others in the office are on TDY they are attending meetings and other events where they are expected to give input. Supervisor 1 explained the year end overtime/compensatory time requirements. She informed Complainant that the entire Financial Management Division comes off their compressed work schedules and works straight 8-hour shifts. Complainant was advised that she could not go back on her compressed work schedule because she was part of accounting and she needed to show up and learn the year end process. Supervisor 1 indicated Complainant still needed assistance from others to produce reports and perform certain tasks. Complainant again reiterated that she needed additional training, but Supervisor 1 stated that she needed to master the on the job training she had been given. On September 27, 2018, Supervisor 1 and Supervisor 2 met with Complainant to advise her that she was being removed from her compressed work schedule effective October 1, 2018. She was advised this change was due to her work performance along with her constant request for training. Complainant stated that not having a compressed work schedule would be a hardship because she is a disabled veteran and her long commute caused her a lot of pain. She stated she needed Fridays off to rest her body and go to doctor’s appointments at the Veteran’s Administration (VA). Complainant advised she was receiving 10% disability and she was working on increasing it to 30%. She stated her fall in the parking lot at work had also contributed to her pain and ability to work an eight hour/day, five day/week schedule. Complainant noted that accommodations had been made for other employees and asked if she could receive accommodations. Complainant was advised there is a reasonable accommodation process and she had not previously mentioned needing any accommodations. Complainant asserts she requested to telework as a reasonable accommodation, but Supervisor 1 and Supervisor 2 deny that Complainant asked about telework or gave any specifics about accommodations she might need. 2020004852 4 Complainant states she then spoke to Supervisor 3 on October 1, 2018 and October 2, 2018 about her disability. She said she asked for telework as a reasonable accommodation on both of these days. She indicated that on October 2, 2018, Supervisor 3 stated Complainant could bring her medical documentation and Complainant stated she had a doctor’s appointment on Friday, October 5, 2018, and she would get her medical records then. On October 9, 2018, Complainant was issued a Notice of Termination signed by Supervisor 1 stating that she would be terminated from her position and from the Federal Service effective October 12, 2018. The Notice stated that Complainant had “failed to demonstrate fully [her] qualifications for continued employment. It is not in the best interest of the Federal Service to retain [her]. This action is taken for the efficiency of the Service.” Complainant refused to sign the Notice.2 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 25, 2019, motion for a decision without a hearing and issued a decision without a hearing on August 3, 2020. 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. Complainant filed the instant appeal. On appeal, Complainant contends there are multiple genuine issues of material facts. She asserts she was discriminated against and subjected to a hostile work environment based on her disability. She states there were no issues with her job performance and/or she was never notified of any issues with her job performance. She states the Agency filed for her termination in August 2018 after she called in sick due to her disability and that she was terminated after she requested a reasonable accommodation. She contends she was not allowed to provide medical documentation in support of her request for reasonable accommodation, nor was she ever informed the Agency had filed for her termination. Complainant also asserts she was not on probation at the time of her termination. The Agency contends on appeal that Complainant has not identified any genuine dispute of material fact and that the AJ’s decision should be affirmed as it is fully supported by the record and legal precedent. 2 Complainant initially appealed her termination to the Merit Systems Protection Board (MSPB) on October 12, 2018. However, her appeal was dismissed by the MSPB on November 30, 2018 because the MSPB lacked jurisdiction over the appeal due to Complainant’s status as a probationary employee. 2020004852 5 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 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. Reasonable Accommodation Complainant alleges that her request for telework as a reasonable accommodation was denied, and when she was issued a Notice of Termination, Supervisor 1 refused Complainant’s medical documentation in support of her request for reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). 2020004852 6 Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See Enforcement Guidance on Reasonable Accommodation at Question 6. Here, even assuming arguendo that Complainant has shown she is a qualified individual with a disability, we find her claim still fails. The record shows that Complainant did not request a reasonable accommodation until after the Agency had begun the termination process. The record shows that, on August 22, 2018, Supervisor 2 emailed the Civilian Personnel Advisory Center (CPAC) to request guidance on the steps for discontinuance of Complainant’s employment. The email stated there was an employee who was “not performing to the standards of a GS-12” and since the employee was still under their probationary period, Supervisor 2 needed to know what steps should be taken for removal. In support of the decision for removal, Supervisor 2 wrote: 1. The employee has received training and instruction on how to complete daily tasks on multiple occasions and from multiple leaders and co-workers. With repeated instruction and assistance, the employee does not show progress in gaining the experience or knowledge required for this position. 2. Employee has been instructed to complete projects and taskers with deadlines and has failed to do so on multiple occasions. Employee was given a project in January to complete or show progress in completing the task. As of today that project has not been completed nor has progress been presented to supervisors. Employee was given another project in May and has not provided the information requested from that project. 3. Employee was not truthful during the interview process as it relates to working in Excel. Employee stated she was well versed in working spreadsheets and other basic functions but requires constant assistance to perform these basic functions in Excel. Even with this, employee has received assistance from several co-workers on how to operate these functions within Excel but has not shown progress required at the GS-12 level. 4. Employee continually struggles with daily routine tasks and has not shown progress in performing these tasks. There is a daily download and database update process the employee is required to do and the employee requires daily assistance from co-workers to complete this task. This task is very repetitive and is performed every day. At this point no assistance should be required. 5. Employee was recently notified multiple times of the required annual Cyber awareness training to maintain network access. Employee went on unapproved leave and did not complete the Cyber awareness, therefore, returned to no system access as she was removed from the network. Employee was counseled on both 2020004852 7 the leave situation and the system access and required completion of Cyber awareness training. Exhibit A to Agency’s Motion for Summary Judgment. The record shows that Complainant’s supervisor discussed Complainant’s performance and behavior issues with Complainant on several occasions in September 2018. It also shows that Complainant first requested a reasonable accommodation on September 27, 2018 during a conversation with management about her performance issues and again on October 2, 2018, as part of additional discussions regarding Complainant’s schedule. Thus, the record shows that Complainant’s request for accommodation occurred after her performance and conduct issues lead to the Agency’s actions towards removal. Therefore, the Agency was not obligated to provide Complainant an accommodation and her claim fails. See Ruiz v. National Archives and Records Admin., EEOC Request No. 01A55070 (January 24, 2006) (where request for accommodation comes after performance and conduct issues lead to commencement of termination process, agency not obligated to accommodate complainant). Disparate Treatment (Termination) Complainant alleges that she was subjected to disparate treatment on the basis of disability. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. Dep't of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency's explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. To establish a prima facie case of disability discrimination under a disparate treatment theory, Complainant must demonstrate that: (1) he is an “individual with a disability” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied a reasonable accommodation. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020). Assuming for the sake of argument that Complainant has established her prima facie case, the Agency has articulated legitimate, non-discriminatory reasons for her termination. As noted above, Supervisor 2 listed several performance and conduct issues in his August 22, 2018 email to CPAC about the decision to terminate Complainant. Although Complainant denies there were performance issues, she has not shown that the Agency’s articulated reason is pretextual. 2020004852 8 Beyond bald assertions that the Agency’s reasons for termination are not credible, and references to her earlier performance evaluations, Complainant offered no evidence of discriminatory animus on the part of the Agency. While Complainant may disagree with the termination decision of the Agency, ultimately, managers have discretion regarding how to best manage their offices to meet their needs and goals and it is within their authority to make business decisions. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Burdine, at 249. Hostile Work Environment To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her disability, management officials subjected her to a hostile work environment. However, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. Rather, the evidentiary record as described above reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. In sum, Complainant has not established that she was subjected to a discriminatory hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. 2020004852 9 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. 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). 2020004852 10 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 December 14, 2021 Date