[Redacted], Hilda W., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Jul 5, 2022

Appeal No. 2020004434 (E.E.O.C. Jul. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda W.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2020004434 Hearing No. 570-2017-01248X Agency No. 15-17 DECISION 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 30, 2020, final order 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 the Agency’s final order. BACKGROUND Complainant filed an EEO complaint that was subsequently amended and modified by EEOC Administrative Judge (AJ1’s) dismissal of what was originally listed as claim 1(a) on the grounds of untimeliness.2 The amended and modified complaint alleged discrimination as follows: 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. 2 Complainant’s original claim 1(a) stated that: on 7 September 2012, her rater and reviewer, S1 and S2, issued an overall MARGINAL Performance Appraisal Review (PAR) rating, which the Agency upheld following a PAR rebuttal adjudication. AJ1 noted that because Complainant did not seek EEO counseling until December 2014, “[t]he marginal rating is not being considered as 2020004434 2 1: Complainant alleged harassment leading to a hostile work environment on the bases of disability (physical-Shigella) and in reprisal for participating in EEO activity (May 2012 opposition to discrimination) by her management and HR officers including A1, when from May 2012 to June 2015 the following occurred: a. From 7 May 2012 through 31 July 2014, Agency officials denied her a formal employee status change after she made two requests; b. On or around 11 April 2013, her management denied her reasonable accommodation request for a reassignment to a position that offered a flexible schedule, saying “no, you need to repair yourself” and “work the desk.” c. From February 2014 through 13 April 2015, HR officers effectively denied Complainant’s reasonable accommodation requests to be reassigned to a position close to her doctors by failing to engage Complainant in the interactive process; d. From 10 October through 16 December 2014, Complainant was denied phone numbers and points of contact for the Publication Review Board (PRB) and General Counsel’s (GCs) office; specifically, on 17 October 2014, Complainant requested a point of contact in the GC’s office and the PRB, and A1 told her “no you need to talk to EEO about that”; e. From June 2013 to 16 December 2015, HR Officers continually denied Complainant’s request for LWOP (with specific denials on 3 April 2014 and 8 April 2014, along with a 23 October 2014 request which was unanswered until 16 December 2014), and, during conversations relating to the LWOP denials, threatened her with losing her health insurance and told Complainant that she had two options - to resign or apply for medical disability retirement; f. Because of HR’s original failure to give her a MOU for LWOP, Complainant did not learn until 30 June 2015 that LWOP status limited the duration of her health insurance coverage and required her to pay part of her premiums. 2. Complainant alleged discrimination on the bases of disability and reprisal when from 24 July 2014 through 13 April 2015, her managers and HR officers effectively denied her reasonable accommodation request to be reassigned to a position close to her doctors by failing to engage Complainant in the interactive process. an independently actionable claim; but rather, as part of the hostile work environment claim.” Ultimately, AJ1 refused to consider claim 1(a) as background evidence in support of Complainant’s overall harassment claim because he found no nexus between it and the other allegations in Complainant’s complaint. We AFFIRM AJ2’s subsequent dismissal of this claim from Complainant’s hostile work environment claim. 2020004434 3 3. Complainant alleges discrimination on the bases of disability and reprisal because of HR’s original failure to give her a MOU for LWOP, Complainant did not learn until 30 June 2015 that LWOP status limited the duration of her health insurance coverage and required her to pay part of her premiums. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge. As indicated above, Complainant requested a hearing. Shortly before AJ2 was assigned to the case, the Agency submitted a motion for a decision without a hearing. AJ2 subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting AJ2’s finding that Complainant failed to prove discrimination and harassment as alleged. The instant appeal followed. Regarding Complainant’s allegation that she was subjected to unlawful harassment, AJ2 found that there was no evidence supporting this assertion and Complainant failed to establish a nexus between her disability and/or protected activity and the events underlying her hostile work environment claim. AJ2 further found that Complainant did not show that she was denied reasonable accommodation for her medical conditions. The record, AJ2 found, showed that the Agency provided Complainant with several accommodations, including a year of paid leave beyond that which she had accrued. The Agency also offered Complainant a position in the Washington, D.C. area, with a full-time flexible work schedule, no overseas travel requirements, and other accommodations. Complainant requested, however, a position in the city where her doctor practiced, but the record indicated that there was no position in that city. AJ2 also noted that Complainant offered no evidence that proximity to her doctor was necessary for her to be effectively accommodated. Complainant, AJ2 found, offered no evidence that she could not travel to her doctor’s location on the rare occasions of her appointments. Thus, AJ2 found that the Agency met its burden to engage in an interactive process and to identify effective accommodations by accommodating Complainant with leave, and offered further accommodations to allow her to resume working, but Complainant refused any accommodation other than reassignment to the city where her doctor practiced, an accommodation which was unavailable due to the lack of a position. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on 2020004434 4 a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. CONCLUSION Upon careful review of AJ2’s decision and the evidence of record, including the parties’ arguments on appeal, we conclude that AJ2 correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting AJ2’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2020004434 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004434 6 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 July 5, 2022 Date