[Redacted], Maxine R., 1 Complainant,v.Kelu Chao, Acting Chief Executive Officer, U.S. Agency for Global Media, Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2021000235 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxine R.,1 Complainant, v. Kelu Chao, Acting Chief Executive Officer, U.S. Agency for Global Media, Agency. Appeal No. 2021000235 Agency No. OCR-19-09 DECISION On October 13, 2020, 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 September 14, 2018, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant had worked at another federal agency before the Agency hired her in 2014. Thereafter, Complainant had worked as an Administrative Officer, GS-12, for the Resource Center, Voice of America at the Agency’s headquarters facility in Washington, D.C. After Complainant transferred to the Agency, she was provided in her workplace a “sit-and- stand” desk, ergonomic chair, and headphones. The Agency placed Complainant on administrative leave in 2016. On July 22, 2018, the Agency removed Complainant from federal service. By letter dated November 6, 2018, the Agency reinstated Complainant with backpay and all benefits held at the time of her removal. The reinstatement letter instructed Complainant to report to her supervisor for duty on November 13, 2018. 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 2021000235 Complainant did not return to duty on November 13, 2018, as instructed. On November 14, 2018, Complainant requested sick leave and later submitted letters from her doctors in justification for Complainant’s absence. On December 6, 2018, Complainant returned to duty and learned that the Agency had placed her on an Absent Without Leave (AWOL) status during her absences between November 13, 2018 and December 6, 2018. The sit-and-stand desk and chair that Complainant had used prior to 2016 were missing when she returned to duty in December 2018. Complainant requested the ergonomic office equipment replaced by submitting a reasonable accommodation request. Complainant also requested telework in her reasonable accommodation request. On February 25, 2019, Complainant’s supervisor, the Director of Resource Management (African American with disability, religion unspecified) placed Complainant on leave restriction. On March 31, 2019, Complainant’s was reassigned into the South and Central Asia Division where she was supervised by the Executive Officer (African American with disability, Methodist) who cancelled the prior leave restriction. In May 23, 2019, the Agency converted Complainant’s AWOL to sick leave. On September 5, 2019, as Complainant’s supervisor, the Executive Officer denied her request for telework and placed Complainant on leave restriction. Complainant requested four days of leave in October 2019. However, the Executive Officer approved only two days’ leave. On October 31, 2019, Complainant, her union representative, the Executive Officer and the Agency’s Deputy Director Human Resources (Caucasian, Jewish) held a meeting where Complainant was issued a performance plan. Those same employees held another meeting held on December 13, 2019, in an attempt to resolve Complainant’s requests for reasonable accommodation. On December 19, 2019, the Agency placed Complainant on administrative leave pending an investigation, and simultaneously issued her a notice of proposed removal. Complainant had initiated EEO counseling on December 9, 2018. The matter was not resolved informally. On March 14, 2019, Complainant filed an EEO complaint that she subsequently amended four times. As amended, the formal EEO complaint alleged that the Agency discriminated against her on the bases of race (African American), national origin (American), religion (Christian), disability, and in reprisal for prior protected EEO activity. The original formal EEO complaint included the following claims: 1. On November 13, 2018, Complainant was placed in an AWOL pay status for pay periods ending November 24, 2018 and December 8, 2018; 2. On December 6, 2018, management failed to provide Complainant with a Reasonable Accommodation when her equipment from a previous accommodation was removed, and her request for replacement equipment was denied; and 3. On February 25, 2019, Complainant was placed on Leave Restriction. Complainant’s first amendment alleged the Agency discriminated against Complainant when: 3 2021000235 4. On September 5, 2019, Complainant was placed on Leave Restriction; and 5. On September 5, 2019, Complainant’s request to telework was denied. Complainant’s second amendment alleged the Agency discriminated against Complainant when: 6. Complainant’s supervisor stated that she did not expect Complainant to pass her performance review she would be putting in place, which Complainant believed was meant as a threat. Complainant’s third amendment alleged the Agency discriminated against Complainant when: 7. On October 31, 2019, during a meeting with the Union and Labor Employee Relations, Complainant’s supervisor stated she did not want Complainant on her team anymore; and 8. On October 1, 2019, Complainant’s or denied her request for two days of leave for a religious event. Complainant’s fourth and final amendment alleged the Agency discriminated against Complainant when: 9. On or around December 13, 2019, Complainant was treated less favorably than those similarly situated, when, during a meeting with her supervisor, the Deputy Director of HR questioned Complainant’s medical history and the reason for her doctor’s visits, stating he only goes to the doctor once a year, at most; 10. On December 19, 2019, Complainant was placed on Administrative Leave pending an investigation; and 11. On December 19, 2019, Complainant was issued a Notice of Proposal to Remove. 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Through Counsel, on appeal, Complainant contends that after her reinstatement, the Agency had wrongfully reneged on its promises to restore all of the benefits she held at the time of her removal. According to Counsel, Complainant’s sit-and-stand desk and ergonomic chair were removed and the Agency denied her requests for their replacement, in addition to her requests for leave and for telework. Complainant asserts she had excess leave upon her reinstatement that she was entitled to exhaust upon her return to duty. 4 2021000235 Complainant argued the Agency targeted her religion when she was denied the four days of leave that she had requested in October 2019 to attend a Christian Women’s Conference. Complainant further accused the Agency of subjecting her to a hostile environment from her reinstatement until it placed her on administrative leave for the second time in December 2019. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). We have reviewed the record in this case and find the investigation was adequate and permits a reasoned adjudication of Complainant’s claims. We review claims of disparate treatment under the three-party analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, that a prohibited considerations such as her race, her disability, her activity, religion or other EEO-protected characteristics factored into the Agency’s decisions regarding its adverse employment actions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met the second burden, Complainant bears the ultimate burden to persuade the fact-finder, by a preponderance of the evidence, that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). For purposes of this analysis only and without so finding, we have presumed, that Complainant satisfied the prima facie case for all claims and on all bases. However, undisputed facts of record support the Agency’s final decision in that non-discriminatory reasons have been articulated for all of the adverse employment actions that Complainant has claimed to be discriminatory. Regarding the AWOL charges in Claim 1, Complainant was indeed absent without receiving prior approval to take leave. Upon her return and after she had provided sufficient medical evidence, the Agency retroactively approved sick leave to cover the times Complainant had been placed in an AWOL status. In Claim 2, Complainant accused the Agency of taking away the sit-and-stand desk, ergonomic chair, and headphones that had been provided to her before she began extended administrative leave in 2016. 5 2021000235 The Agency explained that, by the time Complainant returned two years later, in 2018, Complainant’s workplace had undergone reorganization, renovation, and relocation. The Director of Resource Management, who had become Complainant’s supervisor after she returned to duty, was unaware of reasonable accommodations that Complainant had previously received. When Complainant contacted the Director of Resource Management to discuss the matter, Complainant was referred to the Agency’s disability accommodation program management who encouraged her to pursue the request formally. Furthermore, witnesses testified that Complainant had rejected the replacement the sit-and-stand desk and ergonomic chair that the Agency provided Complainant after she returned from administrative leave. Regarding Claim 3, in her sworn statement, the Director of Resource Management who was Complainant’s supervisor stated that Complainant’s leave use was excessive. The record revealed that Complainant often took unscheduled leave. The Director of Resource Management further testified that Complainant’s leave use made it difficult to train Complainant or assign her work. The Director of Resource Management implied that Complainant’s use of leave was extraordinary compared to all other employees who her direct reports. Accordingly, the Agency found that its decision to place Complainant on leave restriction was justified. Regarding Claim 4, Complainant’s second supervisor, the Executive Officer, documented that over a twenty-week period Complainant had taken 263 hours of leave. In other words, Complainant had been on leave approximately one-third of the period when she was under the Executive Officer’s supervision. The Executive Officer found that Complainant’s use of leave was so frequent that it became counterproductive to South and Central Asia Division’s mission accomplishment. Regarding the denial of Complainant’s request telework in Claim 5, the Executive Officer explicitly stated that Complainant’s past performance had made telework inappropriate. Specifically, Complainant had failed to demonstrate the necessary responsibility to work independently without constant supervision. Regarding Claim 6, Complainant perceived a threat in the Executive Officer stating that Complainant was not expected to succeed after being placed on a performance plan. However, none of the witnesses present at the meeting where the performance plan was discussed corroborated Complainant’s accusation that the statement was made, or that any statement had been made with the intent to bully Complainant. We find that management spoke to Complainant in a manner appropriate to correct her deficient presence in the workplace. Regarding Claim 7, the Executive Officer explained that during a discussion, Complainant took the Executive Officer’s direction and criticism as a personal vendetta as opposed to a genuine supervisory effort to correct Complainant’s performance. Given the circumstances as evidenced in the record, we find that the record reflects that the Executive Officer found Complainant uncooperative and requested Complainant be removed from the South and Central Asia Division. 6 2021000235 Regarding Claim 8, the Executive Officer stated that Complainant did not request four days of leave for religious observance. Because Complainant had requested the leave for stated purposes of “MSPB and EEO prep” the Executive Officer granted only two days of leave. The record is devoid of evidence to support Complainant’s version that she had explicitly informed supervision that she had requested leave to attend a four-day Christian Women’s Conference. Regarding Claim 9, during a conversation where Complainant requested management approve more of her sick leave, the Deputy HR Director stated that he visited a doctor yearly or less. Complainant’s union representative described Deputy HR Director as sarcastically remarking that only four hours were necessary for a doctor’s visit. Even so, we find such a singular, stray remark does not express unreasonable acrimony toward Complainant. Regarding Claims 10 and 11, the Agency stated it placed Complainant on administrative leave and proposed her removal because of her problematic time and attendance record as well as her unprofessional workplace conduct. Despite leave restrictions, Complainant habitually failed to report for duty and then requested medical leave after the fact, resulting in sustained AWOL on three separate dates. Moreover, the Agency documented three separate incidents when Complainant had spoken to her supervisor or others with disrespectfully combative language. For example, in response to a text from her supervisor, Complainant called back with words to the effect of “don’t reply to my personal cell with that BS” and “You do what you want to do, I do what I want to do!” and then hung-up.2 After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, disabilities, religion or based on reprisal. We note that in declining to request a hearing, Complainant forfeited her opportunity for further investigation that might have resolved any possible credibility issues in the record. Cristobal F. v. U.S. Postal Serv., EEOC Appeal No. 0120180756 (June 19, 2019) (finding that “by choosing not to request a hearing before an AJ, a complainant waives the opportunity to develop the record through discovery and to cross-examine witnesses”). We additionally considered Complainant’s claims in the context of harassment/hostile work environment. To ultimately prevail in on her claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC 2 Effective February 15, 2020, the Agency finally removed Complainant from her position. Complainant appealed the effectuated removal and raised similar matters addressed in this appeal before the Merit Systems Protection Board (MSPB). After a hearing, on December 17, 2020, the MSPB’s administrative judge affirmed the Agency's removal decision. See MSPB Docket No. DC-0752-20-0416-I-2. 7 2021000235 Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). Even if Complainant were able to establish hostility, which she cannot, Complainant’s hostile work environment claims fail as a result of our previous findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision 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 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. 8 2021000235 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. 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 April 14, 2022 Date