Stacie D.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120173022 (E.E.O.C. Oct. 25, 2018)

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

Stacie D.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120173022

Hearing No. 570-2013-00495X

Agency No. DOSF08712

DECISION

On September 18, 2017, 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, 2017 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 of 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 Passport Processing Assistant, GS-5, at the
Agency’s Los Angeles Passport Agency in Los Angeles, California.

On May 17, 2012, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on disability2 when:

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 We presume, for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
0120173022

2
1. on March 28 and 30, 2012, Complainant was denied access to her work station
during breaks;

2. Complainant was denied opportunities to work on assignments in the
Communications section;

3. on May 16, 2012, Complainant was denied a Sign Language Interpreter; and,

4. Complainant was subjected to a hostile work environment characterized by, but
not limited to, inappropriate behavior and questions.

After an 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 requested a hearing but the
AJ remanded the complaint to the Agency for the issuance of a final agency decision. The AJ
found that Complainant failed to respond to the AJ’s order to show good cause with adequate
reasoning or explanation why her request for a hearing should not be dismissed. The Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not raise any new contentions.

The investigative record reflects the following salient events relating to the subject claim.

Disability

Complainant described her disability as being “hearing impaired”. Complainant had difficulty
using the telephone, but otherwise had no limitations on any major life activities, or in the
performance of her duties. Complainant stated that while she performed the essential functions of
her position, it was not without “a lot of misunderstanding and conflicting guidance”.
Complainant stated that there was no record of her disability with the Agency.

Claim 1

Complainant stated that the independent contracting managers, the Passport Supervisor and the
Assistant Passport Supervisor verbally denied her access to her work station during breaks.
Complainant stated that she did not believe her disability was a factor in being denied access, but
contended that it was “bullying”.

The Passport Supervisor (no known disability) and the Assistant Passport Supervisor (no known
disability) manage Complainant’s section. Both are contractors who work at the Agency. Both
stated that neither directly manage Complainant, as she was supervised by a government
supervisor. The Passport Supervisor stated that at the time in question, the office was undergoing
renovation, and employees were temporarily relocated to the break room. This action meant
there was no break room for a time. She stated that employees were asked not to take breaks and
0120173022

3
lunches at their work area, even though space was restricted. On the occasion that she saw
Complainant taking lunch at her work station, she merely asked her to have lunch elsewhere. The
Assistant Passport Supervisor reiterated similar statements.

Complainant’s second line supervisor, the Adjudication Manager (no known disability)
(hereinafter referred to as “S2”) stated that Complainant works in the Passport Processing
Section of the Agency. She attested that Complainant's section is under strict internal control
procedures because employees deal with blank passport books and sensitive but unclassified
information. Based on control procedures, employees in that section were not allowed to take
personal breaks at their work station. Instead, employees were allowed to use the computers in
the break room. However, during the relevant time frame, the Agency was undergoing extensive
renovations which made the break room temporarily unavailable. S2 stated the renovation took
place from February 27, 2012 through July 8, 2012.

Complainant’s first line supervisor, the Supervisory Passport Specialist (no known disability)
(hereinafter referred to as “S1”) stated that Complainant informed her that she was not allowed
to use her work station during breaks. Following that, S1 arranged for her to use a terminal in the
Adjudication section near her (S1) own cubicle.

Complainant’s third line supervisor, the Assistant Director (no known disability) (hereinafter
referred to as “S3”) stated that she was not aware of the situation at the time, and only learned of
the situation during the EEO investigation. However, S3 stated that employees, in general, are
not allowed to take breaks or lunch at the workstations. S3 noted that on occasions when
Complainant was seen taking her lunch break at the workstation, she would likely have been
reminded that breaking at the workstations is not allowed.

Claim 2

Complainant testified that she was twice denied the opportunity to work in the Communications
section. Complainant stated that most employees in the Communication area are Processing staff.
Complainant testified that she was qualified for the position, and stated that the only task she
could not do was work on the telephones. Complainant believed that her medical condition was
therefore a factor.

S1 confirmed that Complainant was denied the opportunity to work in the Communications
Section. S1 stated that Complainant was denied on May 16, 2012, June 20, 2012 and August 23,
2012. S1 stated that she suggested assignments in Communications for Complainant on two
occasions, but was told that the assignments were not possible. S1 stated that S2 and the Passport
Supervisor were the management officials responsible for denying Complainant the opportunity
to work in the Communications Sections. S1 testified that the reason Complainant was denied
was because her job description did not include duties in the Communications Sections.

0120173022

4
S2 stated that due to Complainant's position and title she was only entitled to work in the
Passport Processing Section. S2 stated that to work in the Communications Section, employees
have to be a Passport Specialist or a Passport Specialist Associate II. S2 stated that she met with
Complainant, S1, the Passport Supervisor, and the Assistant Passport Supervisor on July 17,
2012 to explain the denial. S2 stated that a Sign Language Interpreter was present to assist.

The Passport Supervisor stated that she was aware of Complainant’s interest in the
Communications section, but that she was not responsible for denying Complainant a position
there.

Claim 3

S1 stated that S2 and S3 were responsible for denying Complainant a Sign Language Interpreter.
S1 stated that S2 denied the initial request because Complainant did not need a Sign Language
Interpreter to perform the essential functions of her position. She was told that Complainant
would need to make a request to the Office of Reasonable Accommodation. S1 stated that
Complainant was provided with a Sign Language Interpreter when there were office meetings
and training sessions.

S2 testified that Complainant was denied a Sign Language Interpreter on May 16, 2012. S2
stated that Complainant did not need a Sign Language Interpreter to perform the essential
functions of her position. S3 stated that Complainant’s official duties were production-oriented,
and did not require much contact or instruction which would have warranted Sign Language
Interpreter services at all times. S2 acknowledged, however, that Complainant was always
provided with a Sign Language Interpreter when there were performance discussions, Agency
meetings, any meetings initiated by Complainant, or trainings. S2 further stated that Complainant
was always welcome to submit a request to the Disability/Reasonable Accommodation Division.

On May 15, 2012, Complainant request Sign Language Interpreter Services on a daily basis. On
May 16, 2012, S1 sent Complainant an email that stated the following:

An interpreter will be requested when needed to accomplish work related needs;
for example, when training is conducted or for personnel issues. If you require
interpretive service, please be sure to let us know.

In the near future, the Agency plans on having an interpreter on site three days per
week and we will make them available to you when the interpreter is not
otherwise being used.

On July 10, 2012, Complainant submitted a DS-5053 requesting Sign Language Interpreter
service to the Office of Disability Reasonable Accommodation Division. The matter was still
pending when the investigation finished. S3 responded to Complainant’s request, and stated that
interpreter services would always be provided for work-related needs.
0120173022

5
S3 noted that there would be an on-site interpreter three days a week, and that the Agency would
make the interpreter available to Complainant whenever the interpreter was not being used for
the original intended purpose. Additionally, S3 reconfirmed that Sign Language Interpreter
service was always available during trainings, monthly staff meetings, and when work or
personnel related matters arose. S3 noted that Complainant had previously used such services on
May 16, June 20, July 18, and August 15, 2012.

On July 31, 2012, Complainant’s earlier July request was being processed by the Office of
Disability Reasonable Accommodation Division.

Claim 4

The EEO Investigator noted that Complainant did not answer nine specific questions regarding
her allegations of a hostile work environment. Information was gleaned from the record, and her
affidavit.

Complainant testified that the hostile work environment created stress and headaches that forced
her to take time off work and call in sick several times. Complainant stated that her work
performance was barely “Fully Successful” although her rating used to be “Excellent” and
“Outstanding.” Complainant asserted that the staff needed training about deaf culture and
training in sensitivity to differences. Complainant contended that she has been treated like a
child by management. Complainant asserted that the office did not understand deaf culture, and
did not seem to care.

S1 stated that Complainant informed her of her perceived hostility in the work place, and that she
was subjected to “inappropriate behavior and questions.” However, S1 did not know what the
specifics were. S2 testified that she was not aware that Complainant felt she was subjected to a
hostile work environment. S2 asserted that at no point was Complainant treated differently based
on her disability. S3 stated that Complainant never informed her that she was being subjected to
a hostile work environment. S3 noted that Complainant’s reminders not to take lunch by her
work station might have been perceived by Complainant as a hostile act, but that she could not
think of other examples. The Passport Supervisor, and the Assistant Passport Supervisor denied
treated Complainant any differently based on her disability.

ANALYSIS AND FINDINGS

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
0120173022

6
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Reasonable Accommodation

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual based on disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R. § 1630.2(o), (p). To establish that she 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 her with a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement
Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or
she satisfies the requisite skill, experience, education, and other job-related requirements of the
employment position that the individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m).
“Essential functions” are the fundamental job duties of the employment position that the
individual holds or desires. Id. § 1630.2(n).

A request for a modification or change at work because of a medical condition is a request for
reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question
1. After receiving a request for reasonable accommodation, an agency “must make a reasonable
effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, App. § 1630.9. Thus,
“it may be necessary for the [agency] to initiate an Informal, interactive process with the
individual with a disability . . . [to] identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3); see also 29 C.F.R. Part 1630, App. § 1630.9; Enforcement Guidance on
Reasonable Accommodation at Question 5.

In general, reassignment is the reasonable accommodation of last resort and should be considered
only when (1) there are no effective accommodations that would enable an employee to perform
the essential functions of his or her current position or (2) accommodating the employee in the
current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n);
Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should
reassign the employee to a vacant position that is equivalent in terms of pay, status, and other
related factors. If there are no vacant equivalent positions, then the agency should reassign the
employee to a lower-level position that is closest to the current position. Id.

0120173022

7
An agency is in the best position to know which jobs are vacant or will become vacant within a
reasonable time and, as part of the interactive process, should ask the employee about his or her
qualifications and interests. Because it possesses the relevant information, an agency is obligated
to inform an employee about vacant positions for which the employee may be eligible as a
reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers
are far better placed than employees to investigate in good faith the availability of vacant
positions); see also Enforcement Guidance on Reasonable Accommodation at Question 28. The
employee should assist the agency in identifying vacancies to the extent that the employee has
information about them. Further, if the agency is unsure whether the employee is qualified for a
particular position, the agency can discuss with the employee his or her qualifications. Mengine
v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible
vacancies, an employee has a duty to identify which one he is capable of performing); see also
Enforcement Guidance on Reasonable Accommodation at Q. 28.

In this case, it is undisputed that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act. It also is undisputed that Complainant met the requisite skill,
experience, education, and other job-related requirements of her position of record.

Here, the record demonstrates that the Agency addressed Complainant’s reasonable
accommodation concerns in a manner of ways (claim 3). Specifically, the Agency offered
interpretation services three days a week, wherein Complainant were offered the use of such
services. Complainant was also provided a Sign Language Interpreter during trainings, monthly
staff meetings, and when work or personnel related matters arose. It was noted that Complainant
used such services on May 16, June 20, July 18, and August 15, 2012.

Complainant argued that she needed daily Sign Language services to communicate with her
coworkers. However, she also stated that she was able to perform the essential functions of her
position without aid. While Complainant may have desired to have daily Sign Language services
to have better communication with her colleagues, it was not evident that it was necessary for her
to perform the essential functions of her position.

Complainant failed to proffer sufficient evidence to show why the Agency’s actions were not
effective. We note that, although individuals protected under the Rehabilitation Act are entitled
to reasonable accommodation, they are not necessarily entitled to their accommodation of
choice. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February
17, 1994). Given the specific facts in the present case, we find that Complainant failed to
establish that she was denied a reasonable accommodation, as she claimed.

Finally, we note that at the time the investigation finished, Complainant’s reasonable
accommodation request with the Office of Disability Reasonable Accommodation Division was
seemingly still pending. We find that the Agency’s actions, while Complainant’s request was
pending, was sufficient to address her reasonable accommodation needs.

Disparate Treatment
0120173022

8

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management has articulated legitimate, nondiscriminatory reasons for its actions.
Regarding claim 1, management explained that there were two reasons for what occurred. First,
processing employees, such as Complainant, were not permitted to take breaks or lunches at
work stations. This was an all-employee enforced rule. Complainant asserted that she saw at least
one other employee take lunch at the work station without issue. Even if this assertion were true,
the record does not reflect that other employees were permitted to do so. The record likewise
does not reflect that management officials would have condoned such action if observed.
Second, the Agency acknowledged that renovations made it difficult for employees to find a
place to take lunch and breaks, but it did not change the policy. Any reminders for Complainant
to take lunch/break elsewhere was not the product of discrimination, but simply general work
place occurrence.

Regarding claim 2, the record demonstrated that the office Complainant worked in was a
combination of contracting third-party employees, and federal employees. The work was
divided, but often overlapped. Complainant argued that her disability prevented her from
working in the Communications section. However, the record demonstrated that it was actually
Complainant's position and title that barred her. As a GS-5 Passport Processing Assistant, she
was only entitled to work in the Passport Processing Section. There was no evidence that her
denial was based in discrimination.

0120173022

9
These reasons proffered by management are sufficiently detailed to articulate legitimate, non-
discriminatory reasons for the disputed actions. Complainant failed to prove, by a preponderance
of the evidence, that these proffered reasons were pretext designed to mask the true
discriminatory reasons for the actions.

Hostile Work Environment

As a preliminary matter, we note that Complainant did not answer a number of hostile work
environment-specific questions as posed to her by the EEO Investigator.

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, 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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 bases – in this case, her
disability. Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself. Here, Complainant simply has provided no evidence
to support her claim that her treatment was the result of her disability.

CONCLUSION

We AFFIRM the Agency’s final decision finding of no discrimination.

0120173022

10
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.

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).

0120173022 11
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, Director
Office of Federal Operations
October 25, 2018
Date