[Redacted], Nancy R., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Jul 13, 2022

Appeal No. 2021002678 (E.E.O.C. Jul. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancy R.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2021002678 Hearing No. 450-2019-00433X Agency No. USA-2019-00174 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 16, 2021 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant (HRA), GS-0201-07, at the Agency’s U.S. Attorney's Office for the Northern District of Texas in Dallas, Texas. On March 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical) when: 1. On October 12, 2018, Complainant was placed on a Leave Restriction; and 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. 2021002678 2 2. On November 26, 2018, Complainant was placed on a Performance Improvement Plan. 2 Complainant’s first-level supervisor was the Administrative Officer (S1) (physical disability) (S1). Her second-level supervisor was the First Assistant United States Attorney (FAUSA) (no disability) (S2). As a GS-7 HRA, Complainant was responsible for staffing and classification of lower-graded positions, credentialing, and performance work plans. She had been hired to process Recruitment and Staffing forms, but she was shifted to a more exacting and technical area, i.e., the Agency’s Special Assistant United States Attorneys (SAUSA) program, processing SAUSA forms and security clearances. Complainant acknowledged that she performed well enough to earn an “Excellent” performance rating in 2017. Around May 2018, Complainant began to have pain at work while performing her core duties of the repetitive typing of forms. She experienced symptoms associated with carpel tunnel syndrome. She required medical examinations and frequent treatment. She averred she was going “once or twice a week to the doctor, to rehab for that.” She changed her appointment times to go to therapy in the evenings, but she used extensive leave. She stated that, during 2018, she was never informed that her work was deficient or that she had used excessive leave. On June 15, 2018, Complainant submitted a claim to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) for worker’ compensation benefits for her claimed carpel tunnel syndrome condition. On November 5, 2018, the OWCP denied Complainant’s claim. On August 24, 2018, Complainant was involved in a car accident returning from a work-related trip to the Agency’s National Advocacy Center in Columbia, South Carolina. According to Complainant’s subsequent medical records, dated August 26, 2018, Complainant suffered “minor injuries” to her left shoulder, as well as a muscle strain in her back. Complainant’s OWCP claim for the car accident-related injuries was denied by OWCP on September 11, 2018. On September 18, 2018, Complainant submitted to S1 a Family Medical Leave Act (FMLA) form requesting leave due to the August 24, 2018 automobile accident. Her FMLA leave request was granted. On October 12, 2018, S1 issued Complainant a Notice of Leave Restriction (NLR). 2 In addition, Complainant raised an additional claim regarding the Agency’s issuance of a Proposed Notice of Removal. Complainant subsequently retired and alleged she was subjected to a constructive removal/retirement. While the matter was pending at the hearing stage, the EEOC Administrative Judge (AJ) assigned to the matter remanded the claim for processing as a mixed-case complaint. The Agency indicated in its opposition brief that it had issued a separate final agency decision regarding that claim and noted that Complainant had appealed to the Merit Systems Protection Board. Thus, that claim is not currently before us. 2021002678 3 After receiving a number of complaints about Complainant’s unavailability and that her whereabouts were unknown, S1 averred that “we took a review of her leave.” An audit of Complainant’s use of sick and annual leave for the period October 1, 2017 through September 29, 2018, showed that Complaint had taken 250.75 hours of annual leave and 117.25 hours of sick leave and carried a negative sick leave balance for three pay periods. The NLR excluded any leave usage related to leave granted under FMLA. The NLR required that requests for sick leave be made at least five workdays in advance and be accompanied by acceptable medical documentation. Requests for annual leave also needed to be made at least five workdays in advance. The NLR was to last for six months after which Complainant’s leave record would be reviewed to determine whether she had complied with the terms. Complainant retired prior to the end of the six-month review period. On November 26, 2018, S1 placed Complainant on a Performance Improvement Plan, which provided for a 45-day period for improvement. The record showed that Complainant’s Performance Work Plan and Appraisal Record consisted of five Critical Performance Elements. The Agency’s PIP was based on Complainant’s Unacceptable Performance in two of the performance elements (Payroll and Personnel Processing and Background Investigations and Record Maintenance.) The PIP detailed numerous instances of deficient performance including typographical errors, systemic issues related to proper coding and legal authorities, timeliness issues, and procedural errors. Complainant claimed that “all of this didn’t happen until I was complaining about carpel tunnel. Complainant stated, “Everything I was doing, it was like something’s wrong with it and it’s stuff I had been doing for three years and it became a problem.” She averred she received no feedback while she was on the PIP. On December 26, 2018, the Federal Government partially shutdown until the end of January 2019. Complainant stated that she came in, but we had no work. Complainant also attributed her performance issues to her not being granted access to the software portal that she viewed as necessary to permit her to perform the SAUSA work. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. 2021002678 4 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. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. In this case, we find that the Agency articulated legitimate, nondiscriminatory reasons for placing her on leave restriction and a PIP. Complainant was placed on leave restriction after management observed that Complainant was frequently absent from work, which negatively affected efficiency and placed additional burden on Complainant’s work colleagues. Complainant was placed on a PIP based on numerous examples of unacceptable performance. The PIP identified multiple deficiencies in Complainant’s performance including inaccuracy, procedural errors, failures in setting up meetings, and timeliness issues. Complainant failed to demonstrate that these reasons were pretextual. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor on those two issues. Upon careful review of the AJ’s decision and the evidence of record on the two claims before us, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021002678 5 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). 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. 2021002678 6 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 July 13, 2022 Date