Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jul 24, 2015

01-2013-3025-0500 (E.E.O.C. Jul. 24, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120133025

Hearing No. 550-2013-00015X

Agency No. HS-12-FEMA-00002

DECISION
On August 22, 2013, Complainant filed an appeal from the Agency’s July 10, 2013, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq

. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information
Technology (IT) Specialist at an Agency work facility in Oakland, California. On February 8,
2012, Complainant filed an EEO complaint wherein she claimed that the Agency harassed her
in reprisal for her prior protected EEO activity when she was subjected to a hostile work
environment as follows:

1. In April 2010, Complainant’s Supervisor failed to process her leave donation
recipient paperwork.

2. On August 22, 2011, Complainant’s Supervisor issued her a leave restriction
letter after Complainant requested Family and Medical Leave Act (FMLA)
leave.

3. On unspecified dates, after Complainant requested a meeting with her
Supervisor to review the leave policy that Complainant was allegedly violating,
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Complainant’s Supervisor subjected her to frequent informal counseling sessions
and accused Complainant of socializing instead of working.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The
AJ dismissed the hearing request and remanded the complaint to the Agency for issuance of a
final decision due to Complainant’s failure to comply with the AJ’s Order to Show Cause. The
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant’s prior EEO activity involved being a witness in an
EEO complaint filed by a coworker in February 2010, in which the coworker named the
Deputy Director, Division Director, and the former Administrative Services Branch Chief as
the responsible management officials. The Division Director was Complainant’s Second-Line
Supervisor. The Agency noted that on May 2, 2011, Complainant requested and was approved
for her FMLA leave between May 2, 2011 and August 8, 2011, to care for her sick husband,
when necessary. The Agency stated that while Complainant was on FMLA leave, she emailed
a request to participate in the Leave Donation Program to her Supervisor, the IT Branch Chief.
On August 22, 2011, Complainant’s Supervisor issued Complainant a leave restriction letter.

The Agency determined that it did not subject Complainant to unwelcome comments or
conduct based upon her prior EEO activity. The Agency further determined that Complainant
failed to establish that the relevant management officials were aware of her prior EEO activity.
According to the Agency, Complainant’s Supervisor, the Division Director, and the
Administrative Services Branch Chief, all stated that they were unaware of Complainant’s
prior EEO activity.

The Agency stated assuming arguendo that these officials were aware of Complainant’s prior
EEO activity, Complainant failed to demonstrate that its actions were based on her protected
activity. With regard to claim (1), the Supervisor asserted that he did not process
Complainant’s leave donation paperwork because he did not receive the paperwork in a timely
manner. The Supervisor maintained that Complainant’s request went from her personal email
account into his junk mail account. According to the Supervisor, he did not discover the
emails until Complainant returned to work and began accumulating leave, thus rendering her
ineligible for the Leave Donation Program. The Agency determined that Complainant failed to
refute her Supervisor’s explanation.

As for claim (2), the Agency noted that the Deputy Director explained that Complainant was
issued a leave restriction letter because of: (1) the frequency of Complainant’s sick leave use;
(2) Complainant’s use of sick leave as soon as her sick leave is accrued; (3) Complainant’s
many “no notice” sick leave requests; and (4) Complainant’s questionable and/or conflicting
medical documentation. The Agency determined that Complainant failed to provide any
evidence to refute this explanation.
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With respect to claim (3), the Agency acknowledged that Complainant was informally
counseled on several occasions. One incident that prompted counseling occurred on September
1, 2011, when Complainant did not request pre-approval to take leave. Complainant was told
to report to work in the morning but did not do so until 4:00 p.m. The Supervisor informed
Complainant that she was not approved for compensatory time and should not report to work
after her normal quitting time. Another incident occurred on November 1, 2011, as the
Supervisor stated that management informed him that he had to place Complainant in AWOL
status because she had failed to check with him as to whether she was permitted to telework
during the “Occupy Sacramento” riots. The Agency noted that the Supervisor believed
Complainant made an honest mistake.

On November 9, 2011, the Deputy Director stated that she noticed on the exterior of
Complainant’s cubicle wall a sign that stated, “The new [Agency] motto: No good deed goes
unpunished.” The Deputy Director deemed the sign inappropriate for the workplace and the
Supervisor discussed the matter with Complainant. On November 23, 2011, Complainant left
the office early without notifying her Supervisor. According to the Supervisor, the Deputy
Director instructed him to counsel Complainant and place her on leave without pay status, but
he chose to offer Complainant the option of taking annual leave.

The Agency stated that Complainant was counseled by her Supervisor on November 26, 2011,
after the Division Director observed Complainant having personal conversations for extended
periods of time. On January 23, 2012, the Supervisor questioned Complainant as to why she
was in the lobby at 2:50 p.m. According to the Agency, Complainant explained that she took
a late lunch, and the Supervisor responded that lunch is between the hours of 11:30 a.m. and
1:00 p.m., and for no more than thirty minutes, unless she informed him and he approved the
late lunch.

The Agency noted that Complainant argued that the Division Director and the Deputy
Director, responsible management officials in the complaint where she had been a witness, had
instructed the Supervisor to counsel her. The Agency determined that Complainant failed to
produce evidence that the informal counseling sessions were based on reprisal.

CONTENTIONS ON APPEAL
On appeal, Complainant contends with regard to the leave restriction that it was illegal to
discipline her given that she had invoked the FMLA due to a serious health condition.
Complainant argues that she does not believe proper consideration has been given to her
medical situation and its impact on her inability to comply with discovery requests.
Complainant maintains that the Agency offered false reasons for her ineligibility for the Leave
Donation Program and the leave restrictions for her FMLA-related absences.

In response, the Agency asserts that its conduct was prompted by business need rather than
retaliatory animus. The Agency maintains that it sought to improve Complainant’s
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performance by either ensuring that Complainant was present and accounted for at the
workplace or that Complainant was actively engaged in her work. The Agency states that
issuing Complainant a leave restriction letter was a tool intended to correct deficient behavior
after she exhibited continuous incidents of failing to report to work. According to the Agency,
Complainant’s Supervisor attempted to assist Complainant with accruing leave by giving her
the leave restriction letter. The Agency asserts that the informal counseling sessions were
undertaken with the purpose of remedying instances of misconduct. The Agency maintains
that Complainant failed to demonstrate that its conduct was severe or pervasive enough to rise
to the level of a hostile work environment.

ANALYSIS AND FINDINGS
Initially, we shall address Complainant’s argument concerning her medical condition not being
factored into her inability to comply with the Agency’s discovery requests. The record reflects
that Complainant experienced the deaths of her father, brother and husband within a six-month
period in 2012. On March 21, 2013, the AJ granted her request for a sixty-day extension to
respond to the Agency’s discovery requests. However, Complainant did not respond to the
Agency’s discovery requests. Complainant was subsequently ordered to show cause why her
request for a hearing should not be dismissed and her complaint remanded to the Agency for a
final decision. Thereafter, the AJ noted that although Complainant indicated that at some
undetermined date she expected to provide a letter from her health care provider that would
provide insight into her medical and emotional situation, Complainant had nevertheless failed
to comply with the Order to Show Cause, failed to cooperate in the discovery process and
failed to timely provide any evidence as to if and when she would be able to do so. The AJ
dismissed Complainant’s hearing request and remanded the complaint to the Agency for the
issuance of a final decision. Upon review of the record, we find that Complainant has not
presented sufficient argument or evidence that the AJ acted improperly in dismissing her
hearing request.

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 basis, i.e., in this case, prior protected activity.
Only if Complainant establishes both of those elements, does the question of Agency liability
present itself.

With regard to claim (1), the Agency stated that Complainant’s leave donation recipient
paperwork was not processed because Complainant’s request from her personal email account
went into her Supervisor’s junk mail account. According to the Agency, by the time the
Supervisor became aware this occurred, Complainant had returned to work and thus was no
longer eligible for the Leave Donation Program. As for claim (2), the Agency explained that
the leave restriction letter was issued to Complainant because she was using sick leave
frequently and as soon as she accrued sick leave, she had many sick leave requests without
notice, she had questionable and/or conflicting medical documentation, and because the
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Agency sought to enable her to accrue leave. The Deputy Director stated that Complainant
had extremely low leave balances due to her continual need to take leave in order to transport
her husband and father to medical appointments. In terms of claim (3), the Agency stated that
Complainant received several informal counseling sessions after she exhibited instances of
misconduct where she was not present at work, was perceived as socializing rather than
working, and had an inappropriate sign posted on the exterior of her cubicle. We find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.

Complainant maintains that the Agency’s explanation is false as to her not being eligible for the
Leave Donation Program. However, Complainant has failed to provide evidence that refutes
the Agency’s explanation that Complainant’s request to be included in the program was sent to
her Supervisor’s junk mail account, and thus her Supervisor was unaware of Complainant’s
request during the period she was eligible for the program. In terms of the leave restriction
letter, the record reveals that the letter was rescinded on the advice of Headquarters, Labor
Relations. It was determined that Complainant could not be placed on leave restriction because
her leave was covered by the FMLA. Despite this error on the part of the Agency, the record
does not indicate that the mistake was attributable to retaliatory motivation. Complainant has
not established that the Agency issued the leave restriction letter for any reason other than the
legitimate, nondiscriminatory reasons articulated by the Agency.

With respect to the informal counseling at issue in claim (3), Complainant claims that she was
subjected to closer scrutiny than her coworkers. It appears that this indeed was the case but
not because Complainant had previously been a witness in a coworker’s EEO complaint. The
Deputy Director explained that Complainant is scrutinized more than other employees due to a
series of complaints and behaviors that warranted closer attention. According to the Deputy
Director, she received complaints from both inside and outside of her division about
Complainant’s use of time and her turnaround on projects. The Deputy Director asserted that
Complainant frequently cannot be reached when called upon and she has a history of not
completing projects on time. The Deputy Director explained that these factors combined with
a history of taking leave and sick leave as soon as it was available caused management to focus
on Complainant’s accountability. Complainant had several instances as referenced in claim (3)
where her attendance issues or conduct resulted in informal counseling sessions. Complainant
has not established that the Agency’s explanation for these counseling sessions was pretext
intended to mask retaliatory motivation.

Upon review of the record, we find that Complainant has failed to prove that the Agency’s
conduct was taken because of her prior protected activity. Thus, her harassment claim fails.

CONCLUSION
The Agency’s determination in its final decision that no discrimination occurred is
AFFIRMED.

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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

(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.

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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

Date
July 24, 2015