Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Sep 16, 2015

01-2013-1644-0500 (E.E.O.C. Sep. 16, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.

Appeal No. 0120131644

Hearing No. 570-2012-00291X

Agency No. 2011-JCS-029

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s March 5, 2013 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Services Assistant for the Joint Chiefs of Staff, Logistics Directorate at the Washington
Headquarters Services in Washington, D.C. In August 2010, Agency management discovered
that Complainant had committed a serious violation of the Agency’s security rules and
regulations regarding a request for access and privileges she submitted for a foreign officer. In
addition, Agency management determined that Complainant had not used her own user
identification and the current date when she certified the request form. The request contained
multiple administrative errors which the Agency had attempted to correct previously through
training with Complainant. The Agency’s Office of the Chief Information Officer created and
activated the account for the foreign officer, but quickly learned of the mistake and locked the
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account. If the account had not been locked, the foreign officer would have had access to
classified information.

The Agency conducted an investigation into the security violation and took immediate actions
to place Complainant on continual supervision including, changing her work hours and
relocating her desk. The investigation’s Inquiry Officer concluded that while no compromise
of classified information occurred, Complainant’s insufficient attention to detail resulted in
Complainant incorrectly completing and submitting an unauthorized request for secret access
for a foreign national officer and that several other mistakes were made by other officials. The
Inquiry Officer made several recommendations for the Agency including disciplining
Complainant.

On December 8, 2010, Complainant’s first-level supervisor (S1) issued Complainant a Notice
of Proposed Suspension for seven days for violating Agency security regulations and
negligence in performing her duties. Complainant responded to the Notice and, while
admitting her role in the incident, argued that the proposed discipline was extremely harsh.
Complainant’s second-level supervisor at the time (S2-1) subsequently sustained the charges
alleged and issued Complainant a Notice of Decision upholding the seven-day suspension
effective March 29, 2011. Despite receiving the Notice and S1’s instructions to her the
previous day to not report to work, Complainant reported to work on March 29, 2011, and
Pentagon Police were called to escort her out of the building.

On May 27, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), sex (female), color (dark skin), disability, age (43), and in reprisal for
prior protected EEO activity as evidenced by multiple incidents including, inter alia,
Complainant's work hours were temporarily changed and subsequently made permanent; S1
left a Christmas gift on her desk; S2-1 issued Complainant a suspension for seven days; S1
revoked Complainant’s Common Access Card (CAC); her new second-level supervisor (S2-2)
and two police officers escorted her out of the building for reporting to work on the effective
date of her suspension; S1 required Complainant to relocate her desk; her Performance
Appraisal (period of August 8, 2010, through March 31, 2011) did not rate one objective; she
was not afforded reasonable accommodation; and, on several occasions, S1 touched her hands
and/or looked at her in an uncomfortable manner.1

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on February 4, 2013.

1 The Agency dismissed several additional claims and the basis of “reprisal for rebuttal to
security violation.” Complainant does not challenge these dismissals on appeal; therefore, the
Commission will not address these claims in this decision.
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In his decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the alleged incidents were based on Complainant’s protected classes. The AJ
noted that many of the complained of job actions developed after Complainant committed a
security breach in her office. That security breach resulted in Complainant’s suspension for
seven days. Complainant admitted she took the actions she was charged with, though she
claimed that it was a “major mistake on many levels.” The AJ found that even if it were
merely a mistake, or something more sinister, the Agency reacted reasonably to the breach of
security. As a result, many of the other incidents Complainant complained of, such as being
escorted out of the building, revoking her access card, or changing her work hours, were
legitimate actions related to her suspension. Additionally, other incidents Complainant
objected to, such as being given a Christmas gift or having her hands touched by her
supervisor, did not rise to the level of harassment.

With respect to Complainant’s reasonable accommodation denial claim, the AJ found that
Complainant failed to show that she was a qualified individual with a disability. Complainant’s
submitted medical documentation in support of her request for accommodation was deemed
insufficient and Complainant’s physician eventually declared in response to the Agency’s
request for clarification as to Complainant’s condition that “[w]hile the stress is limiting you,
and causing many symptoms, this is not a disability by itself. I am sorry, but I am not able to
write anything more specific to assist you in your request.” Consequently, the AJ found that
Complainant failed to show that she was entitled to any reasonable accommodation because she
had not shown that she had a physical or mental impairment that had a significant impact on
any major life activity.

The AJ concluded that Complainant failed to show that the Agency’s actions were motivated by
discriminatory or retaliatory animus. As a result, the AJ found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency
subsequently issued a final order fully implementing the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ’s issuance of summary judgment was based on
erroneous and misleading information. Complainant argues that Agency management
subjected her to extreme discipline and humiliating and demeaning treatment. Complainant
alleges that S1 treated her in an abusive manner and was vicious to her. Complainant contends
that she is a qualified individual with a disability and was entitled to reasonable
accommodation. Finally, Complainant argues that the AJ erred in not finding that she was
subjected to conduct sufficiently severe and pervasive to alter the conditions of her employment
and that she was subjected to reprisal. Accordingly, Complainant requests that the
Commission reverse the final order.

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ANALYSIS AND FINDINGS

Hostile Work Environment Harassment

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 a protected class. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was subjected to a hostile work environment as evidenced by multiple incidents.
Construing the evidence in the light most favorable to Complainant, the Commission finds that
Complainant failed to establish that she was subjected to a discriminatory hostile work
environment. The record reflects that Complainant engaged in misconduct related to a security
breach, the matter was investigated, and Complainant was subsequently suspended for her
admitted role in the violation of security regulations. During and subsequent to the
investigation into the security violations, Agency management took reasonable actions
(including revoking her access card, changing her work hours, and escorting her out of the
building) to address the serious security matter and to place her under continual supervision.

Furthermore, as to her performance appraisal, S1 affirmed that Complainant had not
performed the majority of the duties associated with Critical Element A of the appraisal;
therefore, S1 did not rate her on it. ROI, at 702. S1 added that Complainant performed her
work, but it required a lot of corrections and she was rated as “Met” for the remaining three
elements. Id. The record contains performance feedback memorandums previously addressing
Complainant’s deficiencies. Id. at 710-12. Finally, with regard to S1’s acts of giving
Complainant a Christmas gift and inappropriately touching her hands, S1 confirmed that she
gave Complainant (and all of her employees) a Christmas gift which included a box of
chocolates and card. Id. at 705. Further, S1 stated that she once touched Complainant’s hands
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while giving her a compliment about her nails. Id. After Complainant complained, S1 no
longer discussed non-work-related issues with Complainant. Id.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds that Complainant was not
subjected to discrimination, reprisal, or a hostile work environment as alleged.

Finally, to the extent that Complainant alleges that the Agency failed to reasonably
accommodate her disability the Commission finds that Complainant’s claim must fail. The
Commission agrees with the AJ that Complainant failed to show that she is a qualified
individual with a disability. The record reveals that Complainant sought an accommodation for
stress; however, she failed to produce sufficient documentation in support of her request.
ROI, at 511-13. When an individual's disability or need for reasonable accommodation is not
obvious, and the individual fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide the requested
accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 6 (as
revised Oct. 17, 2002). Accordingly, the Commission finds that Complainant has not
demonstrated that she was denied 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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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.
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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. 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
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time limits for filing a civil action (please read the paragraph titled Complainants 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 16, 2015
Date