Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

May 20, 2015

01-2013-2715-0500 (E.E.O.C. May. 20, 2015)

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

,
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120132715

Agency No. HHSFDACFSAN06812

DECISION
On July 17, 2013, Complainant filed an appeal from the Agency’s June 24, 2013 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 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 decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support
Assistant GS-0301-08, with the Food and Drug Administration, Center for Food Safety and
Applied Nutrition, Office of Food Defense, Communication and Emergency Response, which
is located in College Park, Maryland. On June 25, 2012, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of disability and in reprisal for
prior protected EEO activity when: (1) on May 7, 2012, Complainant's supervisor (S1) met
with her to discuss the Counseling Memorandum the Director (S2) had given Complainant on
May 4, 2012. S1 became forceful and agitated when Complainant refused to sign the
Counseling Memorandum; (2) on April 13, 2012, Complainant received an email from her
second-line supervisor (S2), regarding her request for advanced sick leave. Complainant was
denied sick leave and placed on Leave without Pay (LWOP); (3) on April 12, 2012,
Complainant received an email from S1 regarding Complainant's April 11, 2012 request for
advanced sick leave. Complainant's doctor indicated that she needed to stay home due to
stress. S1 stated that stress is not a serious illness and that the prescription did not include a
diagnosis; (4) on April 10, 2012, S1 sent an email to Complainant entitled “Travel,”
requesting that Complainant send her a daily status report of Complainant’s previous day's
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work, no later than 8:00 am the following day. S1 began requesting this information after
Complainant filed a grievance with the National Treasury Employees Union (NTEU) on
February 14, 2012, after S1 denied Complainants request for reasonable accommodation.1

At the conclusion of the investigation of the accepted claims, 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). In
accordance with Complainant’s request, 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. This appeal followed, but Complainant did
not submit a statement in support of it.

FACTUAL BACKGROUND
The record shows that on April 10, 2012, S1 emailed Complainant to ask her to assist another
employee with her travel arrangement because the new Program Support employees were not
set up to handle travel. Complainant replied to S1’s email that the Senior Policy Analyst
(SPA) was directing travel requests that came into her inbox to another employee.
Complainant further explained that SPA had redirected the incoming travel requests because
Complainant had been overwhelmed with a lot of Visa purchases for two groups in addition to
her own team.

S1 replied to Complainant the same day and informed her that SPA told her only a portion of
Complainant’s travel requests were being redirected. S1 also asked Complainant to continue to
handle the requests that were not being redirected. In addition, S1 directed Complainant to
provide S1 with a daily report, by email, of what Complainant had worked on and how much
time the respective task had taken. S1 asked Complainant to provide the report by 8:00 a.m.
the following morning. S1 told Complainant the daily reports would be helpful as management
considers assignments for the new Program Support employees.

On April 11, 2012, Complainant requested advanced sick leave for April 16, through April 20,
2012, and provided S1 a medical note. On April 12, 2012, S1 emailed Complainant to follow-
up on their discussion regarding Complainant’s request. S1 informed Complainant that the
watermark on the medical prescription note pad she provided said 'illegal' and did not include
a diagnosis. S1 noted that pursuant to the Collective Bargaining Agreement (CBA) she needed
to submit a written request with acceptable medical documentation. In addition, S1 informed
Complainant that the CBA noted an employee may request advanced sick leave if she had a
serious health condition, but the note Complainant provided indicated she needed to stay home
due to “stress.” S1 further stated that “stress” was not a serious health condition.

1 The Agency dismissed three additional claims. Complainant does not challenge the
dismissals on appeal, and we decline to review them further.
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On April 13, 2012, Complainant emailed the Integrated Time and Attendance System (ITAS)
Coordinator to inform her that her doctor requested she be off for a week due to stress and to
request leave pursuant to the Family Medical Leave Act (FMLA). S2 responded and told
Complainant to focus on her health and that she would make a determination regarding the
appropriate leave when Complainant returned to work. S2 also informed Complainant there
was insufficient time to process her request for advanced sick leave prior to her departure.
However, provisional FMLA leave would be noted in her time records. Later the same day,
S2 informed Complainant she had consulted with Labor and Employee Relations (LER)
regarding Complainant’s request for advanced sick leave. S2 notified Complainant that the
medical note she had provided required additional documentation to determine whether she had
a serious medical illness. S2 informed Complainant that she could use a combination of
accrued sick, annual leave and/or LWOP and that her leave would be adjusted if she was
ultimately approved for advanced sick leave. Complainant subsequently emailed S2 and
requested sick leave without pay until the matter was settled.

On May 7, 2012, S1 met with Complainant to discuss the Memorandum of Counseling and
Expectations (MCE) she had previously issued to Complainant. Complainant stated that S1
raised her voice, her eyes got bigger, and her body language appeared agitated when
Complainant told S1 that she would not sign the MCE. On May 10, 2012, the Federal
Occupational Health office determined that Complainant's condition was serious under the
FMLA and that the medical note she had provided to S1 was sufficient to support her absence
from work from April 16, through April 20, 2012. On June 4, 2012, S1 copied Complainant
on an email to her timekeeper requesting he change Complainant’s leave in ITAS for the week
of April 16-20, 2012, from 40 hours of FMLA/LWOP to 40 hours of advanced sick leave.

ANALYSIS AND FINDINGS
We assume for the purposes of this decision that Complainant is an individual with a disability,
within the meaning of the Rehabilitation Act. With respect to the daily status reports, we agree
with the Agency in concluding that Complainant failed to establish that S1’s legitimate non-
discriminatory reason for requesting the reports (i.e., that she wanted to get a better idea of
what Complainant was doing because she believed Complainant was struggling to complete her
work) was a pretext or otherwise motivated by unlawful animus. Even if, as Complainant
argues, S1 misunderstood her when she stated that she was overwhelmed with a lot of Visa
purchases, she failed to rebut S1’s legitimate articulated explanation, and the record does not
contain evidence of discriminatory or retaliatory animus.

With respect to the denied sick leave claim, we find insufficient evidence that either
responsible management official denied any leave to Complainant. Complainant was at all
times granted some sort of leave. Moreover, the record shows that management clearly
explained to Complainant that there was not enough time to make a determination with respect
to whether Complainant was entitled to advanced sick leave, but that such leave would be
revised later if it was determined that she was entitled to such leave. Accordingly, the actions
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taken by S1 and S2 were legitimate, and the record is devoid of evidence which establishes
discriminatory or retaliatory animus.

With respect to Complainant’s claims of harassment which pertain primarily to the remaining
claims (i.e., Claims 1 and 3) and assuming Complainant’s allegations to be true, we find the
record devoid of evidence indicating that the alleged conduct was motivated by Complainant’s
prior protected activity or disability. In addition we agree with the Agency and conclude that
Complainant failed to establish that the alleged conduct created an intimidating, hostile or
offensive work environment.

CONCLUSION
Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final
decision.

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 tends 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).
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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
May 20, 2015