Harriet J.,1 Complainant,v.Eugene Scalia, Secretary, Department of Labor (Employment and Training Administration), Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019000499 (E.E.O.C. Aug. 12, 2020)

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

Harriet J.,1
Complainant,

v.

Eugene Scalia,
Secretary,
Department of Labor
(Employment and Training Administration),
Agency.

Appeal No. 2019000499

Agency No. CRC-17-11-109

DECISION

On July 25, 2019, 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
June 25, 2019, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency’s final
decision found that the Agency violated the Rehabilitation Act, when it failed to respond to her
reasonable accommodation request, but that Complainant failed to prove discrimination otherwise.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly determined that Complainant was not
subjected to unlawful disparate treatment and/or a hostile work environment based on her age, sex,
disability, race, color, and/or in reprisal for prior EEO activity when:

1. On October 27, 2016, (a) Complainant received a "performance evaluation form" that was
pre-signed and pre-dated by Complainant's second line supervisor (S2) and (b)

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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Complainant's first line supervisor (S1) told Complainant that S2 would sign-off on
whatever S1 wrote on the form;

2. From her start date of October 11, 2016, until her termination on May 26, 2017,
Complainant was not provided with a requested reasonable accommodation (RA [a chair]);

3. From November 4, 2016, to March 27, 2017, Complainant's supervisor did nothing when
a coworker (C1): (a) failed to provide Complainant with on the job training as required; (b)
engaged in "negative behavior" toward Complainant that was "aggressive, bullying, and
unwelcome;" (c) did nothing when a coworker (C2) yelled at Complainant and bullied
Complainant to change a report that Complainant was writing regarding an on the job
injury that C2 caused Complainant to sustain; (d) became aggressive and confrontational
towards Complainant when C2 "came in to [Complainant's] cubicle and moved in towards
(Complainant's) face in order to provoke a fight;"

4. From November 30 to December 5, 2016, Complainant's supervisor disclosed "disability,
Health Insurance Portability and Accountability Act (HIPAA), and Personally Identifiable
Information (PII)/health information" to one of Complainant's coworkers, (C3) who then
disseminated it throughout the office and made fun of Complainant because of
Complainant's disability;

5. In January 2017, during a meeting that included some of Complainant's coworkers,
Complainant's supervisor "berated" Complainant by saying, "This work is not hard. You
have three degrees and it's not rocket science. Why can't you get it?"

6. On an unspecified date, a coworker (C4) sent Complainant an email containing a picture
of the new Secretary of Labor sitting with some managers that included derogatory
comments made by C4 and another employee about some of the managers;

7. During the week of March 7, 2017, after asking Complainant where the other employees
were and being told that they were out of the office, Complainant's supervisor bent down
in to Complainant's personal space, next to Complainant's right ear and said, "I keep my
door locked to keep certain people out, but you can come in anytime, all you have to do is
knock, and I'll let you in;"

8. On March 7, 2017, during a staff meeting, Complainant's supervisor stated that, "some
people with advanced degrees are here at DOL because they can't do any better," knowing
that Complainant has advanced degrees;

9. On or about April 24, 2017, Complainant's supervisor approached Complainant in the
office and asked, "Hey, what would you like to do with that handcuff key on your key
ring?"
10. On some unknown date between May 4-13, 2017, Complainant's supervisor held a staff
meeting at which he referred to several female staff members as "bitches;"
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11. On May 18, 2017, Complainant's supervisor: (a) yelled at Complainant that Complainant
had better not be asking a particular coworker (C5) anything about work because C5 is
"laughing at you" and that "You got three degrees. It should not be that hard. It's not rocket
science," (b) during Complainant's performance evaluation meeting, told Complainant that
Complainant will have time to improve in Complainant's position because Complainant is
a Schedule A employee, and Complainant's supervisor asked Complainant to sign
Complainant's performance evaluation without affording Complainant the opportunity to
make comments and before the supervisor had written the comments that would
accompany the evaluation, (c) during the course of the work day, made fun of
Complainant's law enforcement background and stated that Complainant can only be in
charge of the office when everyone else is gone for the day, (d) stated that Complainant
needed to leave the office and pursue better opportunities because Complainant had too
much education to be there, and (e) stated that "I get paid the big bucks to deal with you
women in this office with your different personalities that I have to put up with;"

12. On May 19, 2017, at the office luncheon, Complainant's supervisor: (a) stated that
Complainant should loosen up and have a drink and (b) after Complainant declined to drink
an alcoholic beverage, stated, "I don't trust people who don't drink;"

13. On May 24, 2017, when Complainant was alone with Complainant's supervisor following
a meeting with Complainant and a union representative to discuss the supervisor's
harassment of Complainant and his insistence that Complainant sign Complainant's
performance evaluation before the supervisor wrote comments on it, the supervisor stated
that Complainant needed to move on and leave the office;

14. On or about May 25, 2017, Complainant's supervisor came in to Complainant's office and
told Complainant that Complainant needed to go work somewhere else;

15. On May 26, 2017, Complainant was terminated during Complainant's probationary period;
and

16. From May 26 to July 6, 2017, Complainant's supervisor gave Complainant negative
employment references.2

2 The Agency noted that Claim 1 and Claims 3 to 12 were not accepted as disparate treatment
claims because they were time-barred; and that though timely, Claims 13 and 14 were not accepted
as claims of disparate treatment on the basis of age, sex, disability, race, and/or color because they
did not affect a term, condition, or privilege of employment. However, Claim 1 was considered
as a component of Complainant's hostile work environment claim.

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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Probationary Program
Specialist, GS-0301-11 at the Agency’s Office of Special Programs and Emergency Preparedness
(OSPEP) facility in Washington, District of Columbia.

On August 18, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (Black), disability
(physical), age (58), and reprisal for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the
Rehabilitation Act of 1973 as set forth above.3

Complainant started her job on October 11, 2016 and was terminated on May 26, 2017. S2 was
Complainant’s second-line supervisor until March 2017, when she retired. Complainant stated
that her disability claim is based on a progressive cervical neck and spinal injury. She submitted
medical documentation to substantiate her claimed disability in her Schedule A Letter/Certification
dated August 7, 2014. Complainant asserted that S1 and S2 were the supervisory officials who
subjected her to unlawful discrimination; and alleged that the Director of Human Resources (HR1),
and the Deputy Director of Human Resources (HR2), subjected her to discrimination when she
was not offered job accommodations.

Complainant asserted that she engaged in prior EEO activity when she filed an EEO complaint
against the District of Columbia sometime around 1997; when on December 5, 2016, she informed
S1 that S1 had unlawfully disclosed her medical information and that a coworker relayed the
information to others while yelling at and mocking her; and when in December 2016, January
2017, and February 2017, she continued to notify S1 that a coworker was disclosing her medical
information. S1 and S2 neither confirmed nor denied awareness of Complainant’s EEO activities.

Claim 1

Complainant alleged that she received a performance evaluation form from S1 that was pre-signed
and pre-dated by S2. She also alleged that S1 asked her to sign the form and told her that S2 would
sign-off on whatever S1 wrote.

Complainant alleged that when she asked for a copy of the form she had just signed, S1 refused,
stating that he was not finished adding comments to it. Complainant explained that S1’s statements
made her fearful because S1 could add comments and paperwork later without her knowledge; and
she would have no recourse from S2.

3 The Agency explained that it dismissed Complainant's allegation that she was discriminated
against on the basis of national origin (African American) because it found that African Americans
are more properly classified as a race, and Complainant had already alleged discrimination on the
basis of race. Although Complainant disputed the Agency’s framing of her claims, Complainant
did not appear to dispute the rejection of the specific basis.
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S1 acknowledged giving Complainant her performance evaluation plan, explaining that all
employees are given five days to review the document and are afforded the opportunity to attach
comments before signing it. He asserted that Complainant did not avail herself of either option
and, instead, signed the document the same day she received it. He denied providing Complainant
with a pre-signed and pre-dated form, requiring her to sign the form on the day he provided it, and
telling Complainant that S2 would sign-off on whatever he wrote.

Claim 2

Complainant alleged that she submitted a request for an orthopedic chair to a Human Resource
Specialist (HRS) and S1 but neither of them responded to her request.

The record reflects that Complainant submitted a request to HRS via email for an orthopedic chair
as an accommodation in response to HRS’s request that she let her know if she needed any special
accommodations when she Entered On Duty (EOD).

HRS, the manager responsible for processing Complainant’s RA request, explained that she
thought she put Complainant’s request through on the Initial Network Access Request (INAR)
form but apparently that did not happen; and that she had inadvertently overlooked Complainant’s
accommodation request. Consequently, the agency found discrimination because HRS’s oversight
inherently denied Complainant’s RA request. The Agency stated corrective, preventive, and
curative measures it would take to ensure such violations do not recur including posting notices,
providing training to employees involved in the Rehabilitation Act violation, and paying
appropriate compensatory damages to Complainant.

Claim 3

Complainant made multiple allegations involving C1 and C2, including that S1 failed to respond
to her coworkers’ failure to train her even after she informed him of the training inadequacies. She
alleged that S1 was angry that she reported the problems; and that he had stated that this was a
woman's problem.

S1 explained that Complainant told him that C2 was not training her and she wanted to be trained
by C1; and that he assigned C1 to train Complainant. He also scheduled weekly meetings with
Complainant, himself, and C1 to provide Complainant training on processing correspondence. He
denied ever remarking that Complainant's concerns were a woman's problem.

Complainant also alleged that even after she informed him, S1 failed to respond to C2's aggressive
and bullying behavior toward her that included directing that she take the late shifts because she
was new; attempting to bully her into changing a report about an on-the-job injury Complainant
suffered as a result of C2 leaving open a cabinet outside of Complainant's cubicle; getting in her
face in order to provoke a fight; and other inappropriate workplace behavior such as singing,
crying, and talking to herself.

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S1 stated that Complainant did not generally report to him that C2 was treating her in an aggressive,
bullying, and unwelcome matter. However, she did tell him about the confrontation in her cubicle.
He explained that C2 also complained to him about Complainant; and in response, he counseled
both Complainant and C2. He also removed C2 as soon as possible, sending her to detail at another
office. C2 provided supporting testimony.

Claim 4

Complainant alleged that S1 forwarded an email with her disability, HIPAA and PII/health
information to C2; and that C2 disseminated the information throughout the office and made fun
of her because of her disability. Complainant asserted that she reported the incident to S1; that he
did not deny it but provided no explanation for the incident.

S1 denied disclosing Complainant's private information to anyone, and specifically denied sending
C2 an email which included information about her medical condition. He also asserted that he was
unaware of an instance involving C2 disseminating Complainant's private information throughout
the office or making fun of her because of her disability; and C2 denied Complainant’s allegations.

Record evidence does not include any email containing Complainant’s private and medical
information that was sent to either S1 or C2.

Claim 5

Complainant alleged that, during a meeting with S1 and C1 regarding her training, S1 made
statements indicating that she was having difficulty understanding her work despite her having
three degrees; and that after the meeting, she let him know that C1 had just lied to him again about
the office activities; and that it was a hostile environment in which she was not receiving the proper
training.

S1 explained that he made the alleged comment because he was frustrated that Complainant was
still struggling to learn how to process correspondence despite weekly training meetings with him
and C1.

Claim 6

Complainant alleged that C1 and C3 sent her an email that contained inappropriate comments
about some manager’s appearances in a photograph. She did not provide a copy of the email; and
stated that she did not report the incident to her supervisor or anyone else in management.
Both S1 and C1 denied awareness of the email at issue.

Claims 7 through 14

The following claims, for a number of which Complainant identified witnesses, involve comments
that S1 alleged made which Complainant perceived as inappropriate.
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In Claim 7, Complainant alleged that S1 bent down to her personal space and made statements to
the effect that he kept his door locked to certain people, but she only needed to knock, and he
would let her in.

In Claim 8, Complainant alleged that during a staff meeting, after C4 complained about an
interaction he had with a Department employee, S1 made statements to the effect that some people
with advanced degrees were at the Agency because they could not do any better; and that C4 stated
he was surprised to learn the employee had a PhD or was what he referred to as educated stupid.
Complainant asserted that she has an advanced degree and was the target of the comment.

In Claim 9, Complainant alleged that, after noticing the handcuff key a friend had gifted her, he
asked her what she would like to do with the key; and that when she told him to stop, he asked if
she would like to talk about it in his office to which she responded no, stating that would be
inappropriate.

In Claim 10, Complainant alleged that at a brief staff meeting, S1 referred to two female managers
in other offices as “bitches.”

In Claim 11, Complainant cites numerous comments that S1 allegedly made to her including that
30 minutes after she asked C1 a question about a recent change in correspondence processing, S1
asked that she come to his office because he was going to give her a performance evaluation; and
that he made statements to the effect that she stop asking C1 work-related questions, and since she
had three degrees, the work was not rocket science and it should not be that difficult to grasp.
Complainant alleged that when she returned to her desk, she discovered that S1 had forwarded her
an email in which he and C1 were mocking her.

Complainant provided an email chain between S1, C1 and herself which corroborates
Complainant’s statements about her question to C1, and S1 inviting her to a meeting in his office
30 minutes later.

Complainant also alleged that during her performance evaluation meeting, S1 indicated that she
should not worry about the ratings because she would be given time to improve; and that he asked
her to sign a blank performance evaluation. Complainant asserted that she requested a copy of the
evaluation but S1 responded that he needed to add comments to the evaluation and he would
provide a copy the following day, which did not occur. She alleged that S1 then began commenting
that Complainant needed to leave the office and pursue better opportunities because she had too
much education to be there.

Complainant alleged that S1 also made fun of her law enforcement background on two occasions,
and referred to her as the office spy; that on two occasions when leaving the office, he told her, in
the presence of C1, that she could only be in charge of the office when everyone else was gone for
the day; and that on another occasions, S1 made statements to the effect that he was paid to deal
with the women in the office with their different personalities.

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In Claim 12, Complainant alleged that at an off-site office luncheon, S1 offered her a drink which
she declined; and that S1 responded that he did not trust people who did not drink.

In Claim 13, in addition to her reprisal allegation, Complainant alleged a hostile work environment
when after a meeting with her and her union representative, S1 stated that Complainant needed to
move on and leave the office.

In Claim 14, in which Complainant also alleged retaliation in addition to her hostile work
environment allegations, Complainant alleged that S1 came to her office and told her that she
needed to look elsewhere for employment; and that S1 continued the alleged harassing behavior
over a one-week period until the date she was terminated.

In response to Complainant’s allegations in Claims 7 through 14, S1 denied making any of the
statements and comments attributed to him, asserting that the conduct referenced in those claims
did not occur. He also denied asking Complainant to sign a performance evaluation without
affording her the opportunity to make comments as alleged in Claim 11, explaining that he gave
employees five work days to review their evaluation and get back to him with any comments; and
noting that evaluations are completed in September and October, not May but that he applied the
same policy to mid-year reviews as well. The witnesses that Complainant identified all either
denied that the incidents occurred as alleged or stated that they had no knowledge of their
occurrence.

Claim 15 – Disparate Treatment

Complainant alleged that the termination letter she received when her employment was terminated
contained untrue and misleading statements, asserting that there were no daily or weekly meetings
as represented in the letter. She also alleged that she was not given any counseling before the
termination; and that various coworkers, including C2, had performance and behavior problems
but were not terminated. She cited examples of past and present coworkers who she alleged
engaged in inappropriate behavior that include drinking on the job, having attendance issues and
being disruptive, and who were rewarded with transfers to other offices but not terminated.

Complainant asserted that she was a good employee who had never engaged in misconduct and
was not given an opportunity to thrive in her position. She alleged that S1 never conducted training
with her; and that she was never placed on a Performance Improvement Plan (PIP). She also
argued that her termination was retaliatory because there was close temporal proximity between
her termination and her requests for official time to meet with a Union Steward in May 2018,
(which were granted) about S1's allegedly discriminatory treatment of her and her termination.

S1 asserted that, consistent with Agency practice (and as detailed in her termination letter),
Complainant was terminated during her probationary period due to her continual performance
deficiencies.

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S1’s testimony is corroborated by Complainant’s colleagues through emails that note, among other
problems, confusion with work processes despite daily notetaking; asking the same questions
continually; an inability to work independently or complete assignments without help despite
being shown how to do the work; significantly lower production output (in the range of 30% less
than her colleagues); calling colleagues when they were not at work with questions due to inability
to work independently; taking significantly longer periods of time to complete repetitive tasks
when compared to her colleagues; and an inability to learn new concepts.

S1 explained that he had met with Complainant on multiple occasions, including weekly check-
ins; that she had received training on the job's processes, as well as training from her colleagues.
Yet, Complainant did not grasp the duties of her position, especially processing correspondence.
He also testified that Complainant was warned on numerous occasions that if she could not learn
how to review and assign correspondence to the appropriate office, she could not be retained. He
provided Complainant with a memorandum explaining that she was being terminated because of
her failure to improve her work performance. He also denied awareness of any of the alleged
behavior or accusations involving Complainant’s coworkers.

Record evidence reflects that daily training meetings occurred between Complainant, S1, and her
colleagues who were charged with training her.4

Claim 16 – Disparate Treatment

Complainant alleged that S1 gave her negative employment references, asserting that her attorney
was informed by an HR official that Complainant could not be reassigned within the Department
because S1 was telling other managers that she was a bad employee.

S1 denied Complainant’s allegations, asserting that he never discussed her with other managers;
and that none of Complainant’s protected classes was a factor in any of his actions.5
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 (AJ).

4 The Agency noted that after Complainant's employment was terminated during her probationary
period, she was placed on paid administrative leave from May 26, 2017, to June 16, 2017, giving
her the opportunity to be reassigned within the Agency or to enter into a resignation agreement.

5 The Agency noted that a few of Complainant's allegations were dismissed for failure to state a
claim because they were based on actions taken by others against third parties; and that it also
dismissed Complainant's allegation that an Agency Program Manager accessed her LinkedIn
profile because it found that this claim did not affect a term, condition, or privilege of employment
and it was not likely to dissuade a reasonable employee from making or supporting a change of
discrimination.

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In accordance with Complainant’s request, 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.6

CONTENTIONS ON APPEAL

In her Appeal Brief, among other things, Complainant reiterates her allegations, in support of
which she submits a number of documents containing various arguments and assertions, indicating
that the Agency engaged in inappropriate factual and procedural misstatements and
misrepresentations in her case; that its explanations in the FAD are pretextual; and that for two
years, the Agency denied her RA request.

In its Appeal Letter, among other things, the Agency reiterates its explanations; asserts that the
FAD properly defined and accepted Complainant's claims, highlighting differences in the claim
statements; and that Complainant’s procedural concerns are inconsequential. The Agency also
asserts that record evidence strongly supports its FAD findings regarding Complainant’s RA,
disparate treatment, and hostile work environment claims. It requests that the Commission affirm
the FAD as supported by the record and applicable law; and remand the case so that the Agency
can issue a decision regarding damages for the RA claim.

STANDARD OF REVIEW

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

Failure to Accommodate

At the onset, we affirm the Agency’s finding that it violated the Rehabilitation Act when it failed
to accommodate Complainant’s known disability of progressive cervical neck and spinal injury
for which she requested RA when, as shown in Claim 2, HRS inadvertently failed to process
Complainant’s request.

6 The Agency noted that after review of the information submitted in Complainant’s first appeal
in the instant complaint, it rescinded the initial FAD in order to conduct a supplemental
investigation; a supplemental ROI was thereafter issued to Complainant.
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An agency must make a reasonable accommodation to the known physical limitations of an
otherwise qualified individual with a disability unless it can show that the accommodation would
cause an undue hardship. See 29 C.F.R. § 1614.102(a)(8). "To determine the appropriate
reasonable accommodation, it may be necessary for [the Agency] to initiate an informal interactive
process with the individual with a disability in need of an accommodation [which identifies] the
precise limitations resulting from the disability and the potential reasonable accommodations that
could overcome those limitations." See 29 C.F.R. § 1630.2(0)(3).

We also note the Agency’s concession of an implicit Rehabilitation Act violation after an upper
management official who was contacted regarding Complainant’s request failed to respond to the
EEO Counselor’s affidavit. We have held, as the Agency rightly stated, that failure to respond to
a reasonable accommodation request as an oversight, rather than a deliberate action, does not shield
the agency from liability. See Rathore v. Secretary of Defense, EEOC Appeal No. 0120114330,
(Feb. 14, 2013).

We therefore affirm the proposed corrective, preventive, and curative measures it would take to
ensure violations do not recur including posting notices, providing training to employees involved
in the Rehabilitation Act violation, and paying appropriate compensatory damages to Complainant.

Disparate Treatment

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She 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 Constr. 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, 441 U.S. 802 at
n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, age, disability, and reprisal; we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions in Claims 13, 14, and 16. Moreover, we find no evidence
of pretext.

Regarding those three Claims, S1 denied that he engaged in the conduct as alleged by Complainant,
explaining that the allegations never happened. Regarding Claim 16 specifically, he asserted that
he had provided no references for Complainant because he had never been requested to do so. He
also stated that he never discussed her with other managers.

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Regarding Claim 15, management asserted that Complainant was terminated during her
probationary period due to her continual performance deficiencies. Other than arguing that she
was not trained, Complainant provided no evidence to refute management’s explanations
regarding her unimproved work performance during the probationary period that led to her
ultimate termination.

Complainant asserted that the alleged management actions in Claims 13 through 16 were taken
because of her protected classes. However, record evidence demonstrates that the alleged
management actions, and Complainant’s termination were due to her documented deficient
performance.

Complainant also contended that S1 was aware of her prior EEO activities and discriminated
against her on that basis, asserting that there was temporal proximity between her request to meet
with a union steward and her termination. However, we have held that temporal proximity alone
is not enough to establish that an agency's actions were the result of retaliation. Betz, et. al. v.
Dept. of Justice, EOC Appeal No. 0120073557, (Jan. 30, 2009).

Complainant also asserted that she neither received training nor was placed on a PIP before her
employment was terminated by the Agency. We have long held that where a complainant is a
probationary employee, he or she are subject to retention, advancement, or termination at the
discretion of an agency so long as these decisions are not based on a protected category. Kaftanic
v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416
U.S. 134, 152 (1974)).

In the instant complaint, because Complainant was a probationary employee at the time, the
Agency was not obliged to place her on a PIP before terminating her employment; and she
described no facts from which an inference of discrimination may be drawn. See Robinson v. U.S.
Postal Service, EEOC Appeal No. 01934794 (1994).

Hostile Work Environment

Throughout her complaint, Complainant describes incidents involving routine supervision and
personality differences, and common workplace occurrences, some of which she did not report to
management. She alleged that either S1 or her coworkers engaged in behavior or made comments
that she considered offensive, unwelcome or inappropriate. She also cited incidents of aggressive
conduct, bullying, unwanted close contact, perceived insinuations of misconduct, and lack of
supervisory discretion when S1 allegedly discussed her performance in front of coworkers and
allegedly asked that she sign a blank performance evaluation form.

Regarding Complainant’s hostile work environment allegations, we find that, under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile
work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994).
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A finding of a hostile work environment is precluded by the fact that Complainant failed to present
any evidence to substantiate her claims; and there was no corroboration for any of her claims by
coworkers or other officials who would have witnessed the alleged conduct.

Moreover, routine supervision and managerial discipline or personality conflicts and general
workplace disputes unrelated to a protected basis are insufficient to establish a hostile work
environment claim. See Complainant v. Department of Veterans Affairs, EEOC Appeal No.
0120131234 (2015). Here, the behavior and comments that S1 and Complainant’s coworkers
allegedly engaged in which she considered offensive, unwelcome or inappropriate are unrelated to
her protected basis; and are therefore insufficient to establish her hostile work environment claims.

Also, because Complainant did not request a hearing or avail herself of the discovery process
which would have allowed for an examination of the credibility or lack thereof of the Agency’s
explanations, we can only evaluate the facts based on the weight of the evidence presented to us.
We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence
that discrimination occurred or that the Agency subjected her to retaliation and a hostile work
environment.

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 final decision, including the finding of
discrimination made by the agency with respect to Complainant’s reasonable accommodation
request. With respect to that part of the decision, the agency shall comply with the Order below.

ORDER

In affirmance of the Agency’s finding regarding violation of the Rehabilitation Act of 1973, and
to ensure compliance, the following relief is hereby ordered to be granted to Complainant:

1. No later than sixty (60) calendar days from the date of this decision, Complainant may
submit to the Director, Civil Rights Center, objective evidence to support her claim for
compensatory damages, if any.7 Such evidence may establish that she, in fact, suffered
pecuniary and non-pecuniary losses and that there is a causal relationship between the
discriminatory act found in this complaint and any such losses. Under section 102 of the
Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses,
emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. A
separate ruling determining appropriate relief, if any, will be forthcoming.

7 We note that since the agency never even processed her reasonable accommodation request, it
cannot show it acted in good faith in its attempt to accommodate her, therefore, compensatory
damages are warranted.
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2. No later than sixty (60) calendar days from the date of this decision, Complainant may
submit to the Director, Civil Rights Center, objective evidence to support her claim for
attorney's fees and/or costs attendant to the processing of that part of the complaint where
discrimination was found.

3. If Complainant submits evidence in support of her claim for compensatory damages,
attorney's fees, and/or costs attendant to the processing of this complaint, then a copy shall
be furnished to Agency counsel in the Office of the Solicitor (SOL). Agency counsel shall
have fifteen (15) calendar days upon receipt of the evidence to submit a response.
Complainant shall have fifteen (15) calendar days to review and reply to the Agency's
response.

4. No later than thirty (30) calendar days from the date of this decision, and in accordance
with 29 C.F.R. §1614.501(a)(l), the Agency shall notify all employees working in the
Employment and Training Administration, Washington, D.C., of their right to be free of
unlawful conduct under the Rehabilitation Act. The attached posting notice shall be used
for this purpose. The posting notice shall be signed by the Agency Head, or an Agency
representative duly authorized, in writing, by the Agency Head. It shall be displayed for
sixty (60) calendar days. The posting is to be posted in conspicuous places, including all
places where notices to employees are customarily posted. The Agency must take
reasonable steps to ensure that the postings are not altered, defaced, or covered by any other
material;

5. No later than sixty (60) calendar days from the date of this decision, the Agency shall take
corrective, curative and preventive action to ensure that violations of the Rehabilitation Act
do not recur, including but not limited to, training for responsible management officials,
and Human Resources employees in the Employment and Training Administration to
inform them of their responsibilities and obligations regarding the Rehabilitation Act,
including the duty to promptly respond to all reasonable accommodation requests.

6. No later than sixty calendar (60) days from the date of this decision, and in accordance
with 29 C.F.R. §1614.102(a)(6), the Agency shall consider taking appropriate disciplinary
action against the responsible management official(s)/employee(s) in this complaint.

The EEOC does not consider training to be a disciplinary action. The Agency shall report
its decision to the Commission’s Compliance Officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
If the responsible management officials have left the Agency's employment, the Agency
shall furnish documentation of their departure date(s).

7. No later than thirty calendar (30) days from the date that the above corrective actions have
been taken, the Agency and Workplace Equality Compliance Office are further directed to
submit a Compliance Report to the Commission’s Compliance Officer. The Report shall
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include supporting documentation verifying that the corrective actions described above
have been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)

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.

*15 Failure by an agency to either file a compliance report or implement any of the orders set
forth in this decision, without good cause shown, may result in the referral of this matter to the
Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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.
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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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.

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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

August 12, 2020
Date