Tyra F.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Dec 16, 2016

0120140579 (E.E.O.C. Dec. 16, 2016)

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

Tyra F.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120140579

Hearing Nos. 570-2010-00854X & 570-2011-00177X

Agency Nos. HS-09-CBP-000441-000601 & HS-10-CBP-006470-000603

DECISION

On November 25, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s October 31, 2013, final order concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as the Director of the Program Management Division within the Agency’s
Office of Human Resource Management. Complainant filed EEO Complaint No. HS-09-
000441-000601 on October 29, 2009, and EEO Complaint No. HS-10-006470-000603 on July
12, 2010. Between the two complaints, which had been amended several times, Complainant
set forth claims of disparate treatment and harassment, denial of reasonable accommodation,
and constructive discharge. She identified her immediate supervisor, the Deputy Assistant
Commissioner (DAC) and her second-level supervisor, the Assistant Commissioner (AC) as
the responsible management officials. Her claims include the following incidents:

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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1. Between July 2009 and June 2010, the AC and the DAC subjected Complainant to
disparate treatment and harassment because of her religion (Catholic), disabilities
(residual effects of physical injuries sustained on September 11, 2001 and post-
traumatic stress disorder) and in reprisal for initiating a request for a reasonable
accommodation:

a. Since July 2009, Complainant had been given work assignments with
unreasonable time frames and had not been given sufficient time and resources
to complete her assigned tasks without skipping breaks and lunch periods.

b. From July through October 2009, Complainant had been denied an alternative
work schedule (AWS).

c. On September 9, 2009, Complainant was issued a performance plan with
unreasonable expectations.

d. In October 2009, the time frame for Complainant to submit medical
documentation to support her request for extended leave was shortened from 30
days to 15 days.

e. On October 1, 2009, Complainant’s request for acknowledgement of
compensatory time worked from July through October 2009 was not responded
to.

f. On October 7, 2009, Complainant was issued a letter of counseling.

g. While on Family and Medical Leave Act (FMLA) leave between October 2009
and January 2010, Complainant was required to submit unnecessary paperwork,
denied a laptop computer, and had her computer and her Blackberry
deactivated.

h. An investigation by the Office of Internal Affairs (OIA) was initiated against
Complainant on an unspecified date whereas her allegations of a hostile work
environment were not investigated by OIA.

i. In October 2009, Complainant was reassigned from her supervisory
Management Program Analyst position to a non-supervisory Program Manager
position and given a subjective pass/fail performance plan.

j. Complainant was berated from bringing a subordinate’s accommodation request
to the EEO office and was accused of creating a health issue for that employee.

k. Between June 2009 and February 2010, Complainant has been subjected to
verbal and written criticism.
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l. By letter dated March 5, 2010, Complaint was advised of:

i. The expectation that she must be at her workstation at the beginning of
her tour of duty;

ii. The requirement to contact a supervisor within one hour of beginning her
tour of duty if she needed to request unscheduled leave; and

iii. The consequences of any tardiness or unapproved leave (charge of
absence without leave and disciplinary actions up to and including
removal from Federal service).

m. By letter dated March 19, 2010, the Agency provisionally approved a leave
request by Complainant for March 22 through April 2, 2010, pending receipt of
additional medical information.

n. On June 7, 2010, Complainant was suspended for one day for failure to
complete her assignments on time.

2. Denial of reasonable accommodation:

a. Complainant had been required to submit unnecessary and excessive medical
documentation in support of her leave requests.

b. Complainant had been denied the right to legal representation during the
processing of her accommodation requests.

c. The Agency had not engaged in the interactive process for providing
accommodations in good faith.

d. Complainant’s request for accommodations had not been timely processed,
resulting in her inability to participate in a rehabilitation program and her being
forced to take sick leave because of the toxic environment.

e. Complainant had been provided inaccurate and inconsistent information about
the reasonable accommodation process.

f. Complainant had not been provided the identity of those providing input into the
Agency’s decision on her reasonable accommodation requests.

g. As of May 2010, the Agency refused to grant Complainant all of her requested
accommodations.

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3. Constructive discharge: On September 27, 2010, Complainant was forced to resign
from the Agency and accept a lower-graded position with another federal agency.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).2
Although Complainant timely requested a hearing, the AJ assigned to the case granted the
Agency’s August 4, 2011, motion for summary judgment over Complainant's objections and
issued a decision on September 25, 2013, without holding a hearing. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

Work Assignments:

Complainant averred that in late September and early October, the DAC gave her and her staff
multiple projects with extremely short deadlines. In particular, she averred that the DAC
assigned her projects relating to unemployment compensation and financial planning on
September 29, 2009 and ordered her to complete them the following day. She further averred
that when she told the AC and the DAC that she did not have enough time or trained staff to
meet the deadlines, they both told Complainant that they, “did not want to hear about it.” IR1
124-31; IR4 369-76. A Branch Chief under Complainant’s supervision averred that
Complainant’s unit suffered from a lack of personnel in that of the seventeen full-time positions
authorized, five were vacant, that as a result, he and Complainant were forced to work up to
twelve hours per day between July and September, and that he too found the time frames to be
unreasonable. IR1 261-65.

The AC and the DAC responded that all she wanted from Complainant was a short summary
of how unemployment compensation works that she could present at a meeting with the Acting
Commissioner. Regarding the financial planning assignment, the AC averred that she had
several discussions and email conversations with Complainant about the project and that
Complainant never informed her that she did not have enough time to finish. The AC also
noted that Complainant had never completed the assignment, and that the quality of what she
had submitted was, “below standard.” In addition, the AC averred that she had approved
Complainant’s request for additional time and resources to complete her assignments. IR1 341-
53; IR4 438-52, 467-68. The DAC stated that Complainant did request a reduced workload

2 Four investigative reports (IR) comprise the record in this case. For citation purposes, they
are identified as follows:
IR1 - Investigated from December 29, 2009 through April 12, 2010;
IR2 - Investigated from April 27 through June 12, 2010;
IR3 - Investigated from June 18 through September 30, 2010;
IR4 - Investigated from August 13 through November 4, 2010.

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and that other staff members were brought in to assist in the completion of the assignments.
IR4 481-86, 500-01.

Alternative Work Schedule

When asked to whom and when did she request an AWS, Complainant replied that she was
informed by the AC that because of the position she held, she was not allowed to work an
alternative schedule. IR1 131; IR4 376. The AC denied telling Complainant that she could
not work an AWS. She stated, however, that she did tell Complainant that employees who
were new to the Human Resources Office management team could not work an AWS for 120
days, and that this prohibition was in place to ensure that new managers, which Complainant
was at the time having entered on duty on June 7, 2009, could become familiar with the
responsibilities of the organization and their new positions. IR4 452-53. The DAC averred
that she had no role in this decision. IR4 486-87.

Performance Plan

As previously noted, Complainant on-boarded on June 7, 2009. She received her performance
plan on August 18th and her first review on October 21st. When asked what she specifically
considered to be unreasonable about the expectations delineated in the plan, she responded that
the plan was given to her late so that her “good performance could not be credited.” She also
averred that the performance goals were unclear, consisted of unreasonable expectations, and
were impossible to attain. IR1 132; IR4 377-79. She characterized performance goal (3) for
example, maintaining a 100% completion rate on tier (1) correspondence as unattainable. IR1
132. When asked if she discussed her concerns with the AC, she replied that she did so in an
email but that the AC never replied. IR1 132-33. She further stated that she never received an
actual performance appraisal rating since receiving the performance plan. IR1 134. The AC
responded that all managers were subject to the same performance goals. IR4 453-55. The
DAC stated that the 100% standard for responding to tier (1) correspondence was set by the
Office of the Commissioner of the Agency. IR4 486-90.

Time Frame in Which to Submit FMLA Medical Documentation

Complainant averred that she requested leave under the Family Medical Leave Act for use
between October 19, 2009 and January 15, 2010, to care for her terminally ill mother. She
stated that her leave request had been approved, but that the time frame in which she was to
submit supporting documentation had been shortened from 30 days to 15 days. IR1 135-36.
The DAC pointed out, however, that the Agency’s Leave Handbook set forth a standard time
from of 15 days for submission of a medical certification for leave taken pursuant to the
FMLA. IR1 184, 678.

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Non-Response to Request for Acknowledgement of Compensatory Time Worked

When asked to whom and when she submitted her request for compensatory time, Complainant
denied that she had requested compensatory time and averred that she was merely trying to
document the approximately 100 extra hours that she claimed to have worked between July and
October. IR1 134. She stated that the AC denied her request to document the time, telling her
that “GS-15 supervisors do not get compensatory time - the extra work is expected,” or words
to that effect. IR4 379-80. The AC responded that she had no recollection of receiving any
specific written documentation or verbal request from Complainant regarding hours worked
other than those recorded in the time and attendance system. IR4 457-59.

Letter of Counseling

Complainant averred that in a meeting held on October 7, 2009, as she was getting ready to go
on leave under the FMLA, the DAC handed her a letter of counseling in which she was faulted
for not completing various assigned projects. IR1 136-38; IR4 381-83. The AC, who was
present at that meeting, averred that Complainant was advised of their concerns regarding her
ability to complete her assignments and assure quality staff work in a timely manner. IR4 459-
60.

Documentation of FMLA; Denial of Use of Equipment While on FMLA

Complainant averred that on November 10, 2009, while she was on FMLA leave, the DAC
forced her to submit the original medical paperwork documenting her absence or be charged
with absence without leave (AWOL). She further averred that the DAC made this demand
despite the DAC’s own acknowledgement that she had received the paperwork from her
mother’s physician on October 23, 2009. IR1 149-50. The DAC responded that Complainant’s
medical documentation for her FMLA request was due to her by October 20, 2009, but that
Complainant had still not responded to her request for information as of October 21st, and that
when she finally did submit the documentation, parts of the faxed documents were illegible.
The DAC consequently requested that Complainant provide the originals. IR4 493-95.

When asked by the investigator why she needed a laptop while on FMLA leave, Complainant
averred that she needed to communicate with her office, monitor email and access attachments
to those emails. IR1 150; IR4 391-92. The DAC averred that Complainant never provided her
with any information as to why she needed a laptop while she was on leave, and that she had
denied Complainant’s request, believing that it was inappropriate for any employee to work
while on FMLA leave. She further averred that she told Complainant that Complainant needed
to be with her mother and that she did not expect Complainant to perform any work-related
tasks while on FMLA leave. IR 495-96. The AC had no knowledge of the matter. IR4 461-
62.

Additionally, Complainant averred that when she returned to work in January 2010 she learned
that her computer and Blackberry had been deactivated since she first went on FMLA leave on
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October 8, 2009. When asked by the investigator who had decided to deactivate her computer
and Blackberry, she replied, “I would need discovery to answer those questions.” IR1 150-51.

Internal Affairs Investigation

Complainant averred that on or about January 15, 2010, an Investigator from the Office of
Internal Affairs (OIA) had revealed to her that she was the target of an administrative
investigation for issuing unauthorized end-of-year awards while that same office failed to
investigate her allegations of a hostile work environment. IR1 151-53. One of Complainant’s
subordinate Branch Chiefs averred that the OIA’s investigation had to do with Complainant’s
approval of 25 on-the-spot awards of up to $750.00 apiece, which were within the guidelines
prescribed by the Office of Personnel Management. The Branch Chief opined that the OIA
allegations against Complainant were frivolous. IR1 266-67, 273-74.

When asked why she referred the matter to the OIA, the DAC refused to answer any
questions pertaining to that matter on the grounds that any disclosure of matters under official
review by the OIA to unauthorized personnel was prohibited and that she, the DAC, could be
subject to disciplinary action if she did answer. IR1 190-91. However, email correspondence
between an IA Officer and the EEO Complaints Processing Director dated February 25, 2010,
indicates that the OIA’s Washington Field Office had opened up two investigations on
Complainant’s hostile environment claim. IR1 541.

Reassignment from Supervisory to Nonsupervisory Position

Complainant averred that when she returned from FMLA leave in January of 2010, she read
an email dated January 13th that she had been demoted from a supervisory to a non-supervisory
position, and that she had been given what she referred to as a “subjective” pass/fail
performance plan by the DAC. IR1 153-55; IR4 363. According to a personnel action form,
Complainant was reassigned from her supervisory Management and Program Analyst position
to a non-supervisory Program Manager position effective October 25, 2009. Both positions
were at grade GS-15 IR4 463. The DAC and the AC both averred that they made the decision
to reassign her because they lacked confidence in her ability to meet the performance
objectives of her position and denied that the reassignment was a demotion. IR4 463-66, 497-
98, 554-55.

Being Berated for Bringing Forward Subordinate’s Reasonable Accommodation Request

Complainant averred that on October 1, 2009, the AC accused her of creating a health issue
for her subordinate Branch Chief by taking the Branch Chief’s request for a reasonable
accommodation to the EEO office. IR1 155, 260; IR4 396. The Branch Chief stated that he
asked Complainant to take his request for a reasonable accommodation directly to the EEO
office because he did not trust either the AC or the DAC enough to discuss his need for an
accommodation with them. In addition, the Branch Chief averred that he had been hospitalized
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in late September and that after he returned, he withdrew his accommodation request after
being offered a different job within the Agency. IR1 272-73.

The AC responded that she had heard about the branch Chief’s accommodation request from
the Director of the Diversity and Civil Rights (DCR) Office and that she was made aware of
the Branch Chief’s work-related stress from the DAC when she shared the Branch Chief’s
concern over whether he could handle the work at the same pace prior to his illness. The AC
denied that she criticized Complainant over the matter or otherwise told Complainant that she
was the reason for the Branch Chief’s work-related illness, and averred that she had no
problem with the fact that Complainant had not brought the matter of the Branch Chief’s need
for a reasonable accommodation to her attention. IR4 466-67.

Verbal and Written Criticism

Complainant averred that since she had first come on board in June 2009 she had been
subjected to constant verbal and written criticism about her work performance from the DAC
and the AC. She cited a number of incidents, including: the AC’s criticism for citing military
time on June 29th; the AC’s criticism for failure to properly certify travel voucher
reimbursements on August 5th; the AC’s and DAC’s verbal criticism for requesting an
accommodation for one of her staff on October 1st, as referenced above; and the DAC’s
criticism for delays in completing work assignments on October 6th and 7th. IR1 159-60; IR4
400-01. The AC and the DAC averred that they were simply counseling her on aspects of her
performance and that Complainant appeared to be interpreting their guidance as constant verbal
and written criticism. As to the incident regarding Complainant’s citation of military time, the
AC had reminded all of her staff on a number of occasions not to use military time as they
were not a military organization. The DAC denied criticizing Complainant and pointed out
that she had complemented Complainant on a number of occasions. IR4 469-71; 503-05.

The Letter of March 5, 2010 Addressing Complainant’s Tardiness

Complainant averred that in a memorandum dated March 5, 2010, the DAC accused her of
being tardy and in response to her ongoing late arrivals, set up new, more stringent procedures
for requesting unscheduled leave, including a requirement that she call in within one hour of
her start time and continue to call if she did not reach either her or the AC right away. IR2
129-30, 400-01. The DAC responded that he understood that Complainant had physical
therapy appointments in the morning, and that in response, she moved Complainant’s start time
back from 8:30 AM to 9:00 AM after asking Complainant what start time would best fit her
schedule. The DAC further stated that even after the Change, Complainant had been seen
coming in after her assigned start time. IR2 214-16, 395, 397.

Letter of March 19, 2010 Requesting More Detailed Medical Documentation for Leave

Complainant averred that on March 19, 2010, the DAC notified her that she had provisionally
approved her request for extended leave but notified her that she would have to submit
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additional medical documentation to support the request. She maintained that the information
sought by the DAC was inappropriate and excessive IR2 117-18. The letter itself, dated
March 19, 2010 and signed by the DAC, acknowledged the recommendation by Complainant’s
physician that Complaint remain out of work between March 22nd and April 2nd, and notified
Complainant of the DAC’s conditional approval of her request pending the receipt of additional
medical information. Information sought by the DAC included: the history of her medical
condition; clinical findings from the most recent medical evaluation; diagnosis; prognosis; and
the overall impact of her condition on her overall health and activities. IR2 501-07. The DAC
averred that she was never given any of the medical information that she was requesting, and
that she needed for Complainant to provide that information so that she could approve her
ongoing requests for sick leave. IR2 208-10.

Suspension

By letter dated March 5, 2010, the DAC notified Complainant that she was proposing to
suspend her for two days. The charge specified in the letter was failure to complete her
assignments in a timely manner. According to the specifications, Complainant was given until
February 25, 2010, to complete two projects, that she failed to meet that deadline, and that the
work products that she did submit were, in addition to being untimely, were incorrect,
incomplete, and had a serious impact on the office’s ability to meet its goals. IR2 130-31; IR4
143, 491-93. Complainant denied the charges and appealed the proposed suspension and was
notified by letter from the AC dated June 7, 2010, that the suspension had been reduced to one
day. IR4 77-79, 185-90, 194.

Reasonable Accommodation Request

Complainant averred that since October 1, 2009, she had notified the DAC and the AC of her
need to use up to 12 weeks of accrued unused sick leave to participate in a rehabilitation
program located in an out-of-state facility, that she requested numerous other accommodations,
that the AC and the DAC delayed responding to her requests until May 2010 and when they
finally did respond, they failed to grant her all of the accommodations that she had requested.
IR1 157-59. Complainant first submitted her request on October 1, 2009, and had visited the
DCR to speak with an Analyst on October 7th. During that appointment, Complainant
informed the Analyst that she would be going out on extended FMLA leave within a day or
two. The Analyst averred that he mistakenly believed that the clock for the interactive process
would start ticking when she returned from her extended leave rather than from the date of the
request. He further averred that it was not until January 2010 that he became aware of his
mistake. Because no action had been taken, the Analyst closed out Complainant’s initial
request on January 4, 2010, and opened up a new request on January 11th. IR2 141-44.

On April 7th, the DAC, in consultation with DCR and the Agency’s Office of Chief Counsel,
made the determination that Complainant was a qualified individual with a disability. IR2 144-
47. The Analyst’s supervisor confirmed his account of what had taken place. IR2 156-75.
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After the interactive process had taken place, Complainant had submitted the following list of
proposed accommodations:

1. Time off for medical and rehabilitation care;

2. Flexible work hours;

3. A modified work schedule;

4. Breaks;

5. Use of a gym three times per week during work hours;

6. Memoranda providing detailed instructions in the event Complainant had difficulty
understanding assignments;

7. A laptop for Complainant’s use during meetings or training;

8. Written minutes of meetings being provided to Complainant;

9. A tape recorder or extra time to transcribe meeting notes;

10. Training;

11. A work area with adequate ventilation and a temperature control mechanism;

12. Authorization to use accrued leave to participate in 12-week out-of-state rehabilitation
program; and

13. Transfer.

IR2 112, 114; IR3 74-77; IR4 410-12. After a lengthy process of deliberation and
administrative litigation, the DAC issued a final decision on May 19, 2010, granting the
following requests: (1) pending receipt of appropriate medical documentation; (2); (3) with the
requirement that Complainant work the required core hours of 9:30 AM to 3:00 PM and if she
could not, to provide documentation sufficient to justify a schedule outside the core hours; (4);
(6) to be provided as necessary; (7); (8); (9); (11) with provision of two fans, an air purifier
and a space heater; and (12). As to item (5), the DAC stated that although Complainant was
welcome to use the exercise facilities during her lunch breaks, use of official time for exercise
was beyond the scope of reasonable accommodation. Regarding item (10); the DAC noted that
she could not locate a request for training as part of the reasonable accommodation request, but
informed Complainant that she could submit a request for training no later than August 30,
2010. Finally, with respect to item (13), the DAC stated that the transfer request amounted to
a reassignment and that reassignments should be considered the accommodation of last resort.
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IR1 565-80; 592-95; IR2 156-66, 228-49, 253-66, 268-74, 295-99, 302-315, 324, 332-40,
346-57, 371-72, 387-93; IR3, 119-124, 127-40; IR4 120-22, 137, 140, 456-457, 490-91, 499-
500, 521-42, 553.

Resignation

Complainant averred that on September 27, 2010, she transferred to a lower-graded position at
another federal agency due to the ongoing hostile work environment. She characterized the
transfer as a constructive discharge, noting in particular that the DAC had repeatedly singled
her out for criticism and ridicule. IR1 138, IR4 52-53. The DAC responded that Complainant
did not resign from the Agency. Rather, she received and accepted a job offer effective
September 25th. IR4 106. The DAC maintained that there was no forced resignation and that
Complainant sought out and accepted the job on her own volition. IR4 107, 198-99. In an
email dated September 7th, the DAC congratulated Complainant on her new assignment and
wished her good luck. IR4 201-07.

ANALYSIS AND FINDINGS

Disparate Treatment / Harassment

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on her claims of discrimination and
discriminatory harassment, Complainant would have to present enough evidence to raise a
genuine issue of fact as to whether the DAC or the AC was motivated by unlawful
considerations of her religion, disabilities, or EEO activity in connection with the incidents
described in her complaints. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to motive by presenting evidence tending to show that the reasons articulated by the
DAC and the AC for their actions were pretexts, i.e., not the real reason but rather a cover for
discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be
demonstrated by showing such weaknesses, inconsistencies, or contradictions in the AC’s and
the DAC’s proffered legitimate reasons for their actions toward Complainant that a reasonable
fact finder could rationally find them unworthy of credence. Opare-Addo v. United States
Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for
reconsideration denied EEOC Request No. 0520080211 (May 30, 2008). If, however,
Complainant fails to raise a genuine issue of material fact as to the existence of discriminatory
intent on the part of the DAC or the AC, no further inquiry would be necessary as to whether
the incidents complained of rise to the level of harassment or constitute separate acts of
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discrimination under disparate treatment theory. Nicki D. v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120133247 (Oct. 15, 2015).

With the exception of the OIA investigation of Complainant, the DAC and the AC articulated
legitimate and nondiscriminatory reasons for each of their actions, all of which were clearly
work-related. By way of example, the assignments Complainant was given in September and
October of 2009 were not complicated or had been completed with additional staff. As to her
request for an alternative work schedule, the AC had a policy that new managers had to remain
on a regular schedule for the first 120 days of their tenure. By the time Complainant had
become eligible for an AWS she had gone on leave to care for her mother. Moreover, when
she returned, the DAC accommodated her by moving her start time back by one half-hour in
order to allow her to attend her physical therapy appointments. Regarding her performance
plan, Complainant had not shown that the plan she was given was in any way different from
the plans given to other managers of equal rank. With respect to the time-frame in which to
submit FMLA supporting documentation, the Agency’s leave handbook clearly specified a
FMLA leave certification window of 15 days. Similarly, the AC and the DAC provided a
business-related reason for each of the remaining incidents. As to the internal affairs
investigation of Complainant, neither the DAC nor the AC specifically identified the reasons as
to why the OIA had initiated an investigation into Complainant’s use of on-the-spot awards.
The DAC stated that she could not reveal the substance of what was discussed and the AC
directed the EEO investigator to OIA itself. However, an IA officer did inform the DCR
Office that the OIA had initiated two investigations of Complainant’s hostile work
environment, which, significantly undermines her claim that she was treated differently than
other employees by the OIA.

Complainant’s evidence of unlawful motive on the part of the AC and DAC consists of her
own testimony and that of her subordinate Branch Chief. When asked by the EEO investigator
why her disability was a factor in the incidents, Complainant replied that the DAC and the AC
did not want to provide her with accommodations and were totally unsympathetic to her health
problems and those of her staff. IR1 138; IR4 78-79, 93. When asked a similar question
regarding her religion, Complainant averred that she had expressed to the AC and DAC her
Catholic belief in the sanctity of life and that she had been caring for her mother for years, to
the point of claiming her mother as a dependent on her tax returns. She further maintained that
the AC and DAC had accused her of document forgery and other improper conduct. IR1 139;
IR4 79, 384. When asked why she believed that reprisal was a factor, Complainant responded
that she first became involved in EEO activity in August 2009, when she first broached the
subject of needing an accommodation for her disabilities. When asked to provide the names of
witnesses however, she refused. IR1 139; IR4 80, 384.

Other witnesses did provide sworn statements. One witness, Complainant’s subordinate
Branch Chief, averred that while the AC and the DAC were harsh and dictatorial in their
management style (he had characterized them as “nasty people” in his affidavit), and that they
thrived on criticizing subordinates, particularly Complainant, it was not because of
Complainant’s religion, disabilities, or the fact that she had requested a reasonable
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accommodation. IR1 269-75. Another witness, the Personnel Systems Division Director
averred that the DAC and AC were no different than any other executives that he had worked
under, that the work environment under the DAC and the AC was sometimes challenging, but
overall was a good experience, that the interactions of the AC and DAC with their
subordinates was “professional and equitable,” and that he had never observed them treat
employees with different religious affiliations or disabilities unfavorably. IR1 286-91, 294-96.
A third witness, the Executive Services Director averred that the AC and the DAC were
flexible when it came to adjusting deadlines and that he never had any issues with resources in
completing assigned tasks. IR1 323-24. He did, however, characterize their management
style as “autocratic” and opine that they did treat Complainant less favorably than other
employees while Complainant was caring for her mother. IR1 328-329. He also averred that
he did not believe that they gave Complainant sufficient support to address her own medical
issues. IR1 329-30.

After a thorough review of the record, we find, as did the AJ, that there is not enough
evidence to raise a genuine issue of material fact as to the motives of the AC and the DAC.
What the record does show is that the AC’s and the DAC’s less-than-favorable treatment of
Complainant stemmed from their harsh and sometimes authoritarian management styles, as
opposed to unlawful considerations of Complainant’s religion, disabilities, or the fact that she
had engaged in protected EEO activity by initiating a request for a reasonable accommodation.
The fact remains that on the central question of motive, the affidavits from the Branch Chief,
the Personnel Systems Division Director, and the Executive Services Director neither
contradict the explanations given by the AC and the DAC for their actions nor call their
veracity as witnesses into question.

Denial of Reasonable Accommodation

The Agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability, unless it can show that doing so would cause an undue hardship to
its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v.
Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015).

A qualified individual with a disability is an “individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Here, there is no
question that Complainant is a highly qualified individual with multiple disabilities and is
entitled to a reasonable accommodation. The only question that needs to be answered is
whether the Agency fulfilled its statutory obligation. We find that it did, although the process
took an unusually long time to complete. The delay is attributable to a number of factors,
including a misunderstanding on the part of the Analyst from the DCR regarding when the
interactive process was supposed to commence and the difference of opinion between
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Complainant and the DAC as to what documentation was necessary and sufficient to support
the accommodation request.

According to Complainant, the DAC deliberately tried to prevent her from securing the
accommodations that she needed and obstructed her progress toward obtaining those
accommodations. She raised a number of incidents in connection with the processing of her
request as proof that the DAC’s actions were unlawful. At the outset, she averred that the
documentation requested by the DAC to justify her accommodation request was unnecessary
and excessive, and that the doctor’s notes that she submitted in September 2009 and February
2010 were sufficient. IR2 107-11, 115-18, 251, 260-69, 292, 295-97; IR4 405-410.
However, email traffic and correspondence between Complainant and the DAC shows that
Complainant had been refusing to provide the DAC with the medical documentation that she
needed in order to process the request, particularly information pertaining to diagnosis and
prognosis. Complainant either refused to provide the information outright or had the notes
from her physician heavily redacted, which completely obscured the necessary information.
IR1 579-80; IR4 437-38, 520, 542-50.

Next, Complainant averred that the DCR Analyst’s Supervisor refused to allow Complainant’s
attorney to meet the DAC in order to facilitate the interactive process for requesting a
reasonable accommodation. IR2 121-22. In email dated March 10, 2010, the DCR Supervisor
correctly pointed out to Complainant that neither the Rehabilitation Act nor its implementing
regulations made provision for the designation of a representative to engage in the interactive
process, notwithstanding that Complainant had delegated authority for that purpose to her
attorney. The DCR Supervisor informed Complainant that the DCR communicates solely with
the person requesting the accommodation, and that while family members, friends, health
professionals, or other representatives may request a reasonable accommodation on the
requestor’s behalf, it is the requestor herself with whom the DCR is required to engage in the
interactive process. IR2 166-68, 171, 281-88, 340.

Third, Complainant averred that the Agency had not engaged in the interactive process in good
faith, pointing out that the DCR had wrongfully dismissed her accommodation request on
January 4, 2010. IR2 118-19. The DCR Analyst acknowledged that he had made a number of
errors in processing Complainant’s request, pointing out that instead of commencing the
interactive process after she first submitted her formal request in October 2009, he mistakenly
waited until Complainant had returned from FMLA leave in January 2010. Upon realizing his
error, he closed out the file on Complainant’s request on January 4th and had reopened it one
week later. On January 27th, the DCR Analyst met with Complainant to commence the
interactive process. IR2 149-50, 168-69, 290-93.

Fourth, Complainant averred that the Agency failed to timely process her request for
reasonable accommodation . IR1 157. The DCR Analyst replied that as soon as he realized
his error in not taking any action on Complainant’s October 2009 reasonable accommodation
request, he closed the file out on January 4th and reopened it on January 11th. IR2 150-51.

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Fifth, Complainant averred that she had been provided in accurate and inconsistent information
about the reasonable accommodation process. In particular, she averred that the DCR Analyst
incorrectly told her via email in February 2010 that she was a qualified individual with a
disability when that determination had not yet been made. IR2 126. The DCR Analyst
averred that he erroneously informed Complainant that she was a qualified individual with a
disability when in fact that determination had not been made. As a result of the interactive
process, the DAC had determined on April 7, 2010, that Complainant was indeed a qualified
individual with a disability. IR2 158-62. The Agency had corrected its mistake.

Sixth, Complainant averred that the DCR Supervisor denied her attorney’s demand for the
identity of the attorney in the Chief Counsel’s office who advised the DAC that the medical
documentation Complainant had submitted was not sufficient. IR2 127-28. Complainant,
however, was not entitled to that information. IR2 172-73, 278-79.

Finally, Complainant averred that the DAC did not grant her all of her requested
accommodations. The record overwhelmingly establishes, however, that she was granted most
of what she had requested, including extended leave to participate in an out-of-state
rehabilitation program, flexible work hours that included the Agency’s core hours, and fans, a
space heater, and an air purifier for her work area. It is well-settled that while Complainant is
entitled to an effective reasonable accommodation, she is not entitled to the accommodation of
her choice. Lynette B. v. Dept. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015).
We find that the Agency satisfied its obligation to provide Complainant with a reasonable
accommodation.

Constructive Discharge

Where harassment results in a tangible employment action, i.e. a removal, suspension,
nonpromotion or any other discrete action that is taken by a supervisor with authority over
Complainant, the Agency can be held vicariously liable for that supervisor’s act, and no
affirmative defense would be available. See EEOC Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, § IV (June 18,
1999). A constructive discharge is a tangible employment action. Complainant v. Consumer
Product Safety Com., EEOC Appeal No. 0120140763 n. 3 (Feb. 6, 2015).

A discriminatory constructive discharge occurs when an Agency, motivated by discriminatory
animus, creates working conditions that are so difficult, unpleasant, or intolerable that a
reasonable person in Complainant’s position would feel compelled to resign. Byron E. v. U.S.
Postal Service, EEOC Appeal No. 0120143037 (Sept. 1, 2016). The Commission has adopted
a three-pronged test for establishing a constructive discharge. Complainant must show that: (1)
a reasonable person in his position would have found the working conditions intolerable;
conduct which constituted prohibited discriminatory treatment created the intolerable working
conditions; and (3) Complainant’s involuntary resignation result from the intolerable working
conditions. Ileana R. v. Dept. of Homeland Security, EEOC Appeal No. 0120120394 (Nov.
24. 2015).
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Complainant’s constructive discharge allegation fails to meet the standard. The email traffic in
September 2010 clearly establishes that Complainant had applied for a position at another
federal agency, and that she was selected and offered the job. Although she had alleged that
the AC and the DAC harbored discriminatory motives in connection with the various incidents
described above, she had not presented enough evidence to raise a genuine issue of material
fact as to the actual existence of such motives. IR1 138-39. Likewise, she has not presented
enough evidence to raise a genuine issue of material fact as to whether the conditions created
by the management styles of the AC and the DAC were so objectively intolerable that they
would have compelled a reasonable person in Complainant’s position to resign.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

December 16, 2016
Date