Complainant,v.Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Sep 1, 2015

01-2013-0409-0500 (E.E.O.C. Sep. 1, 2015)

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

,
Complainant,

v.

Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Appeal No. 0120130409

Hearing No. 570-2012-00032X

Agency No. FC-006-2011

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s October 11, 2012 final order 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist in the Agency’s Office of Information Technology in the Enterprise
Information Security Office in Washington, D.C. Complainant suffers from ankle pain,
stiffness, cervical pain, and right shoulder pain as a result of a work-related injury. On August
14, 2009, the Reasonable Accommodation Chair (RAC1) granted Complainant the
accommodation of teleworking on Mondays and, if she experienced pain, Tuesday – Friday
from 7:00 a.m. to 9:30 a.m.

On March 12, 2010, Complainant’s doctor recommended that Complainant be allowed to
telework until her stress could be reduced because stress aggravated another condition.
Complainant provided the doctor’s note to her first-level supervisor (S1), and he submitted the
request to the new Reasonable Accommodation Chair (RAC2). Additionally, S1 began
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allowing Complainant to telework full-time temporarily in March 2010. Around April 1,
2010, RAC2 notified Complainant that the accommodation she was granted in August 2009,
did not include her new claim of stress. RAC2 informed Complainant that she would need to
submit additional medical documentation in support of her request for more telework hours due
to stress. Complainant provided RAC2 with a Medical Certification Form which listed her
impairment as hypertension aggravated by stress. From April 2010 to July 2010, RAC2 sent
five requests to Complainant for additional information in support of her accommodation
request.

Around August 2, 2010, Complainant’s new second-level supervisor (S2) began working at the
Agency. S2 asked RAC2 about Complainant’s reasonable accommodation paperwork, and
RAC2 informed S2 that she had pressed Complainant for responses; however, Complainant’s
doctor did not have a complete assessment yet due to referrals and tests. On September 17,
2010, S2 sent RAC2 a list of eight tasks within Complainant’s duties and noted that some
would not be able to be completed by telephone.

On October 5, 2010, RAC2 issued a memorandum stating her need for additional information
to make a final determination on Complainant’s accommodation request. The memorandum
included the tasks that S2 believed might require Complainant to work on-site. RAC2 notified
Complainant that she might be returned to her previous telework arrangement if she failed to
submit the requested medical information in support of her request for additional telework
hours.

On October 20, 2010, RAC2 contacted S2 to inform her that she still had not received the
information requested from Complainant, but had been in contact with her doctor. RAC2
asked S2 if Complainant was "being accessible, responsive and productive," and to inquire
whether there was a business need for Complainant to come to the office at any point while
RAC2 was on leave. S2 responded that Complainant was being adequately responsive and
productive as far as she could measure or determine.

On October 25, 2010, S2 sent Complainant information regarding a free cybersecurity
workshop on November 5, 2010. Complainant did not respond to message. On October 29,
2010, S2 followed up and asked whether Complainant would be able to attend. Complainant
responded that she did not plan to attend because she would be working from home and there
did not appear to be an option to dial in. On November 5, 2010, Complainant informed S2
that she intended to attend the workshop by teleconference. S2 responded that she would have
appreciated if Complainant would have informed her regarding her plans earlier because she
had previously stated she did not plan to attend.

On November 3, 2010, RAC2 requested additional medical documentation from Complainant.
That same day, RAC2 contacted S2 informing her that Complainant's doctor was awaiting
results from another doctor at which time he would assess her progress and make adjustments
regarding work accommodations. RAC2 informed S2 that the doctor expected to see
Complainant again on November 23, 2010, and would provide more information about her
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condition at that time. On November 8, 2010, S1 and S2 discussed the status of Complainant's
accommodation request with RAC2. During the discussion, S2 learned for the first time that
Complainant had two separate medical conditions that required an accommodation. They all
agreed that Complainant should be given a deadline to submit the requested medical
documentation, after which she would revert back to terms of her previous accommodation.

On or about November 30, 2010, Complainant provided RAC2 a doctor's note indicating that
she would be able to work on-site half-days for a 30-day period beginning January 2011.
Complainant informed S1 that she would resume working the hours agreed under the August
2009 accommodation when the 30-day period was over. Complainant began working under
the 2009 accommodation again around January 18, 2011.

On February 17, 2011 (and twice amended), Complainant filed a formal complaint alleging
that the Agency subjected her to a hostile work environment on the bases of disability and age
(57) as evidenced by multiple incidents, inter alia, her second-line supervisor pressed the
Reasonable Accommodations Coordinator (RAC) for information regarding the nature of
Complainant's medical condition; suggested that some tasks required Complainant to be
physically present in order to perform; recommended an offsite activity during the time of her
approved accommodations; used unwarranted and intimidating phraseology that questioned her
work ethic; and made unfounded accusations that suggest negligence on her part in not
submitting medical documents to the RAC.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ granted summary judgment in favor of the Agency, and issued
a decision on September 21, 2012.

In the decision, the AJ initially noted that Complainant alleged that the Agency unlawfully
denied her March 2010 request for a reasonable accommodation to telework full-time. The AJ
found that it was undisputed that Complainant's August 2009 reasonable accommodation
request to telework for eight hours on Mondays and for two and one half hours Tuesday-Friday
was granted by the Agency. Complainant continued to work this schedule until she submitted
a second accommodation request to telework full-time in March 2010. The Agency
temporarily granted Complainant's request and allowed her to telework full-time beginning
March 2010. Complainant continued to telework full time until January 2011. In January
2011, Complainant requested an accommodation to work half-days in the office for 30 days
and informed S1 that she would return to the August 2009 accommodation of teleworking part
of the time at the conclusion of the 30-day period. Thus, the AJ concluded that the Agency
had not denied Complainant reasonable accommodation.

Next, the AJ found that Complainant failed to show that she was subjected to a hostile work
environment as there was no evidence that the Agency’s actions were motivated by
discriminatory animus. In particular, with regard to Complainant’s claim that S2 “pressed for
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information regarding the nature of her medical condition,” S2 stated that she learned that
Complainant was granted a reasonable accommodation in August 2009, and that she requested
a second accommodation for a different medical condition in March 2010. S2 discovered that
Complainant had not completed the requisite paperwork in support of her March 2010 request
and began to question RAC2 regarding how Complainant could complete the process.

As to S2’s suggestion that there were tasks that Complainant needed to perform on-site, S2
attested that the Agency needed to make a final determination regarding Complainant's March
2010 accommodation request. S2 explained that she needed to ascertain whether any of
Complainant's job duties needed to be performed on-site prior to rendering a final
determination on her accommodation request. In addition, S2 stated that Complainant may
need to be returned to her August 2009 accommodation of teleworking part-time if she failed
to provide the requested medical information in support of her March 2010 accommodation
request. Regarding S2’s recommendation that Complainant attend an off-site activity during
Complainant’s approved accommodation, S2 confirmed that she was unaware at the time that
Complainant was teleworking full-time and that the accommodation prevented her from
traveling to an off-site meeting. S2 affirmed that she asked Complainant to attend a meeting at
the National Institute of Standards and Technology in Gaithersburg, Maryland, and
Complainant responded, "No, I will not be attending!" Subsequently, Complainant notified
her that she planned to attend the meeting via teleconference.

Finally, with respect to Complainant’s claims that S2 used phrases to question her work ethic
and made unfounded accusations suggesting Complainant was negligent in submitting medical
documents, the AJ found that the incidents alleged were neither severe nor pervasive nor
represented objectively unreasonable conduct. The AJ concluded that the alleged incidents,
examined in either isolation or in concert, were not sufficiently severe or pervasive to establish
a hostile work environment. As a result, the AJ found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ erred in granting summary judgment in favor of the
Agency and ignored several important issues. Complainant contends that she had a telework
agreement in place with S1, and S2 immediately sought to remove it by falsely alleging that
her job had to be performed solely in the office. Complainant argues that if there was any
reason to conclude that any aspect of her job could not be performed from home, S1 would not
have originally permitted the accommodation. Further, Complainant contends that S2 did not
involve S1 in the process. Accordingly, Complainant requests that the Commission reverse the
final order.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Hostile Work Environment Harassment

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 (in this case, disability or prior protected
activity. Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
management continuously subjected her to a hostile work environment as evidenced by
multiple incidents. The Commission concurs with the AJ's determination that, even when
viewing all of the alleged incidents and evidence in the light most favorable to Complainant,
the record does not show that the Agency subjected Complainant to a discriminatory hostile
work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
discriminatory animus. For example, S2 explained that when she started with the Agency, she
performed an initial assessment of her staff to determine the current utilization of the staff
members. ROI, S2’s Aff., at 4. As part of this assessment, S2 learned that Complainant was
teleworking full-time as an accommodation, and she later inquired with RAC2 as to why
Complainant’s full-time telework reasonable accommodation request had not been completed.
ROI, S2’s Aff., at 3–4. With respect to her tasks, S2 confirmed that there were some duties
that Complainant may have had to perform only on-site such as user computer security
awareness and training and security awareness campaigns. Id. at 4. In addition, S2 had
wanted Complainant to organize and execute an awareness campaign to be launched in October
2010, in conjunction with a federal computer security campaign. Id.

Regarding the November 2010 off-site activity and S2’s “unwarranted and intimidating
phraseology” questioning Complainant’s work ethic, S2 asserted that she had wanted
Complainant to attend a meeting in Gaithersburg, but she did not know if Complainant’s
accommodation would allow her to attend in-person or via teleconference. ROI, S2’s Aff, at
4-5. Complainant initially said she would not attend. S2 did not understand why Complainant
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did not want to attend the training program as she assumed Complainant would want to attend
all learning and coordination opportunities relating to her job duties to lead, develop, and
implement the enterprise information security training and awareness program. Id. at 4, 6.
Complainant later informed S2 that she was participating through teleconference. Id. at 5. S2
later told Complainant that they needed to communicate better because she had attended the
meeting after Complainant told her she would not attend. Id.

Finally, as to Complainant’s claims of “unfounded accusations” about Complainant being
negligent in not submitting medical documentation, S2 stated that she was aware that no final
determination on Complainant’s reasonable accommodation request had been made because
Complainant had not submitted all of the requested documentation. ROI, S2’s Aff., at 6. Both
S2 and RAC2 communicated to Complainant that if she did not submit the requested
documentation in support of her full-time telework reasonable accommodation request, she
could revert back to her original telework agreement. Id.

Furthermore, to the extent that Complainant claims that the Agency denied her March 2010
reasonable accommodation to work from home full-time, the undisputed record evidence shows
that Complainant was allowed to telework full-time until she submitted a new accommodation
request and began working under the new accommodation in January 2011. Accordingly, the
Commission finds no basis to disturb the AJ's summary judgment decision finding that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 1, 2015
Date