1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane F.,1 Complainant, v. Alejandro Mayorkas, Secretary, Department of Homeland Security, (U.S. Citizenship and Immigration Services) Agency. Appeal No. 2021001689 Hearing No. 570-2018-00033X Agency Nos. HS-CIS-00381-2017 and HS-CIS-02065-2018 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s 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 for the Agency as a Junior Watch Officer in the Command Center at the Office of Security and Integrity in Washington, D.C. Prior to addressing the instant matter, a brief recitation of the events leading to the filing of the complaint of discrimination is in order. In January 2015, Complainant contacted the Agency’s Disabilities Accommodation Program (DAP) Coordinator and requested ergonomic 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 2021001689 improvements in her workspace. The DAP Coordinator responded by requesting medical documentation. In November 2015, the Section Chief (“Supervisor”) (male) became Complainant’s supervisor. In February 2016, the Supervisor became aware of Complainant’s sexual orientation when Complainant informed him that she needed to take her wife to the hospital. In September 2016, Complainant contacted the DAP and requested technology compatible with her hearing aids. The Agency referred Complainant to its Computer/Electronic Accommodations Program. In March 2017, a DAP representative contacted Complainant to follow-up on her accommodation requests. Complainant did not respond. In October 2017, Complainant moved her residence to Loudoun County, Virginia. Complainant requested that the Supervisor change her shift start time from 5:00 AM to 6:00 AM. The Supervisor informally granted the request on a temporary basis. In October 2017, Complainant took unscheduled FMLA leave to attend to her wife’s health. As a result of her failure to report for duty, Complainant’s supervisor discussed his concerns about Complainant’s future presence in the Command Center. In November 2017, Complainant submitted a request to have her shift start permanently changed to 6:00 AM as a reasonable accommodation. On December 5, 2017, after receiving Complainant’s supporting medical documentation, the DAP officially approved Complainant’s accommodation for a 6:00 AM start time “due to need to rely on public transportation.” The accommodation stated that Complainant was still expected to work eight hour shifts during the work week, in addition to twelve hours on weekends according to the Command Center schedule. In April 2018, Complainant requested a weekend of FMLA leave because her spouse was in the emergency room. Complainant’s supervisor approved the leave but questioned whether the Command Center’s shift schedule was a “good fit” for Complainant who could benefit from a more flexible position. During mid-year feedback in May 2018, Complainant’s supervisor raised the possibility of reassigning Complainant. Complainant filed the two formal EEO complaints, HS-CIS-00381-2017 in January 2017 and HS-CIS-02065-2018 in September 2018, alleging discrimination by the Agency based on disability (hearing aid, restricted from driving, otherwise undisclosed), sex (female, lesbian with same sex spouse) and in reprisal for prior EEO-protected activity when: HS-CIS-00381-2017 1a) From April 2016 to October 19, 2016, Complainant’s supervisor told her not to apply for a job advertised under vacancy announcement CIS-1630807-SEC because she had a reasonable accommodation not to work the night shift. 1b) From April 2016 to October 19, 2016, Complainant’s supervisor denied her multiple training opportunities. 3 2021001689 1c) From April 2016 to October 19, 2016, Complainant’s supervisor denied her transportation funding requests to enable her to attend trainings. 1d) From April 2016 to October 19, 2016, Complainant’s supervisor told her that she had to work the nightshift. 2) On October 19, 2016, Complainant received a negative Performance Plan and Appraisal. HS-CIS-02065-2018 3) On October 23, 2017, Complainant was denied a reasonable accommodation which was previously in place, and her job was threatened, which dissuaded her from applying for leave through the Family and Medical Leave Act (FMLA). 4) From November 2, 2017, until February 6, 2019, Complainant was subjected to harassment. Some events provided to support this claim include matters such as management threatened her with reassignment during her reviews, gave her a written warning less than an hour after she told them her wife was in the hospital, failed to give her a 2018 final Performance Plan and Appraisal, threatened her with discipline when she requested telework due to bad weather conditions, and refused to sign her parking permit. After investigations of the formal complaints, the Agency provided Complainant with copies of reports of investigation and notices of the right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The two complaints were consolidated for continued processing. On January 11, 2019, Complainant submitted a parking permit application to the Agency’s Logistics Management Division. On February 11, 2019, the Logistics Management Division approved Complainant for a parking permit. On August 29, 2019, the DAP determined Complainant was no longer relied on public transportation and that Complainant could resume starting work at 5:00 AM. As a result, the Agency issued a letter rescinding Complainant’s disability accommodation. On November 5, 2019, the AJ assigned to the case ordered the discovery period to close on November 27, 2019. 4 2021001689 On November 20, 2019, the parties contacted the AJ because during depositions, the Agency had objected to Complainant asking a witness questions about a letter from the Agency that was dated August 29, 2019. The AJ ruled that matters regarding the Agency’s August 29, 2019 letter were beyond the scope of the present complaint. On November 25, 2019, Complainant moved to amend her consolidated complaint to include additional claims of harassment and discrimination such as the following: On unspecified dates after December 5, 2017, the Agency repeatedly scheduled Complainant for a 5:00 AM start time, in contradiction to accommodation her previously granted on that date; and On August 29, 2019, the Agency rescinded Complainant’s previously granted accommodation. Immediately, on that same day of the motion to amend, the AJ issued an order denying the amendment. In a footnote, the AJ advised Complainant that, for timeliness purposes, issues concerning the August 29, 2019 letter should have been raised before an EEO Counselor or the AJ within 45 days thereafter. On November 26, 2019, Complainant’s counsel filed a motion for reconsideration of the AJ’s prior order denying the motion to amend. On December 2, 2019, the AJ denied (and struck from the record) Complainant’s motion for reconsideration. On December 13, 2019, the Agency submitted a motion for a decision without a hearing. On December 31, 2019, Complainant filed a motion opposing a decision without a hearing. On November 23, 2020, the AJ granted the Agency’s motion and issued a decision by summary judgment. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal and through legal counsel, Complainant contends that the motion to amend should have been granted because the proposed amendment claims were like or related to those claims which were already pending before the AJ. Counsel stated that Complainant had contacted the DAP on August 29, 2019, to question the letter that rescinded her disability accommodation. According to counsel, on September 18, 2019, Complainant used the Agency’s anti-harassment hotline to report the Agency’s failure to implement her reasonable accommodation and the decision to rescind it. Complainant also argues that the AJ mischaracterized the supervisor’s discussions about reassignment, which were actually veiled threats of demotion or termination as opposed to genuine interest in Complainant’s maintaining her position in the Command Center or helping to continue her career with the Agency. 5 2021001689 ANALYSIS AND FINDINGS Motion to Amend / Motion to Reconsider As an initial matter, we have reviewed the AJ’s denial of the motion to amend and the denial of the motion to reconsider. Complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those previously raised in the complaint. After requesting a hearing, Complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint. 29 C.F.R. § 1614.106(d). Smith v. Dep’t of Transp., EEOC Appeal No. 0120080702 (May 25, 2012). Here, we find the AJ’s denial of the motion to amend was not arbitrary or capricious. Claims from HS-CIS-00381-2017 and HS-CIS-02065-2018 largely occurred before Complainant received a formal accommodation, but Complainant’s additional claims allege violations of a reasonable accommodation which was formally granted on December 5, 2017, and its subsequent rescission on August 29, 2019. Complainant has not explained why she waited approximately three months to raise these issues to the AJ. Apparently, on March 26, 2019, Complainant contacted an EEO Counselor about “potential allegations.” The EEO Counselor referred Complainant to the Agency’s Anti- Harassment program. The EEO Counselor further advised Complainant in an email: “Any matter that is in litigation, presumably an EEO case, would be separate and distinct from the Anti-Harassment program I was reaching out to you about. Individuals are able to participate in the EEO process, as well as the Anti-Harassment process if they wish, but one does not impact the other. If you believe you have been subjected to prohibited harassment based on a protected class (race, age, sex, etc.) please let me know and we can set up a time to discuss further.” The record is unclear as to whether Complainant initiated EEO counseling on her additional claims. If so, we remind Complainant and her counsel that she may continue to prosecute the additional claims as a separate EEO matters. We now address the merits of claims 1 - 4. Original Claims Stated in HS-CIS-00381-2017 and HS-CIS-02065-2018 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. 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. 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…”); also EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VI.B. 6 2021001689 (as revised, August 5, 2015)(providing that an AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 for Complainant. Here, Complainant has testified that that she had found demeaning some of her supervisor’s comments while discussing her work in the command center. Therefore, we reviewed these claims in the context of a hostile work environment or harassment. To prove her hostile work environment 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 a protected basis - in this case, her sexual orientation, gender, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); also, Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994); Britany C. v. U.S. Postal Serv., Appeal No. 2019001456 (May 29, 2019). As discussed below, the Agency has provided valid reasons for the challenged personnel actions that are unrelated to Complainant’s raised bases. Regarding Claim 1a), the record showed that the GS-12 senior watch officer position vacancy required at least one year of time-in-grade as a GS-11. Complainant became a GS-11 in 2016 when the senior watch officer vacancies were announced. Complainant therefore lacked the requisite time-in-grade for the senior watch officer vacancies. It was reasonable for Complainant’s supervisor to inform her that only eligible candidates would be considered. At the time of the senior watch officer vacancies, Complainant had not formally requested a disability accommodation. At one point, the senior watch officer vacancy announcement had omitted the night shift requirement, we find that this was a minor oversight as opposed to a management decision designed to discourage Complainant from applying. Regarding Claims 1b) and 1c), the record did not support Complainant’s claims that her supervisor had denied her requests for training. Complainant did attend three training courses in 2016. Complainant was a secondary candidate for a physical security training course because the dates of that course conflicted with Complainant’s shift-schedule. Complainant was wait- listed for security specialist training because seats had been filled. Complainant was approved for a training exercise called Eagle Horizon, but then declined to attend after she learned that the Agency lacked funding necessary to pay for her travel. 7 2021001689 Regarding Claim 1d), the record revealed that Complainant did not have an accommodation that prevented her from being assigned to the nightshift. To the contrary, Complainant’s supervisor explained that Complainant was not authorized to work night shifts because she was a junior watch officer, as opposed to a senior watch officer. Junior watch officers were assigned to a day shift that normally began at 5:00 AM and ended at 1:00 PM or were assigned a swing shift that began at 1:00 PM and ended at 9:00 PM. Meanwhile, senior watch officers shift schedule provided for three shifts that provided 24-hour coverage in the command center. Although Complainant may have had to work the junior watch officer swing shift, she was never compelled to work to the night shift for senior watch officers. Regarding Claim 2), Complainant had actually received a positive performance evaluation and was praised for exceeding expectations and was rated 4.2 out of five overall. Complainant failed to persuade us that her performance was discriminatorily downgraded. Regarding Claim 3), Complainant was permitted to take FMLA leave in lieu of being charged as AWOL on October 23, 2017. When her supervisor contacted her that day, he simply discussed his concerns about Complainant’s unscheduled absence. Complainant attributed her absence to her spouse having a medical emergency. Evidence of record did not show that Complainant was discouraged from taking leave and was granted FMLA leave frequently. Regarding Claim 4), Complainant’s 2018 performance appraisal was, indeed, completed on October 28, 2018. After Complainant informed the Agency that she was unable to attend work on November 15, 2018, because of snow-related public transit problems, Complainant’s supervisor cautioned her that her timely physical presence in the command center was an essential function of her position. In her affidavit, Complainant denied that her supervisor had ever threatened her. We find that for unscheduled absences and more frequent that expected leave usage, Complainant received routine verbal counselings which were not abusive. As to the four claims accepted and adjudicated by the AJ, we find that Complainant has failed to evidence that management acted out of unlawful animus towards her gender, her sexual orientation, her disability or because of EEO activity. Moreover, to the extent that Complainant’s supervisor was perceived by Complainant as unpleasant or demanding, such conduct did not rise to the level of severe or pervasive for purposes of establishing harassment sufficient to violate the law. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision adopting the AJ’s finding of no discrimination. 8 2021001689 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; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at Ch. 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, 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. 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). 9 2021001689 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 March 28, 2022 Date
