[Redacted], Janay H, 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jul 11, 2022

Appeal No. 2021003263 (E.E.O.C. Jul. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janay H,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021003263 Hearing No. 570-2019-00020X Agency No. HUD-00018-2018 DECISION On May 17, 2021, 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 April 14, 2021 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as Health Scientist, GS- 0601-13/6, at the Agency’s Office of Healthy Homes and Lead Hazard Control (ILHC) in Washington, DC. On February 6, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 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 2021003263 1. On August 15, 2017, the Agency, by and through Complainant's first-line supervisor, (Supervisor 1), issued Complainant a memorandum that rescinded Complainant's reasonable accommodation of temporary telework, without justification or cause; 2. On August 15, 2017, the Agency, by and through Supervisor 1, issued Complainant a memorandum that directed Complainant to report to her duty station of record or be placed in an Absent Without Leave (AWOL) status, without justification or cause; 3. On August 15, 2017, the Agency, by and through Supervisor 1, issued Complainant a memorandum that temporarily suspended Complainant's telework agreement, without justification or cause; 4. On August 24, 2017, the Agency, by and through Supervisor 1, issued Complainant an amended memorandum that rescinded Complainant's reasonable accommodation of temporary telework, without justification or cause; 5. From August 2017 through December 2017, the Agency, by and through Supervisor 1, removed duties, responsibilities, and leadership roles from Complainant, without justification or cause; 6. From September 2017 through October 2017, the Agency, by and through Supervisor, Complainant's second-line supervisor, (Supervisor 2) and Complainant's third-line supervisor, (Supervisor 3) failed to provide Complainant with a reasonable accommodation by requiring Complainant to take thirteen (13) hours per week of Leave Without Pay (LWOP) to accommodate her on- going medical treatment; 7. On November 21, 2017, the Agency, by and through Supervisor 1, and Supervisor 2, issued Complainant a Fiscal Year 2017 Performance Year End Review rating of Unsuccessful; 8. On January 18, 2018, the Agency, by and through Supervisor 1, issued Complainant a "Notice of Proposal to Suspend" memorandum, which proposed to suspend Complainant from the federal service for fourteen (14) calendar days; 9. On May 14, 2018, the Agency, by and through a named official (Official), issued Complainant a "Decision on Proposed Suspension" memorandum, which suspended Complainant from the federal service for fourteen (14) calendar days; 10. On August 13, 2018, the Agency, by and through Supervisor 1, issued Complainant an "Opportunity to Improve Performance (OIP)" memorandum, without justification or cause; and 11. On September 28, 2018, the Agency, by and through Supervisor 1, issued Complainant a "Notice of Proposed Removal" memorandum, without justification or cause. 3 2021003263 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The parties engaged in discovery. On February 24, 2020, the Agency’s filed a motion for a decision without a hearing. Complainant filed an untimely opposition. The Agency filed a reply. The AJ assigned to the case issued a decision without a hearing on April 6, 2021. The AJ concluded that Complainant failed to put forth evidence sufficient to create a genuine issue of fact on any of her claims of discrimination, harassment and/or retaliation such that an evidentiary hearing was necessary. The AJ based this conclusion on a finding that the Agency had provided legitimate non-discriminatory reasons for the challenged actions. Regarding claims 5 and 7-11, management explained that Complainant had a lengthy history of poor performance in a critical element of her performance plan, and she exhibited an apparent refusal to complete certain tasks even after repeated requests by her supervisor to do so. ROI at 269-70, 272, 286, 265-66, and 388. The AJ assumed a prima facie case of discrimination based on disability and found that Complainant’s refusal to comply, even after issuance of a Letter of Reprimand, led to the Agency’s Notice and Decision to Suspend, the Unsuccessful Performance Appraisal, the opportunity to improve performance, and the eventual issuance of a Notice of Proposed Removal. The AJ also found that Complainant failed to controvert the Agency’s explanations or to demonstrate a genuine issue of fact that those explanations were a pretext to mask disability discrimination. According to the AJ, Complainant failed to dispute that she exhibited poor performance in the areas addressed in detail in many e-mails, and written performance memoranda. Therefore, the AJ concluded that summary judgment was appropriate as to Complainant’s allegations of disparate treatment in claims 5 and 7-11. Regarding claims 1-4 and 6, Supervisor 1 provided Complainant with the accommodation of full- time telework from North Carolina where she could obtain medical treatment for her conditions. Supervisor 1 granted the request without any medical documentation based on Complainant’s promise to submit the appropriate documentation at a later date. ROI at 261. On August 15, 2017, the arrival of a new office director prompted the Agency to follow-up with documenting its records with medical support for the accommodation granted to Complainant. The lack of medical documentation to support the full-time out of state telework arrangement led to the issuance of a directive that Complainant return to her duty station in Washington, DC. ROI at 260 and 398. Once Complainant provided documentation, Supervisor 1 approved three days per week telework plus two days per week LWOP. ROI at 261 and 281-82. Complainant appealed Supervisor 1’s decision to the Agency’s reasonable accommodation committee which approved her request for full-time telework from North Carolina until December 2017. ROI at 260. The AJ assumed that Complainant was disabled within the meaning of the law and found that Complainant did not dispute that starting in June 2017, she received partial telework. 4 2021003263 According to the AJ, while Complainant disagreed with Supervisor 1’s initial decision, that decision to grant partial telework plus LWOP was reasonable to accommodate Complainant’s disability even if it was not advantageous from a financial perspective.2 The AJ also noted Supervisor 1’s explanation that he had approved Complainant for the maximum advanced sick and annual leave which she could have used in lieu of LWOP. The AJ found that Complainant did not dispute Supervisor 1’s explanation for his decision, nor did she dispute that the Agency eventually granted her request in full. Therefore, the AJ concluded that summary judgment was appropriate on claims 1-4 and 6. Likewise, the AJ assumed a prima facie case of retaliation and found that the Agency articulated legitimate non-discriminatory reasons for its actions. The AJ observed that aside from her bare assertions of a retaliatory motive, Complainant failed to demonstrate a genuine issue of fact that the Agency’s explanations were not legitimate and instead a pretext to mask retaliation. Therefore, the AJ granted the Agency’s Motion with respect to Complainant’s claim of retaliation. The AJ concluded that summary judgment was also appropriate on Complainant’s claim of unlawful harassment because, according to the AJ, Complainant failed to raise a genuine issue of material fact as to the existence of discriminatory intent on the part of Supervisor 1 and higher- level managers with respect to all issues raised. The AJ noted that Complainant provided no evidence that similarly situated employees outside of her protected classes were treated more favorably. Therefore, the AJ asserted, “no further inquiry would be necessary as to whether the incidents complained of are severe or pervasive to rise to the level of harassment or constitute separate acts of discrimination under disparate treatment theory.”3 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted an appeal statement. 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. 2 The AJ aptly noted that granting leave is a form of accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (October 17, 2002). 3 Citing Nicki D. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133247 (Oct. 15, 2015). 5 2021003263 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 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. (Aug. 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 any dispute. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the formal EEO investigation, we find that summary judgment was appropriate in this case. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. We therefore AFFIRM the final agency 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 6 2021003263 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. 7 2021003263 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 11, 2022 Date