0120112386
07-30-2012
Fern M. Barham, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Fern M. Barham,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120112386
Agency No. IRS-10-0496-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the February 10, 2011 final Agency decision (FAD) 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist in the Agency's EEO & Diversity Field Services at the Detroit Post of Duty in Detroit, Michigan. Complainant has medical conditions which adversely affect her breathing. Complainant alleges that perfume worn by two co-workers aggravated her breathing difficulties. On or around November 15, 2009, Complainant informed her supervisor (S1) that she was experiencing breathing difficulties because of her co-workers' perfume. S1 asked if Complainant if she had medical documentation relating to her condition and, if so, to submit a request for reasonable accommodation. On November 24, 2009, Complainant faxed him a copy of a November 15, 2009 note from her doctor. On December 2, 2009, Complainant submitted a request for reasonable accommodation to be relocated to a well-ventilated area which was forwarded to the Agency's Reasonable Accommodation Coordinator (RAC).
S1 offered to move Complainant to a vacant office down the street while her request was being processed. Complainant declined the offer and requested reassignment to a different location. Additionally, the Agency offered to provide Complainant a desk fan, permission to prop open the office door immediately behind her desk to improve air circulation, or to convert an existing conference room into a private office. Complainant rejected these offers as unsuitable. Several other alternative accommodations were explored, but all were rejected by Complainant. On April 30, 2010, Complainant was moved to a new cubicle in an open area to maximize airflow and ventilation. The cubicle was retrofitted to meet space standards for work station size and cabinets. Complainant believed that management ignored her request to be moved and unreasonably delayed acting on her reasonable accommodation request.
On July 1, 2010 (and amended on August 11, 2010), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability when:
1. Management unnecessarily delayed the processing of her reasonable accommodation request;
Further, Complainant alleged that the Agency subjected her to a hostile work environment on the bases of disability and in reprisal for prior protected EEO activity when:
2. From August 2008 to April 2010, her co-workers wore perfume in the work area she shared with them which was poorly ventilated;
3. On or around March 23, 2009, management sent her a directive about timely completion of a travel voucher when she was making funeral arrangements for a family member;
4. On April 8 and 9, 2009, she was forced to attend a facilitation meeting with her colleagues eight days after a family funeral;
5. On May 28, 2009, she received an unwarranted performance rating;
6. On or around February 22, 2010, Complainant received an unwarranted counseling memorandum;
7. Since April 2010, Complainant's co-workers continually failed to advise her of mail delivered to her former work area; and,
8. From June 30, 2010 to July 21, 2010, management sent her a number of directives regarding travel voucher substantiation.1
The Agency dismissed claims (3), (5), and (6) for untimely EEO counselor contact, but noted that they would be included as background evidence for Complainant's hostile work environment claim. At the conclusion of the investigation of the accepted claims, Complainant was provided with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b) on February 10, 2011.
In the FAD, the Agency determined that Complainant failed to establish that she was subjected to a hostile work environment. Specifically, the Agency determined that the alleged incidents were not sufficiently severe or pervasive to rise to the level of a hostile work environment. Further, Complainant had not shown that the Agency's actions were based on her protected classes. Specifically, Complainant's co-workers denied that they wore perfume. Co-worker 1 (CW1) stated that she does not wear perfume daily and was out of the office for a ten month period during 2009-2010 when she was undergoing chemotherapy. During her treatment she had negative reactions to fragrances. CW1 noted that on one occasion, Complainant sprayed air freshener in the office causing CW1 to gag uncontrollably. The second co-worker (CW2) affirmed that she did not use perfume on a daily basis during the period August 2008 through April 2010 since she is a cancer survivor who experiences migraine headaches from chemical sprays. Further, she stated that Complainant sprayed some type of chemical spray in the shared office space which made her ill forcing her to leave the office area.
As to the facilitation meeting, S1 stated that all leave requests made by Complainant pertaining to a family funeral were approved as requested. The facilitation session was an attempt to resolve workplace conflict and communication problems between Complainant and her co-workers. Management arranged for the services of a facilitator, and the time of the facilitation meeting was scheduled in advance. Complainant had reported back to the office and was in duty status. As a result, management decided to continue with the facilitation session to alleviate the communication problems between Complainant and her co-workers. Regarding not being alerted about her mail, Complainant's co-workers stated that mail is delivered to the Mailroom on the 23rd floor and employees are responsible for picking up their own mail.
In regard to her travel vouchers, S1 attempted to reconcile a travel voucher Complainant submitted with unscheduled travel changes made after he approved the voucher which resulted in changes in the dollar amount of the original authorization. The receipts provided by Complainant were confusing as she was unable to provide a clear receipt. After Complainant told S1 that SATO2 could not provide her with a new receipt, S1 contacted SATO directly to check for a billing error or to verify the figures Complainant supplied. Eventually an error was identified on the receipt SATO issued to Complainant. Complainant then resubmitted her voucher with the correct receipts, and S1 approved the voucher. As a result, the Agency determined that Complainant had not been subjected to a hostile work environment as alleged.
Next, the Agency found that Complainant had not been denied reasonable accommodation. Initially, the Agency noted that Complainant was relocated to a cubicle in an open area maximizing ventilation and airflow on April 30, 2010, which she found acceptable. Complainant asserts, however, that the period from when she submitted her request for accommodation on December 2, 2009, until she was located in her new cubicle on April 30, 2010, constituted an unreasonable delay based on retaliatory animus. The Agency determined that it had made numerous attempts to accommodate Complainant after her request. On January 28, 2010, Complainant was offered the use of a personal desk fan and granted permission to prop open the office door. Complainant initially accepted the offer, but later rejected it on February 12, 2010.
On February 21, 2010, the Agency requested a medical analysis from the Federal Occupational Health Service (FOHS). On March 8, 2010, the FOHS physician suggested that Complainant be provided a private office. In early-March 2010, Complainant was offered the equivalent of a private office which she rejected. Complainant indicated she would consider nothing less than reassignment away from her two co-workers. The Agency then searched within other Business Units for an available on-site location. When available space was located, it was offered to Complainant who accepted the offer and the move was completed April 30, 2010 after the space was refurbished.
The Associate Director (AD) affirmed that numerous suggestions were made to accommodate Complainant; however, Complainant wanted her co-workers to be moved and refused to try to see if any of management's suggested accommodations would alleviate her medical conditions. AD added that because of Complainant's unwillingness to consider any of the suggestions management offered, granting her an accommodation took longer than necessary. Complainant's refusal to consider any accommodation other than moving the other employees contributed to the delay. AD noted that during the time accommodations were being sought, Complainant was given the option to work flexi place which she refused.
The Agency concluded that it had not unreasonably delayed granting Complainant's request for accommodation. The Agency found that any delay in reaching agreement on an accommodation for Complainant was due to several factors including Complainant's rejections of several suggested interim accommodations. Accordingly, the Agency found that management had not unreasonably delayed accommodating Complainant. As a result, the Agency held that Complainant had not been discriminated against or subjected to a hostile work environment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant disagrees with the FAD's summation of facts. Specifically, Complainant contends that management did not take her health concerns seriously and that she did not play a role in the Agency's delay in accommodating her. Further, Complainant maintains that she did not reject management's suggestions for accommodations and claims that the initial accommodation was sabotaged by her co-workers who continued to spray perfume. Additionally, Complainant contends that she was subjected to a hostile work environment which forced her to take stress leave in May 2009. Finally, Complainant requests reinstatement of her dismissed claims and requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Dismissed Claims
As an initial matter, the Commission shall address Complainant's challenge to the Agency's dismissal of claims (3), (5), and (6). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy. EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
Complainant initiated EEO Counselor contact on April 26, 2010. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's April 26, 2010 EEO Counselor contact. Because a fair reading of the record reflects that claims (3), (5), and (6) are part of that harassment claim, the Commission finds that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. Nonetheless, the Commission finds that there is sufficient evidence in the record for us to address these incidents on the merits as discussed below.
Denial/Delay of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order 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) ("Enforcement Guidance"). 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). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability.
An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance, at question 10 (Oct. 17.2002). If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation of the Rehabilitation Act. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38.
Upon review of the entire record in this case, the Commission finds that Complainant has not established that the Agency unreasonably delayed providing her reasonable accommodation in violation of the Rehabilitation Act. S1 affirmed that Complainant's reasonable accommodation request was received on December 2, 2009, and forwarded to the Reasonable Accommodation Coordinator. ROI, at 150. S1 confirmed that the Agency immediately began working on accommodating Complainant and offered her a temporary accommodation of Complainant working in a private office approximately two blocks away; however, Complainant declined. Id. On January 28, 2010, Complainant accepted an accommodation which included use of a desk fan to improve air circulation in her work station, allowing her to prop open the office door behind her work station to aid air flow, and a security screen to nullify privacy and security issues arising from the open door. Id. Subsequently, on February 12, 2010, Complainant rejected the accommodations as insufficient.
In March 2010, the Agency offered to relocate Complainant's work station to a conference room adjacent to her current work area with an inner door that would seal her work area from outside perfumes and odors. ROI, at 150. Further, Complainant was offered a portable air purifier and fan and would be allowed to use "situational flexi-place." Id. at 150-51. S1 affirmed that this would have provided Complainant with a private office, but she rejected the offer because she believed that perfume odor would enter through the walls or that her co-workers would spray perfume under the door. Id. at 151. Thereafter, the Agency underwent a search for available space to relocate Complainant. Once available space was located, the Agency offered to move Complainant. Complainant accepted the offer and, on April 30, 2010, Complainant was moved to a new cubicle in an open area with maximum airflow and ventilation. Id. at 149.
S1 noted that throughout the entire process of finding a suitable accommodation, Complainant was provided opportunities to work from her home as needed. ROI, at 151. While Complainant did not have internet access at home, the Agency ordered an Air card which allowed her access to all data necessary to perform her duties. Id. Additionally, Complainant was provided liberal use of two conference rooms in close proximity to her assigned work area. Id.
The Commission finds no evidence that the Agency unnecessarily delayed providing Complainant reasonable accommodation. The record reflects that any delay in fully accommodating Complainant resulted from the interactive process used to determine what accommodations would be effective to enable Complainant to work. Further, the record evidence does not indicate that Agency management failed to act in good faith in attempting to accommodate Complainant. The record reveals that Complainant rejected many of the Agency's offered accommodations, but was allowed use of a conference room and to work from home as needed while the Agency sought a permanent accommodation. The Commission notes that while Complainant may not have been offered the accommodations of her preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Thus, the Commission finds that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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 his 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 an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on her statutorily protected classes, management and her co-workers continuously subjected her to a hostile work environment. The Commission finds that Complainant has not shown that she was subjected to a hostile work environment. Specifically, the Commission finds that Complainant failed to show that these incidents were unlawfully motivated by discriminatory or retaliatory animus. Regarding perfume in the office, CW1 denied wearing any perfume as she too had strong reactions to fragrances due to her undergoing chemotherapy treatment. ROI, at 175. CW1 added that there was an incident where Complainant sprayed air freshener in the office, which made CW1 ill and forced her to leave work early. Id. CW2 denied wearing perfume in the office as well and added that she is a cancer survivor and any spraying of chemicals triggers her migraine headaches. ROI, at 178.
As to the March 2009 directive regarding timely submission of travel vouchers, S1 affirmed that Complainant had seven work days to input her travel voucher, was fully aware of the requirement to input it within five days, received several reminders it was due, and was provided several offers of assistance. ROI, at 163. When she failed to comply with inputting the voucher, it became necessary to issue the managerial directive to ensure the voucher was inputted before she went on extended leave. Id.
As to the facilitation meeting, S1 stated that Complainant had reported back to full-duty status, and had a minimum workload. S1 decided to proceed with the meeting as scheduled because the meeting had been scheduled in advance with an out-of-town facilitator to address issues with which Complainant had requested assistance. ROI, at 159.
Regarding the alleged unwarranted performance rating, S1 stated that it was not a performance rating; rather, Complainant received mid-year performance feedback which management used to inform employees when a drop in performance had been observed. ROI, at 163. The process allowed management to be proactive in correcting performance deficiencies before they actually impacted a rating in a negative manner. Id. Specifically, Complainant received feedback in regard to three aspects under "Critical Element Employee Satisfaction - Employee Contribution." Id. After receiving the feedback, Complainant's behavior improved, and her evaluation was not lowered when her rating became due.
In regard to the February 2010 counseling memorandum, S1 confirmed that Complainant received counseling after she signed and picked up a package in the mailroom intended for one of her co-workers, placed the package in her desk with a bundle of other mail, and left it there for three weeks. ROI, at 164. After being informed that she still had the package in her possession and that it contained sensitive material, she returned the package to the mailroom instead of giving it to the her co-worker whose cubicle was within a few feet of her desk which further delayed delivery. Id. S1 stated that after receiving guidance from Labor Relations, he issued the counseling memorandum due to the seriousness of the matter and to avoid future incidents and based on Complainant's account of forgetting about the package. Id.
As to the travel voucher approval, S1 asserted that Complainant submitted her travel voucher for his approval, but had made several unscheduled travel changes after the authorization had been approved. ROI, at 159. These changes resulted in dollar changes to the original authorization and Complainant's submitted receipts were not clear. Id. at 159-60. Complainant and S1 exchanged numerous emails and phone calls in attempting to reconcile the matter and Complainant was unable to produce a receipt clearly documenting the claimed amount. Eventually, SATO discovered their error, Complainant was able to resubmit the proper receipts, and S1 approved the voucher. Id. at 160. Finally, regarding not receiving her mail, both CW1 and CW2 affirmed that mail is not delivered to the office and all employees pick up their own mail in the mailroom. ROI, at 175, 179.
Complainant has not shown that any of the Agency's actions were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that the Complainant was not subjected to a hostile work environment as alleged. Finally, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that he has not shown that the Agency's reasons for its actions were a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 (Nov. 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 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:
______________________________ July 30, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The Commission has renumbered Complainant's claims into chronological order for reference.
2 SATO appears to be an acronym for a travel billing company.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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