Deena B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 26, 2019

0120171139 (E.E.O.C. Mar. 26, 2019)

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

Deena B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120171139

Agency No. 1C-192-0015-16

DECISION

On February 2, 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
January 23, 2017, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS in part and VACATES in part the Agency’s final decision.

ISSUES PRESENTED

The issues presented are (1) whether the Agency subjected Complainant to discrimination and
harassment on the bases of race, sex, and disability and (2) whether the record is sufficiently
developed to determine whether the Agency discriminatorily failed to provide Complainant with
a reasonable accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Philadelphia Network Distribution Center in Philadelphia, Pennsylvania. On July 15,

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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2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on
the bases of race (White), sex (female), and disability (deafness) when:

1. for the past year, the closed caption was turned off on the lunchroom television;

2. there has never been a private video phone area;

3. there has never been an interpreter available for tour talks;

4. on April 27 and May 8, 2016, two supervisors sexually harassed her;

5. on April 23, 2016, a supervisor displayed an ignorant attitude toward her in work
assignments and when she paged her;

6. on July 6, 2016, supervisors refused to communicate with her;

7. on August 16, 2016, her supervisor yelled at her because she did not understand
him, got mad, and took boxes and threw them on the floor;

8. on April 23, 2016 and ongoing, her supervisor refused to look at her and to
communicate with her; and

9. on July 9, 2016, her Manager, Distribution Operations, walked out of a meeting
that she attended and refused to address problems.

In her affidavit, Complainant stated that, like other employees, she watches the lunchroom
television during her lunch breaks. She cannot watch it without closed captioning. According to
Complainant, closed captioning was turned off “for the past year,” the remote control was not in
the lunchroom, she did not have access to the remote control, and she did not know who did. She
asserted that she raised the matter during biweekly “deaf meetings”2 and reported it to the Manager
of Distribution Operations (S1). S1 acknowledged that Complainant told him that closed
captioning was not on the television. He stated that he had signs placed on the television to leave
the closed captioning on, that it was not turned off for a year, that the remote control was on a table
in the lunchroom, and that 864 people have access to the remote control.

Complainant stated that she uses the video-phone area “for any important or personal phone calls,
just as a hearing person would use their cell phone.” She asserted that there never has been a
private video-phone area and that she raised the issue many times during the “deaf meetings.” She
objected to the presence of a camera in the area. According to Complainant, S1 told her that the
Agency had a camera in the area in case of theft.

2 According to Complainant, “deaf meetings” address workplace issues “regarding safety,
sensitivity training, and discrimination.”
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Noting that there was “a scanner to enter the room that records your identification and plenty of
other cameras throughout the facility,” Complainant asserted that the Agency should use a
different method to address security concerns. She argued that the camera was an invasion of
privacy because it is the “equivalent of recording a phone call conversation” and denies deaf
employees the privacy rights afforded to other employees. S1 stated that the video phone is in a
cubicle and that the Agency “put another panel on the video phone for more privacy.” He
confirmed that there is a camera in the video-phone area “to make sure the video phone is not
vandalized.”

According to Complainant, the Agency has never used a sign-language interpreter during “tour
talks” and never gave her a reason for the lack of an interpreter. She asserted that the Agency
never gave her the “tour talk” information through other methods, such as written or electronic
notes. Complainant maintained that, without an interpreter, she cannot understand what is being
said during the talks and therefore is “ill informed.” S1 stated that “plan 5 talks” “are given almost
everyday,” that information is conveyed to Complainant in writing, and that she “refuses to accept
written paperwork of same talks.” In response to the EEO Investigator’s question about whether
the Agency provided an interpreter for deaf employees during “tour talks” and, if not, why, S1
replied, “No, not my decision.” In response to the EEO Investigator’s question about why, if
Complainant requested an interpreter, the request was denied, S1 replied, “Postal Policy.”

Complainant alleged that, on April 27, 2016, a Distribution Operations Supervisor (S2) put his
hand into the front pocket of her apron, took a piece of paper from the pocket, and mocked her by
“waving the paper in the air with his tongue out.” She stated that a coworker (CW1), who is a
union representative, witnessed the incident. S2 denied that he had any discriminatory interactions
with Complainant. In an undated, unsworn statement attached to his affidavit, S2 stated that he
gave Complainant a disapproved Change of Schedule (COS) form and that he shrugged when she
asked who had signed it. He further stated that Complainant wrote “who signed” on a piece of
paper, he wrote that he did not recognize the signature, CW1 entered the office as he was leaving,
and he told her what had occurred. According to the statement, S2 and CW1 went to Complainant,
she began waving the paper with the notes in their faces, she placed the paper in her apron pocket
after he asked to see the notes, and he reached into her pocket for the note. In her sworn affidavit,
CW1 stated that S2 pulled the paper out of Complainant’s apron with his thumb and forefinger
and stuck his tongue out at Complainant after trying to show the paper to CW1.

Complainant further alleged that, on May 8, 2016, a different Distribution Operations Supervisor
(S3) stuck his tongue out at her “multiple times,” made inappropriate gestures and faces at her,
watched her “intently from a close distance as if to mock [her] throughout the shift,” and “invaded
[her] space and privacy” when she was speaking with her supervisor. She stated that two
coworkers (CW2 and CW3) witnessed the incident. S3 denied the allegation. CW2 and CW3 did
not respond to the EEO Investigator’s request for affidavits.

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Complainant maintained that, since April 23, 2016, another Distribution Operations Supervisor
(S4) refused to communicate with her properly, ignored her when she tried to get S4’s attention,
paged her even though she cannot hear the page and requires face-to-face conversations because
of her deafness, and did not honor her seniority regarding assignments. She stated that she tried
to speak with S4 about the order of assignments and that S4 became frustrated and wrote a note
saying, “Shut up.” Complainant explained that she needs to have supervisors look at her to
communicate properly and argued that S4 does not know how to communicate with people who
are deaf. She stated that a coworker (CW4), who is a union steward, witnessed S4’s behavior
toward her. In addition, she alleged that Mail Handlers who have less seniority than she has receive
assignments before she does. CW4 stated in his affidavit that he had not witnessed S4 treating
Complainant differently regarding assignments or refusing to communicate with her.

S4 did not recall any specific interactions with Complainant on April 23, 2016. She asserted that
“the page goes out to anyone who sees [Complainant] to report to her area, not to her” and that
managers no longer use this method. She also asserted that supervisors make assignments and that
“there is no seniority.” Claiming that Complainant “was out of control that day,” S4 acknowledged
that she gave Complainant a note stating, “Shut up.” According to S4, Complainant “throws
tantrums.”

Complainant stated that she tried to explain something to S2 on July 6, 2016, but he walked away
and ignored her. She asserted that supervisors refuse to use alternative forms of communication
with her and “therefore there is a major lack of communication” between her and supervisors. S2
stated that Complainant started complaining to him before he could reach his desk and put his
things down. He denied that he walked away from Complainant and asserted that he “merely
continued” to his desk. S2 also asserted that Complainant often did not participate in group
discussions at the beginning of the tour “even though [he] often solicit[ed] the assistance of another
hearing-impaired employee.”

Complainant stated that S1 walked out of a “deaf meeting” on July 19, 2016. She asserted that,
when she told him that he was bullying and oppressing deaf employees, S1 “showed some anger”
and asked a union representative if he agreed with what Complainant stated. According to
Complainant, the union representative agreed that S1 mistreated deaf employees, and S1 left the
meeting. S1 stated that he held meetings with employees who had hearing impairments, that
Complainant complained about the same things “every time,” and that he left the meeting because
Complainant “took the floor and would not let [him] conduct [the] meeting.”

Complainant stated that, on August 16, 2016, S2 lost his patience with her and became frustrated
when she used sign language to try to explain to him that she could not understand what he was
saying. She also stated that she had to back out of the way to avoid the boxes that he threw.
According to Complainant, S2 did not have an interpreter with him and did not attempt to use an
alternative form of communication. She argued that there is a language barrier between them
because her primary language is sign language and his is English. S2 denied that he threw boxes.
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According to S2, he instructed Complainant to go to another assignment and she became
argumentative. He stated that he walked away to get the assistance of CW2, who has a hearing
impairment, and that CW2 explained to Complainant why S2 needed her to move her assignment.

Final Agency Decision

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
Opportunity Commission Administrative Judge. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

In its final decision, the Agency found that it had not subjected Complainant to discrimination.
The Agency, which concluded that Complaint was a qualified individual with a disability, found
that it had not unlawfully denied Complainant a reasonable accommodation. It noted that S1 stated
that 864 people had access to the television remote control in the lunchroom and that the Agency
had placed signs on the television telling people to leave the closed captioning on the television.
The Agency also noted that it did not provide a private area for hearing employees’ cell phone
conversations, that the video phone was in a cubicle that was not used for other purposes, and that
the Agency “put another panel on the video phone for more privacy.” In addition, the Agency
found that it provided Complainant with a reasonable accommodation during the “tour talks”
“based on the Agency’s attempt to provide her with written paperwork of the tour talks, which she
refused to accept, with the assistance of another hearing-impaired employee, and with an
interpreter during the ‘deaf meetings.’”

The Agency also found that it had not subjected Complainant to disparate treatment. It concluded
that Complainant had not shown that the Agency treated her less favorably than it treated similarly
situated employees and had not established that its articulated reasons for its actions were a pretext
for discrimination. It further concluded that Complainant did not show that its reasons “were
factually baseless or not its actual motivation” and that there was no evidence “to suggest that any
management official had a discriminatory animus toward” Complainant.

With respect to Complainant’s harassment claim, the Agency found that Complainant did not show
that she was subjected to unwelcome conduct based on her race, sex, or disability. The Agency
further found that the alleged conduct was not sufficiently severe or pervasive to create a hostile
work environment and that Complainant did not establish a basis for imputing liability to the
Agency.

CONTENTIONS ON APPEAL

Complaint raises no arguments on appeal. The Agency argues that the Commission should affirm
its final decision.

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

ANALYSIS AND FINDINGS

Reasonable Accommodation

Under the Commission’s regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to make reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability unless
the Agency can show that 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).

A “reasonable accommodation” is a modification or adjustment (1) to the application process that
enables a qualified applicant with a disability to apply for a job, (2) to the work environment or
manner or circumstances under which a position is performed that enables an individual with a
disability to perform the position’s essential functions, or (3) that enables an employee with a
disability to enjoy equal benefits and privileges of employment. 29 C.F.R. § 1630.2(o). A
modification or adjustment is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in
the run of cases,” U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002); this means it is “reasonable”
if it appears to be “feasible” or “plausible.” Id. An accommodation also must be effective in
meeting the needs of the individual. Id. In the context of job performance, this means that a
reasonable accommodation enables the individual to perform the essential functions of the
position. If more than one accommodation will enable an individual to perform the essential
functions of his or her position, “the preference of the individual with a disability should be given
primary consideration.
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However, the employer providing the accommodation has the ultimate discretion to choose
between effective accommodations and may choose the less expensive accommodation or the
accommodation that is easier for it to provide.” 29 C.F.R. pt. 1630 app. § 1630.9; see also
Enforcement Guidance on Reasonable Accommodation at Question 9. “The appropriate
reasonable accommodation is best determined through a flexible, interactive process that involves
both the employer and the individual with a disability.” 29 C.F.R. pt. 1630 app. § 1630.9.

It is undisputed that Complainant is a qualified individual with a disability. She has alleged that
the Agency denied her a reasonable accommodation by turning off the closed captioning on the
lunchroom television, not providing a private video-phone area, and not providing an interpreter
for “tour talks.”

Although Complainant stated that the closed captioning had been turned off for a year and that she
did not have access to the remote control, S1 stated that the captioning was not turned off for a
year and that the remote control was on a table in the lunchroom. He also stated that the Agency
placed signs on the television to leave the closed captioning on the television. In light of the
contradictory statements, we cannot say that the preponderance of the evidence establishes that
closed captioning was off for a year. We find, therefore, that the record does not support
Complainant’s allegation that the Agency denied her a reasonable accommodation with respect to
the closed captioning.

We similarly find that the record does not support Complainant’s allegation that the Agency denied
her a reasonable accommodation with respect to the video-phone area. The record establishes that
the video phone is in a cubicle and that the Agency added a panel to ensure privacy. Complainant’s
argument that the video-phone area afforded her less privacy than the privacy afforded to hearing
employees who use personal cell phones is unpersuasive. She has not shown that the Agency
provided other Mail Handlers with telephone areas that were more private than the video-phone
area. For example, there is no evidence that the Agency provided an area where employees’
telephone conversations could not be overheard. Moreover, there is no evidence that other
employees had any expectation of privacy when using telephones at work. In fact, Complainant
stated that there are “other cameras throughout the facility.”

Complainant alleged that the Agency did not provide her with a reasonable accommodation during
“tour talks” because it did not provide a sign-language interpreter. The Commission has held that,
“[f]or a severely hearing impaired employee who can sign, reasonable accommodation, at a
minimum, requires providing an interpreter for safety talks, discussions on work procedures,
policies or assignments, and for every disciplinary action so that the employee can understand
what is occurring at any and every crucial time in his (her) employment career, whether or not
(s)he asks for an interpreter.” Ferris v. Evtl. Prot. Agency, EEOC Appeal No. 01934828 (Aug. 10,
1995) (quoting Bradley v. U.S. Postal Serv., EEOC Request No. 05920167 (Mar. 26, 1992) and
Jackson v. U.S. Postal Serv., EEOC Request No. 05880750 (Apr. 18, 1989)).

We cannot determine, based on the record before us, whether the Agency discriminatorily denied
Complainant a reasonable accommodation.
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The record does not explain the meaning of “tour talks.” Although S1 stated that the talks occur
nearly every day, the subject matter of the talks is not clear, nor is it clear how long they last, who
conducts them, and who attends them. It also is not clear whether, for example, a supervisor simply
reads from a prepared text or if there is a question-and-answer component. Similarly, it is not clear
if the talks include discussions among the attendees. In addition, although S1 asserted that
Complainant refused to accept “paperwork” of the talks, he did not describe the “paperwork.” We
cannot determine whether the “paperwork” was an effective alternative accommodation or whether
the Agency provided Complainant with any effective accommodation. We likewise cannot
determine if the provision of an interpreter would be the only effective accommodation in this case
and if it would have been an undue hardship for the Agency to provide one for all of the talks.

We note that, during the investigative stage of the federal administrative process, the Agency has
an obligation to develop an adequate investigative record. 29 C.F.R. § 1614.108. “An appropriate
factual record is one that allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred.” Id. § 1614.108(b). The investigator must conduct a thorough
investigation, “identifying and obtaining all relevant evidence from all sources regardless of how
it may affect the outcome.” EEO MD-110, Chap. 6 § V.D.

In this case, the investigation into Complainant’s allegation regarding the failure to provide an
interpreter for “tour talks” was inadequate. Accordingly, we will remand this issue to the Agency
for a supplemental investigation on this issue.

Disparate Treatment

To prevail in a disparate-treatment claim in the absence of direct evidence of discrimination,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Construction Co. v.
Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered
explanations are unworthy of credence or that a discriminatory reason more likely motivated the
Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not
credible permits, but does not compel, a finding of discrimination. Hicks at 511.

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Complainant has not established that the Agency subjected her to disparate treatment on the basis
of race, sex, or disability. To the extent that Complainant has argued that the Agency subjected
her to disparate treatment with respect to the closed captioning on the lunchroom television and
her request for a private video-phone area, she has not shown that the Agency treated her less
favorably than it treated similarly situated employees. Likewise, Complainant has not shown that
the Agency treated her less favorably with respect to work assignments. She alleged that Mail
Handlers who have less seniority than she has receive assignments before she receives them, but
she has not identified any specific individual who received more favorable treatment. Further, she
has not rebutted S4’s statement that “there is no seniority.” Accordingly, we find that Complainant
has not shown that the discrete acts at issue in this case occurred because of her race, sex, or
disability.

Harassment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” The Court explained that an “objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether
the harassment is sufficiently severe to trigger a violation of Title VII must be determined by
looking at all the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. at 23.

To establish a claim of harassment, Complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the protected class;
(4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. 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 (Mar. 8, 1994) (Enforcement
Guidance on Harris). The evaluation “requires careful consideration of the social context in which
particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998).

With respect to element (5), an agency is subject to vicarious liability for harassment when it is
created by a supervisor with immediate (or successively higher) authority over the employee. See
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524
U.S. 775 (1998).

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Where the harassment does not result in a tangible employment action, an agency can raise an
affirmative defense, which is subject to proof by a preponderance of the evidence, by
demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing
behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington
Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement Guidance
on Vicarious Employer Liability). No affirmative defense is available when a supervisor’s
harassment results in a tangible employment action. Burlington Industries at 762-63; Faragher at
808.

Having reviewed the evidence of record, we find that Complainant has not proven that the Agency
subjected her to harassment based on race or sex. As noted above, we find that Complainant has
not shown that the matters involving closed captioning, a private video-phone area, and work
assignments were discriminatory.

We further find that Complainant has not shown that the other incidents at issue occurred because
of her race or sex. Although the April 27 and May 9, 2016, behavior of S2 and S33 certainly was
boorish and unprofessional, the evidence does not establish that it was based on Complainant’s
race, sex, or disability. Similarly, although it was unprofessional of S4 to tell Complainant to “shut
up,” the evidence does not support Complainant’s allegation that S4 discriminatorily refused to
communicate with her. Further, the evidence does not establish that discriminatory animus
motivated S2’s behavior on July 6 and August16, 2016. S2, who denied throwing boxes, stated
that Complainant began complaining to him on July 6 before he had reached his office and became
argumentative about an assignment on August 16.

3 CW2 and CW3, whom Complainant identified as witnesses to the May 8, 2016, incident, did not
respond to the EEO Investigator’s request for affidavits. We remind the Agency that, during an
investigation, “[t]he complainant, the agency, and any employee of a federal agency shall produce
such documentary and testimonial evidence as the investigator deems necessary.” 29 C.F.R.
§ 1614.108(c)(1). Because CW2 and CW3 failed to provide the requested affidavits, we take an
adverse inference against the Agency and find that the missing information would have reflected
unfavorably on the Agency. In that regard, we find that the affidavits would have supported
Complainant’s assertion that S3 stuck his tongue out at her “multiple times,” made inappropriate
gestures and faces at her, watched her “intently from a close distance as if to mock [her] throughout
the shift,” and “invaded [her] space and privacy” when she was speaking with her supervisor.
Even with this adverse inference, however, we find that the evidence of record does not establish
that S3’s actions, although highly inappropriate, were based on Complainant’s race, sex, or
disability. See Elvis G. v. U.S. Postal Serv., EEOC Appeal No. 0120170677 (Sept. 5, 2018) (no
discrimination found where, even with adverse inference, evidence did not establish that
supervisor criticized complainant in public, yelled at him, and subjected him to investigative
interviews because of his race, sex, or age).
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Because Complainant did not show that the Agency’s actions in these matters were motivated by
discriminatory animus, they do not support a finding that the Agency subjected Complainant to
discriminatory harassment based on race or sex. See Oakley v. U.S. Postal Serv., EEOC Appeal
No. 01982923 (Sept. 21, 2000).

Finally, because we made no determination regarding whether the Agency discriminatorily failed
to provide Complainant a reasonable accommodation for “tour talks,” we will make no
determination at this time whether the Agency subjected Complainant to harassment based on
disability regarding this matter.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s finding that Complainant did not
establish, by a preponderance of the evidence, that she was discriminated against or harassed as
alleged with regard to Claims 1, 2, and 4 through 9. We VACATE the agency’s finding that
Complainant was not discriminated against with regard to Claim 3 (concerning the denial of an
interpreter for “tour talks). We remand claim 3 for a supplemental investigation as ordered below.

ORDER

The Agency is ORDERED to take the following actions.

1. Within one hundred and twenty (120) calendar days of the date this decision is
issued; the Agency shall undertake and complete a supplemental investigation into
whether the Agency discriminatorily denied Complainant a reasonable
accommodation with respect to the provision of an interpreter for “tour talks.” The
Agency shall obtain detailed sworn statements and relevant documentation in the
following manner.

A. The Agency shall supplement the record by obtaining a sworn investigative
statement from S1 (the Manager of Distribution Operations) and any other
individuals who conduct “tour talks” that Complainant attends. The
statement(s) shall provide a clear explanation of “tour talks,” including a
description of the manner in which they are conducted and their content,
presenters, and attendees.

B. The Agency shall supplement the record by obtaining a sworn investigative
statement from the individual(s) responsible for determining whether and
how to provide Complainant with a reasonable accommodation for “tour
talks.” The statement(s) shall describe the “paperwork” and all other forms
of accommodation, if any, offered to Complainant for the talks; shall
explain why the Agency believed that the offered accommodations were
effective; shall explain why the Agency did not provide an interpreter for
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the talks; and, to the extent that the Agency believed that it would have been
an undue hardship to provide an interpreter, shall explain why.

C. The Agency shall supplement the record with any documentation, including
emails and “paperwork,” regarding Complainant’s request for reasonable
accommodation for “tour talks,” the accommodation(s) provided and/or
offered, and whether it would have been an undue hardship for the Agency
to provide an interpreter for the talks.

D. The Agency shall grant Complainant an opportunity to respond in a sworn
statement to its supplemental investigation and to explain why, to the extent
applicable, she believed that any of the offered accommodations would not
be effective.

2. The Agency shall issue a new final decision on Claim 3 (concerning the denial of
an interpreter for “tour talks), with a notice of appeal rights pursuant to 29 C.F.R.
§ 1614.110(b), following the completion of the investigation.

3. A copy of the supplemental investigative report and a new final decision, unless the
parties have otherwise resolved this matter, must be provided to the Compliance
Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint.
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If you file a civil action, you must name as the defendant in the complaint the person who is the
official Agency head or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work. If you file a request to reconsider and also file a civil action, filing a civil action
will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 26, 2019
Date