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

Equal Employment Opportunity Commission

Mar 30, 2022

Appeal No. 2021000313 (E.E.O.C. Mar. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oliver M.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021000313 Hearing No. 830-2020-00001X Agency No. HUD-00136-2019 DECISION On October 16, 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 October 16, 2020 final decision concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Equal Opportunity Specialist (EOS), Grade GS-12, at the Office of Fair Housing and Equal Opportunity (OFHEO) at the Agency’s Houston Field Office in Texas. Beginning in late 2016, Complainant’s direct supervisor was the Supervisory EOS (female, African American). Complainant’s second-level supervisor the OFHEO Regional Director for Fort Worth, (male, Caucasian). 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 2021000313 Complainant sustained physical injuries in a vehicle accident on February 19, 2019. On April 24, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), disability (bipolar disorder, herniated discs in neck and back, peripheral neuropathy, nerve damage to left leg, and back spasms that impair sedentary work), and in reprisal for prior protected EEO activity2 when: A. On June 14, 2019, Complainant’s Supervisory EOS refused to approve his sick leave; B. On June 12, 2019, Complainant’s timecard was coded Absent Without Leave (AWOL) for two hours and forty-five minutes for Complainant allegedly being AWOL on June 6, 2019; C. On June 10, 2019, Complainant’s request for sick leave on June 12, 2019, was denied by his Supervisory EOS; D. At an unspecified time, Complainant was required to produce a doctor’s excuse for taking medical leave fewer than three days; E. At unspecified times, Complainant’s Supervisory EOS regularly invaded his cubicle and personal space in an effort to intimidate and/or attempt to provoke him to anger; F. At an unspecified time, Complainant’s Supervisory EOS advised everyone in the office that Complainant was crazy; G. On October 28, 2019, Complainant received a memorandum informing him that his Outside Business Activities violates 5 C.F.R. §7501.105 and that he has to cease and desist all activities regarding housing counseling/assistance; and H. From January 31, 2020 through his termination, management failed to accommodate Complainant’s physical and mental medical conditions. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 2 The record shows that Complainant has linked his problems with his supervision to his appointment as a union steward in 2018. We remind Complainant that EEOC is not the proper forum for him to collaterally attack Agency actions regarding his union membership. Such challenges should be raised through the negotiated grievance process. Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998) 3 2021000313 The instant appeal followed. On appeal and through Counsel, Complainant contends that although he has performed well and that the Agency had permitted him to telework regularly without issues until management began subjecting his time and attendance and his sick leave to onerous scrutiny. Counsel attached the sworn statement of a supporting witness (African American male with disabilities) who stated that the same Supervisory EOS harassed him to the point of causing a heart attack which forced him to retire early. The witness further stated that the Supervisory EOS had treated others (who were not African American men with disabilities) more favorably. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). Claims A and C: Denial of Sick Leave We considered Claim A and Claim C in the context of disparate treatment discrimination. EEOC applies the Supreme Court’s three-part disparate treatment analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse actions under circumstances that would support an inference of employment discrimination. In other words, Complainant’s narrative must imply that his, race, gender, disabilities or prior EEO activities factored into the way he was treated. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Next, the Agency must articulate a legitimate, nondiscriminatory reason taking adverse action. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). For the third and final component, Complainant must prove, by a preponderance of the evidence, the Agency explanation was pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 519 (1993). Assuming Complainant established a prima facie case, we determine that the Agency has articulated legitimate, non-discriminatory reasons for each instance addressed by Complainant. Regarding Claims A and C, wherein Complainant accused Supervisory EOS of denying his request on June 10, 2019, for sick leave in order to have a back surgery on June 12, 2019. Deputy Regional Director stated that the Supervisory EOS did not approve the request because she was traveling at that time. Complainant was able to obtain retroactive approval from the Deputy Regional Director on June 14, 2019, before the Supervisory EOS had returned. 4 2021000313 Claim D: Doctor’s Note Required for Extended Medical Leave Complainant’s allegation that Supervisory EOS liberally granted leave to Latino and female coworkers who were not disabled relies on another co-worker (African American Female not disabled) who had kept her own personal log of other’s time and attendance. Complainant failed to obtain a copy of this co-worker’s account. The record lacks a corroborating, sworn statement from this witness upon which Complainant based this claim. Meanwhile, Supervisory EOS stated that none of her subordinates were permitted to take leave which was not recorded properly in the Web Time and Attendance system. Claim B: Charged AWOL for June 6, 2019 In her sworn statement, the Supervisory EOS stated she had charged Complainant with AWOL on June 6, 2019, because, she could not reach him when he was scheduled to be teleworking. Supervisory EOS stated that when she attempted to contact Complainant about completing an assignment, Complainant had not responded on five occasions, via phone and email, between 11:35 AM and 2:30 PM. Complainant does not deny missing calls and emails over approximately three hours, but states that the Supervisory EOS and he had communicated several times that same day. Complainant asserts that the Supervisory EOS fabricated the AWOL charge because he refused to capitulate when she pressured him to approve a particular application. Complainant and the Supervisory EOS gave differing testimony concerning the subject the June 6, 2019 conversation that resulted in the AWOL charge. Taken together, we find their testimonies in equipoise; as a result, Complainant has failed to prove his position by preponderant evidence. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014). Claim E: Workspace “Invaded” To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Complainant found the EOS Supervisor entering his cubical at the office to be unpleasant. However, the intrusion as described is insufficient to qualify as unlawful harassment. 5 2021000313 Additionally, this behavior was not motivated by unlawful animus toward Complainant because EOS admitted that she had periodically entered cubicles of all of the employees she managed in order to talk to them “one-on-one.” Claim F: Called “Crazy” In the narrative accompanying his formal EEO complaint, Complainant has alleged that there was a running joke in the office that that he was “crazy.” Complainant blames his Supervisory EOS for improperly discussing his mental health with co-workers. The Supervisory EOS denies disparaging Complainant’s mental health. Nothing in the record evidences Complainant’s claim. Claim G: Cease-and-Desist Letter Regarding Claim G, in a letter dated October 28, 2019, the Deputy Regional Counsel (female, African American, other protected statuses unknown) warned Complainant, as a HUD employee 5 C.F.R. § 7501.105 prohibited him from engaging in outside real estate activities. The record reveals that the cease-and-desist letter resulted from an Agency human resources report that Complainant had been listed on the website of a housing organization, in connection with counselling and assistance. The record contains an email response to the EEO investigator from the housing organization explaining that the housing organization was a non-profit organization, in which Complainant had no ownership interest. Instead, the email said that Complainant had merely been asked to serve as an officer to meet state licensing requirements. The housing non-profit’s email claims that the Agency sent its letter merely to harass Complainant or retaliate against him. On appeal, Complainant’s Counsel claimed the Agency did not get Complainant’s side of the story before sending the cease-and-desist letter. The Deputy Regional Counsel testified, however, that over the prior year, at least two other Agency employees with different protected characteristics had received similar cease-and-desist letters about outside real estate activities. We find nothing discriminatory in the Agency’s issuance of the cease-and-desist letter to Complainant. Claim H: Denial of Accommodation To establish that the Agency’s conduct violated the Rehabilitation Act, Complainant must show: (1) that he was an individual with a disability; (2) that he was a qualified individual with a disability; and (3) that the Agency failed to provide a reasonable accommodation. Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). “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). Agencies are required to make reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), (p). U.S. Airways, Inc. v. Barnett, 535 U.S. 391 at 402 (2002). 6 2021000313 Without so finding, we assume that Complainant was a qualified individual with a disability. Next, we carefully reviewed this record to determine whether Complainant established that he was denied a reasonable accommodation. On September 19, 2017, the Supervisory EOS approved Complainant’s telework application and agreement. She temporarily approved Complainant for five telework days per week between October 16, 2017 through October 27, 2017. Complainant was then permitted to telework Mondays, Thursdays and Fridays. The telework agreement described this arrangement as “situational” and based on “displacement by Hurricane Harvey.” On October 31, 2017, Complainant emailed the Supervisory EOS his request for “permanent 5- day telework.” Complainant’s email further stated that he had a condition that required medication for the rest of his life and that medication had side effects which impaired his concentration. The Supervisory EOS partially approved for Complainant to telework 5 days per week from November 6, 2017 through December 5, 2017. The Supervisory EOS indicated, however, that further approval was contingent upon approval of the Reasonable Accommodations Department in headquarters verifying Complainant’s disability needs. In July 28, 2018, the Supervisory EOS emailed Complainant, that beginning August 6, 2018, Complainant would be permitted only two days of telework per week. Her email stated that three days telework had been based on how Hurricane Harvey had had an impact upon Complainant’s commute. She stated that Complainant’s co-workers were limited to two days of telework. The Supervisory EOS explained that reduction of Complainant’s telework was necessary for staff meetings, discussions, office coverage and timely handling of casework. In an Agency accommodation request form dated July 31, 2019, the Supervisory EOS granted Complainant’s request to work from home for five days per week for three months. The Supervisory EOS stated that she would revaluate Complainant’s telework accommodation. In the meantime, the Supervisory EOS instructed Complainant to hand-deliver certain assignments to her in the office. We remind Complainant that he was entitled to an effective reasonable accommodation, but he was not entitled to the accommodation of his choice. Lynette B. v. Dep't. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). While Complainant would have preferred that the Agency approve unlimited telework on a permanent basis, Complainant has not shown that the Agency’s partially approving only two days of telework was unreasonable or ineffective. The record does not contain medical evidence establishing that Complainant required full-time telework in order to perform the essential functions of his position. 7 2021000313 CONCLUSION We AFFIRM the Agency’s final decision finding Complainant failed to prove discrimination occurred as alleged. 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). 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. 8 2021000313 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 March 30, 2022 Date