0120121339
05-08-2015
Complainant v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120121339
Agency No. FBI-2009-00219
DECISION
Complainant timely filed an appeal from the Agency's final decision 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that she was denied reasonable accommodation for her disability; (2) whether Complainant established that she was subjected to reprisal for requesting a reasonable accommodation; and (3) whether Complainant established that she was subjected to a hostile work environment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Specialist at the Agency's Security Unit of the Records Management Division (RMD) in Winchester, Virginia. Complainant entered on duty with the Agency in September 2002 with the Chicago Division and was transferred to the Winchester RMD in 2006. Report of Investigation (ROI), Ex. 9, at 2. Complainant has been diagnosed with Cerebral Palsy, Thyroid Disease, Fibromyalgia, and Osteoarthritis, among other conditions. Id. As a result, Complainant walks using crutches with forearm braces, and has difficulties with fine motor skills and lifting items beyond a certain weight.
Initially, as a Security Specialist, Complainant rotated between the Agency's Administrative Building and the Interim Central Records Complex (ICRC). Id., Ex. 10, at 4. At the Administrative Building, as a Security Specialist, Complainant's job functions required her to fingerprint new employees, create and format new employee ID badges, as well as conduct security briefings for new employees. Id. at 4. At the ICRC, Complainant's job duties related to functions involving travel briefings and security reinvestigations. Id. There were also more outside visitors to the ICRC, requiring the processing of visitor badges and security clearances. Id.
In the period March and April 2007, Complainant asked to be permanently reassigned to the Administrative Building because it had nearby access to a bathroom, computer printer, and a handicapped parking space. Id. at 5. Complainant's first-level supervisor (S1), however, felt that Complainant could not perform the job functions in the Administrative Building. Id. According to S1, Complainant would constantly need to be reminded how to perform the most basic functions and was rude and short-tempered with coworkers and visitors to the Agency. Id. at 8. Instead, S1 advised Complainant that she would be permanently assigned to the ICRC. According to S1, there was an ongoing need for a Staff Security Specialist in the vicinity of the ICRC lobby area where the security guards were stationed. Id. at 6. Therefore, S1 set up a workstation cubical in the lobby area for Complainant to assist with ID badges for employees and visitors to the Agency. Id. S1 felt this new workstation for Complainant was suitable for her disability because a bathroom and handicapped parking were located just outside the lobby doors. Id. After being reassigned to the lobby area, Complainant expressed her discontent and unhappiness with her new assignment. Complainant said that she had limited privacy and she was required to move frequently and open a heavy door, which was difficult for her because she used crutches. Id., Ex. 9, at 3-4. As a result, Complainant was assigned away from the lobby area after just a couple of days. Id.
S1 and the Unit Chief (UC) subsequently spoke with Complainant about the need for her to improve her performance and attitude. On November 20, 2007, S1 issued Complainant her Performance Appraisal Report (PAR), which rated Complainant's performance as "Unacceptable." As a result, S1 placed Complainant on a Performance Improvement Plan (PIP) for a 90-day period, after which Complainant's performance would be re-evaluated. According to the Assistant Director (AD), Complainant would engage in disruptive behavior, including working during her duty hours on legal matters pertaining to her personal cases against the Agency. Id., Ex. 18I, at 2. The AD indicated that, on one occasion, the FBI Director made an official visit to the RMD, and Complainant inappropriately called out to him in a public forum to express her personal complaints. Id. at 3.
On July 16, 2008, Complainant received a letter from Human Resources (HR). Id., Ex. 24. Therein, HR wrote that Complainant's Unacceptable PAR would be retracted and replaced with a "Successful" rating. Id. HR noted that, due to management oversight, action was not taken to assist Complainant to improve her performance to at least a "Minimally Successful" level in a timely manner. Id.
Months later, on September 30, 2008, S1 placed Complainant on another PIP. Id., Ex. 25. The second PIP indicated that Complainant was again performing at the "Unacceptable" level, and advised that she had 90 days to improve her performance. Id. According to Complainant, prior to the PIP, she was only required to perform three Security Specialist functions because management was aware that some functions of the position involved physical demands that she was unable to perform. Id., Ex. 9A, at 3-4. Before being issued the PIP, Complainant was apparently required to perform only reinvestigations, pre-polygraph interviews, and security access requests. Id. But after being issued the PIP, S1 reportedly required Complainant to perform all Security Specialist duties, including open the Secure Compartmented Information Facility (SCIF), conduct fingerprinting, and operate the secure fax machine, among others. Id. Complainant stated that these new responsibilities required her to walk to different rooms, use fine motor skills to open locks, and manually perform fingerprinting, which presented physical challenges for her due to her disabilities. Id.
At the end of the 90-day period, S1 advised Complainant that she was still performing at an "Unacceptable" level. S1 averred that Complainant continued to display rude and hostile behavior in the workplace. Id., Ex. 10, at 10. S1 also added that Complainant needed constant supervision and constantly needed to be reminded of how to perform her duties. Id.
After her second PIP period ended, Complainant received a letter notifying her that she would be terminated effective June 5, 2009. Id., Ex. 9, at 3-4. Rather than terminating Complainant, however, management instead elected to reassign her to a Records Conversion Technician (RCT) position in the Document Conversion Laboratory (DocLab) of the RMD for a 90-day trial assignment in an attempt to give her another opportunity to succeed.
After the 90-day period, the Administrative Unit Chief (AUC) stated that Complainant could not meet the appropriate metric standards of a RCT and could not retain and apply knowledge of procedures necessary to perform that position. Id., Ex. 18D, at 7. As a result, management concluded that Complainant did not adequately perform during the trial assignment in DocLab, and therefore recommended her for termination.
However, the DocLab Assistant Section Chief (ASC) disagreed with AUC's assessment and became worried that Complainant was not given an equal representation of work during the trial assignment. Id., Ex. 18E. The ASC averred that Complainant was receiving a disproportionate amount of FOIA work, which is more difficult than other assignments because it is usually old material. Id. The ASC said that RCT employees generally receive different assignments during the course of a given month, which impacts monthly metrics. Id. The ASC stated that the reason Complainant was only given FOIA work was because she could not lift and move boxes due to her disability. Id. The ASC stated that even experienced staff has had difficulty meeting metric thresholds if they are assigned only FOIA material. Id. The ASC believed that Complainant was given insufficient training and felt that others in DocLab would not have been terminated for failing to meet metric standards as Complainant was. Id.
Complainant stated that, as an RCT in DocLab, she was required to perform physical functions, such as walking to copy machines, handling documents, and manually reassembling files. Id., Ex. 18A. Complainant stated that these duties were more difficult and time-intensive for her than for individuals with full manual dexterity in both hands. Id.
On October 13, 2009, an electronic communication (EC) was sent to the ASC from the Supervisory Management and Program Analyst (MPA), explaining that Complainant would be dismissed for failing to meet metric standards. Id., Ex. 18E, at 9-11. The ASC resisted signing the EC and sent an e-mail to the MPA, the DocLab Unit Chief (DUC), and the AUC, communicating her objections to it. Id. According to the ASC, a coworker told her that "things would not be pretty" if she (the ASC) refused to sign the EC. The ASC stated that she signed the EC "under duress." Id. A short time later, on December 4, 2009, Complainant was terminated from the Agency for failing to meet the metric standards of the RCT DocLab position. Complainant believed that she would not have been terminated if she would have been afforded accommodations for her disabilities when she worked in the Security Office and subsequently in DocLab.
After her termination, Complainant apparently had difficulty in obtaining unemployment benefits from the Virginia Employment Commission due to inaccuracies in her Agency separation-from-duty form. ROI, Ex. 18A. Complainant indicated that she had worked in Winchester, Virginia, but her separation form incorrectly noted that her duty station was located in Washington, D.C. Id. Complainant elaborated that management failed to correct her separation-from-duty form and, as of May 11, 2010, she had not received unemployment benefits. Id.
On June 5, 2009, Complainant contacted an EEO Counselor and filed an EEO complaint on July 20, 2009, alleging, as amended, that the Agency subjected her to discrimination and harassment on the bases of disability and reprisal for prior protected EEO activity when:
1. in May 2007, management assigned her to work in an area near the lobby windows at the ICRC of the Agency;
2. in May 2007, management failed to give her a mid-year review, even though she requested one;
3. from November 2007 through December 2008, management told her that her performance was unacceptable, placed her on a PIP that required her to perform tasks from which she had been previously excused due to her disability, and gave her a work performance rating of "Unacceptable" at the end of the PIP;
4. in November 2008, management declined to select her for a Personnel Security Specialist position in the Phoenix Field Office;
5. in January 2009, management declined to select her for a Paralegal Specialist position in the Chicago Field Office;
6. in July 2009, management moved her to a RCT position in the Agency's DocLab where she was accommodated insufficiently;
7. her employment with the Agency was terminated on December 4, 2009; and
8. management impeded her ability to receive unemployment benefits after her employment was terminated.
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 an EEOC Administrative Judge (AJ). The record does not reflect, nor does Complainant assert, that she requested a hearing. Thereafter, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Initially, the Agency dismissed claims 1 through 5 pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that, with the exception of Complainant's hostile work environment claim, all of her claims reflected discrete non-recurring events. The Agency nonetheless addressed the merits of the claims as background evidence for Complainant's claim of a hostile work environment.
In addressing the merits, the Agency found that Complainant's Cerebral Palsy constituted a physical disability for the purposes of the Rehabilitation Act. The Agency, however, noted that Complainant failed to establish that that she had a mental disability as she alleged. The Agency further found, with respect to claim 1, that it articulated legitimate, nondiscriminatory reasons for assigning Complainant to the lobby of the ICRC. The Agency articulated that Complainant's previous assignment had ended and there was a need for a Security Specialist near the lobby to resolve badge problems. The Agency noted that the assignment gave Complainant easy access to a bathroom and a copier. With regard to claim 2, the Agency found no evidence to support Complainant's claim that she was not given a mid-year review in May 2007. The Agency noted that S1 did not give any employees a mid-year review in 2007 because S1 was new to the job. The Agency additionally noted, with regard to claim 3, that management articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant exhibited a bad attitude and poor performance such that a negative evaluation and PIP were warranted. The Agency noted that Complainant asserted that she was not accommodated during the PIP, but never pursued the formal process for any accommodation. The Agency indicated that Complainant nevertheless was asked to perform only sedentary tasks that were not strenuous and that management continuously attempted to accommodate her physical disability.
Regarding claim 4, the Agency elaborated that Complainant was not selected for the Security Specialist position in Phoenix because she lacked the necessary experience. The Agency also found no evidence that Complainant was subjected to discrimination with regard to claim 5 when she was not selected for the Paralegal Specialist Position. The Agency noted that the selected candidates possessed law degrees, but Complainant did not. In addressing claim 6, the Agency found that Complainant was not denied accommodation for her disability and noted that it was unclear why Complainant was afraid to ask for accommodation while working in DocLab. The Agency indicated that Complainant wanted the required performance metrics for the position adjusted downward as an accommodation. The Agency noted that case law, however, dictates that employers need not adjust performance metrics downward as an accommodation.
The Agency additionally found that Complainant failed to establish that she was subjected to a hostile work environment as alleged because its actions were not severe or pervasive enough. The Agency found no evidence that Complainant's physical disability or protected activity played a role in its actions. The Agency noted that, although the ASC stated that Complainant was treated unfairly, no other witnesses confirmed the ASC's statements. The Agency noted that no evidence impeached the MPA's statement that Complainant reacted poorly to constructive criticism. The Agency additionally stated that Complainant's production was clearly below what was acceptable for RCT's in that position in DocLab.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserts that the Agency erred in finding that Complainant was not subjected to discrimination as alleged. Complainant states that the Agency found that only her claims related to the transfer to DocLab, her termination, and her inability to obtain unemployment benefits were timely reported to the EEO Counselor. Complainant argues that the Agency improperly dismissed her remaining claims because all of her claims in totality reflect a pattern of a hostile work environment. Complainant also maintains, with regard to claim 1, that she met with S1, telling him that she did not want to be assigned to the lobby. Complainant states that she protested the assignment to the lobby, and then spoke to S1 about a reasonable accommodation to work in the Administrative Building. Complainant argues that S1's assertions that she was causing a disruption in the lobby area were not credible, and there is no evidence that S1 moved her away from the lobby due to her behavior. Complainant further contends, with regard to claim 2, that in July 2007, she asked S1 for her mid-year review, but did not receive one.
As for claim 3, Complainant notes that her November 2007 rating was overturned and changed to a successful rating. Complainant contends that the September 2008 PIP required her to perform all of the duties of a Security Specialist without regard to her accommodations. Complainant states that the PIP should have reflected the accommodations that had already been provided for her, but it did not. Complainant states that she never received proper training, and had to perform physical labor and use fine motor skills. Complainant maintains that the performance evaluation PIP process was pretext for discrimination, which contributed to the creation of a hostile work environment.
Regarding claim 6, Complainant argues that, because she was recommended for termination, she was forced to agree to the RCT trial assignment. Complainant asserts that she was successful in all elements of the RCT position except metrics. Complainant contends that, as an RCT, she was required to do physical tasks, such as walking long distances to copy machines and standing at machines for long periods of time, and handling heavy documents and manually reassembling files, tasks that were more difficult for her to perform. Complainant states that she never asked for her metrics to be adjusted downward, but requested accommodations so that she could perform the less physically demanding tasks of the position. Complainant argues that, alternatively, she could have been reassigned to another less physically demanding position. Complainant also argues that the Agency's decision ignored the e-mails from the ASC who questioned the assessment of Complainant based on metrics.
Complainant argues that management took advantage of her disability and set her up for failure in an effort to terminate her employment. Complainant contends that the fact the ASC recognized that she was being treated unfairly shows that the Agency was motivated by discriminatory animus. Complainant states that it is clear that the ASC was coerced into signing off on the termination, which is further evidence of the Agency's motive. Finally, Complainant contends that the Agency's decision failed to address claim 8 in any particular fashion.
The Agency did not raise contentions on appeal.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Agency's Dismissal of Claims 1 through 5
Initially, we find the Agency properly dismissed claims 2, 4, and 5 (mid-year review and non-selections) for failure to timely contact an EEO Counselor. We note that Complainant did not contact an EEO Counselor until June 5, 2009, in excess of the 45-day limitation period, and that the claims involved discrete, separate events. Therefore, these claims will not be addressed further herein. We find, however, that claim 3 is not separate and distinct from claims 6 and 7, and is intertwined with Complainant's termination, which resulted from the Unacceptable ratings and PIPs. We also find that claim 1 (assignment to ICRC) was related to a request for reasonable accommodation and, as explained below, is connected with the Unacceptable ratings and PIPs that ultimately lead to Complainant's termination. We find that claims 1 and 3 (the PIP) concern events related to Complainant's termination and are evidence needed to adjudicate the termination claim. See Complainant v. Sec. and Exch. Comm'n, EEOC Appeal No. 0120140391 (Dec. 19, 2014) (agency improperly dismissed claims as untimely where claims were evidence needed to adjudicate a termination claim). As such, claims 1 and 3 will be addressed together with claims 6 and 7 (RTC position and termination) as evidence related to Complainant's termination.
Reasonable Accommodation
The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a 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. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(c) and (p). We note that the Agency does not dispute that, due to her physical conditions, Complainant is an "individual with a disability" pursuant to the Rehabilitation Act. We note, however, that the Agency found that Complainant was not a "qualified" individual with a disability with regard to her DocLab position.
Qualified Individual
The threshold issue in this case is whether Complainant is a qualified individual with a disability. A "qualified individual with a disability" is an individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment positions such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. �1630.2(m). Essential functions may be thought of as the outcomes that must be achieved by someone in that position. See Petitioner v. Dep't of Homeland Sec., EEOC Petition No. 0320110053 (July 10, 2014); Ta v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013).
In the instant case, the record does not contain Complainant's performance review from 2006, nor did the Agency provide Complainant with a mid-year review during the 2006-2007 review period. There is no indication at all that Complainant's performance was anything other than satisfactory while she rotated assignments between the Administrative Building and the ICRC. It was only after Complainant was given a fixed assignment to the ICRC that she encountered physical difficulty performing her duties. Also, the record reflects that Complainant would have met the Agency's metric standards of the DocLab position if it would have given her reasonable accommodations to enable her to do so. As explained further below, Complainant established that she would have been able to perform the essential functions of the DocLab position with accommodation. As such, we find that Complainant has established that she is a qualified individual with a disability.
Denial of Reasonable Accommodation
Once a Complainant has demonstrated that she is a qualified individual with a disability, the Complainant must then establish that the Agency failed to provide a reasonable accommodation. A reasonable accommodation is a modification or adjustment to the work environment that enables a qualified individual with a disability to perform the essential functions of that position. See Reasonable Accommodation Guidance. After receiving a request for reasonable accommodation, the employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. Id. The duty to provide reasonable accommodation is an ongoing one. Id.
With respect to Complainant's DocLab position, the Agency, in its final decision, asserted that it accommodated Complainant by assigning a coworker to lift boxes for her. In its decision, the Agency also noted that Complainant was afraid to ask for more accommodation and there was no evidence that management knew that Complainant required additional accommodation. Notwithstanding the Agency's assertions that management had no knowledge that Complainant needed additional accommodation, there is no dispute that management was aware that Complainant had trouble with fine motor skills with her hands due to her Cerebral Palsy. The record reflects that the Agency was on notice that Complainant needed accommodation due to her requests in her previous Security Specialist position.1 We note that an agency's duty to provide reasonable accommodation is ongoing and that certain individuals require only one reasonable accommodation, while others may need more than one. See Reasonable Accommodation Guidance.
As noted above, management was aware that Complainant had issues with fine motor skills with her hands and had primarily been assigned FOIA work. As the ASC explained, FOIA work is more difficult and time consuming than other types of work because serial numbers have to be traced over, copies have to be made of brittle onion skin paper, orders of pages reversed or corrected. The position required the manipulation of volumes of documentation through the removal of paper clips, staples, and bindings. According to the ASC, Complainant would have met the Agency's required metric standards if she was assigned other types of work in addition to her FOIA work as other employees were.
We note that the Agency argued in its final decision that, according to case law, employers need not adjust performance metrics downward as an accommodation. It is correct to state that an employer is not required to lower production standards and also not required to reallocate or eliminate essential functions of a position in association with an accommodation request. See Reasonable Accommodation Guidance. However, Complainant never specifically asked the Agency to lower production standards as a reasonable accommodation or to eliminate essential functions. As explained, the reason Complainant was unable to meet the required performance metrics was because she was given the more difficult, time consuming, fragile complaint files. The FOIA files were even more difficult for Complainant than other employees because of her trouble with fine motor skills. ROI, Ex. 9A, at 10. As the ASC averred, Complainant likely would have been able to meet the required metric standards if the Agency would have assigned her a mix of file types, as other DocLab employees were assigned. Id., Ex. 18E, at 6. The ASC averred:
I became concerned that a fair representation of metrics would not be portrayed, since FOIA assignments are much more difficult . . . . Serial numbers have to be traced over, copies have to be made of brittle onion skin paper, orders of pages reversed or corrected, etc. To perform 450 pages per hour (PPH) with these constraints is difficult at best. This is why the 450 PPM metric was originally analyzed and set from a composite of work (from very clean paper requiring no copying or tracing, to mid range, to the worst, FOIA). It is expected that through the course of a month that employees would have all types of work and the numbers would balance out. Experienced staff have had difficulty meeting metric standards when given FOIA material alone.
Id.
While the Agency was not required to lower production standards, it nevertheless was required to present Complainant with accommodations to reasonably enable her to meet those metrics. See Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720120034 (Nov. 26, 2014) (finding that although the agency was not required to a lower production standard, it was required to provide reasonable accommodation to enable complainant to meet that standard); Brooks v. Dep't of Commerce, EEOC Appeal No. 01A12367 (June 26, 2002), req. for recon den'd, EEOC Request No. 05A21029 (Oct. 3, 2002) (finding that an agency, which was not required to lower production quotas, reasonably accommodated complainant because it offered her alternative measures geared toward reducing the stress from the production quotas).
We note also that, after evaluating Complainant's performance as a Security Specialist position with her disability, the Agency reassigned Complainant to the DocLab position. Had the Agency not believed that Complainant could perform the essential functions of the DocLab position with accommodation, there would have been no point in assigning her there. The ASC advocated against Complainant's termination. Notwithstanding the ASC's recommendation, the Agency terminated Complainant from her DocLab position without engaging in the interactive process regarding her accommodation needs when, according to the ASC, there was a means to accommodate her. Therefore, we find that Complainant has established that she was denied reasonable accommodation for her disability as alleged.
Liability for Compensatory Damages
Under Section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, this section also provides that an agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the complainant's disability. A good faith effort can be demonstrated by proof that the agency, in consultation with the disabled individual, attempted to identify and make a reasonable accommodation. Schauer v. Soc. Sec. Admin., EEOC Appeal No. 01970854 (July 13, 2001). We note that while continuously needing accommodation, management placed Complainant on PIP, giving her an unacceptable rating for her performance. When that PIP and unacceptable rating was canceled and overturned, she was placed yet on another PIP, threatened with termination, and then reassigned. When Complainant was assigned to her DocLab position, rather than engaging in the interactive process, the Agency terminated her even though her performance was impacted by her need for accommodation. Also, the ASC advocated against terminating Complainant, telling management that Complainant had not been treated fairly. ROI, Ex. 18E. Based on the above, we find that the Agency has not established that it made a good faith effort here. Accordingly, we find that the Agency is liable for compensatory damages in connection with its failure to provide Complainant with reasonable accommodation.
Reprisal for Requesting Reasonable Accommodation
We additionally note that the Agency only addressed whether Complainant was subjected to discrimination and harassment based on her disability and denied a reasonable accommodation. However, we find that a fair reading of Complainant's complaint reflects that Complainant also alleges discrimination on the basis of reprisal for requesting reasonable accommodation.
Here, in the absence of direct evidence of discrimination, the allocation of burdens of proof in a disparate-treatment claim follows the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000).
The anti-retaliation provisions of Title VII and the Rehabilitation Act protect those who oppose discriminatory employment practices as well as those who participate in the EEO process. EEOC Compliance Manual Section 8, ""Retaliation," EEOC Notice 915.003 � 8-II.B. (May 20, 1998) (EEOC Compliance Manual on Retaliation). Participation occurs when an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Id. � 8-II.C. A complaint or protest about alleged employment discrimination constitutes opposition to discrimination. Id. � 8-II.B. A person is protected against retaliation for reasonably opposing perceived discrimination if he or she had a good-faith belief that the challenged practice was unlawful, regardless of whether the practice ultimately is found to be unlawful. Id. � 8-II-B.3. Participation is protected regardless of the validity or reasonableness of the underlying complaint. Id. � 8-II.C.2. A request for reasonable accommodation constitutes protected activity. Id. 8-II.B.2.
Here, Complainant engaged in protected activity when she expressed a need for reasonable accommodation on more than one occasion. Specifically, in March/April 2007, Complainant asked to be permanently reassigned to the Administrative Building because it had nearby access to a bathroom, computer printer, and a handicapped parking space. Complainant also felt that working in ICRC was not suited to her disability and asked to be moved. By asking for reassignment due to her disability, Complainant clearly was asking for a reasonable accommodation. Because Complainant's disability affects her mobility and fine motor skills, it is apparent that Complainant needed continuous accommodation while working as a Security Specialist, of which the Agency was clearly aware. According to Complainant, the Agency had provided her with reasonable accommodation as a Security Specialist, requiring that she perform only three functions of the position. While continuously needing accommodation, management gave Complainant Unacceptable ratings, placed her on two PIPs, reassigned her, and terminated her. The record reflects that the Agency's subsequent termination of Complainant for poor performance metrics was directly related to her need for accommodation. Therefore, we find that Complainant has established a prima facie case of reprisal.
Because we find that Complainant established a prima facie case of reprisal, we now turn to the Agency's burden to articulate a legitimate, nondiscriminatory reason for its actions. S1 elaborated that the reason Complainant was given Unacceptable ratings and put on PIPs was because she had difficulty understanding and performing the most basic functions of her position. S1 also averred that Complainant was rude and short-tempered with coworkers and visitors to the Agency. S1 further averred that he assigned Complainant to the lobby area of the ICRC because he felt the position would accommodate Complainant. However, according to S1, while assigned to the lobby, Complainant became disruptive and complained to employees and visitors about the assignment. S1 also stated that, after Complainant's first PIP was overturned, it was decided to place Complainant on another PIP because her work did not improve and she continued to display hostile and rude behavior in the workplace. Further, the AUC explained that the RMD decided to reassign Complainant to DocLab for a 90-day trial period in order to give her another chance to perform successfully. The AUC explained that Complainant nevertheless could not meet the necessary metric standards as an RCT by the end of the trial period. This explanation is sufficient to meet the Agency's burden.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 519. We find that Complainant clearly has done so in the present case, and that the Agency erred in finding otherwise.
Specifically, we find that Complainant has established that the Agency's reasons for her PIPs and subsequent termination were pretext for discrimination based on reprisal. The record reflects that management was unhappy with Complainant's need for accommodations and the way she voiced concerns concerning her disability. The Agency was also clearly not pleased with Complainant's attempt to pursue accommodation for her disability legally. In particular, the AD stated that Complainant engaged in a number of disruptive behaviors, including working on legal matters against the Agency during the workday and drawing other employees into her legal matters. ROI, Ex. 18I, at 2-3. The AD also averred in the record:
On one occasion, FBI Director Robert S. Mueller made an official visit to RMD, and [Complainant] inappropriately called out to him in a public forum to express her personal complaints.
Id.
Further, the record reflects that S1 was clearly not satisfied with reassigning Complainant away from the ICRC lobby area, asserting that she (Complainant) engaged in disruptive behavior while assigned there. Shortly thereafter, S1 gave Complainant a rating of Unacceptable and Complainant was placed on a PIP. After the PIP and Unacceptable rating were overturned, S1 tried again, giving Complainant another Unacceptable rating, thereby placing Complainant on a second PIP. According to Complainant, the second PIP required her to perform all of the duties of a Security Specialist without regard to her accommodations. Complainant noted that the PIP did not reflect the accommodations that had been previously provided for her. The Agency subsequently threatened Complainant with termination, asserting that she failed to satisfactorily meet the requirements of the second PIP. Rather than immediately terminating her, management assigned Complainant to a 90-day trial assignment as an RCT. Therein, at the conclusion of the 90-day period, the AUC asserted that Complainant did not meet the required metrics of the RCT position, and thereafter management proceeded with Complainant's termination.
However, we note that the ASC bluntly disagreed with AUC's assessment of Complainant's performance and felt that Complainant should not have been terminated. ROI, Ex. 18E. The ASC also averred that she experienced negative consequences for her support in giving Complainant a chance in DocLab. Id. at 5. The ASC further stated that on October 1, 2009, she was told that the AD found her judgment to be poor in giving Complainant a chance in DocLab. Id. The ASC also stated that, due to her support of Complainant, she uncharacteristically began to be left off e-mail and verbal updates regarding Complainant's progress.2 Id. The ASC believed that Complainant's performance metrics were not being evaluated fairly. Id. The ASC averred as follows:
Based on an e-mail that was sent on August 19th regarding [Complainant's] performance metrics, I determined that [Complainant] was being given only Freedom of Information Act (FOIA) files to work on. I became concerned that a fair representation of Complainant's metrics would not be portrayed, since FOIA assignments are much more difficult and time consuming than other types of work. Serial numbers have to be traced over, copies have to be made of brittle onion skin paper, orders of pages reversed or correct. . . . Experienced staff have had difficulty meeting metric standards when given FOIA material alone.
Id. at 6.
The ASC continued saying that, even though Complainant did not have sufficient training for performing DocLab work, Complainant was very close to meeting metric standards. Id. at 8. Specifically, the ASC averred:
I determined that [Complainant] only had a few hours of reassembly process time and training, which would not be sufficient assess whether she could ultimately meet the quota. Seasoned employees have a difficult time meeting the reassembly quota. I do not believe we would terminate anyone else in DocLab for exhibiting the same performance level as [Complainant] during her short trial time in DocLab. . . . I see no reason to believe Complainant's attitude was a problem in DocLab (Emphasis Added).
Id. at 8-9.
We note that management later presented the ASC with an EC requiring her signature. The EC noted that Complainant would be terminated for failing to meet the required metric standards of an RCT. Id. at 9. According to the ASC, she resisted signing the EC because she felt that Complainant had not been given a fair chance, and therefore she met with management about the issue. Id. Therein, the AUC reportedly stated to the ASC that management "was under no obligation to give [Complainant] a chance in DocLab in the first place." Id. at 10. The ASC averred that she felt pressured to sign the EC, stating that she signed the EC under duress. The ASC also averred that a coworker told her that "things would not be pretty for me if I didn't sign it." Id.
We note that the Agency's decision discredited the ASC's affidavit, asserting that no other witnesses confirmed her statements. On the contrary, we find that the ASC's and Complainant's statements corroborate each other, noting that she (Complainant) "had a lot of the more difficult assignments and was given many of the older, more physically fragile files." ROI, Ex. 9A, at 10. We see no reason in the record to discredit the ASC's affidavit.
We find the Agency's reasons for Complainant's termination to be unworthy of belief and a pretext for reprisal for Complainant's requests for accommodation. We note that the Supreme Court has held that the fact-finder may find pretext where he or she determines that the Agency's articulated reason is unworthy of belief. Reeves, 530 U.S. at 133. As such, based on the above, we find that Complainant has presented credible evidence to establish that the Agency's nondiscriminatory reasons are unworthy of belief. Therefore, we find that Complainant has established that she was subjected to discrimination based on reprisal.3
Hostile Work Environment/ Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinnev v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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).
Upon review, we find that management's actions towards Complainant were based on her requests and need for accommodation. As noted above, Complainant asked for reassignment to the Administrative Building believing the assignment would best accommodate her disability. Instead, Complainant was assigned to the lobby of the ICRC, which she believed did not accommodate her. Thereafter, management accused Complainant of engaging in disruptive behavior, including openly expressing dissatisfaction with its attempt to accommodate her and dragging other employees into her legal matters. According to Complainant, the Agency had provided her with accommodations as a Security Specialist, requiring only that she perform three functions of her position due to her physical limitations. However, also according to Complainant, after being issued a PIP, management withdrew her existing accommodations, and she therefore was required to perform all the functions of her Security Specialist position. Complainant stated that the withdrawal of her accommodations after being issued the PIP presented physical challenges for her due to her disabilities. Therefore, we find that Complainant has established the first three prongs of the prima facie case of a hostile work environment based on reprisal for requesting and needing accommodation.
Turning now to the fourth prong, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in a complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of a complainant's employment and create an abusive working environment." Harris, 510 U.S. at 17, 21; see also Oncale, 523 U.S. 75 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. at 17, 23.
Here, we find that management's conduct was sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment. While needing accommodations for her disability, management gave Complainant an Unacceptable rating and placed her on a PIP, without addressing her need for accommodation. When that rating and PIP were overturned, management gave Complainant another Unacceptable rating and placed her on another PIP, gain without addressing her need for accommodation, stating that she would be terminated. However, after Complainant was given a trial assignment to DocLab, management terminated her even though it was clear that she had an unaddressed need for accommodation and was not given a fair chance to succeed. As such, we find that a reasonable person would find that the cumulative effect of management's actions created a hostile work environment.
Liability for Harassment
We now consider whether the Agency is liable for this harassment. In the context of supervisory liability, employers are subject to vicarious liability for unlawful harassment by supervisors. Farragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. In the present case, the record reflects that more than one supervisor's actions towards Complainant culminated in a tangible employment actions, namely, Complainant was issued two Unacceptable ratings, two PIPs, and ultimately was terminated. As such, we find that the Agency is liable for the hostile work environment created by the actions of the supervisors here based on Complainant's protected activity of requesting reasonable accommodation.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision.
ORDER
The Agency is ordered to take the following remedial actions within one hundred twenty (120) days of the date this decision becomes final:
(1) The Agency shall offer Complainant reinstatement to the position of Records Conversion Technician at its RMD facility in Winchester, Virginia, or a substantially equivalent and agreeable position, retroactive to December 4, 2009. Upon acceptance, the Agency shall engage in the interactive process with Complainant to determine what accommodations may be necessary and effective, if Complainant should require reasonable accommodation. Complainant shall have 15 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond her control prevented a timely response. This retroactive placement shall presume that Complainant would have had continuous employment status in the position since December 4, 2009, and include all promotions and monetary remuneration attached to the position.
(2) The Agency shall change any performance appraisal rating of Unsuccessful that Complainant received from 2008 through 2009 to the rating of Successful.
(3) The Agency shall expunge from Complainant's Official Personnel File (OPF) all negative documentation referring to his unacceptable ratings and PIPs, and shall expunge from all official Agency records any reference to Complainant's termination.
(4) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
(5) The Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
(6) The Agency shall provide a minimum of eight hours of EEO training to all responsible management officials in the Records Management Division in Winchester, Virginia regarding their responsibilities under EEO laws, with a special emphasis on Title VII and the Rehabilitation Act.
(7) The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of the departure date(s).
(8) The Agency shall post a notice in accordance with the paragraph below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision," The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Records Management Division in Winchester, Virginia copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
May 8, 2015
Date
1 We note that when requesting an accommodation, an employee is not required to use the "magic" words "reasonable accommodation." See Reasonable Accommodation Guidance. Further, we note that the Agency has never asserted that it waived essential functions of the Security Specialist position in order to accommodate Complainant.
2 We remind the Agency that protection from reprisal extends not just to a complainant, but also, inter alia, to those who provide statements in support of another's complaint or oppose an unlawful employment practice.
3 Although management officials also provided non-retaliatory reasons for its actions, we will not address this matter under a mixed-motive analysis. Having found that Complainant was in bad faith denied accommodation leading up to her termination, and therefore is entitled to compensatory damages and back pay, a mixed-motive finding would nevertheless not deny Complainant personal relief.
4 We note that, with respect to claim 8, Complainant claims that she was subjected to reprisal when management allegedly impeded her ability to receive unemployment benefits after her employment was terminated. However, because we have found that Complainant established that she was subjected to discrimination based on reprisal when she was ultimately terminated, she would not be entitled to any greater relief with regard to claim 8. We therefore decline to address this matter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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