Vina D.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionSep 21, 20180120161605 (E.E.O.C. Sep. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vina D.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120161605 Agency No. FS-2015-00520 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the March 15, 2016 final agency decision (FAD) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist (Desktop Support Specialist), GS-2210-11, at the Agency’s Pacific Southwest Region in the Chief Information Office in Riverside, California. Complainant experiences complications from several conditions, including Post-Traumatic Stress Disorder (PTSD) and depression. Complainant states that her mental condition limits her ability to focus and concentrate. In addition, Complainant experiences physical conditions, including chronic orthopedic problems, joint and muscle stiffness and swelling, and migraines. 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. 0120161605 2 On March 31, 2014, Complainant was issued a Letter of Reprimand. The letter cited several incidents of Complainant’s misconduct while assisting employees during the Windows 7 Migration. In one incident, Complainant was rude to employees she assisted and called employees derogatory names such as “slut” and “power cord slut.” In another incident, Complainant made a comment about a coffee machine that was dispensing coffee at an angle to the effect of “just like a man with a hard-on who can’t pee straight.” Complainant claims that her first-level supervisor (S1) issued the letter because S1 would force her into situations where she had no support from colleagues. Complainant alleges that she intended to request telework as a reasonable accommodation on May 27, 2014; however, she was unable to complete the forms and closed the request. Complainant claims that she submitted a written request to telework to S1 on September 17, 2014, and October 8, 2014. Complainant avers that S1 approved her ad-hoc telework agreement on October 8, 2014, but stipulated that it could not be used on Mondays or Fridays. Complainant claims she made another request for telework as a reasonable accommodation on March 10, 2015, but that her request was denied because she had received a disciplinary action or adverse action greater than a Letter of Reprimand within the preceding 12 months. Complainant claims that she was provided an alternative accommodation that allowed her to telework in the afternoon after her scheduled medical appointments on Tuesdays. Complainant states that if she was unable to work, she is allowed to take annual leave, sick leave, or leave without pay (LWOP). On January 8, 2015, Complainant claims that she received a disturbing picture message and text from a non-Agency employee. Complainant states that she showed the text message, but not the picture, to two co-workers because she found it inappropriate and disturbing. A few days later, one of the co-workers (CW-1) reported the incident to S1 and claimed that Complainant later approached her and asked her to say that Complainant never showed her the picture and that they only discussed it. On January 26, 2015, CW-1 reported that Complainant made sarcastic remarks to her because she had provided statements about the incident. On May 28, 2015, Complainant’s second-level supervisor (S2) issued Complainant a Notice of Proposed Suspension for seven days for Conduct Unbecoming a Federal Employee based on Complainant’s conduct. Complainant provided written and oral replies. On September 10, 2015, the proposed suspension was sustained. Complainant claims that she posted a leave request for a March 10, 2015 doctor’s appointment on the “status board” on February 3, 2015. Complainant alleges that S1 denied her leave request because there was a weekly team meeting every Tuesday. Complainant claims she asked if she could use sick leave and S1 told her she would approve the sick leave request, but asked her not to schedule doctor’s appointments on team meeting days. S1 later sent an email to the whole team stating the same. Complainant states that on April 16, 2015, she reported to work with her registered and licensed service dog to accompany her throughout the day. Complainant claims that she had brought her service dog to work previously without any issues; however, management officials decided to “cause a huge disturbance.” Complainant avers that management officials reminded her that one co-worker was afraid of dogs and another co-worker was very allergic to dogs. 0120161605 3 Complainant alleges that the Facility Manager and S1 informed her that therapy dogs were not allowed without prior approval and that she needed to take the dog home. On July 23, 2015 (and amended on September 23, 2015), Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, her supervisor ordered that she remove her “service dog in training” from the workplace; her supervisor denied her request for leave to attend a doctor’s appointment, yelled at her, and accused her of being dishonest; her supervisor denied her requests to telework, even as a reasonable accommodation; she learned that her supervisor withheld information and delayed processing her reasonable accommodation request; she was issued a Letter of Reprimand; and she was issued a Notice to Suspend. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that there was no evidence that the conduct at issue was based on discriminatory or retaliatory animus. With respect to her claim that she was denied leave for a doctor’s appointment, S1 stated that Complainant did not post her leave request on the status board and that she did not deny any leave requests from Complainant. Furthermore, Complainant admitted that S1 allowed her to use sick leave to attend the appointment. Regarding the Letter of Reprimand, S1 stated that she issued it based on management receiving multiple complaints from co-workers and customers that Complainant was rude and unprofessional. In addition, one co-worker reported that Complainant had made a sexually explicit joke. Complainant acknowledged in an instant message to S1 that she made an offensive joke and apologized. As to the Notice to Suspend, Complainant acknowledged showing at least one employee a “disturbing and graphic text and photo.” Complainant denied showing it to a second co-worker, but the co-worker was able to describe it nonetheless. The Notice added that Complainant attempted to pressure the co-worker into saying that she had not seen the photo and made sarcastic comments to her. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. With respect to her reasonable accommodation claims, Complainant first claimed that she was denied use of her service dog as a reasonable accommodation. Management explained that they were not on notice of Complainant’s need for accommodation and she did not make a request for accommodation that would have allowed her to bring a service dog to the workplace. Instead, Complainant brought her service dog without approval or authorization which denied management the opportunity to provide Complainant reasonable accommodation. 0120161605 4 Next, Complainant requested in March 2015, to telework on an ad-hoc basis after her doctor’s appointments and after “flare ups.” Management officials initially denied Complainant’s request for telework based on Agency policy regarding employees with active discipline. Management officials subsequently approved Complainant to telework on Tuesdays after her doctor’s appointments and granted leave whenever she needed it. S1 stated that Complainant was allowed to telework to the maximum extent possible; however, her position required face-to-face support. The Agency determined that this was an effective accommodation and that there was no evidence that any management officials delayed the processing of her reasonable accommodation request. As a result, the Agency found that Complainant had not been denied reasonable accommodation in violation of the Rehabilitation Act. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSIS AND FINDINGS Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her disability or prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission notes that Complainant chose not to request a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on her disability and prior protected EEO activity, management officials subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be discriminatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. 0120161605 5 Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency’s actions. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, as to her March 2015 leave request to attend a doctor’s appointment, S1 stated that she did not deny Complainant’s request and Complainant was never denied leave to attend doctor’s appointments. ROI, at 233. S1 affirmed that she only requested that Complainant note her absences on the status board. Id. Complainant acknowledged that S1 approved her for sick leave for her doctor’s appointment. Id. at 131. Regarding the Letter of Reprimand, S1 stated that she issued it after she received numerous complaints from customers during the Agency’s Windows 7 Migration, including a report that Complainant made an inappropriate, sexually explicit joke to the Program Leader. ROI, at 240- 41. S1 confirmed that she had verbally counseled Complainant on numerous occasions and, after consulting with the Employee Relations Specialist, she determined the Letter of Reprimand was appropriate to address Complainant’s conduct. Id. at 241. With respect to the Notice to Suspend, S1 stated that she received reports that Complainant showed a sexually graphic photo she received on her phone to at least two people. ROI, at 244. S1 affirmed that she contacted Employee Relations again as this was Complainant’s second similar instance of potential sexual harassment. Id. S2 explained that he issued the Notice of Proposed Suspension for Conduct Unbecoming a Federal Employee as progressive discipline after consulting with Employee Relations. Id. at 287. Complainant submitted written and oral replies to proposed suspension; however, the suspension was upheld. Id. at 445. The Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. Complainant explained that her mental condition may have played a role in her behavior that led to her being issued the reprimand and suspension. The Commission notes that an employer is not barred from imposing discipline or terminating an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and is consistent with business necessity. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002). The record reveals that several employees complained about Complainant’s inappropriate conduct and Complainant had previously been counseled about her behavior. Furthermore, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that she has not shown that the Agency’s reasons for its actions were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. 0120161605 6 Denial of Reasonable Accommodation The Commission notes that an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To establish a denial of reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. The Commission will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. Here, Complainant claimed that she was denied reasonable accommodation on several occasions. First, Complainant alleged that management ordered that she remove her “service dog in training.” S1 explained that she received a complaint from a customer stating that Complainant had a dog in her office with no prior approval or notification. ROI, at 232. S1 noted that there were people in the office who were extremely allergic and/or afraid of dogs. Id. Further, S1 affirmed that the dog had nothing distinguishing it as a service dog in training nor did Complainant have any documentation stating it was a service dog in training that she provided to either the customer or management. Id. Complainant had not coordinated or communicated to management that she had a service dog or would need it in the office. Id. As a result, S1 asked Complainant to take the dog home and advised her that she needed to notify management and receive approval before bringing in a service dog. Id. at 231. S2 informed Complainant that she needed to request the service dog as a reasonable accommodation through the process before bringing the service dog into the workplace. Id. at 178. There is no evidence that Complainant submitted a request for the service dog as an accommodation. With regard to her request to telework as an accommodation, Complainant stated that she requested an ad hoc (situational/unscheduled) telework agreement in September 2014, and S1 approved it on October 8, 2014, with the stipulation that she could not telework on Mondays and/or Fridays. ROI, at 135. Complainant submitted another request in March 2015 requesting, among other things, an ad hoc telework agreement when she had doctor’s appointments or when she needed to take medication that made it unsafe for her to drive. Id. at 333-34. The Disability Program Manager informed Complainant that she was ineligible to telework on an ad hoc basis at the time because of active discipline in her file. Id. at 339. The Disability Program Manger advised Complainant, however, that she was approved to work Tuesday mornings in the office and telework the rest of the day after doctor’s appointments or use leave or LWOP. Id. at 339, 343. Further, S2 approved that if Complainant had a “flare up” at work, she was allowed to close her door, put a sign on her door requesting “Do Not Disturb,” and take leave until she could safely return to work. Id. at 332. In addition, S1 and S2 stated that Complainant worked four 10-hour days with Fridays off and that in lieu of taking leave, she could make up any time missed on her Friday off-day. Id. at 237, 332. S1 and S2 stressed that Complainant’s duties included face-to-face support with customers, but that her telework agreement was designed around her doctor’s appointments and medical needs. Id. at 237, 286. 0120161605 7 While Complainant may not have been offered the exact reasonable accommodation of her preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Here, Complainant has presented no evidence that the provided alternative accommodations were ineffective. Therefore, the Commission finds that Complainant has not established that the Agency failed to provide her with a reasonable accommodation. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 0120161605 8 Any supporting documentation must be submitted with your 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 September 21, 2018 Date Copy with citationCopy as parenthetical citation