Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Apr 22, 2015

01-2013-0411-0500 (E.E.O.C. Apr. 22, 2015)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120130411

Agency No. FSIS-2011-00675

DECISION
Complainant filed an appeal from the Agency’s September 21, 2012 Final Decision concerning
her equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
Final Decision finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Relief Consumer
Safety Inspector (CSI) at the Agency’s Jackson District Office in Jackson, Mississippi.
Complainant filed an EEO complaint, dated July 5, 2011, alleging that the Agency
discriminated against her on the bases of disability (mood disorder) and in reprisal for prior
protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On June 13, 2011, Complainant was called back to work and assigned to the
second and third shifts in spite of having provided medical documentation from
her physician that she was not to be assigned to those shifts.

2. On June 14, 2011, after providing her supervisor, S1, with medical
documentation from her physician, Complainant sent S1 an electronic mail
message stating that she had not been released to work the second shift. S1
responded that Complainant failed to clarify her medical needs with acceptable
medical documentation.

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3. On June 15, 2011, S1 abruptly sent Complainant an electronic mail message,
alleging Complainant was not performing her duties. S1 ignored Complainant’s
requests for clarification.

4. On June 27, 2011, S1 denied Complainant’s request for assistance covering an
inspection site after she had taken medication that impaired her driving.

5. From May 12, 2011 through June 13, 2011, Complainant was sent home on
administrative leave.

6. On May 3, 2011, in order to initiate an investigation, S1 made false statements
to the Employee Relations Division regarding remarks Complainant had made to
S1.

7. On May 2, 2011, Complainant was assigned to work as a relief inspector, in a
location where her supervisor was aware that workplace violence had previously
been directed toward her, notwithstanding the fact that a relief inspector had not
been assigned to that particular plant in the previous year and a half.

8. On April 27, 2011, S1 ignored Complainant’s request for reasonable
accommodation, despite medical documentation.

9. In January 2011, upon giving S1 documentation from her doctor that restricted
her travel to local distances, S1 suggested that she request reasonable
accommodation from Human Resources.

10. On January 12, 2011, after fol1owing S1’s suggestion and requesting
paperwork for reasonable accommodation, S1 threatened her with permanent
demotion from GS-10 to GS-8 on the third shift at a chicken plant if she
requested accommodation.

11. In January 2011, as a result of the threat of being permanently demoted,
Complainant informed the Reasonable Accommodation Manager and her
supervisor that she was no longer interested in an accommodation.

12. From July 29, 2011 to August 23, 2011, S1 sent Complainant threatening and
harassing electronic mail messages pertaining to the retrieval of Complainant’s
General Services Agency (GSA) issued government vehicle.

13. On March 5, 2012, S1 made false statements on Complainant’s disability
retirement application.

At the conclusion of the 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
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Opportunity Commission (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 Final Decision, the Agency found that claims (9), (10), and (11), were untimely raised
with an EEO Counselor. Specifically, the Agency found that Complainant requested EEO
counseling on May 19, 2011, and that the events described in each of these claims occurred in
January 2011. These claims were therefore not raised within the 45-day time limit provided
by 29 C.F.R. § 1614.105(1). The Agency nevertheless included these incidents in its analysis
of Complainant’s complaint.

The Agency found that Complainant was a qualified individual with a disability. The Agency
observed that during the time of the events described in her complaint, Complainant worked
for the Agency and that Complainant suffered from anxiety, depression, and mood disorder
and that Agency management was aware of her condition. The Agency further found that
under a theory of disparate treatment, Complainant established a prima facie case of
discrimination. For each of Complainant’s claims, the Agency found that management
articulated legitimate, nondiscriminatory reasons for its actions. For example, the Agency
found that Complainant presented medical evidence to support her request to be assigned to a
specific shift (the first shift), but that documentation was only for one week and that
Complainant’s request was accommodated for that week. The Agency found that Complainant
voluntarily withdrew her request for accommodation for her disability and that the Agency had
no obligation to modify Complainant’s terms and conditions of work in the absence of adequate
medical documentation to support her request for accommodation.

The Agency found that Complainant was placed on administrative leave when she could not
travel and the Agency did not have work for Complainant within the local commuting distance.
Additionally, the Agency found that Complainant’s work in a slaughterhouse environment was
inherently dangerous so that when Complainant notified her supervisor that she was
experiencing symptoms, she was advised to not jeopardize her safety and placed on
administrative leave.

With respect to Complainant’s claim that she was assigned to a location that was a previous site
of workplace violence, the Agency found that Complainant did not complete the required form
documenting an incident where Complainant claimed she was threatened by an Agency official.
Accordingly, the Agency found that Complainant was subsequently reassigned some time later
to the same location, which plant is local to Complainant’s residence, because the Agency had
no record that any incidence of violence had occurred and Complainant’s position included that
location in the facilities to which Complainant could be assigned.

The Agency further found that Complainant was assigned a General Services Agency (GSA)
vehicle as a term and condition of her employment. The Agency found that Complainant was
not threatened, but that Agency officials requested that Complainant return the vehicle when
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Complainant relocated to Georgia1

and left the vehicle at her former residence in Alabama.
The Agency considered Complainant’s explanation that she had authorization to keep the
vehicle at her Alabama home and did not have authorization to drive the vehicle if she was not
on official duty. The Agency found that Agency management believed that Complainant failed
to maintain the vehicle as required by GSA policy and only after repeated requests did the
Agency receive the vehicle’s keys from Complainant’s husband so that the Agency could
reclaim the vehicle from Complainant’s former residence.
The Agency found that Complainant was never threatened with demotion, but that when
Complainant’s symptoms impaired her ability to travel, options were explained to Complainant
including the option of being reassigned to the first shift as a GS-9 CSI at an identified, local
plant so that Complainant would not be assigned to travel as Relief CSI’s are required to do.
The Agency found that Complainant did not identify other employees who were treated better
than she was treated, but instead found that Agency officials considered interim measures from
transfer to reassignment that could be implemented while Complainant considered the options
available to her. The Agency found that the reasons articulated by management were credible
and not shown to be a pretext for discrimination. The Agency found that Complainant did not
prove that more likely than not she was subjected to disparate treatment because of her
disability.

With respect to Complainant’s claim of reprisal, the Agency found that Complainant
established a prima facie case of discrimination based upon reprisal. The Agency noted that
Complainant’s protected activity occurred when Complainant submitted her request for an
accommodation in January 2011. The Agency found that management officials supplied
legitimate, nondiscriminatory reasons for their actions. The Agency found that Complainant
failed to submit adequate medical documentation to support her requests for accommodations,
and that the Agency’s reasons are supported by the evidence. The Agency found that
Complainant did not show that reprisal motivated the Agency’s actions described in
Complainant’s complaint.

The Agency also considered Complainant’s overall claim of harassment. The Agency found
that Complainant did not establish a prima facie case of disability or reprisal harassment
because Complainant did not allege that she was subjected to unwelcome verbal, denigrating
personal slurs or physical conduct based upon her disability or in retaliation for her protected
activity. Even if she had so established a prima facie case, the Agency found that the incidents
described in Complainant’s complaint did not rise to the level of harassment because the
conduct was not pervasive or severe.

The Agency’s Final Decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

1 The Agency found that Complainant’s husband, also an Agency employee, transferred to the
Georgia District and that Complainant went with him when he relocated to Georgia.
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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. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability";
(2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
The burden of production then shifts to the agency to articulate a legitimate, non-
discriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination.

Id.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force

, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
To establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected a term or condition of
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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 to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.

, EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994).
The Supreme Court has held that a complaint alleging a hostile work environment will not be
time barred if all acts constituting the claim are part of the same unlawful practice and at least
one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101 (June 10, 2002). Complainant v. Dep’t of the Navy
In
, EEOC Appeal No. 0120142124 (Oct.
30, 2014).
Burlington Indus. v. Ellerth, 524 U.S. 742, (1998) and in Faragher v. City of Boca Raton,
524 U.S. 775, (1998), the Supreme Court made clear that employers are subject to vicarious
liability for unlawful harassment by supervisors. The standard of liability set forth in these
decisions is premised on two principles: (1) an employer is responsible for the acts of its
supervisors, and (2) employers should be encouraged to prevent harassment and employees
should be encouraged to avoid or limit the harm from harassment. In order to accommodate
these principles, the Court held that an employer is always liable for a supervisor's harassment
if it culminates in a tangible employment action. No affirmative defense is available in such
cases. Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002, at n. 7 (June 18, 1999). Such claims are analyzed
like any other case in which a challenged employment action is alleged to be discriminatory. If
the employer produces evidence of a nondiscriminatory explanation for the tangible
employment action, a determination must be made whether that explanation is a pretext
designed to hide a discriminatory motive. Id.
Even if we assume for purposes of this decision that claims (9), (10), and (11) were timely
raised with an EEO Counselor, we find no discrimination on these claims individually or as
part of a claim of harassment. We also find that Complainant failed to show that any of the
Agency actions in the complaint were motivated by discrimination.
at 10.
For purposes of this decision, we shall assume Complainant is a qualified individual with a
disability. In January 2011, Complainant requested accommodations for her disability, but
withdrew that request in the same month, January 2011.
Reasonable Accommodation
We find that S1 responded to Complainant’s request for accommodations by suggesting she
request accommodations from the appropriate Agency officials. We decline to find that S1’s
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response was anything more than instructions to Complainant to follow the Agency’s process
for obtaining accommodations which may ultimately include reassignment to a lower grade
position.
The record also shows that by electronic mail message dated January 13, 2011, sent to S1,
Complainant stated that she had spoken with the Agency’s Reasonable Accommodation
Manager and cancelled her request for accommodations. Complainant explained to S1 that the
processing of the request caused her stress. We find no evidence that the Agency officials
charged with extending offers to accommodate employees with disabilities had the necessary
documentation to analyze Complainant’s medical restrictions, to identify the essential functions
of Complainant’s position, and did not therefore determine what accommodations, if any, the
Agency was able to offer Complainant before Complainant cancelled her request.
We find that S1 did not discriminate against Complainant on the basis of her disability or in
reprisal for her protected activity when he suggested that she request accommodations from the
appropriate Agency officials in January 2011, and did not discriminate against her when she
again requested accommodations in April 27, 2011. The Agency explained that Complainant
was again informed that she had to make her reasonable accommodation request to the proper
office, but she failed to do so. We find that there is no evidence that Complainant made a
reasonable accommodation request through the proper office on April 27, 2011 (or shortly
thereafter), and she does not claim that she made or attempted to pursue a formal
accommodation request. She did, however, submit medical documentation to her supervisor
and when management was thus informed that Complainant was restricted to specific duty
hours and requested not to be assigned to distant locations, we find that S1 responded by
placing Complainant on administrative leave in May 2011. We find S1 reasonably questioned
whether Complainant was able to successfully perform the essential functions of her job.
Upon her return to work in June 2011, we find again that Complainant objected to work that
she was assigned that was consistent with her position description, but which she could not
work based upon her medical restrictions, despite her decision to not seek reasonable
accommodations.
Disparate treatment
We find that the Agency, and specifically, H2, the Agency Resource Management Specialist in
charge of creating employee schedules did not discriminate against Complainant based upon
her disability or prior protected activity when she assigned Complainant to a plant where
Complainant had encountered a conflict with the Inspector in Charge (IIC) the previous year.
We find no evidence that Complainant had documented the incident with the IIC as Agency
practice provides. We find no dispute that the identified location (in Blountsville, Alabama)
was within Complainant’s local commuting distance and an ordinary part of Complainant’s job
duties. In the wake of Complainant’s cancelled request for accommodations, we find that H2
had no reason not to assign Complainant to the identified location and shift that she did. We
consider Complainant’s claim that another employee, E2, was granted his request to be
assigned to local destinations for an indefinite period of time. We find that S1 states that he
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supervises E2 and that E2 has not requested any accommodation and that his schedule is not set
based on any request that E2 has made. We find that Complainant has not presented
persuasive evidence that E2 submitted scheduling requests that the Agency has accommodated.
Harassment
We find the Agency articulated legitimate, nondiscriminatory reasons for its actions for each of
the incidents described in Complainant’s complaint as the Agency observed. We find that S1
properly directed Complainant to the Agency’s process available to employees with disabilities
in January 2011, and that when he was uncertain whether Complainant could safely perform
the duties of her position after receiving more documentation in April 2011, he requested that
she be placed on administrative leave. S1 was also aware that Complainant had withdrawn her
request for reasonable accommodations, yet she continued to make scheduling requests. We
find the evidence shows that S1’s duties as a supervisor included oversight of Complainant’s
job performance and he properly questioned her performance when he received a report from
another inspector that Complainant had failed to conduct specific tasks for which she was
responsible.
With respect to Complainant’s claim that the Agency harassed her regarding the return of the
vehicle to which Complainant was assigned, we find the Agency took reasonable steps to
secure the return of the government property in Complainant’s possession when it learned that
Complainant’s husband had relocated to another state. We find the evidence does not show
that more likely than not the Agency sought to reclaim the vehicle based on Complainant’s
disability or in reprisal for her prior protected activity, but because Complainant had been
absent from the workplace, Complainant’s husband had transferred to another state and the
Agency had ample reason to believe that Complainant was no longer living at the location
where the vehicle was kept.
We find the Agency properly concluded that Complainant was not subjected to harassment
based upon her disability or in reprisal for her prior protected activity.

CONCLUSION
Based on a thorough review of the record we AFFIRM the Agency’s Final Decision finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

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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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 22, 2015