0120102661
04-24-2012
Linda J. Reeves, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Linda J. Reeves,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120102661
Agency No. HHS-OS-0051-2009
DECISION
On June 1, 2010, Complainant filed an appeal from the Agency's March 23, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it 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 GS-14 Human Resources Specialist in the Office of the Secretary, Rockville Human Resources Center (RHRC), Benefits Processing and Information (BPI) Division in Rockville, Maryland. Her first level supervisor was (S1). Prior to her working in the BPI, Complainant was directly supervised by the Director of the Agency's Division of Equal Employment Opportunity for the Program Support Center (PSC).1
In her complaint, dated May 21, 2007, Complainant alleged that the Agency discriminated against her based on the bases of disability (sleep apnea, psoriasis, attention deficit disorder (ADD) short term memory loss, mental depression, anxiety, stress) age (62), and reprisal for prior protected EEO activity when:
1. On April 21, 2009, Complainant received a hostile and belittling electronic mail from her supervisor.
2. On April 21, 2009 Complainant's supervisor failed to provide Complainant with a performance review and to address her specific duties and responsibilities.
3. On April 20, 2009, Complainant's supervisor failed to provide Complainant the same parking privileges as her peers.
4. On April 7, 2009, Complainant received a disrespectful, hostile and belittling email from her supervisor.
5. On March 26, 2009, Complainant was omitted from attending an All Hands Staff meeting.
6. On March 16, 2009, Complainant's supervisor failed to provide her with a position description.
7. On March 12, 2009, Complainant's supervisor only allowed two hours of official time to prepare documents for her scheduled EEO counseling session.
8. On March 11, 2009, Complainant's supervisor failed to provide her with a copy of her Admonishment Letter.
9. On March 5, 2009, Complainant's supervisor removed Complainant's laptop that was used for telework.
10. On March 4, 2009, Complainant's supervisor failed to provide guidance concerning processing of Freedom of Information Act (FOIA) requests.
11. On February 19, 2009, Complainant's supervisor terminated her telework privileges.2 12. On February 10, 2009, Complainant's supervisor denied her reasonable accommodation request to take 30 minutes of leave due to her disability (sleep disorder).
13. On February 3, 6, and 10, 2009, Complainant's supervisor sent her belittling electronic mail which Complainant perceived as scolding communication.
14. On January 14, 2009, Complainant's supervisor requested unnecessary additional documentation for leave approval.
15. On January 12, 2009, Complainant's supervisor sent her belittling and embarrassing email concerning Complainant's actions on FOIA procedures.
16. On January 9, 2009, Complainant's supervisor charged her as absent without leave (AWOL) for her absence, although Complainant had a medical note from her doctor. 17. On January 8, 2009, Complainant's supervisor failed to respond to her leave request submitted on November 18, 2008.
18. On January 7, 2009, Complainant's supervisor made negative innuendos and comments to Complainant's peers and superiors and stated that Complainant questioned her authority in reference to reasonable accommodation procedures.
19. On January 6, 2009, Complainant's supervisor denied her reasonable accommodation request for a 120-day detail.
20. On October 31, 2008, Complainant's supervisor issued Complainant an Admonishment Letter that Complainant believed was unjustified.
21. In or about June 2008, Complainant's supervisor reassigned Complainant's current duties to another employee.3
The Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or to request a final agency decision. Complainant requested a final agency decision.
In its decision, the Agency recounted the evidence regarding each individual claim and then addressed the remaining allegations individually and concluded that it had not discriminated against Complainant.
The Agency found that Complainant failed to establish a prima facie case of disparate treatment based on age for any of the allegations. Although the Agency found that Complainant was a member of a protected class because she was over 40, it found that she had failed to show that similarly situated individuals outside her protected group were treated more favorably than she was. The Agency noted that the one individual (C1) identified by Complainant who was 22 years younger than Complainant was not similarly situated to Complainant because C1 was a manager according to Complainant and that both S1 and S2 stated that Complainant was a Human Resources Specialist with no managerial or supervisory responsibilities.
Regarding disability, the Agency also found that Complainant failed to establish a prima facie case of disparate treatment based on her disability because she was not a member of the protected group and had not shown that she had a record of an impairment or was regarded as having an impairment.
The Agency also concluded that Complainant failed to establish a prima facie case of harassment based on her age. Regarding alleged harassment based on disability, the Agency assumed, without deciding, that Complainant had a disability and concluded that there was no evidence to support a claim that the alleged harassment was based on her being disabled. The Agency also determined that the incidents of alleged disability-based harassment were not sufficiently severe or pervasive to alter the conditions of her employment. Noting the electronic mail messages from S1 to Complainant, the Agency explained that the electronic mail was to provide guidance and clarification on work-related issues.
Regarding reprisal, that Agency found that Complainant had established a prima facie case of retaliation. It noted that Complainant was involved in EEO activity which had resulted in a settlement agreement in 2005; that Complainant's supervisor had received a copy of the settlement agreement in February 2008; and that the alleged adverse actions were engaged in by S1 after S1 learned about the settlement.
After rendering its conclusions on the issues of disparate treatment and the existence of a prima facie case, the Agency addressed whether it had articulated legitimate, nondiscriminatory reasons for its actions. The Agency determined that even if Complainant had established a prima case of disparate treatment, harassment, and reprisal based on age and disability, the Agency had articulated nondiscriminatory reasons for its actions.
Regarding Claims 1, 4, 13, and 15, the Agency noted that S1 had sent electronic mail messages to Complainant to provide clarity and guidance to Complainant on various work-related issues. The Agency also noted that although the electronic mail between Complainant and S1 fostered an acrimonious relationship between the two, the evidence did not demonstrate a discriminatory animus or that the electronic mail was based on Complainant's disability.
Regarding claims 2 and 6, the Agency found that S1 failed to conduct a performance review because she did not have a position description for Complainant and did not have any GS-14 work for Complainant to perform because Complainant was transferred into S1's office based on a settlement agreement.
Concerning claim 3, the Agency found that S1 could not give Complainant a parking place because S1 was not in charge of parking and it was the RHRC Director who assigned parking.
Concerning claim 5, the Agency found that S1 was not involved in deciding who was invited to the All Hands staff meeting. The Agency also noted the statement of S1 that the RHRC Deputy Director had scheduled the meeting. S1 also stated that Complainant had not attended any other All Hands meetings to which she had been invited and that Complainant occupied a suite with other BPI staff and could have accompanied them to the meeting. The Agency also noted that S1 stated that Complainant's omission from the meeting was a mistake; that she would contact the scheduler about the omission; and that this was the first time that it had occurred.
Regarding claim 7, the Agency noted that on March 12, 2009, S1 approved Complainant two hours for Complainant to work on her EEO complaint and not the eight hours Complainant had requested. The Agency further noted that S1 had made a personnel decision to strike a balance between the Agency's interest of having Complainant available to complete a report due within a few days and Complainant's request to prepare for her complaint activities.
Regarding claim 8, the Agency determined that S1 could not provide Complainant with another copy of the Admonishment Letter because she had given the original to Labor and Employee Relations for their files. The Agency noted that S1 had previously provided Complainant with a copy of the letter on the day it was issued and she informed Complainant where she could obtain another copy.
With regard to claims 9 and 11, the Agency found that S1 removed Complainant from teleworking because of Complainant's lack of productiveness. The Agency noted S1's statements that Complainant routinely spent three to four hours a day with Technical Support trying to resolve technical issues with her laptop and, also, that she routinely disrupted the office with numerous questions through the work day. The Agency also noted that a requirement for eligibility to work at home was not requiring frequent input from others to perform tasks at the alternative worksite. Because Complainant was removed from telework, there was no reason for Complainant to have a government-issued laptop. The Agency also noted that S1 was very flexible about Complainant returning the laptop and overlooked Complainant's missed deadline for returning the laptop.
Concerning claim 10, the Agency stated that initially S1 always answered Complainant's questions about FOIA requests but S1 wanted Complainant to learn to perform her work and S1's actions were attempts to have Complainant use the tools available to find answers to her questions.
Regarding claim 12, the Agency noted that Complainant's leave request for 30 minutes of leave was not denied by S1. The Agency noted also that S1 only instructed her to use annual leave after Complainant asked what type of leave she should submit and approved her request. The Agency noted that although it was inappropriate for S1 to advise Complainant to use annual instead of sick leave, S1's action were not motivated by discrimination.
Regarding claims 14 and 16, the Agency noted that S1 asked for additional documentation, as she would have for any other employee, because Complainant was absent for more than three consecutive workdays. The Agency noted that although Complainant was charged with three days of AWOL, the AWOL was modified when Complainant provided proper medical documentation for January 12 and 13.
Concerning claim 17, the Agency found that although Complainant entered her leave request into ITAS (a computerized time and attendance system) on November 17, 2008 for January 21 to January 22, 2009, S1 did not normally approve leave requests submitted through ITAS until the Thursday or Friday of the pay period for which the leave was requested.
Concerning claim 18, the Agency denied that S1 made negative comments to others about Complainant and indicated that Complainant herself could not recall any specific comments S1 had made against her.
Regarding claim 19, the Agency stated that S1 did not deny Complainant's request for a 120-day detail as a reasonable accommodation but that she gave Complainant forms, instructions and the name of the individual who handled accommodation requests and even attempted to assist Complainant by informing her that she would forward the forms if returned to her. The Agency indicated that S1 failed to follow appropriate standard operating procedures for reasonable accommodations, noting that as the Division Director, S1 should have consulted Labor and Employee Relations (LER) and together, S1 and LER, would have determined whether Complainant needed an accommodation based on the information Complainant had presented to them.
Having provided its reasons for its actions, the Agency further concluded that Complainant had failed to establish that the Agency's reasons were pretextual. The Agency noted that Complainant had offered insufficient evidence that would establish S1's personnel decisions were related to Complainant's age, disability, or retaliation and that she did not establish that the Agency's reasons were unworthy of credence.
CONTENTIONS ON APPEAL
Complainant has submitted no arguments on appeal, although she submitted additional electronic mail messages. The Agency has also not submitted any arguments on appeal.
ANALYSIS AND FINDINGS
The legal analysis in a disparate treatment claim such as this is a three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Loeb v. Textron, Inc., 600 F.2d 1003 (1979).
First, a complainant must establish a prima facie case by demonstrating that complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Next, the Agency must articulate legitimate and nondiscriminatory reasons for its conduct. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Lastly, to ultimately prevail, a complainant must show, by a preponderance of the evidence, that the Agency's explanation for its action is a pretext for discrimination, i.e., that the Agency's reason was not its real reason and that it acted on the basis of discriminatory animus, here, her race, disability, age, or prior EEO activity. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 33 (2000); Texas Dep't of Community Affairs v. Burdine, supra.
The established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990).
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 Sys., Inc. at 3, 9 (March 8, 1994). In determining whether a working environment is hostile, factors considered 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 Sys., 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).
The conduct in question is evaluated from the standpoint of a reasonable person, taking into account the particular context in which it occurred. Unless the conduct is very severe, a single incident or group of isolated incidents will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris, supra. The Supreme Court has emphasized the necessity of separating "significant from trivial harms." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
The Commission's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two types of harassment: (1) harassment that results in a tangible employment action; and (2) harassment that creates a hostile work environment.
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, a complainant must show that: (1) complainant is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) complainant 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.
A reasonable accommodation must be effective. See US. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides that a complainant shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to the Agency and EEOC requests for information. The Commission has stated that a claim regarding the denial of official time states a separately processable claim claiming a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). If the Agency denies a request for official time, either in whole or in part, the Agency must prepare a written statement noting the reasons for the denial. EEOC Management Directive 110, 6-17.
Because 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 a de novo review by the Commission. 29 C.F.R. � 1614.405(a).
As an initial matter, the Commission notes that the Agency dismissed claims 20 and 21 in a dismissal order, dated July 10, 2009, on the grounds that Complainant failed to contact an EEO Counselor within the requisite 45 days. In its dismissal, the Agency determined that claims 20 and 21 occurred in October and June 2008, but that Complainant did not initiate EEO Counselor contact until February 19, 2009. In its dismissal, the Agency informed Complainant that the two dismissed claims would be included in its final decision. Although the Agency did not do so, we find any error harmless. In addition, although Complainant has not challenged the dismissal on appeal, the Agency's dismissal was proper. The EEO Counselor's Report reflects that Complainant initiated contact on February 19, 2009, for allegedly discriminatory actions that occurred in October and June 2008. Therefore, when Complainant initiated EEO Counselor contact in February 2009, the contact was untimely. See 29 C.F.R. � 1614.105(a)(1); � 1614.107(a)(2).
The Commission next reviews the claim of discrimination on its merits. For purposes of discussion only, we will assume, but do not find, that Complainant established a prima facie case of discrimination on all bases alleged and that she was a person with a disability. The next step in our analysis requires the Agency to articulate legitimate, nondiscriminatory reasons for its actions. Here, the Agency has done so and Complainant has failed to show that the Agency's reasons were mere pretext to hide unlawful discrimination.
In her affidavit, Complainant stated that it was difficult to answer why she believed S1 held her age, disability, and protected activities against Complainant but stated that she believed that S1 was more comfortable surrounding herself with younger, non-disabled individuals, individuals who would not challenge what Complainant believed to be poor administrative practices or unfair treatment of staff. Complainant also stated in her affidavit that S1 did not appreciate having staff who stood up for their EEO rights. Complainant also stated that she had difficulty understanding how it was that S1 "a very senior" Human Resources (HR) manager with years of experience providing senior HR advice to agency heads and their senior supervisory staff and providing day-to-day supervision to senior HR managers could be so na�ve in understanding her Office of Personnel Management (OPM) and EEO supervisory responsibilities. Complainant also stated in her affidavit that she had repeatedly encouraged S1 to seek appropriate guidance from the Office of the Secretary's EEO Office concerning her lack of action on her reasonable accommodation requests and on other EEO matters for which S1 appeared to have limited familiarity. She stated that on several occasions she informed S1 in writing of what Complainant thought was poor administrative management practices which she was "inappropriately modeling."
Complainant also stated in her affidavit that S1 bombarded her with unfair treatment from January 2009 and forward and that she could only conclude that S1 engaged in that behavior with a failed hope to force Complainant to retire so she could be replaced with younger, non- disabled employees who did not practice EEO fairness concepts. She stated that she believed S1 purposely chose to openly demonstrate to staff the treatment an employee could expect if the employee stood up for their EEO rights. Complainant also stated whether S1's actions were blatant or based on her unfamiliarity with merit principles, she was undecided. She stated that S1 would openly treat her as if she were a GS-09 who had no sense of what needed to be done. She stated further that when she consulted with S1 on matters on which Complainant had no knowledge, S1 would be "all over her" and tell Complainant not to bother her with those matters.
In a January 12, 2009 electronic mail message to S1, Complainant stated that she was asking for a reasonable accommodation so that the stress that she was being subjected to from S1 would subside and she would be able to perform her job and not to have to be subjected to badgering and nonsense being directed to her personally
The Commission first finds that because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, therefore, the prima facie inquiry is dispensed with. Complainant failed to provide evidence from which a reasonable fact-finder could conclude that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. It is our conclusion that the Agency did not subject Complainant to disparate treatment or prohibited discrimination on any basis, nor did it subject her to discriminatory harassment.
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc, Complainant's claim of hostile work environment must fail. A finding of a discriminatorily hostile work environment is precluded by our determination that Complainant failed to establish that 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). Moreover, the Agency has articulated legitimate reasons for the actions that it took and Complainant has not shown the actions were pretextual.
Regarding reprisal, a February 5, 2008 electronic mail message shows that S1 was provided with a copy of an EEO settlement agreement between the Agency and Complainant. However, we find that even if S1 knew of the settlement, Complainant has not shown by a preponderance of the evidence that S1's knowledge of Complainant's prior EEO activity motivated her to engage in prohibited discrimination. Even if S1 lied about knowing about Complainant's prior EEO activity, Complainant must link the lie or its creation to prohibited discrimination. It is not sufficient "to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center, 509 U.S. at 519. In addition, the record shows that in meeting with Complainant on January 6, 2009, at which the RHRC BPI Deputy Director was also present, Complainant stated that she was going to file an EEO complaint. ROI Ex. 12. Even though S1 was aware of Complainant's prior EEO activity and that she was going to engage in the EEO process, this knowledge on the part of S1 does not immunize a complainant from having a supervisor take legitimate actions against a complainant or provide a complainant with job direction.
Regarding the alleged denial of an accommodation request on January 6, 2009, for a 120-day detail, we also do not find discrimination. Assuming, without deciding, that Complainant is a person with a disability, the record establishes that on January 6, 2009, S1 provided Complainant with the name of a contact to assist her with her request for accommodation when she made her request. She informed Complainant by electronic mail on January 6, 2009 that the person named handled reasonable accommodation requests for the Office of the Secretary. While S1 may not have followed Agency policy regarding its procedure for reasonable accommodation requests, we cannot conclude that S1 denied Complainant's request.4 The Commission also notes that a request for reasonable accommodation is the first step in an informal, interactive process between the individual and the Agency. Moreover, in some instances, before addressing the merits of an accommodation request, the Agency needs to determine if the individual's medical condition is a disability so as to entitle the individual to a reasonable accommodation.5 In addition, the Agency may choose among reasonable accommodations as long as the chosen accommodation is effective.
Regarding the denial of an alleged accommodation request to take 30 minutes of leave for her sleep disorder on February 10, 2009, S1 stated that according to Complainant's account, Complainant requested 30 minutes of leave due to her sleep disorder but S1 denied that was what actually happened. She stated that Complainant did not make a request for a reasonable accommodation but, instead, requested of her what kind of leave she should submit and that she told Complainant annual leave which she approved for 35 minutes. Assuming that Complainant is disabled and that she was making an accommodation request of S1 for her sleep disorder, Complainant was approved for leave. While the kind of leave may have been incorrect, we find no discriminatory motive here.
Regarding the issue of official time on March 12, 2009, Complainant stated in her affidavit that she needed additional time to prepare for a 2:00 p.m. meeting with an EEO investigator. She also stated that S1 approved her request only for the period between 12:00 noon and 2:00 p.m. Complainant stated that the two hours were not enough for her to prepare and she requested additional time. The Commission first notes that the time requested was not in preparation for the instant complaint but regarding the alleged settlement breach of Complainant's prior complaint. We find that the two hours afforded was reasonable. Complainant stated that the two hours approved would include her lunch and was not reasonable. Under the circumstances of this case, Complainant could have taken an earlier lunch. The record discloses that Complainant did not make her request for official time until less than two hours before she wanted to begin using official time which was to extend into the following day, March 13. ROI Ex. 10, Ex. 10b. We find that Complainant had to complete FOIA reports on March 13, 2009, and because she was the person charged with preparing those reports, it was reasonable for S1 to have only granted her two hours for March 13, especially when Complainant's request for official time was made almost at the eleventh hour and there were FOIA reports that Complainant needed to complete.
Although there is evidence of friction and animosity between Complainant and S1, we cannot conclude that Complainant has shown that the incidents of alleged discrimination were connected to a prohibited basis, retaliatory, or motivated by discriminatory animus. Complainant regularly tested S1's capability and job knowledge based on the stream of electronic mail messages between Complainant and S1 contained in the record. Complainant appeared to have little regard for S1's competence, or lack thereof, often questioning S1's authority or telling her what action she should take in Complainant's own estimation. S1 likely felt as if Complainant was a constant thorn in her side, challenging her judgment at every turn and with each electronic mail received from Complainant. What the evidence reflects is an acrimonious relationship but not one driven by a discriminatory motivation.
After a review of the record in its entirety, 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. At all times, the ultimate burden of persuasion remains with a complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant ahs failed to carry this burden.
CONCLUSION
The Agency's finding of no discrimination is AFFIRMED.
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 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
04/24/2012
__________________
Date
1 In her affidavit, Complainant noted that she served as the PSC Disability Program Manager.
2 Complainant appears to have filed a breach of settlement agreement regarding this action.
3 The Agency dismissed claims 20 and 21 in a dismissal order which will be addressed infra.
4 The Agency is reminded that supervisors and managers should receive training regarding the Agency's accommodation procedures.
5 In a January 12, 2009 electronic mail message to S1, Complainant stated that she was asking for a reasonable accommodation so that the stress that she was being subjected to by S1 would subside and so that she would be able to perform her job and not have to be subjected to badgering and nonsense being directed toward her personally.
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0120102661
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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