[Redacted], Lenita T., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022001693 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenita T.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022001693 Hearing No. 550-2019-00491X Agency No. RMA-CF-2018-00784 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 January 6, 2022 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as an Investigator in Davis, California.2 On October 11, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on sex (female), color (White), disability (anxiety, depression, and claustrophobia), and age (60). By letter dated December 18, 2018, the Agency 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 The record reflects that Complainant retired effective April 1, 2019. ROI at 84. 2 2022001693 accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. on May 16, 2018, her first-line supervisor failed to offer a reasonable accommodation that would adequately accommodate her; and 2. on April 25, 2018, she was subjected to harassment when, during her mid-year review, her first line supervisor offered her a retirement class. After an 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). Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency’s September 3, 2021 motion for a decision without a hearing and issued a decision without a hearing on November 29, 2021. Regarding the denial of a reasonable accommodation claim, the AJ found that the Agency engaged in the interactive process with Complainant and offered her a private office or cubicle with noise-cancelling headphones. However, the AJ found that Complainant declined this offer outright, without trying the headphones in the cubicle. Specifically, the AJ stated that “[i]t is of course possible that the headphones would not be sufficient to block out the noise that Complainant found offensive. However, in this case, Complainant did not try the noise cancelling headphones, so we do not know whether the offered accommodation was effective…If the headphones blocked out noise, then the offered accommodation would have been effective and reasonable…Complainant opted out of the process when she refused to try a new seating arrangement (the cubicle) with noise cancelling headphones.” AJ Decision. Regarding claim (2), being offered a retirement class by her supervisor, the AJ found that Complainant had indicated that she was interested in retirement and that this single event does not rise to the level of a hostile work environment. The AJ further found that there is no evidence that her co-workers treated Complainant worse because of her protected classes. On January 7, 2022, the Agency issued a final order adopting the AJ’s summary judgement decision finding no discrimination. The instant appeal followed. Complainant, through her attorney, requests that this matter be remanded for a hearing. Complainant states that the Agency did not act in good faith during the interactive process by failing to address her medical restrictions. Complainant states that she was not informed of the location of the proposed workstation. Complainant’s Brief at 4. Complainant asserts that her supervisor did not read the medical restrictions from her physician. Thus, Complainant asserts that the Agency never offered her an effective reasonable accommodation. Complainant’s Brief at 11. Moreover, Complainant states that the Agency should not have proposed the noise-cancelling headphones without seeking the advice of experts whether this suggested accommodation would harm her condition. Complainant Brief at 13. 3 2022001693 In response, the Agency states that if Complainant was not aware of the proposed workstation (private cubicle) she could have requested this information and tried the offered workspace. Agency Brief n. 1. The Agency states further that Complainant has not shown that the noise- cancelling headphones and the alternative workstation were ineffective because she refused to try them. ANALYSIS AND FINDINGS 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. We find that the AJ did not err in issuing a decision without a hearing because the record is adequately developed and there is no genuine issue of material fact in dispute. 4 2022001693 Claim (1)-Denial of a Reasonable Accommodation Claim 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 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 skills, experience, education, and other job-related requirements of the position that the individuals holds or desires and, with or without reasonable accommodation and can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). 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. 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 to provide.” Enforcement Guidance on Reasonable Accommodation at Question 9. The record reflects that Complainant contacted the Disability Employment Manager (DEM) on April 4, 2018 to begin the reasonable accommodation process.3 Report of Investigation (ROI) at 135. Complainant submitted medical documentation to the Agency dated April 13, 2018. Therein, Complainant’s physician stated that Complainant has symptoms of anxiety and depression.4 The physician stated that these symptoms affect “her emotionally, resulting in impairment of her ability to perform her essential job duties…particularly in the areas of cognitive thinking and interacting with others.” ROI at 155. The physician recommended that Complainant “be located in a quiet, tranquil environment, free from distracting conversations and extraneous noise. I also advise that she have access to natural light and adequate ventilation in order to help reduce her symptoms of anxiety and depression…” ROI at 156. Complainant informed the DEM that she thought the best option would be maximized telework or for the Agency to “locate and lease space meeting the [physician’s] recommendations…” ROI at 157. 3 Prior to seeking a reasonable accommodation Complainant was teleworking three days per week. Effective March 2018, the Agency set forth a new telework policy requiring employees be in the office four days per week. ROI at 90. 4 The physician also noted that Complainant has claustrophobia. ROI at 155. 5 2022001693 In response to Complainant’s request for a reasonable accommodation, the Agency offered Complainant one day of telework per pay period and a cubicle or private office.5 ROI at 199. On July 5, 2018, the Agency offered one day per week of telework, noise-cancelling headphones and a cubicle or private office. ROI at 221. Complainant however declined this proposed accommodation and appealed the Agency’s decision on her reasonable accommodation request. Complainant’s Deposition at 77, ROI at 224. The Agency issued a decision on Complainant’s appeal increasing the telework time to two days a week. ROI at 283. Assuming arguendo that Complainant is a qualified individual with a disability, we find that Complainant has not established that the proposed accommodations were ineffective. Even assuming that the Agency did not expressly state to Complainant the exact location of the private cubicle, we concur with the Agency that she could have requested this information from the Agency and have it included as part of the reasonable accommodation plan. In addition, the record reflects that Complainant declined the accommodation of the private cubicle and noise cancelling headphones without trying it. Complainant’s Deposition at 77. We concur with the AJ that Complainant essentially opted out of the interactive process without trying the suggested accommodations. We further note that if Complainant had concerns about how the headphones would have an impact upon her medical condition, she could have presented these concerns to her physician and then have the physician provide a written response, if he felt that this suggested accommodation would negatively impact her condition. However, the record is devoid of evidence that Complainant’s physician indicated that the headphones would not be effective or would impact her condition in a negative manner. Based on the foregoing, we do not find that Complainant established that the accommodations offered by the Agency were ineffective.6 Claim (2)-Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 5 The record reflects that the Agency set forth in its appeal determination to Complainant dated February 28, 2019 that the proposed cubicle had external windows that were visible. ROI at 282. 6 We further find under a disparate treatment analysis regarding this claim, that the Agency offered legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination. 6 2022001693 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 at 6 (Mar. 8, 1994). We concur with the AJ’s finding that Complainant failed to establish that her supervisor subjected her to a hostile work environment based on her protected classes. Complainant alleged that during her mid-year evaluation her supervisor offered for her to take a retirement class. ROI at 93. Complainant’s supervisor stated, in her affidavit, that Complainant previously mentioned retirement to her and that the supervisor offered the same opportunity for a retirement class as she has offered to other employees. ROI at 235-236. Even assuming arguendo that Complainant had not previously mentioned retirement to her supervisor, we find that this single incident is not sufficient to set forth a hostile work environment. We further concur with the AJ that the record is devoid of evidence that Complainant’s co-workers subjected her to actions based on her protected classes that would set forth an actionable hostile work environment claim. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. 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 7 2022001693 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. 8 2022001693 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 13, 2023 Date