Denese G.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120180234 (E.E.O.C. Apr. 16, 2019)

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

Denese G.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120180234

Agency No. HSUSCG255112016

DECISION

On October 24, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 28, 2017, final decision 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. 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 part-time GS-11
Paralegal Specialist in the Agency’s Court of Criminal Appeals in Washington, D.C. On March
11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her
and subjected her to a hostile work environment, on the bases of race (African-American),
disability (Bipolar Disorder), and in reprisal for prior protected EEO activity when: (l) on March
30, 2016, she was called “stupid” by her supervisor (S1); (2) on March 1, 2016, she was approved
for a reasonable accommodation that did not address her needs; (3) as of February 15, 2016, she
did not receive holiday pay; (4) on December 24, 2015, she was accused of “gaming the system”
when she tried to change her schedule; (5) in December 2015, she was denied compensatory time;
(6) in October 2015, she was instructed not to take sick leave for the rest of the year; (7) on or

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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about September 2016, she received a verbal reprimand; and (8) when her work duties were
reduced and delegated to another clerk.

After 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.
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.

FACTUAL BACKGROUND

Claim (1) - On March 30, 2016 Complainant Called Stupid

Complainant claimed that S1 used the word “stupid” while speaking to her about a document she
sent in “.pdf” form when it should have been in Word. Complainant believed that her co-worker
(CW1) (White/Hispanic, no disability), a part-time GS-11 Paralegal Specialist, made many
mistakes but was not criticized by S1. Complainant contended that S1 was harsh with her because
of her race and disability.

S1 affirmed that, in December 2015, Complainant sent out a draft document in .pdf format. She
stated that the office normally sends them out in Word, so that they can easily be edited or
critiqued. S1 explained that she emailed Complainant saying she should not have done that. S1
further stated that, at some point, she had a face-to-face conversation with Complainant about this
issue and learned that Complainant had done this intentionally, thinking it was a good idea. S1
denied that she called Complainant stupid but conceded she could have said it would be stupid to
put a draft in .pdf format.

Claim (2) – Reasonable Accommodation

Complainant stated that she has the condition of bipolar disorder that causes lack of concentration,
significant mood swings, paranoia, anxiety, fear, and hallucinations. Complainant originally
worked 13 hours a week, but now works nine hours per week. Complainant claimed that she
requested reasonable accommodation in February 2016. She was working three days a week, two
in the office and one telework day at home. She asked for an additional telework day because her
onerous commute worsened her condition. She also asked to be able to change her schedule to
include Monday when a federal holiday fell on a Monday. Complainant stated she believes that
the Office of Personnel Management (OPM) regulations allowed this. Complainant stated that S1
granted her request for an additional telework day but denied her request to change a workday to
a holiday when her workweek had a scheduled holiday in it. Complainant asserted that S1 instead
recommended that she telework alternate Mondays, which she found confusing, given her
condition. Complainant stated that during one week of the pay-period, Complainant teleworked
Monday and Tuesday and came to the office Thursday. She stated that the next week she
teleworked Tuesday and Wednesday and came to the office Thursday. Complainant affirmed it
became a burden to remember the schedule and so S1 told her to write it down.
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Complainant stated that S1 recommended alternate Mondays to address her concern about holiday
pay. She claimed that she did not get paid for the Memorial Day holiday because she did not work
on Monday (i.e., the day the holiday fell on).

Complainant asserted that S1’s action constituted disability discrimination, because she was
entitled to equal treatment with respect to holiday pay. Complainant stated that S1’s action was
racially discriminatory because S1 permitted CW1 to work a ten-hour tour on Mondays, the day
on which most federal holidays fall. Complainant believed that OPM regulations allowed only
eight hours of holiday pay. Complainant stated that S1 did not want CW1 and Complainant’s
schedules to overlap when they began employment in 2014, so CW1 formerly received all the
Monday holidays while Complainant received none.

S1 affirmed that she did not feel she had the power to allow Complainant to change her schedule
on a short-term basis to take advantage of every federal holiday that fell on a Monday. She stated
as an alternative accommodation, she told Complainant she could change her schedule to work
every Monday if she wanted. She also stated that she discussed Complainant’s request with Office
of Human Resources (OHR) who told her Complainant could change her schedule, but it had to
stay in place two or three months, that she could not change it ad hoc to take advantage of Monday
holidays. S1 confirmed that she hired CW1 shortly before Complainant and CW1 chose to work
Mondays. S1 further stated that she told Complainant that her schedule could overlap some but
not completely, as the office needed coverage throughout the week. S1 maintained that OHR told
her that ten-hour work days were allowed under compressed schedules. S1 explained that CW1
worked 15 hours per week (ten hours in the office on Mondays and teleworking the remaining five
hours).

Claim (3) – Holiday Pay February 15, 2016

Complainant affirmed that S1 delayed her reasonable accommodation request to adjust her work
schedule and did not submit it to the appropriate person in OHR on time. She stated she had to
remind S1 that she put in the reasonable accommodation request.

S1 confirmed that Complainant submitted her reasonable accommodation request on February 17,
2016. She added that Complainant started asking about holiday pay in December 2015 and told
S1 that she was changing her work schedule to include Monday, February 15, 2016 to get the
benefit of the Presidents' Day holiday. S1 stated that she approved the request but indicated that
Complainant’s schedule would be permanently changed to include Mondays. S1 further asserted
that Complainant did not work on February 15, 2016 and, so far as she knows, Complainant was
paid for that holiday.2

2 The record contains Complainant's time sheet for February 15, 2016, showing she was paid
holiday leave.
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Claim (4) - December 24, 2015 Accused of "Gaming the System"

Complainant stated that she emailed S1 on December 23, 2015, offering to work extra hours that
day and some hours on December 24, 2015, a half-day holiday, to make up for hours she lost the
prior week due to computer access problems. Complainant affirmed that S1 replied by email on
December 24, 2015, that she could not change her schedule in the middle of a pay-period to get
more holiday time, that she was “gaming the system" and it was “bogus.” Complainant asserted
that she was unaware of the Christmas Eve holiday, and she was just suggesting an arrangement
that benefited her and the office.

S1 confirmed that she said “gaming the system" in an email to Complainant. She stated that
Complainant said she was changing her schedule to take advantage of the Christmas holiday. S1
affirmed that she replied Complainant could not do that, that she was “gaming the system.”

Claim (5) - December 2015 Compensatory Time

Complainant stated that she worked two and a half hours over her scheduled time, which was
reflected on her task list for S1's approval. She asserted that she reminded S1 later, who told her
she had to forfeit the time because she could not carry over those hours from one pay period to
another. Complainant stated she told S1 that OPM stated that a supervisor can allow credit hours
to carry over, but no correction was made, retroactively.

S1 asserted that she was on leave much of December 2015, and Complainant answered to a Coast
Guard officer in her absence. S1 stated that, as best she can recall, at the end of a pay period
Complainant told her she worked extra hours. She affirmed that, had she been present in the office,
she and Complainant might have discussed the issue beforehand. S1 further stated that she told
Complainant she needed to tell management in advance of working the extra hours, however, and
denied the hours. S1 stated that Complainant indicated she understood and let the matter drop.

Claim (6) - October 2015 Sick Leave Instruction

Complainant claimed that in October 2015, S1 instructed her not to take sick leave through the rest
of the year. She stated that she had no accrued leave, but contended employees were entitled to
advanced sick leave. Complainant alleged that in 2014, CW1 and a GS-15 attorney (CW2) (White)
in 2015, both took maternity leave that may have involved either advanced sick leave and/or family
medical leave.

S1 affirmed that Complainant had no accrued sick leave at that point and owed advanced sick leave
that she would be carrying over into 2016. S1 also stated that she understood that an employee
should pay back advanced sick leave in the year it was advanced. She affirmed that she therefore
told Complainant she could not take additional advanced sick leave unless the Family Medical
Leave Act (FMLA) covered it. S1 noted that she had researched this issue and taken the same
position with CW2.
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S1 did not recall CW1 taking advanced sick leave because she had accumulated a lot of leave from
prior federal service. S1 added that CW1 and CW2 were entitled to FMLA for their maternity
leave.

Claim (7) – September 2016 Verbal Reprimand

Complainant affirmed that on September 1, 2016, S1 came into her office to discuss some tasks
she had given Complainant. Complainant stated that she told S1 that she needed to refer to the
clerk's manual because she had not done some tasks that CW1 normally did. Complainant claimed
that S1 angrily told her, “You just need to decide whether this job is working out for you.”
Complainant states she did not respond to this comment, which she understood to mean that S1
was suggesting that she should find another job.

Complainant claimed that on September 8, 2016, she met with S1 about concerns she had with
CW1 and about her job. She stated that she and CW1 had an email exchange in which Complainant
felt that CW1 was telling her what to do, although Complainant had been told that she could not
tell people what to do. She stated CW1 felt that she was scolding her or trying to shame her about
a work schedule. Complainant stated that S1 told her, "You need to be careful in accusing people
of things." Complainant affirmed that she felt S1 was referring to CW1 but also was referring to
her EEO complaint against S1. She also stated that when the EEO investigator called
Complainant's office phone initially and left a message, it was noted on a task list. Complainant
stated that she objected, and S1 said, "what did you think, that I was not going to know about the
EEO complaint?" Complainant claimed that on September 8, 2016, S1 said again to her, "You
need to decide whether this job is working out for you." Complainant alleged S1 later raised her
voice, balled her fists, and leaned over her desk, saying, "What are you going to do, quit?"
Complainant affirmed that she told S1 that she was not going to quit, but that S1 was creating a
hostile work environment. She further stated that she told S1 she would consider it a constructive
discharge if she were forced to quit.

S1 asserted that the meetings to which Complainant referred occurred on September 8 and 15,
2016. She acknowledges that she was aware Complainant filed an EEO complaint against her as
of September 2016, and that Complainant knew she knew because the EEO investigator called the
office. S1 further asserted that none of her actions after that date have been influenced by that
fact. S1 stated that she did not reprimand Complainant in September 2016. In addition, S1 asserted
that Complainant and she have behaved cordially towards each other since the EEO filing. S1 also
noted that she has attempted to give Complainant constructive criticism about her job performance,
which Complainant construed as retaliation.

S1 explained that the September 8, 2016, meeting was precipitated by an email Complainant sent
that day stating that she and CW1 did not communicate effectively because their schedules did not
overlap. S1 stated she felt she needed to talk to Complainant about this. S1 did not feel they were
talking about a big problem, but she did tell Complainant that if this was something that she felt
did not work, she just needed to resolve it. S1 further asserted she was not angry at all in this
meeting, but she does speak emphatically at times.
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Additionally, S1 affirmed that at the later meeting, Complainant came to her office wanting to talk
about something that happened 18 months before that involved CW2, who had accused
Complainant of stressing her out and thereby endangering the baby she was carrying at the time.
S1 stated that she told Complainant that she had taken steps to separate CW2 from the clerks. S1
further asserted that Complainant also wanted to discuss emails exchanges with CW1. S1 stated
that she told Complainant that CW1 felt Complainant was accusing her (CW1), and that
Complainant should be careful about what she says to people. S1 confirmed that she did ask
Complainant whether she was thinking of quitting because of this lack of communication and
overlap between the clerks. She stated Complainant said, “No,” and S1 stated that she replied,
“Good.” S1 maintained she was not angry but was leaning forward with her hands at the side of
her desk.

Claim (8) Reduction of Work Duties

Complainant affirmed that S1 tasked CW1 with the duty of redacting civil penalty cases, which,
CW2 had previously done. She stated that on October 17, 2016, she asked S1 by telephone why
she was not tasked to share in this duty. Complainant states S1 told her, “it is none of your
business. Complainant noted she and CW1 are both GS-11 's, and now CW1 is assigned GS-15
work. Complainant stated S1 has also reduced her duties in other ways, by giving the preparation
of orders and oral argument duties to CW1. Complainant added that S1 recently told her in her
office that she should be happy to have the opportunity to work the job. Complainant claimed that
S1 made it sound like, with all that is going on, including the filing of this EEO complaint, she
wished she had not hired her.

S1 averred that on October 17, 2016, Complainant was on telework and forwarded to her an email
exchange she had with CW1, complaining that CW1 was telling her what to do. S1 noted that
CW1 apologized to Complainant after she told CW1 about this. S1 also stated that Complainant
then complained that CW1 was redacting civil penalties cases, saying that she understood the two
of them were supposed to be sharing the same work. S1 affirmed that she told Complainant that
was not the case. S1 further stated that she does not recall telling Complainant that it was none of
her business but noted that she must have said something that Complainant found unresponsive.
S1 also explained that the main reason she assigned the redacting work to CW1 was that
Complainant and CW2 did not get along. As far as preparation of orders, S1 stated that CW1
arrived in the office early on Mondays, and then teleworked early on Wednesdays and Thursdays;
Complainant worked later. She stated that, because of their schedules, CW1 was more likely to
see the next orders that need to be prepared. As to the oral argument preparation, S1 stated the
office received approval on the Wednesday before Thanksgiving. S1 explained that CW1 arrived
for work the following Monday, so S1 gave her all the tasks to prepare for that. S1 further stated
they had to be done by someone in the office, and Complainant was only in the office on Thursday
but needed to attend a union meeting on that day. S1 also stated that she recently had a progress
review with Complainant and could not recall seriously telling Complainant that she should be
happy to have the job. She stated she could have said that jokingly, because there were few part-
time positions in the Coast Guard.
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S1 denied that she regrets hiring Complainant, but regrets that Complainant has that impression.
S1 noted, however, that she does have a problem with how Complainant communicates because
she often uses vague and imprecise terms, and S1 has asked her to pick her words more carefully.

Complainant filed the instant appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Denial of Reasonable Accommodation

The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29
C.F.R. § 1630. To establish that Complainant was denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an Agency is required
to make reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the Agency can show that accommodation would cause an undue
hardship. See 29 C.F.R. § 1630.2(o) and (p).

We assume for the purposes of this decision that Complainant established that she is an individual
with a disability, within the meaning of the Rehabilitation Act. The record shows that S1 approved
Complainant's reasonable accommodation request to work an additional telework day but denied
Complainant's request to change her schedule whenever a federal holiday fell on a Monday. The
record also establishes that S1 provided Complainant an alternative of working in the office on
Mondays.

We find that the record does not support a medical basis for the requested accommodation.
However, even assuming Complainant has shown a basis for the accommodation, the record shows
that the Agency provided Complainant the option of changing her work schedule so that she would
be entitled to paid holidays. Complainant is not entitled to the accommodation of her choice. See
e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 019315005 (1994) (stating complainants
are not necessarily entitled to the accommodation of their choice, but to a reasonable
accommodation).
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Here, Complainant has presented no evidence that the granted and alternative accommodations
were ineffective. We therefore find that the Agency satisfied its obligation to provide Complainant
with a reasonable accommodation as required by the Rehabilitation Act.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 her protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on her protected classes, management subjected her to a hostile
work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment. The Commission finds that Complainant has not shown
that he was subjected to conduct sufficiently severe or pervasive to create a hostile work
environment.

Moreover, 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 or retaliatory animus. The Commission notes that Title VII is not a civility code.
Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The record
reflects that the alleged incidents were more likely the result of routine supervision, personality
conflicts, and general workplace disputes and tribulations. More specifically, with respect to claim
(3), the documentary record establishes that Complainant received holiday pay for February 15,
2016. As to claim (5), S1 explained that pre-approval was not obtained and carrying over
compensatory time was not permitted.

Regarding claim (6), management explained that Complainant’s previously used advanced leave
needed to be paid back in the same year, which as of October 2015 was not possible. We find that
the record is devoid of evidence to suggest that Complainant was actually denied any leave.
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The undisputed record also establishes that Complainant had an opportunity to request FMLA
leave if necessary. With respect to claim (8), management explained that work duties were
rearranged due to differences in schedules and Complainant’s disagreement with CW2.

Assuming S1 made the various alleged negative comments alleged in claims (1), (4), and (7) (e.g.,
“stupid,” “you are gaming the system,” [y]ou just need to decide whether this job is working out
for you," “it’s none of your business) and raised her voice on occasion, S1 affirmed she has
attempted to give Complainant constructive criticism about her job performance, which
Complainant construes as retaliation. S1 confirmed that she told Complainant to be careful in
accusing people of things and that she was referring to CW1. In addition, S1 stated that she did
ask Complainant whether she was thinking of quitting because of communication issues she was
having with CW1. She added that Complainant said, “No,” and S1 states that she replied, “Good.”

Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment. Moreover, to the extent Complainant claims that she was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not proffered any
evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its
actions was pretext for discrimination or reprisal. Accordingly, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency decision finding
that Complainant failed to establish discrimination or retaliation, as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s
request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by
certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request
must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). 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 (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.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s 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

April 16, 2019
Date