Doria R.,1 Complainant,v.Maria Contreras-Sweet, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Jan 12, 2017

0120140136 (E.E.O.C. Jan. 12, 2017)

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

Doria R.,1
Complainant,

v.

Maria Contreras-Sweet,
Administrator,
Small Business Administration,
Agency.

Appeal No. 0120140136
Hearing No. 570-2010-00471X
Agency No. 0309023

DECISION

On October 2, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 30, 2013, 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. 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 Program Analyst
GS-12 in the Agency's Office of Government Contracting and Business Development (GCBD)
at the Agency headquarters in Washington, D.C. On June 20, 2009, Complainant filed an
EEO complaint alleging that the Agency discriminated against her and subjected her to a
hostile work environment on the bases of disability (anxiety, bilateral carpel tunnel syndrome,
neck sprain, shoulder sprain, cervical spine lumbar, dry eye syndrome) and in reprisal for
prior protected EEO activity when: (1) on May 7, 2009, management placed her on a 120-day
detail to the Historically Underutilized Business Zone Program Office (HUBZone) and required
her to produce two case assignments per day, thereby exceeding her doctor's recommendation
to “limit use of computer keyboards to no more than two hours per day;” (2) on April 3, 2009,
management failed to provide an adequate reasonable accommodation that would make it
possible for her to perform the essential functions of her job; (3) on March 9, 2009, her

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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supervisors unnecessarily scrutinized her request to take leave and asked her to provide her
home phone number prior to leaving the office for the day; (4) on March 4, 2009, she received
a letter of warning (LOW) for "show[ing] no respect for those in authority;" and (5) from
February 18-23, 2009, her supervisor failed to approve her leave request and yelled at her
when she inquired about the status of the pending request.

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, the AJ assigned to the case granted the Agency’s February 17, 2011, motion for a
decision without a hearing and issued a decision without a hearing on August 29, 2013. 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.

UNDISPUTED FACTS

The AJ noted the following undisputed facts in her decision. Complainant's day-to-day work
as a Program Analyst was sedentary in nature and primarily analytical. Complainant was
responsible for reviewing applications from Agency district offices and making
recommendations as to the validity of mentor-protégé agreements, bona fide offices, and
geographical boundaries. This work involved reviewing documentation, including lengthy
contracts, referring to regulatory guidelines, gathering information where necessary by
telephone and preparing memoranda recommending for or against approval of these
applications. Most of the verbiage in the memoranda came from pre-typed templates, but
Complainant and other Program Analysts in the office were responsible for inputting case-
specific information. The length of each case specific analysis was subject to the discretion of
the Program Analyst who prepared it.

Complainant's official immediate supervisor during the relevant time-period was the Assistant
Director of the Office of Management and Technical Assistance, Office of Business
Development (S1). S1 became Complainant's first-line supervisor on or about August 18,
2008, when Complainant returned to work following an extended absence. Complainant's
second-line supervisor was the Deputy Associate Administrator for Business Development
(S2). Complainant’s Team Leader (TL) was a Senior Analyst.

In or about 2002, Complainant was diagnosed with carpal tunnel syndrome. Complainant was
absent from work from approximately May 2007 to August 2008 as a result of surgery for this
condition. After Complainant returned to duty, her supervisors learned that because of her
carpal tunnel syndrome she could not type more than two hours per day.

Leave Requests

Because Complainant had at least one active approved workers' compensation claim after her
return to duty, her supervisors regularly conferred with personnel in the Office of Workers'
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Compensation Program (OWCP) to properly code Complainant's leave in her time and
attendance records. Supervisors also conferred with Complainant to ensure that her leave slips
included any necessary OWCP claim numbers.

On or about February 18, 2009, Complainant submitted to S1 a request for leave without pay
(LWOP) for February 24, 2009. S1 approved the leave request on February 23, 2009 (three
business days after it had been submitted). On or about March 9, 2009, Complainant
submitted a LWOP leave request to S1 for March 10, 2009 through March 23, 2009. TL
asked Complainant to provide her home number so that S1 could speak to her about the leave
request. Complainant refused to disclose her home telephone number and instead opted to
telephone S1 from home the next day. The two spoke on March 10, 2009, at which time S1
approved Complainant's leave request.

Detail

On May 7, 2009, Complainant’s third-line supervisor (S3) held a meeting with S1, S2, and
Complainant at which time he notified Complainant that she had been selected for a 120-day
detail to the Agency's HUBZone Office. At this time, the HUBZone Office was seeking
assistance from other Agency offices to process a backlog of 8(a) applications that had
accumulated. The work during the detail was primarily analytical in nature.

During the May 7, 2009 meeting, Complainant did not raise any concerns with her supervisors
that the work in the HUBZone detail would conflict with her medical restrictions.2
Complainant returned to her regular position in the Office of Management and Technical
Assistance less than two months after the detail had commenced.

Letter of Warning

On December 18, 2008, TL observed that Complainant's automatic out-of-office reply to email
messages referred recipients to TL using her middle/maiden name. On December 18, 2008,
TL sent Complainant an email, with a copy to S1 stating: “I would prefer it if you would not
disclose my middle name.” On January 5, 2009, Complainant responded to TL’s email as
follows: “Let's be adults about this matter and cease with the emails. It doesn't matter to me
what you want to be called or whether you want to use your current married name or not.
Further emails are quite petty and childish so please enough.” On March 4, 2009, S1 issued
Complainant a LOW which characterized her communication to her Team Leader as
“insubordinate” and “unacceptable.”

2 The record is devoid of evidence showing that Complainant’s detail required her to work
outside of her medical restrictions.
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Complainant's Prior EEO Activity

On March 11, 2005 (several years before the above events), Complainant had filed an EEO
complaint. The Agency officials in Complainant's line of supervision during the 2008-2009
timeframe were not involved in the 2005 EEO complaint or otherwise aware of it at the time of
the above events. Complainant asserts that the following EEO activities motivated her current
line of supervisors to retaliate: (a) Complainant's filing and prosecution of the 2005 EEO
complaint; (b) Complainant’s requests in the 2008-2009 timeframe that the Agency
accommodate her medical limitations; and (c) Complainant's March/April 2009 participation in
the EEO counseling process for this complaint.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating
that a “decision on an appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue a decision without a hearing, and the decision itself, will both be
reviewed de novo). 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.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. We agree with the AJ in concluding that Complainant failed to
present evidence that the numerous accommodations the Agency provided her after she returned
to work following her carpel tunnel surgery were not sufficient. The evidence indicates that the
work space the Agency selected for Complainant, in conjunction with the assistive technology it
provided, amounted to an effective accommodation. Similarly, we agree with the AJ that the
record is devoid of evidence to support Complainant’s assertion that her temporary detail to the
HUBZone Office violated her medical restrictions or that the Agency failed in its obligation to
accommodate Complainant’s disability. The record shows that the detail was similar to
Complainant’s normal job duties and she did not alert management to her belief that such detail
violated her medical restrictions. Accordingly, the decision to grant summary judgment with
respect to disability accommodations was appropriate.

We also agree with the AJ’s finding that the Agency satisfied its burden of articulating non-
discriminatory reasons for its employment actions. Specifically, the AJ found that the Agency
proffered legitimate, non-discriminatory explanations for: (1) taking up to three business days
to approve Complainant’s leave request (i.e., that she needed to consult with other officials
before approving Complainant's leave requests to avoid interfering with Complainant’s receipt
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of the proper benefits for her active OWCP claims); (2) raising her voice when Complainant
inquired about her leave request (i.e., that she was attempting to be heard over Complainant's
voice to notify her that she would approve the leave request); (3) issuing a LOW (i.e., that
Complainant had sent inappropriate and disrespectful e-mail messages to her team leader and
supervisor); (4) waiting until she spoke with Complainant the following business day to
approve a request (for two weeks of continuous sick leave) which Complainant submitted on
March 9, 2009 (i.e.. that she needed an opportunity to consider the justification for the request
and to consult with OWCP personnel to avoid interfering with Complainant's OWCP benefits);
and (5) detailing Complainant to the HUBZone Office (i.e., that the HUBZone was in need of
employees to help reduce its backlog of case actions and Complainant's strong analytical
abilities suggested that she would be well qualified for the position's duties). We agree with
the AJ in concluding that Complainant failed to present evidence of pretext or that management
was motivated by discriminatory or retaliatory motives.

Finally, to the extent that Complainant contends that she was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore,
the Commission finds that Complainant has not established that she was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s decision which
adopts the AJ’s conclusion that Complainant failed to establish discrimination or retaliation, as
alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 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. The requests 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 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. Such requests do not alter the
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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

January 12, 2017
Date