Complainant,v.Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120111480 (E.E.O.C. Feb. 7, 2013)

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

,
Complainant,

v.

Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120111480

Hearing No. 532·2009·00119X

Agency No. DLAC090936

DECISION

On January 19, 2011, Complainant filed an appeal from the Agency’s January 12, 2011, 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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract
Specialist GS-1102-07 at the Agency’s Defense Logistics Agency Training Center (DTC) in
Columbus, Ohio. On November 20, 2008, Complainant filed an EEO complaint alleging that
the Agency subjected her to harassment and discriminated against her, on the bases of
disability when on October 15, 2008, she received a poor Quarterly Progress Report (QPR)
(Claim 1). On February 17, 2009, Complainant added a claim of harassment and
discrimination on the bases of disability and reprisal for prior protected EEO activity when on
February 13, 2009, she was terminated (Claim 2).

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). Complainant timely requested a hearing. Over Complainant's
objections, on September 8, 2010, the AJ assigned to the case granted the Agency’s October 9,
2009, motion for summary judgment. The Agency subsequently issued a final order adopting
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the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

UNDISPUTED FACTS

On July 21, 2008, Complainant was appointed into the Agency’s Corporate Intern Program as
a GS-1102-7 Contract Specialist. Complainant's appointment was subject to a two-year trial
period. Complainant's first-line supervisor of record was the Career Program Administrator
(S1). Complainant's second-line supervisor of record was the Chief, Career Programs Branch
(S2). S2 was the deciding official in Complainant’s removal. The Career Program Specialist
(TL) was Complainant's team lead, functional supervisor, and trainer. The Intern Center
Branch Chief (BC) was the head of the Intern Center, but was not Complainant's supervisor.

Complainant received her first Quarterly Progress Report (QPR) on October 15, 2008. In the
QPR, Complainant was evaluated in fourteen categories. She could be evaluated as
"satisfactory," "needs improvement," or "unsatisfactory." Of the fourteen categories,
Complainant received a "satisfactory" in ten categories and a "needs improvement" in four
categories. The categories she received a "needs improvement" in were: "2. Participates in
team projects and contributions are beneficial to the team or mission;" "11. Demonstrates
adaptability and flexibility;" "13. Analyzes problems and risks and makes appropriate
decisions;" and "14. Exhibits initiative to gain greater knowledge." The purpose of the QPR is
to monitor and track an intern's performance and progression. The first couple of QPRs are
used primarily as a feedback tool to the interns, so they know what areas they need to focus on
and/or improve. These reports are not forwarded to the floor supervisors. In addition, BC
told Complainant that receiving a "needs improvement" only matters when it occurs in
consecutive QPRs. However, she reassured Complainant that her October 15, 2008 QPR was
only her first QPR and would not hurt her promotion potential. BC also reassured
Complainant that it is not unusual for new interns to receive a "needs improvement" on their
first QPR because he/she is learning the job.

Complainant alleges that other interns did not receive a "needs improvement" in their QPRs,
but she does not offer any evidence to support this assertion. TL issued QPRs to only three
interns (Complainant, C1 and C2). C1 received a "needs improvement" in item l3, "Analyzes
problems and risks and makes appropriate decisions." C2 did not receive any "needs
improvement.” C2 had been performing the same or similar duties for about eight months at
the time of the QPR at issue.

Despite TL’s suggestion, Complainant refused to work with the two interns in her group.
Complainant tried to communicate with her team lead and trainer through e-mail only. Her
team lead had told her that it was difficult to answer questions through e-mail.

Complainant alleges a disability pertaining to bladder spasms. Complainant did not tell her
supervisors that she had bladder spasms. Complainant believes that management knew of her
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medical condition and/or disability because of an e-mail she sent to BC on August 21, 2008,
stating:

Good morning [BC], It is 8:30 and I have been at my desk since 8:00. I need to
use the restroom and prepare myself to arrive at the mandatory meeting prior to
9:00. I need to leave early because if any unforeseen circumstances occur I will
still be able to prepare myself and arrive at the mandatory meeting on time."

Complainant also believes her supervisors knew of her medical condition through rumors.
Finally, Complainant believes that management knew of her medical condition from gossip
since C1 worked in the same building as Complainant prior to entering the Agency’s Corporate
Intern Program and therefore she would have known about Complainant's medical condition
and would have gossiped about it to the DTC management. However, she offers no proof that
DTC management knew of rumors about her medical condition.

The only medical documentation provided by Complainant throughout her employment and the
entire EEO process is a doctor’s note dated November 11, 2008, which she gave to the EEO
counselor. The note stated, "This pt. has bladder spasm." Complainant admits she did not
provide this document until she filed her EEO complaint in November 2008. There is no
additional medical documentation stating the side effects, prognosis, limitations, course of
treatment, etc. Complainant never disclosed she had a disability when she applied for her
position. In addition, prior to the meeting in which S2 issued Complainant the removal letter
on February 13, 2009, S1 and S2 did not know that Complainant had a medical condition.

Complainant alleges that she was discriminated against because of her medical condition by
"[TL] who signed [her] Quarterly and [S2] who signed the termination letter… and all workers
who harassed [her] on a daily basis and who were allowed to continuously harass [her]."
Complainant alleges she was harassed because of her bladder spasms. Complainant admits that
the deciding official, S2, did not harass her.

Complainant never told her supervisors she believed that she was being discriminated against
or harassed because of her medical condition in connection with her QPR. She only told the
EEO officials. To support Complainant's allegation that she told management she felt she was
being harassed, she offered a September 4, 2008, e-mail where she told TL that she was aware
that individuals were uncomfortable when in proximity to Complainant and people were
constantly coughing, clearing their throats, or doing other things to get her attention. She went
on to state in the e-mail that the way people try to get her attention takes her attention away
from her work and decreases her concentration. Complainant asserts that her co-workers did
not want to have to smell her and they exhibited "extreme coughing, grunting and all day loud
coughing, loud prolonged clearing throat noises, loud grunts to [her] attention all throughout
the work day, every day."

Due to complaints concerning Complainant exhibiting disruptive behavior, statements were
received on or about December 8, 2008, from ten co-workers. None of the statements
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corroborate Complainant's allegations of harassment. However, every single statement
reiterated Complainant's disruptive behavior. Among the disruptive behaviors exhibited by
Complainant as recounted in the witness statements were: humming, singing, staring,
mimicking, and making confrontational or inappropriate comments when someone coughed or
cleared his or her throat. In addition, eight of the ten witnesses stated that Complainant's
behavior caused a distraction, made them uneasy or nervous, and/or they requested to not
work with Complainant anymore. When the EEO counselor investigated the co-workers
specifically named in Complainant's original EEO complaint, none of them knew she had a
medical issue.

On December 16, 2008, Complainant audibly made a prayer to destroy the interns in her CON
100 class. The statement was similar to "Lord, please destroy them all." On December 17,
2008, S1 and BC held a meeting with Complainant to discuss her misconduct of disrupting the
workplace the prior day. In response to whether she made the statement "Lord destroy
her/him all," Complainant responded she did because people were coughing and clearing their
throats. During this meeting Complainant was informed that her conduct was unacceptable.
She was also instructed that any other disruptive behavior to include mimicking or mumbling
was unacceptable and it must stop. Complainant admits to being told she was required to stop
this behavior. On December 18, 2008, S1 followed up with Complainant to inform her that
her misconduct must be corrected in the workplace. Between January 27, 2009, and January
29, 2009, Complainant made the following statement to her co-worker, C3: “That's one, you
have three more for the week, so enjoy!" Complainant admitted to making a similar comment.
For the remainder of the class, if someone coughed, Complainant made motions as if to blow
on the coughing co-worker.

Complainant was removed from Federal service during the first year of her trial period on
February 13, 2009, for disruptive behavior. Complainant believes she was treated differently
than others because her coworkers were allowed to cough and clear their throats and the
Agency did not discipline them. The only evidence Complainant offers to establish her
medical condition was a factor in management's decision to terminate her is her belief that the
interns and co-workers on the floor had an ulterior motive to get rid of her because they did
not want to smell her. However, Complainant offers no proof other than coughing and
clearing of throats to support her allegations. Prior to the meeting to issue Complainant the
removal letter on February 13, 2009, S2, the deciding official, did not know that Complainant
raised allegations of harassment. In addition, S2 did not have any knowledge of Complainant's
prior EEO activity. S1 did not find any evidence of Complainant being harassed.

AJ’S DECISION

With respect to both Claim 1 and the harassment claim in general, the AJ concludes, in part,
that the record is devoid of evidence to establish that anyone knew of Complainant’s medical
condition. Moreover, the AJ concluded that Complainant failed to present evidence that the
articulated legitimate, non-discriminatory reason behind the issuance of Complainant’s QPR
(i.e., that Complainant’s performance needed improvement) and the reason behind the
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coughing episodes of her co-workers (i.e., that the co-workers were suffering with head colds)
were a pretext for discriminatory animus.

With respect to Claim 2, the AJ concludes, in part, that Complainant failed to present
sufficient evidence that the responsible management official (S2) was aware of Complainant’s
medical condition or EEO activity at the time the termination decision was made. However,
even assuming that S2 was aware of Complainant’s medical condition and EEO activity prior
to the decision to terminate Complainant was made, the AJ concludes that Complainant did not
refute the Agency's legitimate, non discriminatory reason for terminating her during her trial
period after being counseled about her disruptive behavior prior to her removal.

ANALYSIS AND FINDINGS

The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). 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.

We assume for the purposes of this decision that Complainant is an individual with a disability
within the meaning of the Rehabilitation Act. However, we agree with the AJ in concluding
that Complainant failed to raise a genuine issue of material fact with respect to the two claims
alleged. Specifically, we find the record devoid of evidence that the alleged harassment (i.e.,
coughing and clearing throats) was related to Complainant’s medical condition. With respect
to Claim 1, the record is devoid of evidence establishing that the responsible management
official was aware of Complainant’s medical disability at the time of the QPR. With respect to
Claim 2, we find the record devoid of evidence that the decision to terminate her was
motivated by her medical condition or her EEO activity.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal1

,
including those not specifically addressed herein, we AFFIRM the Agency’s decision.

1 Complainant raises numerous arguments on appeal, but they do not address the merits of the
alleged claims.
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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.

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
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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

February 7, 2013
Date