Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120111401 (E.E.O.C. Mar. 20, 2013)

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

Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120111401

Agency No. F-07-6376

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated December 17,
2010, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In her complaint, Complainant alleged discrimination based on disability (diabetes) when she
was subjected to a hostile work environment in that:

(1) Since July 2007, her supervisor made two inappropriate comments about her
diabetes and made inaccurate statements in an inspection interrogatory related to her
medical condition, specifically, her supervisor stated that her and her coworker’s
disability affected staff morale and exacerbated workload problems. The
interrogatory was placed on the Agency’s shared computer network drive; and

(2) On September 29, 2007, she was forced to resign from the Agency as a
Management and Program Analyst.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency thus issued its final Agency decision concluding that
it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to
rebut.
0120111401

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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. (November 9, 1999) (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”).

After a review of the record, assuming arguendo that Complainant had established a prima
facie case of discrimination, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue,
Complainant was employed as a Management and Program Analyst in the Employee
Communications Unit (ECU) of the Office of Public Affairs. With regard to claim (1),
Complainant claimed that in April 2007, her supervisor, ECU Unit Chief (UC), commented to
her that due to the Health Care Program Unit (HCPU) not responding quickly to her medical
emergency, it caused morale problems within the unit. The supervisor stated that during the
relevant time period at issue, he was out of the office on leave and when he returned, his team
was very stressed about a medical episode Complainant had and the HCPU’s responding late to
meet her medical needs. Thus, indicated the supervisor, he talked to the HCPU’s management
who advised him that his team badgered the HCPU staff since they did not respond quickly to
their request for assistance. The HCPU management advised the supervisor of other options in
case of another emergency. Complainant acknowledged that prior to this incident, “she had
already informed her coworkers about her condition, the symptoms, and how to treat it.”

Complainant also claimed that in June 2007, during her mid-year performance assessment, the
supervisor again made inappropriate comments during their conversation that her disability
would not be documented. The supervisor denied this. The supervisor indicated that during
the assessment, he focused on Complainant’s work performance and encouraged her to have a
peer review her work before giving him the final product. Complainant later acknowledged
that it was after the assessment was finished that she told the supervisor about her diabetic
conditions and although she took care of herself, her blood sugars had always fluctuated.
Complainant also acknowledged that two days after the assessment, she asked the supervisor if
he documented her medical conditions on her appraisal, which he denied.

Complainant claimed that on August 14, 2007, she was advised by her colleague to read the
interrogatory document her supervisor had placed on their shared network drive. Complainant
indicated that in that interrogatory, the supervisor blamed her and another coworker’s disability
on affecting staff morale and exacerbating work problems. The supervisor indicated that in
July 2007, he began preparations for an upcoming inspection by writing interrogatories to brief
0120111401

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inspectors on “any negative things” that the inspectors might encounter during their visit. The
supervisor indicated that among many challenges ECU were facing, including the lack of staff
resources and the heavy workload, “ECU also has two team members that had severe long-
term medical conditions that affected staff morale and exacerbated workload problems. The
ECU UC’s efforts to address this can be discussed upon request.” The supervisor stated that
his management reviewed this draft before he placed it on the shared network drive. The
supervisor indicated that Complainant’s name or her coworker’s name was not identified in the
interrogatory response which was placed in the unit’s restricted access s-drive folder for unit
personnel only. After meeting with Complainant and consulting with the ombudsman, he
decided to change the interrogatory response. Complainant acknowledged that on August 27,
2007, the interrogatory was no longer on the shared drive. We find no per se violation of the
Rehabilitation Act because no diagnosis or specific condition was identified in the supervisor’s
comments.

With regard to claim (2), Complainant claimed that on September 10, 2007, another federal
Agency, National Security Agency (NSA), called her to see if she was still interested in a job
with them and she accepted the position and resigned from her position at the Agency.
Complainant indicated that shortly thereafter she learned that she would be expected to repay
the money the Agency spent on her University Education Program (UEP) unless she obtained a
waiver.1

The supervisor stated that prior to Complainant’s resignation, he tried to give
Complainant every opportunity for success, including work schedule and work place
accommodations, recruiting an experienced manager to mentor her, recommending her for the
UEP so she could pursue a PhD, and providing peer support from experienced communicators
in his unit. Also, the supervisor indicated that he offered to allow Complainant to telecommute
but she declined and she never requested any accommodation for her disability. Complainant
does not dispute this. The supervisor stated that in September 2007, Complainant told him that
she was offered and accepted a new position because she did not see any opportunities for
advancement within the Agency and the NSA had recruited her. After that announcement, the
supervisor indicated that he allowed her to take annual leave and allowed her to telecommute
on her last day with the Agency. The supervisor stated that Complainant was not forced to
resign.
It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that she was denied
a reasonable accommodation. The record clearly indicates that Complainant did not request
any accommodation for her medical conditions. Complainant does not allege that she was
required to perform her duties beyond her medical restrictions. With regard to her claim of
harassment on the part of her supervisor, we find that Complainant failed to establish the
conduct was sufficiently severe or discriminatory. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as
she alleged.

1 Complainant indicated that her waiver request was denied on July 18, 2008. We note that
this matter is not a live issue in the instant case.
0120111401

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We note that on appeal, Complainant argues that the Agency is requiring her to pay back the
Agency money for her PhD because she left the Agency before the required amount of time
she owed them. This is not an issue in this complaint and we will not address this issue. To
the extent that Complainant simply means to raise this matter as a remedy for the instant
complaint, we find no such remedy shall be granted because we find no discrimination in the
complaint.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 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 9-18 (November 9, 1999). 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).
0120111401

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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 20, 2013
Date