Rosie T.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 25, 2019

0120181212 (E.E.O.C. Jul. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rosie T.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181212

Agency No. 2003-0010-2017102482

DECISION

On February 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 30, 2018 final decision 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 Contract Specialist at the Agency’s
Network Contracting Office (NCO-17), Service Area Office in San Antonio, Texas.

On April 5, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
concerns were unsuccessful.

On May 18, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated
against her based on race (African-American), sex (female), religion (Islam), disability, and in
reprisal for prior EEO activity when:

1. in February 2016, her request for a reasonable accommodation was denied;

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.
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2. she was subjected to harassment/a hostile work environment as evidenced by the
following incidents:

a. In February 2016, her previous second-level supervisor, the Contracting
Division Chief (“former Chief”), denied her request to telework five days per
week, as a reasonable accommodation.

b. On March 30, 2016, the former Chief recorded the eulogy at the funeral of
Complainant’s son.

c. In April 2016, the Director of Contracting subjected her to an investigation by
a Federal Bureau of Investigation (FBI) agent when he ordered an
unauthorized background check on her.

d. In April 2016, the former Chief “joked” about the death of Complainant’s son
by sending an e-mail about a “summer lake camp.”2

e. In April 2016, the former Chief failed to take corrective action when a staff
member at the Personal Identification Verification (PIV) office “harassed her
about wearing her hijab” when replacing her PIV card. The staff member
noted that she was not wearing a hijab in the picture she previously took for
her PIV card.

f. On December 12, 2016, the former Chief stated, “What’s the best way for a
lawyer to start a new job? At the bottom of a lake.”

g. On March 23, 2017, the Supervisory Contract Specialist, also Complainant’s
first-level supervisor (“supervisor”), questioned Complainant about consulting
with a union representative in 2016.

h. From approximately March 2017 through September 2017, the supervisor and
one of Complainant’s co-workers (“Co-worker 1”) failed to fairly and timely
review and/or scrutinized Complainant’s “eCMS” files and/or folders.3

i. On September 1, 2017, the supervisor “singled-out” Complainant in an e-mail
to the service team concerning time and attendance in which the supervisor
emphasized that employees must be sitting at their desks from the beginning
to the end of their duty times.

2 The record reflects that Complainant’s son drowned while on a summer trip.

3 eCMS is an abbreviation of Electronic Contract Management System.
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j. On September 19, 2017, the supervisor charged Complainant as Absent
Without Official Leave (AWOL) from September 18, 2017 through
September 22, 2017.4

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision,
pursuant to 29 C.F.R. § 1614.110(b).

In its December 28, 2017 final decision, the Agency dismissed claim 1 for untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency then proceeded to
address claims 1 – 2 on the merits, finding no discrimination based on the evidence developed
during the investigation.

The instant appeal followed.

ANALYSIS AND FINDINGS

As a threshold matter, we note in its instant final decision, the Agency dismissed claim 1 (denial
of a reasonable accommodation), as a “separate actionable” discrimination claim, for untimely
EEO Counselor contact. The Agency, however, proceeded to address claim 1 in the context of a
broader harassment claim with other matters.

The Commission has specifically held that the denial of a reasonable accommodation constitutes
a recurring violation that repeats each time the accommodation is needed. See Harmon v. Office
of Personnel Management, EEOC Request No. 05980365 (November 4, 1999). Viewed in this
manner, we determine that the EEO Counselor contact was timely. We determine that there is
sufficient evidence of record to view this matter as a separate claim, and will address it
accordingly.

Reasonable Accommodation: Claim 1 and Claim 2(a)

Under the Commission’s regulations, an agency is required to make reasonable accommodations
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.

Complainant identified her disabilities as Chronic Post Traumatic Stress Disorder, Severe
Bereavement, depression, sleep apnea, and Spinal Osteoarthritis. For purposes of this analysis,
we assume, without so finding, that Complainant was a qualified individual with a disability.

4 The record reflects that claims 2.h. – 2.j. were later amended to the instant formal complaint.

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Here, Complainant claimed that in February 2016, her request for a reasonable accommodation
was denied by the former Chief. Complainant asserted that she submitted a reasonable
accommodation request to be allowed to telework five days a week due to “work-related
stressors caused by management and the hostile work environment” that affect her job
performance. The former Chief was no longer a federal employee when the investigation of
Complainant’s complaint was conducted, and he declined to participate in the investigation.

The record shows that in 2015 Complainant’s son died unexpectedly in a drowning accident. Her
medical provider indicated that the son’s death resulted in an exacerbation of Complainant’s pre-
existing PTSD and depression. In December 2015, Complainant provided the former Chief with
a request, on an Agency reasonable accommodation request form, to telework full-time.
According to the Human Resources (HR) Specialist, who served as the Reasonable
Accommodation Coordinator at the time, Complainant’s request and “functional limitations”
were discussed later in the month at an accommodation meeting. He said Complainant and the
former Chief participated in the meeting.

The record contains a statement from Complainant’s medical provider, in response to a request
from the HR Specialist, describing Complainant’s impairment from her disability:

Interpersonal functioning, concentration and memory, emotional regulation.
Impairment is significant and is likely to last indefinitely in the presence of
excessive workplace stressors and/or during the course of treatment which would
be of duration not less than three months.

Complainant’s psychologist continued that any accommodation should reduce “interpersonal
stress and friction with supervisors and colleagues.” The psychologist noted that Complainant
“would prefer to complete her assignments from home.”

The HR Specialist asserted that, based on the medical documentation, alternative
accommodations were offered to Complainant, including “liberal leave” for a period of six
months including use of Family and Medical Leave Act (FMLA) leave, teleworking on a less
than full-time basis, and a private office to reduce interaction and communication with other
employees.

Complainant is not entitled to the accommodation of her choice if another accommodation would
also be effective. See e.g., Casteneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (1994)
(stating complainants are not necessarily entitled to the accommodation of their choice, but to a
reasonable accommodation). Here, Complainant does not deny the Agency’s representations
about the alternative accommodations offered and has not presented arguments or evidence
showing that the alternative accommodations offered by the Agency would not have been
effective in allowing her to perform the essential functions of her position. Accordingly, we
conclude there is no evidence supporting Complainant’s claim that the denial of her request to
telework full-time was discriminatory.

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Hostile Work Environment: Claims 2(a) through 2(j)

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To prove her harassment/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 her protected bases -- in this case, race,
sex, religion, disability, and prior protected activity. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself. Here, as
discussed below, Complainant simply has not provided adequate evidence to support her claim
that her race, sex, religion, disability and/or prior protected activity played any role in the
disputed actions.

Regarding claim 2(a), we have already concluding in the discussion about that the decision to
deny Complainant full-time telework was not the result of discrimination.

Regarding claim 2(b), Complainant asserted that on March 30, 2016, the former Chief recorded
the eulogy at Complainant’s son’s funeral.

The former Director of Contracting (“former Director”) (Asian-American male, Catholic,
disability, no prior protected activity) stated that on April 10, 2017, he conducted a fact-finding
interview with the former Chief regarding the funeral of Complainant’s son. The former
Director stated that while the former Chief stated that he attended the funeral, he acknowledged
taking one picture.

The Division Chief (Asian male, no religious affiliation/disability/prior protected activity) noted
that Complainant sent him an email expressing her disappointment that the former Chief
attended her son’s funeral and took pictures. He responded stating that he would look into this
matter. The Division Chief stated that on April 11, 2017, he sent an email to Complainant asking
if she could meet with him regarding her concerns. In response, Complainant stated “at this time
I am declining your request. I will not discuss this current situation with management because of
my lack of trust.”

Regarding claim 2(c), Complainant asserted that in April 2016, the Director of Contracting
subjected her to an investigation by an FBI agent when he ordered an unauthorized background
check on her.

The former Director denied ordering a background check on Complainant and that he was
unaware of any investigation by an FBI agent. Complainant provided no evidence to the
contrary.
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Regarding claim 2(d), Complainant claimed that in April 2016, the former Chief “joked” about
the death of Complainant’s son by sending an e-mail about a “summer lake camp.”

The former Chief sent out an e-mail to employees in the facility to apprise them of a summer
camp for children between 11 and 13 years old. Complainant responded to the e-mail stated that
she was offended that he had included her on the e-mail as her son died from drowning in a lake
and the e-mail was sent on the anniversary of her son’s death. The former Chief apparently
responded to Complainant stating that he did not intend to offend Complainant, and that he
considered removing Complainant from the list of recipients but did not want to deprive her of
information that he was disseminating to everyone.

Regarding claim 2(e), Complainant alleged that in April 2016, the former Chief failed to take
corrective action when a staff member at the Personal Identification Verification (PIV) office
“harassed her about wearing her hijab” while replacing her PIV card. The staff member noted
that she was not wearing a hijab in the picture she previously took for her PIV card.

Beyond her allegation, Complainant did not provide any evidence or even allege that the staff
member made a derogatory, offensive or inappropriate statement regarding her hijab or her
religion in connection with the instant incident.

Regarding claim 2(f), Complainant asserted that on December 12, 2016, the former Chief stated
“What’s the best way for a lawyer to start a new job? At the bottom of a lake.”

The former Contracting Officer (African-American male, Non-denominational Christianity, no
disability/prior protected activity), also Complainant’s former co-worker, stated that the former
Chief made a joke as described during an employee meeting without elaboration.

Without more, we conclude there is no evidence that the Chief was joking about the death of
Complainant’s son.

Regarding claim 2(g), Complainant alleged that on March 23, 2017, the Supervisory Contract
Specialist, also Complainant’s first-level supervisor (“supervisor”), questioned Complainant
about consulting with a union representative in 2016.

The supervisor explained that on March 23, 2017, he received a call from the
Secretary/Timekeeper regarding Time and Attendance that she needed to provide a response to
the Deputy Director regarding any time consulting with the union and how the time would be
charged. The supervisor stated that he then “proceeded the go to each of my staff members and
ask them words to the effect of ‘have you contacted the union in the 6 months, so we can record
the time accurately. When [Complainant] asked why I responded that [Deputy Director] had a
suspense which is what I was told by [Secretary/Timekeeper]. I asked everyone on the team
[and] not just [Complainant].”

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Regarding claim 2(h), Complainant alleged that from approximately March 2017 through
September 2017, the supervisor and Co-worker 1 failed to fairly and timely review and/or
scrutinized Complainant’s “eCMS” files and/or folders.

The supervisor stated that since he started working at NCO, he stressed contract compliance with
all of his staff members “instructing them to use the checklist when preparing their packages for
pre-solicitation review and subsequent pre-award reviews. While timeliness is very subjective
due the voluminous workload and can [be] largely effected by the quality of the package
submitted for review, on the issue of fairness I use the ECMS checklists and the audit checklists
when I am doing my reviews for everyone.”

Further, the supervisor stated that during the relevant period, Complainant “has brought very few
packages to me for review, and the ones that I have reviewed were less than adequate. When I
asked, as part of the warrant request, the contracting officers on my team to give me feedback on
the packages that [Complainant] submit for review, the responses were not positive…it should
also be noted that during my most recent reviews I discovered [Complainant] was posting
solicitation without having a pre-solicitation review complete and being authorized by a
warranted contracting officer. Both serious violations.”

Regarding claim 2(i), Complainant claimed that on September 1, 2017, the supervisor “singled-
out” Complainant in an e-mail to the service team concerning time and attendance in which the
supervisor emphasized that employees must be sitting at their desks from the beginning to the
end of their duty times.

The supervisor explained that he sent out an email to his entire team because he had received a
complaint that several team members were abusing the time and attendance policy and “due to
the complaint, I started monitoring start and end time more closely. [Complainant] responded to
my email to the team with a response copying the team acknowledging that she was willfully not
complying with the time and attendance policy, the CBA and the regulation. My email
emphasized the time and attendance policy.”

Regarding claim 2(j), Complainant asserted that on September 19, 2017, the supervisor charged
Complainant with AWOL for the period of September 18, 2017 through September 22, 2017.

The supervisor noted that at 1:17 a.m. on September 16, 2017, Complainant submitted a request
for Annual Leave from September 18, 2017 through September 22, 2017 through the Time and
Attendance System. The supervisor explained that annual leave (AL) “is to be requested and
approved in advance. Emergency AL can only be granted for 1 day and it is at the discretion of
the supervisor to approve. Since I received no call from [Complainant], the requested exceeded
the allowed time for emergency AL and there were no details provided to me, the request was
denied. Furthermore, the supervisor stated that since Complainant’s request was denied “per,
HR [Human Resources], I had no other option but to charge her being Absent Without Leave
(AWOL).”

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As detailed above, responsible Agency officials either denied the events occurred as alleged by
Complainant or articulated legitimate, non-discriminatory reasons for the disputed actions.
During the investigation, Complainant failed to prove that discriminatory animus played any role
in the events that formed the basis of her complaint. As such, she has not established that the
alleged hostile work environment was motivated by discriminatory factors. Without proof of
discriminatory motivation, Complainant cannot prevail on her discriminatory hostile work
environment claim.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination or unlawful retaliation occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.

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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. 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

July 25, 2019
Date