[Redacted], Tyson L., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Aug 2, 2021

Appeal No. 2020002430 (E.E.O.C. Aug. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson L.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2020002430 Agency No. HUD-00149-2016 DECISION Complainant timely 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 final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are: (1) whether Complainant established that he was denied a reasonable accommodation for his disability; (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of reprisal and disability; and (3) whether Complainant established that he was subjected to a hostile work environment based on his protected classes. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst/Account Executive at the Agency’s offices in Washington, D.C. Complainant explained that he provided medical documentation to the Agency, notifying the Agency that he has Type 1 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. 2020002430 2 Diabetes, Depression, and Post Traumatic Stress Disorder (PTSD). Report of Investigation (ROI) at 385. Complainant requested a reassignment out of the Agency’s Washington, D.C. offices on March 30, 2015, and April 24, 2015, and requested a hardship transfer to the Agency’s Kansas City offices on May 11, 2015. Complainant requested the hardship transfer to be closer to his parents and because he felt that management within the Washington, D.C. offices had been subjecting him to a hostile work environment. ROI at 560-563. On May 20, 2015, Complainant initially received notice that his hardship transfer had been approved, but there were no vacant positions available in Kansas City. Id. at 564. Complainant was then assigned to the Agency’s Indian Housing Office in Washington D.C., effective July 27, 2015, but was subsequently transferred to the offices in Kansas City, Missouri, in October 2015. Id. at 364, 380. After Complainant’s transfer to Kansas City, the Branch Chief emailed Complainant on August 3, 2016, advising Complainant that he had been granted an hour break to regulate his blood sugar. Id. at 602. In the email, the Branch Chief noted that Complainant would be allowed to combine his 30-minute lunch and two 15-minute breaks as an accommodation for his diabetes. Id. The Branch Chief also noted that Complainant would have to submit a leave slip for any break of more than an hour. Id. Complainant believed that the Branch Chief acted improperly in instructing him to use his leave on August 3, 2016, and on other occasions. Id. at 478. The Branch Chief averred, however, that Complainant was observed being absent from training sessions on August 24, and 25, 2016, during a conference. Id. The Branch Chief stated that he followed-up with Complainant when he returned to the office from the conference concerning his absences from the training sessions. Id. The Branch Chief further averred that Complainant left a Management Review early on August 23, 2016, and did not notify his supervisor of his departure. Id. The Branch Chief concluded that Complainant skipped the trainings without a valid basis because he never brought up his medical conditions as a reason for his departures. Id. Complainant additionally attested that on or around October 5-7, 2016, the Executive Branch Chief entered his cubical, made accusations about his time and attendance, and refused to allow him to leave his cubicle. Id. at 399. Complainant maintained that the Executive Branch Chief questioned his whereabouts in an unprofessional manner in the presence of other employees. Complainant attested that the Executive Branch Chief’s actions triggered a “fight or flight” instinct in him and he started to shake uncontrollably. Id. Complainant averred that the Executive Branch Chief’s actions caused him to have an unwanted and extreme PTSD episode, causing his blood glucose level to skyrocket requiring him to seek medical attention. Id. The Executive Branch Chief maintained that he did have a discussion with Complainant on the day in question but did not bully or harass Complainant. Id. at 447. He stated that he simply asked Complainant, in a non-threatening way, what time he was leaving for the day because he did not arrive into the office until 9:00 am. Id. 2020002430 3 The Executive Branch Chief explained that Complainant then became angry, saying he was not his supervisor and then exited the office out of the rear stairwell closest to his workspace. Id. An employee who heard what happened attested that the Executive Branch Chief acted in a very professional manner, but Complainant became very loud, disruptive, and aggressive. Id. at 545. A second employee attested that she overheard several conversations between the Executive Branch Chief and Complainant and that the general theme of the conversations would be the Executive Branch Chief asking Complainant the status of overdue assignments. Id. at 548. This employee attested that, on several occasions, she heard Complainant raise his voice at the Executive Branch Chief in a very unprofessional manner implying that the Executive Branch Chief was treating him unfairly. Id. In addition, according to Complainant, on February 13, 2017, someone anonymously placed an email on his office chair regarding his request for telework as an accommodation. The email noted that the Branch Chief had previously denied Complainant’s request to telework due to receiving poor work product from Complainant. Id. at 471. The email noted that Complainant was now assigned to a new supervisor and would have to re-submit his request for telework rather than using white-out on a previously submitted request from August 2016. Id. The email also noted, among other things, that Complainant’s telework request was an example of his slipshod work. Id. Nevertheless, management subsequently granted Complainant’s request to telework for two days per week as an accommodation for his diabetes. Id. at 31. Complainant attested, moreover, that on September 14, 2017, the Executive Branch Chief asked him to provide proof of his Family and Medical Leave Act (FMLA) eligibility even though he had a documented disability. Complainant explained that when he went home from work sick, he had to spend well over an hour answering the Executive Branch Chief’s emails about his FMLA form and his logging of sick leave. Id. at 407. The Executive Branch Chief responded that Complainant was asked to provide proof of his FMLA eligibility because the documentation on file was from May 2015 and had expired. Id. at 450. Meanwhile, the Regional Director denied Complainant’s request for reassignment to another team away from the Executive Branch Chief’s supervision. Id. at 522. In an email to Complainant dated October 3, 2017, the Regional Director noted that Complainant had been performing at an unsatisfactory level according to his mid-year review and that the inability to get along with a supervisor is generally not a valid reason for reassignment, especially given his performance. Id. at 612. Complainant believed, however, that management purposefully kept him under the Executive Branch Chief’s supervision to make things as difficult as possible for him. Complainant averred that he had increased anxiety and PTSD in dealing with the Executive Branch Chief and believes that management targeted his disability. Id. at 406. Complainant subsequently received an unacceptable rating from the Executive Branch Chief for his FY2017 performance appraisal. The Executive Branch Chief explained that Complainant was given the unacceptable rating because he refused to respond to customers and complete assigned tasks. Id. at 462. 2020002430 4 The Executive Branch Chief averred that Complainant was originally given an assignment to conduct a Management and Occupancy Review (MOR) in October 2017. Id. The Executive Branch Chief stated that when Complainant did not comply, the MOR was moved to December but when Complainant again refused to schedule it, the task was assigned to another Account Executive. Id. On January 25, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of disability (mental and physical) and reprisal for prior protected EEO activity when: 1. From 2015 to the present management failed to timely respond to his requests for a hardship transfer; 2. On August 31, 2016, he was told to use leave instead of being provided an existing reasonable accommodation; 3. In October 2016, he felt bullied and harassed when the Executive Branch Chief entered his cubicle and made accusations regarding his time and attendance, and refused to allow him to leave the cubicle; 4. On February 13, 2017, someone anonymously placed an email in his chair that included derogatory remarks by management regarding his telework request; 5. On September 14, 2017, management asked him to provide proof of his FMLA eligibility although he had a documented disability; 6. In July 2017, his request for a transfer was denied; and 7. On November 22, 2017, he received an “unacceptable” performance rating for FY17. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant did not establish that he was denied a reasonable accommodation for his disability, as alleged. In so finding, the Agency noted that Complainant’s requests for a transfer and telework were properly reviewed and addressed by management. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not show that its reasons were pretextual or were motivated by discriminatory or retaliatory animus. 2020002430 5 The Agency noted, for example, that management promptly responded to each of Complainant’s requests for accommodation in that he was relocated from the Washington, D.C. offices as requested and he was provided the amount of telework requested. The Agency further noted that management had the right to ask Complainant for updated documentation to support his request for FMLA leave, and that management worked with Complainant to explain his unacceptable rating. The Agency observed that Complainant did not offer any corroborating statements from witnesses confirming that management’s actions were discriminatory. The Agency additionally found that Complainant did not establish that he was subjected to a hostile work environment, as he did not establish that management was motivated by discriminatory or retaliatory animus. The Agency determined that Complainant did not show that the Agency’s actions rose to the level necessary to establish a hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, maintains that the Agency failed provide him with a reasonable accommodation for his disability. Complainant maintains that the Agency failed to timely respond to his hardship transfer request; he was told to use leave instead of being provided with an accommodation; and in July 2017, his request for a transfer was denied. Complainant asserts that all his doctors emphasized that he needed to be granted his request for a hardship transfer. He contends that the Agency not only refused to address his request for a transfer, but also refused to address his request to telework. Complainant maintains that the only accommodation he received was a move down the hall to a different cubicle. Complainant contends that he requested telework as an accommodation multiple times in 2016, but the Agency did not respond to his request until 2017. Complainant states that the Agency denied his request for telework although he provided the Agency with documentation from his doctors saying he needed telework as an accommodation. Complainant maintains that instead of providing him with an accommodation, the Agency bullied him and harassed him, including entering his cubicle making accusations concerning his time and attendance. Complainant asserts, moreover, that management’s conduct and actions towards him were abusive enough to rise to the level of a hostile work environment. As an example of harassment, Complainant states that the Executive Branch Chief’s actions of entering his cubicle requesting his whereabouts unprofessionally trigged a “fight or flight” instinct in him that triggered an extreme PTSD episode for him. Complainant lastly maintains that he engaged in constant EEO activity between 2015 and 2018 and the Agency’s actions were clearly in reprisal due to his protected activity. In response, the Agency requests that we affirm its final decision finding no discrimination. 2020002430 6 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Reasonable Accommodation (Claims 1, 2, and 6) Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an “individual with a disability,” as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). Here, we agree with the Agency’s determination that Complainant did not establish that he was denied a reasonable accommodation for his disability, as alleged. In so finding, regard claims 1 and 6, we find that Complainant is seemingly requesting an accommodation of non-hostile work environment or a stress-free work environment. However, Complainant's request for an accommodation of a non-hostile work environment or a stress-free work environment cannot be considered a request for reasonable accommodation, under the circumstances of the instant case. See Powell v. Dep't of the Army, EEOC Appeal No. 0120070275 (Apr. 16, 2009) (finding that complainant's request for accommodation of a non-hostile work environment or a stress-free work environment could not be considered a request for reasonable accommodation for his disability). Even if the request for a non-hostile work environment could be considered to be a request for a reasonable accommodation in this case, we find that Complainant did not establish that such accommodations were necessary in connection with his conditions. As such, we find that he has not shown a nexus, or causal relationship between his alleged disability and his desired accommodation. See Storman v. Dep't of the Treasury, EEOC Request No. 05990112 (Sept. 7, 2000). 2020002430 7 In addition, with respect to Complainant's request that he be assigned to a new supervisor as a reasonable accommodation (claim 6), we note that the Commission has stated that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. Reasonable Accommodation Guidance, at Q. 33. With regard to Complainant’s claim that he was told to use leave with regard to his accommodation request related to his diabetes (claim 2), we note that permitting the use of accrued paid leave or unpaid leave is a form of reasonable accommodation. Reasonable Accommodation Guidance. Moreover, we that note that Complainant was afforded telework and breaks as reasonable accommodations related to his diabetes. Complainant has not shown that these accommodations were not effective. Therefore, assuming, without deciding, that Complainant was an individual with a disability, we find that Complainant did not show that he was denied a reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment (claims 1, 2, 5, 6, and 7) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd, of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a 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); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In the instant case, assuming, without finding, that Complainant has established a prima facie case of discrimination based on disability and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Chief of the Reasonable Accommodation Branch attested that Complainant’s hardship request was delayed because there were initially no vacant positions available within the Agency’s Kansas City location. In addressing claim 2, the Branch Chief explained that Complainant was observed being absent from training sessions on August 24, and 25, 2016, during a conference. The Branch Chief stated that he followed-up with Complainant when he returned to the office from the conference concerning his absences from the training sessions. The Branch Chief further averred that Complainant left a Management Review early on August 23, 2016 and did not notify his supervisor of his departure. 2020002430 8 The Branch Chief believed that Complainant skipped the trainings without a valid basis because he never brought up his medical conditions as a reason for his departures. Regarding claim 5, the Executive Branch Chief explained that Complainant was asked to provide proof of his FMLA eligibility because the documentation on file was from May 2015 and had expired. As for claim 6, the Regional Director noted that Complainant had been performing at an unsatisfactory level according to his mid-year review and that the inability to get along with a supervisor is generally not a valid reason for reassignment. The Executive Branch Chief additionally explained, with respect to claim 7, that Complainant was given the unacceptable rating because he refused to respond to customers and complete assigned tasks. The Executive Branch Chief explained, for example, that Complainant was originally given the assignment to conduct a MOR in October 2017. The Executive Branch Chief stated that when Complainant did not comply, the MOR was moved to December but when Complainant again refused to schedule it, the task was assigned to another Account Executive. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency reasons were pretextual or that the Agency was motivated by discriminatory or retaliatory animus. We note, for example, that there is no dispute that Complainant’s original hardship request was granted, and we note that no employees in this case have corroborated Complainant’s claims of discrimination. While Complainant claims that he was undeserving of the unacceptable performance rating, there is simply no evidence in this case that the Executive Branch Chief was motivated by discriminatory or retaliatory animus in assessing Complainant’s performance. There is no evidence in the record refuting the Executive Branch Chief’s contention that Complainant was performing at an unacceptable level. We note that Complainant withdrew his request for a hearing before an EEOC Administrative Judge, and as a result we do not have the benefit of an Administrative Judge's credibility determinations of the witnesses in this case. As such, we find that Complainant did not establish that he was subjected to disparate treatment discrimination herein. Hostile Work Environment (Claims 1-7) Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus with regard to claims 1, 2, 5, 6, and 7. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). With respect to claims 3 and 4, we find that Complainant has not proven sufficiently severe or pervasive events to show that he was subjected to a hostile work environment. 2020002430 9 We note, regarding claim 3, that employees in the record attested that Complainant was loud, disruptive, and unprofessional towards the Executive Branch Chief. All employees in the record attested that that the Executive Branch Chief acted professionally towards Complainant and that it was Complainant who acted improperly towards management. In addition, a review of the February 13, 2017, email left on Complainant’s chair does not reflect that it contained hostile, abusive, or derogatory language. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and/or abusive based on Complainant's protected classes. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Employ’t Opportunity Comm’n., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Moreover, we note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. As such, we find that Complainant has not established that he was subjected to a hostile work environment based on his protected classes. 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 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. 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. 2020002430 10 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. 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. 2020002430 11 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 August 2, 2021 Date