Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jul 17, 2015

01-2012-3052-0500 (E.E.O.C. Jul. 17, 2015)

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

,
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120123052

Hearing No. 570-2010-00539X

Agency No. FBI200900186X

DECISION
On July 26, 2012, Complainant filed an appeal from the Agency’s final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.
§ 2000e et seq. and 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
Complainant worked as an Intelligence Analyst (IA) in the Cyberintelligence Unit located
within the Agency’s headquarters in Washington, DC. She filed an EEO complaint in which
she alleged that the Supervisory Intelligence Analyst who served as her immediate supervisor
(S1) and the Chief of the Cyberintelligence Unit for Europe, Eurasia and the Americas who
served as her second-line supervisor (S2) harassed her and denied her requests for
accommodation of her disabilities and religious practices, and in so doing, discriminated
against her on the bases of race (Caucasian), religion (Jehovah's Witness), disability and in
reprisal for prior protected EEO activity. Her claim encompassed the following incidents:

1. Since October 1, 2008, S1 and S2 had denied Complainant’s request for reasonable
accommodation of her disabilities by changing her alternative work schedule, denying
her request for advanced sick leave, and denying Complainant’s request to have a door
mounted on her cubicle.
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2. Since December 4, 2008, S1 and S2 denied her request for accommodation of her
religious practice by forcing her to be subjected to loud social gatherings that took place
in a common area near her workstation.

3. Since October 1, 2008, S1, S2, and other officials subjected Complainant to a hostile
work environment by:

a. Interrupting her work-related telephone calls and ordering her to hang up the
phone;

b. Accusing her of a security violation;

c. Accusing her of being the cause of low morale in the Cyberintelligence Unit;

d. Giving her a performance appraisal rating (PAR) of minimally successful for the
year in October 2008;

e. Giving her an interim PAR of minimally successful in the presence of the
Acting Assistant Section Chief in April 2009; and

f. Refusing to accept her medical documentation.

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 timely requested a hearing.
Over Complainant's objections, however, the AJ assigned to the case granted the Agency’s
February 7, 2011 motion for summary judgment and issued a decision on May 10, 2012. The
AJ found that Complainant is a qualified individual with disabilities and that the Agency did
provide Complainant with reasonable accommodations for her disabilities. AJ Decision, pp. 7-
12. She also found that the Agency provided Complainant with an accommodation for her
religious practice. Finally, the AJ found that the various actions taken by S1 and S2 vis-a-vis
Complainant did not constitute unlawful harassment. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.

ANALYSIS AND FINDINGS
We deal first with Complainant’s failure-to-accommodate claims. The Rehabilitation Act
requires that the Agency reasonably accommodate the known physical or mental limitations of
a qualified individual with a disability unless it can show that doing so would cause an undue
hardship. 29 C.F.R. § 1630.9. Similarly, Title VII requires the Agency to accommodate the
religious practices of their employees unless doing so would impose an undue hardship upon its
operations. 42 U.S.C. § 2000e(j). Consequently, in order to warrant a hearing on her
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disability or religious accommodation claims, Complainant would have to raise a genuine issue
of material fact as to whether the Agency had fulfilled its responsibility in providing her with
the requested accommodations. See

29 C.F.R. § 1614.109(g).
As accommodations, Complainant requested that her work station be moved and that she be
given flextime and the ability to telecommute so that she could keep her doctors’ appointments.
She premised her request upon the fact that there was too much noise coming from the
common area near her cubicle. The common area was a congregating place where the IAs
could meet, have lunch, celebrate birthdays and other occasions, and collaborate in work-
related matters. One of Complainant’s doctors noted that excessive noise could cause flare-ups
in her migraines, fibromyalgia, and panic attacks. Exhibit (Ex.) 36, p. 4. And, in an email to
her colleagues and supervisors dated June 5, 2008, Complainant informed them that her
religious beliefs precluded her from joining in birthday and holiday celebrations.

In order to accommodate Complainant’s religious practice, S1 had offered her a cubicle in
another location away from the common area, but she refused the offer. Ex. 10, pp. 2-3; Ex.
11, pp. 6-7. The Acting Section Chief and three of Complainant’s fellow IAs testified that the
use of the common area discontinued after Complainant complained about the noise, and that
they held their gatherings in a conference room on the other side of the office. Ex. 13, p. 5;
Ex. 14, p. 4; Ex. 15, p. 4; Ex. 16, p. 3. Complainant did not present any sworn statements
from witnesses other than herself or documents tending to show that she had been forced to
participate in or endure any of the celebrations or gatherings against the tenants of her faith.
We therefore agree with the AJ that Complainant failed to raise a genuine issue of material fact
with respect to her religious accommodation claim.

We likewise find that the AJ correctly determined that Complainant failed to raise a genuine
issue of material fact with respect to her claim that the Agency failed to accommodate her
disabilities. The Agency fulfilled its obligation to reasonably accommodate Complainant’s
disability when it accommodated her religious practice as set forth above. As to the change in
her alternative work schedule, Complainant was on such a schedule when she began her tenure
with the Cyberintelligence Unit. She worked from 6:00 AM to 3:30 PM with the second
Monday in the pay period off. Ex. 22, p. 3. S1 and S2 averred that after finding that
Complainant had been consistently arriving late, they changed her start time to 6:30 AM, and
that Complainant agreed to the change. Ex. 10, p. 6; Ex. 11, p. 10. They also averred that
they denied Complainant’s request for advanced sick leave because she had a sizeable annual
leave balance, and that the Agency had a policy prohibiting the authorization of advanced sick
leave when regular sick leave or annual leave was available. Ex. 10, p. 3; Ex. 11, p. 8; Ex.
13, pp. 2-3. Finally, they testified that they denied her request for a cubicle door because only
supervisors were allowed to have such doors, citing the need for privacy in order to discuss
confidential matters with employees or to review classified material. Ex. 10, pp. 6-7; Ex. 11,
pp. 10-11.

We now turn to the issue of harassment. In order to warrant a hearing on a hostile
environment claim that includes discrete acts, she must raise a genuine issue of material fact as
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to whether S1 and/or S2 was motivated by unlawful considerations of her race, religion,
disabilities, or previous EEO activity in connection with the discrete and non-discrete incidents
comprising her claim. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); Wibstad v. U.S. Postal Service

, EEOC Appeal No.
01972699 (Aug. 14, 1998). If Complainant does not establish the existence of discriminatory
intent on the part of S1 and/or S2, there would be no need to for the Commission to determine
whether any of those incidents are severe or pervasive enough to rise to the level of harassment
or whether they constitute separate acts of discrimination under disparate treatment theory.
Telephone Call Interruption

: On March 31, 2009, S2 had received word that the
Cyberintelligence Unit’s Management and Program Analyst was experiencing a serious
medical emergency. She instructed S1 to gather the staff for an impromptu meeting in order
that she could tell everyone at the same time. When S1 approached Complainant, she was
engaged in a telephone conversation. He informed Complainant that S2 was calling a meeting
and that she should end the call, but Complainant refused to do so in a manner and with a tone
that S1 found disrespectful. S2 later counseled Complainant for insubordination. Ex. 10, pp.
3-4; Ex. 11, pp. 8-9.
Security Violation Accusation

: Complainant had attended a classified counterterrorism class.
She had taken notes during the class and had taken those notes home, in violation of the
Agency’s standard security protocols. The matter was referred to the Agency’s Security
Officer and a report of the incident was prepared. Ex. 10, p. 4; Ex. 11, p. 11; Ex. 39. There
are no indications that Complainant was disciplined as a result of the incident.
“Low Morale” Comment

: Complainant averred that she was accused by S1 and S2 of being
the cause of low morale in the Cyberintelligence Unit. Ex. 9, pp. 2, 7. Neither S1 nor S2
could recall making such a comment to Complainant. S1 averred that other FBI staff wanted
to transfer into the Cyberintelligence Unit, and S2 testified that the staff morale in that unit was
high. Ex. 10, p. 4; Ex. 11, p. 9. Three other IAs confirmed the assessments of S1 and S2.
Ex. 14; Ex. 15; Ex. 16.
Annual PAR for FY 2008

: In October 2008, S1 had given Complainant an overall PAR of
minimally successful for Fiscal Year 2008. Ex. 9, pp. 2-3, 12; Ex. 18, p. 1. S2 had given
her a rating of minimally successful on two of the seven critical performance elements: (1)
organizing, planning and coordinating; and (7) achieving results. Ex. 18, p. 2. In the
narrative, S2 noted that Complainant would need to start initiating projects and completing
abstracts to present her project ideas. Ex. 18, p. 3. Both she and S1 noted that Complainant
had not been submitting her work products on time and that she was not producing the quality
and quantity of work that her job required. Ex. 10, p. 4; Ex. 11, p. 3. Complainant grieved
the PAR, and the grievance resulted in the rating on element (1) being changed to successful.
The overall rating, however, remained at minimally successful. Ex. 10, p. 4; Ex. 11, p. 4;
Ex. 19; Ex. 20.
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Mid-Year PAR, April 2009: On April 9, 2009, S1 presented Complainant with her mid-year
PAR for FY 2009 in the office of the Acting Assistant Section Chief (AASC). Complainant
had again been given an overall performance rating of minimally successful, with the same two
elements, element (1) and element (7) being marked minimally successful. Ex. 9, pp. 2, 13-
14; Ex. 21, p. 2. In the narrative portion of the PAR, S1 noted that Complainant missed
established deadlines by three weeks and had failed to comply with her supervisors’ directives
to make changes. Ex. 21, p. 3. S1 averred that he believed it would be beneficial to have
another management official present when he presented Complainant with her PAR, noting
Complainant’s continued lack of productivity even after he had given her extensive one-on-one
guidance. Ex. 10, p. 5; Ex. 42. S1, S2, and the AASC all averred that after Complainant had
received her mid-year review, she broke down, left the office, and did not return to work. Ex.
10, p. 5; Ex 11, p. 4; Ex. 12, pp. 2-3.1

Medical Documentation

: Following her departure from the office in April 2009, Complainant
was asked to provide medical documentation for her continued absence. Ex. 9, pp. 4-5, 15-16.
Rather than send the requested documentation to S1, however, Complainant sent it to the
Health Services Unit and the Agency’s Office of Equal Employment Opportunity. The EEO
Office determined that the information was insufficient, and S1 and S2 relied on the EEO
Office’s assessment. Ex. 10, pp. 5-6; Ex. 11, pp. 5-6; Ex. 36; Ex. 37; Agency’s Motion for
Summary Judgment, Exhibit I.
S1 and S2 have articulated legitimate reasons for all of the incidents described above. A
serious medical emergency to a fellow staff member necessitated S2’s decision to call an all-
hands meeting, and Complainant’s refusal to follow S1’s order to put down the phone was
clearly an act of insubordination. As to the removal of classified material from the facility, the
memorandum of the incident corroborated S1’s and S2’s affidavit testimony on the matter.
Regarding the alleged comments made by S1 and S2 that Complainant was the cause of low
morale in the Cyberintelligence Unit, the affidavit testimony of three of Complainant’s fellow
IAs casts considerable doubt as to whether the incident actually occurred as Complainant
described it. With respect to Complainant’s two PARs, S1’s and S2’s assessment of
Complainant’s performance during FY 2008 and the first half of FY 2009 had been
corroborated by contemporaneously prepared emails from S1 and by the affidavit testimony of
the AASC. As to S1’s and S2’s requests for documentation for Complainant’s absences from
work beginning in April 2009, those requests were well within their managerial prerogatives.

The affidavit testimony of S1 and S2 has been corroborated by various emails and
contemporaneously prepared memoranda documenting the occurrences. While Complainant

1Complainant was subsequently placed in Absence Without Official Leave (AWOL) status after
her annual leave had been exhausted. At some point, Complainant sought to add a reprisal
claim involving the AWOL charge. In a footnote, the AJ denied Complainant’s motion for
reconsideration of like-or-related issues that included the AWOL claim, but did direct the
Agency to accept and process that claim separately. AJ Decision at n. 1. The AWOL claim is
not before us now.
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asserts that the actions taken by S1 and S2 were motivated by unlawful considerations of her
disabilities, religion, race and previous EEO activity, she has not presented any sworn
statements from other witnesses or documents that contradict the explanations provided S1 and
S2.

It is Complainant’s burden to raise a genuine issue of material fact as to the existence of an
unlawful motivation on the part of the responding management officials by a preponderance of
the evidence, and more is required to meet that burden than merely expressing one’s belief.
We therefore agree with the AJ that Complainant failed to raise a genuine issue of material fact
as to whether the Agency failed to accommodate her disabilities and religious practices. We
also agree with the AJ, that Complainant failed to raise a genuine issue of material fact as to
the existence of a discriminatory or retaliatory motive on the part of S1or S2 with respect to
any of the incidents at issue in her harassment claim.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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
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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
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 17, 2015