Deena B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 26, 20190120171139 (E.E.O.C. Mar. 26, 2019) Copy Citation 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. 0120171139 2 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.” 0120171139 3 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. 0120171139 4 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. 0120171139 5 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. 0120171139 6 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. 0120171139 7 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. 0120171139 8 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. 0120171139 9 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). 0120171139 10 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). 0120171139 11 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 0120171139 12 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. 0120171139 13 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. 0120171139 14 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 Copy with citationCopy as parenthetical citation