U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margorie F.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004280 Hearing Nos. 450-2017-00029X 450-2017-00417X 451-2018-00286X Agency Nos. HS-TSA-23615-2015 HS-TSA-00607-2017 HS-TSA-00569-2018 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 16, 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., 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. For the following reasons, the Commission AFFIRMS, in part, and REVERSES, in part, the Agency’s final order. 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. 2020004280 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Instructional Systems Specialist (SV-1750-I) at the Agency’s Canine Training Center (CTC), Lackland Air Force Base in San Antonio, Texas. On January 21, 2014, Complainant completed a reasonable accommodation request due to a respiratory impairment which was aggravated by fragrance. Complainant requested one, or a combination of, the following accommodations: (1) implementation of a fragrance-free work environment; (2) telework, as needed; and (3) excused absences, as needed. Report of Investigation (ROI) 1 at 620-1. Complainant averred that she submitted her reasonable accommodation request to her then first-line supervisor, a Supervisory Training Instructor (STI1) (disability, female, prior EEO activity). ROI 1 at 119. STI1 stated that she forwarded Complainant’s reasonable accommodation request to Headquarters before she changed jobs. ROI 1 at 523. Complainant’s second-line supervisor, a Supervisory Air Marshal-in-Charge (SAM) (disability, male, prior EEO activity) clarified that STI1 submitted Complainant’s reasonable accommodation request on January 27, 2014, and that on March 11, 2014, they discovered that the email address in the Agency’s global address book contained an error. On March 12, 2014, Complainant’s request was sent to the correct email address. ROI 1 at 458. On April 21, 2014, Complainant obtained a new first-line supervisor, a Supervisory Training Instructor (STI2) (no disability, male, prior EEO activity). ROI 1 at 116. On June 18, 2014, a Reasonable Accommodation Specialist (RAS) (no disability, female, prior EEO activity) emailed Complainant to acknowledge her reasonable accommodation request. ROI 1 at 352. On July 29, 2014, RAS sent Complainant the medical questionnaire for her physician to complete. Agency Motion for Summary Judgment Exhibit 5 at 12-16. Complainant alleged that on August 12, 2014, her new second-line supervisor, a Supervisory Federal Air Marshal (SFAM) (undisclosed disability status, male, no prior EEO activity) informed her that she was not authorized to work on her EEO complaint or reasonable accommodation request during work hours. ROI 1 at 165. On or about September 8, 2014, Complainant provided medical documentation noting that she has asthma and allergic rhinitis; and she has difficulty breathing and experiences wheezing and chest-tightness when provoked by fragrances, air fresheners, and cleaning products. ROI 1 at 302-3. RAS claimed that she reached out to Complainant on September 25, 2014, and she left a voicemail message, but Complainant did not return her call. ROI 1 at 513, 515. On October 22, 2014, the Reasonable Accommodation Program Manager (RAPM) (no disability, female, prior EEO activity) emailed Complainant and informed her that RAS was on a detail assignment, so RAPM was following up on Complainant’s request. ROI 1 at 506. RAPM averred that, when she did not hear from Complainant by October 28, 2018, she asked a Human Resources Specialist (HRS) for assistance in contacting Complainant. 2020004280 3 RAPM stated that on November 12, 2014, she informed HRS that she had spoken with Complainant and needed to discuss possible accommodations with Complainant’s managers. ROI 1 at 498. RAS spoke with Complainant on July 10, 2015,2 to discuss possible accommodations, such as use of an air purifier, wearing a mask, and telework. RAS averred that Complainant was irritated and not receptive to the suggestions, and that Complainant hung up on RAS. ROI 1 at 515. SFAM asserted that he spoke with RAS approximately three to four times, in June or July 2015, and again in September or October 2015, and their discussions focused on the possibility of implementing a fragrance-free environment. ROI 1 at 538. On October 29, 2015, Complainant received her fiscal year 2015 (FY15) performance rating of Exceeded Expectations. ROI 1 at 637. On December 3, 2015, the CTC moved to a new facility and Complainant went from a semi-private office to an open office environment. ROI 1 at 127. On September 21, 2016, the Agency announced a vacancy for a Supervisory Training Instructor (SV-1712-J), under vacancy announcement number HQ-OTD-TA70-16-166903-I. ROI 2 at 269- 72. Complainant applied for the position, but she was not selected for an interview. ROI 2 at 274-93, 54. On October 26, 2016, Complainant received her fiscal year 2016 (FY16) performance rating of Exceeded Expectations. ROI 2 at 262. On September 5, 2017, the Agency announced a vacancy for a Supervisory Training Instructor (SV-1712-J), under vacancy announcement number HQ-OTD-TA70-17-357474-I. ROI 3 at 248- 54. Complainant applied for the position and was interviewed on October 17, 2017. The selecting official informed Complainant of her non-selection on November 3, 2017. ROI 3 at 256-65, 53-4. On October 18, 2017, STI1 issued Complainant her fiscal year 2017 (FY17) performance rating of Achieved Expectations.3 ROI 3 at 316. Agency Case No. HS-TSA-23615-2015/EEOC Hearing No. 450-2017-00029X (Complaint 1) On July 13, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of sex (female) and disability (physical), and in reprisal for requesting a reasonable accommodation, when: 1. on July 26, 2013, SAM directed Complainant to remove a sign and donation bowl from the office she used for a fundraising effort; 2 RAS used both June 10th and July 10th as the date for this conversation, but the other evidence in the record shows that this conversation occurred on July 10, 2015. 3 STI1 became Complainant’s first-line supervisor again, but it is not clear when she returned to this position. 2020004280 4 2. on February 9, 2015, Complainant became aware that SAM refused to promote her to the position as Training Manager, Instructional Systems Specialist, (SV-1750-J); 3. on October 27, 2014, STI2 rated Complainant a “3” in the area of communications for her 2014 performance evaluation; 4. on October 30, 2014, RAPM refused to process Complainant’s reasonable accommodation request; 5. on December 3, 2014, and on September 29, 2014, management knew about Complainant’s medical condition, but continued to allow another employee to wear a lot of fragrance that saturated the workplace, which negatively impacted Complainant; 6. on February 17, 2015, STI1 who knew about Complainant’s medical condition, entered the office wearing fragrance, which negatively impacted her; 7. on February 26, 2015, a coworker informed a new employee that she (new employee) did not need to be concerned with Complainant’s medical condition; 8. on March 17, 2015, STI2 who knew about Complainant’s medical condition, tasked her with administering a student end-of-course critiques to a classroom filled with fragrance, which negatively impacted her; 9. on March 23, 2015, STI2 who knew about Complainant’s medical condition, failed to prevent employees wearing fragrance from entering the office, which negatively impacted her; 10. on August 12, 2015, during a meeting with management, Complainant was informed that she must submit an account of how she spent her time each day; 11. on August 12, 2015, management informed Complainant that she was not authorized to work on her EEO complaint or reasonable accommodation request during work hours; and 12. on October 29, 2015, Complainant received her performance appraisal and contended that it did not accurately reflect her skills and that the ratings were not applied equally throughout the organization. Agency Case No. HS-TSA-00607-2017/EEOC Hearing No. 450-2017-00417X (Complaint 2) On February 22, 2017, Complainant filed an EEO complaint alleging discrimination based on disability and age (51), and in reprisal for prior protected EEO activity (HS-TSA-23615-2015), when: 2020004280 5 13. on or about October 18, 2016, Complainant was not selected for the position of Supervisory Training Instructor (SV-1712-J), under vacancy number HQ-OTD- TA70- 16-166903-I; and 14. on or about October 19, 2016, Complainant was given a rating of “Exceeded Expectations” on her performance evaluation. Agency Case No. HS-TSA-00569-2018/EEOC Hearing No. 451-2018-00286X (Complaint 3) On March 12, 2018, Complainant filed an EEO complaint alleging discrimination based on her sex (female), age, and disability, and in reprisal for prior EEO activity (HS-TSA-23615-2015), when: 15. on November 3, 2017, management did not select Complainant for a supervisor position, under vacancy number HQ-OTD-TA70-17-357474-I; and 16. on November 8, 2017, management issued Complainant a lower rating than the previous year. At the conclusion of the investigations, the Agency provided Complainant with copies of the ROIs and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s November 6, 2019, motion for a decision without a hearing and issued a joined decision without a hearing on May 11, 2020. As an initial matter, the AJ dismissed claims 1, 2, and 3 as untimely. The AJ then found that Complainant could not establish a hostile work environment because the complained of incidents could generally be described as disagreements with managerial decisions, and Complainant failed to show that the incidents were the result of her protected status and produced no evidence showing animus by any of the responsible management officials. The AJ noted that, even the meeting with SFAM in August 2015 was an attempt to help Complainant, based on her allegations that she had too much work and she did not have a clear understanding about her work. For Complainant’s claims related to her performance appraisals, the AJ noted that Complainant testified that she did not believe that they were based on her sex or age. Regarding the non-selection claims, the AJ found that the 2016 selectee was also female, and therefore, there was no sex discrimination. The AJ also noted that, there were five male candidates who were interviewed and also not selected, and only one male candidate was younger than the age of 40; and as such, Complainant could not establish age discrimination. The AJ determined that the selection for the 2017 position was made based on the candidates’ interview scores, and that Complainant presented no evidence to challenge the interview process, and she could not show that the process or the selection was based on a discriminatory or retaliatory motive. 2020004280 6 For Complainant’s request for a reasonable accommodation, the AJ determined that Complainant failed to engage in the interactive process and could not show disability discrimination. Rather, the AJ found that the Agency properly engaged in an interactive process, not only for Complainant’s alleged fragrance sensitivity, but for other unclaimed conditions. The AJ noted that, in 2013, Complainant had a semi-private office, and she was permitted to telework when she anticipated or speculated there would be fragrances in the area. When the new CTC opened, Complainant had a cubicle in the corner part of office out of the main hallway where there is less foot traffic by employees. The AJ also determined that the evidentiary record showed that when Complainant smelled any fragrance that might trigger her claimed asthma, she did not hesitate to inform the person directly, or notify either her supervisor or a management official to ask the person to refrain from coming into Complainant’s area and/or refrain from the use of the fragrance. The AJ found that Complainant’s unwillingness to continue and engage in conversations and consider viable alternatives did not equate to Agency discrimination, and that the Agency continued to work with Complainant to prevent overpowering fragrances from entering her area. The AJ noted that, on occasion when someone (employee, student, or visitor) accidently wore a fragrance that did not appeal to Complainant, she notified management, who was proactive to rectify the situation. The AJ also found that Complainant was permitted to telework when needed. The AJ determined that the evidence showed that the Agency formally and informally engaged in discussion on how to best address Complainant’s request for a fragrance-free environment, and there was no indication that the Agency neglected its obligation or ignored any request for assistance. The AJ concluded that there were no genuine issues of material fact with respect to Complainant’s claims that she was subjected to unlawful sex, age, and disability discrimination and reprisal, and the AJ found no discrimination. 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. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that the evidence presented proves as a matter of law that the Agency discriminated against her by failing to act upon her reasonable accommodation request, and it retaliated against her because she filed a reasonable accommodation request and EEO complaints. Complainant asserts that the AJ erred when she adopted all of the Agency’s facts, without consideration of any of Complainant’s facts or evidence. 2020004280 7 While the AJ concluded Complainant failed to engage in the interactive process and that the Agency properly engaged in the interactive process, Complainant argues that the evidence proves that it was Complainant that offered a variety of potential reasonable accommodations, such as telework, and the Agency never issued a final determination on her request for a reasonable accommodation. Complainant notes that she submitted a reasonable accommodation request on or about January 21, 2014, and she has never been advised in writing as to whether her request has been granted or denied. Further, RAPM confirmed that, “[n]o final determination was issued. The case should have been closed out one way or the other. I believe her accommodation request just fell through the cracks; it fell off the radar screen.” Complainant also notes that the Agency claimed that she “works in a private office,” when she was really in a shared office, and that a private office could have been given to Complainant when she relocated to the new training academy. Instead, Complainant was placed in a very populated and busy cube environment which was even less private than her previous office. Complainant adds that she was never offered telework as a reasonable accommodation. While the AJ concluded that there was no evidence the Agency neglected its obligation, Complainant counters that the Agency admitted that Complainant’s reasonable accommodation request “fell through the cracks.” Complainant alleges that the AJ also agreed with the Agency’s unsupported “false” claim that it offered Complainant several accommodations which she refused. However, while accommodation options were discussed in the interactive process, the Agency admitted that it never offered or declined the accommodation request. Complainant notes that the Agency and the AJ focus on Complainant’s request for a fragrance-free workplace, claiming that is the only accommodation she would accept. If so, then the Agency would have declined that request, allowing Complainant to implement the appeal process set forth in the Agency’s policy. However, the Agency failed to take any action on her accommodation request, thereby, denying Complainant her rights. For claim 2, Complainant asserts that she had no reasonable suspicion of the discriminatory actions of SAM regarding the April 21, 2014, promotion until February 9, 2015; therefore, her March 26, 2015, contact with the EEO counselor was within the 45-day timeframe. Complainant claims that she was retaliated against when on August 12, 2015, she was ordered not to work on her EEO complaint during work hours and was accused of secretly recording the meeting in violation of Agency policy. Complainant alleges that, during this meeting, Complainant was told she cannot work on EEO, reasonable accommodation, or Department of Labor (regarding an unrelated on-the-job injury) issues at work, and that the Agency provided a copy of the recording. In addition, Complainant alleges that she was informed that she “not authorized to use the [Agency] email system to pursue her EEO complaint,” and that the Agency will only serve Complainant’s personal email address on July 14, 2017.4 4 The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 2020004280 8 Regarding the 2016 non-selection, the AJ found that there was no sex discrimination. However, Complainant asserts that she did not claim sex discrimination, but she claimed age and disability discrimination and reprisal. Complainant notes that the AJ did not address the disability discrimination or reprisal claims, and only concluded that Complainant cannot show age discrimination for the 2016 non-selection. Complainant also argues that there are material issues of fact precluding the granting of summary judgment regarding her performance evaluations. As to the 2017 performance evaluation, the AJ stated, “[a]ccording to Complainant’s own deposition testimony, she cannot show that either her age or sex played any part in her performance scores.” However, Complainant did not claim age discrimination on any of the claims for her evaluations in 2015, 2016, or 2017, and she only alleged sex discrimination for the 2015 evaluation. Complainant alleged disability discrimination and reprisal on all the evaluations, which were not addressed by the AJ. Complainant notes that a coworker (CW) received a higher performance rating in 2017, despite Complainant being “more skilled” than CW. Complainant argues that the AJ did not review the motion for summary judgment and response in a light most favorable to Complainant, instead she weighed the evidence; ignored evidence presented by Complainant; and failed to address all the claims. Complainant requests that the Commission reverse the Agency’s final order upholding the AJ’s decision to grant summary judgment without a hearing. Agency Contentions The Agency argues that Complainant’s appeal is nothing more than her dissatisfaction with the AJ’s findings, and she failed to demonstrate any judicial errors. The Agency asserts that Complainant’s requested accommodation was not reasonable because, as the Commission has consistently held, a request for a completely fragrance-free work environment is not a reasonable accommodation and imposes an undue hardship. However, the Agency not only engaged in the interactive process, but also provided Complainant with alternatives that she simply rejected without good cause. The Agency claims that the undisputed evidence supports the AJ’s findings that Complainant was uncooperative throughout the formal process and insisted on a fragrance-free environment, and that Complainant made no attempts to re-engage the Agency after hanging up and refusing to speak with the reasonable accommodation office in October 2015, or at any time after she moved to the new CTC. The Agency asserts that management officials responded by encouraging the reduction or elimination of fragrance products at work and allowed Complainant to telework, which were effective accommodations. (Apr. 22, 2004). Should Complainant wish to pursue this July 14, 2017 incident, she is advised to contact an EEO Counselor to initiate the administrative process. 2020004280 9 The Agency claims that RAPM’s “mere technicality” of not issuing a closure letter is harmless error, and the lack of a closure letter does not negate all of the accommodations that the Agency undisputedly provided. The Agency maintains that it provided accommodations, such as situational telework, a separate office to prevent constant interaction with other office employees and speaking with employees when it was brought to management’s attention, as well as other accommodations for other unrelated medical conditions. For claim 2, the Agency argues that Complainant failed to provide any explanation to demonstrate good cause for her untimely EEO counselor contact nearly a year later on March 24, 2015. The Agency notes that Complainant would have realized that she was not promoted when STI2 was promoted and took over as the Training Manager and became Complainant’s supervisor. The Agency states that Complainant’s appeal focuses on her performance rating for FY17, and she argued that she has a superior skill set as compared to CW. However, management officials provided legitimate, non-discriminatory explanations for the ratings, and Complainant has no evidence of illegal motive for the FY17 performance score. The Agency asserts that there is no guarantee that performance scores are automatically higher in each subsequent year, and Complainant proffered no justification other than her self-serving opinion that she warranted a higher score than “Achieves Expectations.” The Agency notes that Complainant’s appeal did not address the hostile work environment claim, but that the record does not support such a finding. The Agency argues that no material dispute of facts or other facts in which a credibility determination was necessary to warrant a hearing, and that Complainant failed to meet her evidentiary burden as to disability, age, and sex discrimination, or reprisal for her prior protected activity. The Agency requests that the Commission affirm its final order upholding the AJ’s decision. ANALYSIS AND FINDINGS Standard of Review 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 the 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 Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the 2020004280 10 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”). Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argues that there are material issues of fact precluding the granting of summary judgment regarding her performance evaluation and non-selection claims. However, Complainant did not identify any evidence to show a dispute of a material fact, and only offers her opinion that she is more skilled than CW; and mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). A review of the record does not reveal any genuine disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Initial Matters As an initial matter, Complainant argues that the AJ did not address the proper bases for her claims alleging discrimination for her 2016 non-selection and performance ratings. As such, we will address Complainant’s claims of discrimination based on age, disability and reprisal for the 2016 non-selection, and her claims alleging disability discrimination and reprisal for her FY15, FY16, and FY17 performance ratings in the instant decision. 2020004280 11 We also note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110 at Chap. 9, § IV.A.3. On appeal, Complainant only challenged the AJ’s determination that claim 2 was untimely; and the AJ’s decisions on her allegations of: (1) a failure to provide a reasonable accommodation; (2) retaliation when she was informed that she was not authorized to work on her EEO complaint or reasonable accommodation request during work hours; and (3) discrimination for the 2016 non-selection, and FY15, FY16, and FY17 performance ratings. As such, we will only address these claims. This decision will not address the timeliness of claims 1 or 3; or Complainant’s claim alleging harassment, claims 7 and 10, since these issues were not raised by Complainant on appeal. On appeal, Complainant asserts that for claim 2, she had no reasonable suspicion of the discriminatory actions of SAM regarding the April 21, 2014, promotion until February 9, 2015; and therefore, her March 26, 2015 contact with the EEO counselor was within the 45-day timeframe. EEOC regulation requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty- five (45) day limitation period is triggered See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. While Complainant argues that she did not have a reasonable suspicion of discrimination regarding the April 21, 2014, promotion until February 9, 2015, she only made a blanket assertion, without explaining how and why she had a reasonable suspicion of discrimination on February 9, 2015, as opposed to when she learned that she was not selected for the position. As such, we find that the AJ properly determined that this claim was not timely, and we AFFIRM its dismissal. Reasonable Accommodation (Claims 4-6, 8, and 9) In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide 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). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). 2020004280 12 We find that Complainant’s medical documentation establishes that she is an individual with a disability. Complainant’s doctor noted that she suffers from asthma and allergic rhinitis; and she has difficulty breathing and experiences wheezing and chest-tightness when provoked by fragrances, air fresheners, and cleaning products. ROI 1 at 302-3. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R. § 1630.2(j)(ii). While the AJ noted that Complainant did not provide medical documentation to show that she had a chemical sensitivity, we find that Complainant’s medical documentation sufficiently connects her diagnosed conditions to a substantial limitation in breathing, when triggered. The record shows that Complainant’s performance ratings during the relevant time period were at least at a fully successful level. ROI 1 at 637, ROI 2 at 262, ROI 3 at 316. As such, we find that Complainant is a qualified individual with a disability. In January 2014, Complainant submitted a reasonable accommodation request of (1) implementation of a fragrance-free work environment; (2) telework, as needed; and (3) excused absences, as needed. ROI 1 at 620-1. The Commission has held that a request for a work environment that is entirely fragrance-free was not a reasonable accommodation request and would have imposed an undue hardship. See Roberts v. Dep’t of Transp., EEOC Appeal No. 01970727 (Sept. 15, 2000) (agency was not required to provide an entirely fragrance-free environment for complainant who had multiple chemical sensitivity, but it should have engaged in the interactive process to determine whether it could have provided complainant with telework, an air filter, or an office involving limited contact with others). However, the Agency is obligated to consider alternative accommodations for Complainant. The Agency maintains that it provided accommodations, such as situational telework, a separate office to prevent constant interaction with other office employees, and speaking with employees, when it is brought to management’s attention. However, we find that the record does not support that the Agency provided Complainant with effective accommodations. Regarding telework, SFAM averred that Complainant had a telework agreement in place, and that she had been allowed to telework on many occasions, and RAPM asserted that Complainant teleworked “for a while” and then declined it. ROI 1 at 539, 500. We note that RAPM did not provide any details regarding Complainant’s declination of telework. However, Complainant denied ever declining telework and the Agency provided evidence showing that Complainant actually requested telework on November 26, 2014, and June 25, 2015, due to fragrance concerns, which STI2 approved. ROI 1 at 442, Agency Motion for Summary Judgment, Exhibit 5 at 22, 24. 2020004280 13 While it appears that Complainant had a telework agreement in place as part of the Agency’s regular telework program, we find that a fair reading of Complainant’s reasonable accommodation request was for telework that was independent of her regular telework agreement. Complainant affirmed that her telework agreement was not due to her reasonable accommodation request. ROI 1 at 442. The record shows that on April 5, 2016, STI2 informed Complainant that he was “awaiting determination if [he] will be able to reissue the expired [telework] agreements.” ROI 1 at 437. There is no further evidence to show when Complainant’s telework agreement expired, and if it was renewed. While the Agency argues that it granted Complainant telework and that the lack of an written decision was a “harmless error,” we find that there is no evidence that the Agency granted Complainant’s request for telework as a reasonable accommodation, and STI2 substantiated that Complainant was not offered telework as an option as a reasonable accommodation. ROI 1 at 481. Further, there is no evidence that Complainant had any telework option once her regular telework agreement expired. Accordingly, we find that the Agency did not grant Complainant telework as a reasonable accommodation. We also find that there is no evidence that the Agency considered a separate office as a reasonable accommodation. RAS stated that she and Complainant discussed possible accommodations of an air purifier, mask, respirator, and telework as possible accommodations. ROI 1 at 515. RAPM confirmed that RAS discussed with Complainant the options of an air purifier and wearing a mask or respirator. ROI 1 at 500. SFAM stated that when he spoke with RAS, the discussion was focused on whether the Agency could implement a fragrance-free policy. ROI 1 at 538. The Agency offered no evidence that it granted a separate office for Complainant as a reasonable accommodation. The Agency also asserts that management officials spoke to employees to encourage the reduction or elimination of fragrance products at work. However, the evidence shows that this was not effective because Complainant continued to complain of the use of fragranced products. In addition to incidents 5, 6, 8, and 9, the record shows that Complainant emailed STI2 on March 14, and 26, 2016, to complain of strong fragrances and air fresheners. ROI 1 at 434-5. While the Agency argues that the Agency accommodated Complainant, we find that the Agency did not show that it provided effective accommodations to Complainant. As such, we find that Complainant established that the Agency failed to provide her with a reasonable accommodation in violation of the Rehabilitation Act, and we REVERSE the Agency’s final order adopting the AJ’s decision on Complainant’s reasonable accommodation claim. The Commission has also held that failure to respond to a request for accommodation in a timely manner may result in a finding of discrimination. See Denese G.v. Dep’t of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016); Shealy v. Equal Emp’t. Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011); Villanueva v. Dep't of Homeland Sec., EEOC Appeal No. 01A34968 (Aug. 10, 2006). 2020004280 14 In determining whether there was an unnecessary delay, we are to consider (1) the reasons for the delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay. (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Enforcement Guidance at Question 10, n.38. We find that the record supports a finding of an unnecessary delay on the Agency’s part in processing Complainant’s request for a reasonable accommodation. It is undisputed that Complainant initiated her request in January 2014. The Agency provided evidence to show that the Agency was using “reasonableaccomodation@tsa.dhs.gov” as an email address, which was misspelled with a missing “m” in accommodation, and that STI1 emailed a correctly spelled, yet incorrect email address. Agency Motion for Summary Judgment Exhibit 5 at 3-4. Complainant’s request was routed to the correct email address on or about March 12, 2014; however, there was no explanation for why the Agency took three months to confirm receipt of Complainant’s request on June 17, 2014. RAPM acknowledged that Complainant’s request was initiated in January 2014, but she averred that she did not know what happened to Complainant’s request. RAMP further noted that Complainant’s request “just fell through the cracks” when the Agency failed to issue any determination for her request. ROI 1 at 499-500. Once the Agency received Complainant’s medical documentation in September 2014, RAS called Complainant on September 25, 2014, and she left a voicemail message; and RAPM contacted Complainant in October and November 2014. RAS stated that she spoke with Complainant again on July 10, 2015. ROI 1 at 515, 498. SFAM stated that he spoke with RAS in June or July, and then again in September or October 2015. ROI 1 at 538. No Agency official provided an explanation for the gap between November 2014, to June or July 2015, when there was no action on Complainant’s request. While the Agency claims that Complainant refused to engage in the interactive process when she hung up and refused to speak with the reasonable accommodation office in October 2015, we note that even if Complainant was rude and uncooperative in July and October 2015, neither RAS nor RAPM provided a reason for the Agency’s delay in processing the request from November 2014. In looking at the totality of the circumstances, we find that the Agency was mainly responsible for the delay in the processing of Complainant’s request, starting with its error in its email address. The Agency offered no explanation for why it took approximately three months to acknowledge Complainant’s request on June 17, 2014; why the Agency did not request medical documentation until over one month later on July 29, 2014; why no one took action on Complainant’s request from November 2014 to June or July 2015; or why the Agency has not yet issued Complainant any decision on her request. As such, we find that the Agency failed to respond to Complainant’s request for a reasonable accommodation in a timely manner, since January 27, 2014. 2020004280 15 Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the Agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for her disability. See 42 U.S.C. § 1981a(a)(3); and Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). In this case, we find that the Agency failed to demonstrate a good faith effort in providing a reasonable accommodation to Complainant with months of unexplained inaction. Complainant is therefore entitled to present a claim for compensatory damages on the Agency’s failure to timely accommodate him. See West v. Gibson, 527 U.S. 212 (1999); see also Complainant v. Dep’t of Justice, EEOC Appeal No. 0120121339 (May 8, 2015) (complainant entitled to present a claim for compensatory damages when she was in bad faith denied accommodation leading to her termination). As such, the Agency is ORDERED to conduct a supplemental investigation regarding any compensatory damages, attorney’s fees, and costs. Disparate Treatment (Claims 12, 13, 14, 15, and 16) To prevail in a disparate treatment claim such as this, 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 generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, disability, and sex, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For Complainant’s FY15 performance rating, STI2 stated that Complainant was rated as Exceeded Expectations, which was a strong rating commensurate with her duties and responsibilities. ROI 1 at 491. Regarding Complainant’s FY16 performance rating, STI2 asserted that Complainant was given an Exceeded Expectations based on the established expectations for employee performance. ROI 2 at 202. For Complainant’s FY17 rating, STI1 claimed that she gave Complainant a 3.37 because she had some problems performing her duties that year. For example, STI1 had to repeatedly ask Complainant for information before she would provide it and it was difficult for STI1 to obtain the information. STI1 noted that she gave CW a higher rating because she went above and beyond her duties in developing her courses and always gave STI1 any requested information without STI1 having to remind her. ROI 3 at 187-8. 2020004280 16 Regarding the 2016 non-selection, the selecting official stated that Complainant was not recommended for the interview portion of the selection process because she did not have canine experience. To compare, the selectee served in every section of CTC, and had experience as a trainer, instructor, and adoption coordinator. ROI 2 at 185-6. Other members of the selection panel confirmed that Complainant was not recommended because she did not have relevant canine experience. ROI 2 at 207, 212, 217. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not provide any arguments or evidence to show that the proffered reasons are not worthy of belief and her bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, or sex, or in reprisal for prior protected EEO activity, when it issued Complainant’s FY15, FY16, and FY17 performance ratings, and did not select her for the Supervisory Training Instructor position in 2016, and we AFFIRM the Agency’s final order adopting the AJ’s decision on these claims. Retaliation (Claim 11) Complainant alleges that she was retaliated against when on August 12, 2015, she was told that she cannot work on her EEO complaint, reasonable accommodation request, or Department of Labor claim at work. A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In this case, we find that the evidence does not support that this adverse action occurred as alleged. SFAM denied telling Complainant that she was unable to work on her EEO complaint or reasonable accommodation request on duty. Rather, SFAM stated that there were issues with how many hours Complainant spent on her EEO activity, and they needed to ensure that it did not interfere with her regular duties. 2020004280 17 STI2 corroborated that he and SFAM discussed with Complainant her current workload and how she spent her day. STI2 added that they did not tell Complainant that she could not work on her EEO complaint, but that she needed to balance her work demands with the demands of her EEO activity. ROI 1 at 543, 488-9. A review of the audio recording provided by the Agency corroborates that no one told Complainant that she was unable to work on her EEO complaint, reasonable accommodation request, or injury claim while on duty. As such, we find that Complainant did not establish that she was retaliated against when she was allegedly told that she was not authorized to work on her EEO complaint or reasonable accommodation request during work hours. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final order adopting the AJ’s decision on Complainant’s reasonable accommodation claim; and we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination or retaliation for the remaining claims. ORDER The Agency is ordered to take the following remedial action: 1. To the extent that it has not already done so, the Agency shall re-engage in the interactive process to identify effective accommodations and issue Complainant a written decision on her reasonable accommodation request, within 90 days from the date this decision is issued. 2. Within 90 days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s claim of compensatory damages, attorney’s fees, and costs. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep’t of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages, attorney’s fees, and costs, no later than 30 days after the completion of the investigation. 3. Within 90 days of the date this decision is issued, the Agency shall provide eight (8) hours of interactive EEO training to RAS and RAPM, with an emphasis on the Agency’s obligation to timely process employees’ requests for reasonable accommodation. 4. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against RAS and RAPM. 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 any of the responsible management officials have left the Agency’s employment, then the Agency shall furnish documentation of their departure date(s). 2020004280 18 5. Within 30 days of the date this decision is issued, the Agency shall post notices in accordance with the paragraph below. POSTING ORDER (G0617) The Agency is ordered to post at its Canine Training Center (CTC), Lackland Air Force Base in San Antonio, Texas facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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). 2020004280 19 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. 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 C.F.R. § 1614.503(f) for enforcement by that agency. 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 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). 2020004280 20 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020004280 21 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, Director Office of Federal Operations March 7, 2022 Date
