[Redacted], Belia A., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency.

Equal Employment Opportunity Commission

Aug 25, 2022

Appeal No. 2021000073 (E.E.O.C. Aug. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belia A.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency. Appeal No. 2021000073 Agency Nos. NCN-19-ARC-00222 NCN-20-ARC-00034 DECISION On October 2, 2020, 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 15, 2020, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Computer Engineer, GS-0854-13, at the Office of the Director of Center Operations’ Information Technology Directorate in Newark, California. On September 23, 2019 and December 30, 2019, Complainant filed two formal EEO complaints alleging that the Agency discriminated against her on the bases of race (African American), sex (female), disability (neck and back pain), and reprisal for prior protected EEO activity. 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. 2021000073 2 The Agency ultimately joined the complaints and framed the underlying claims in the following manner: 1. Between February and November 2019, she was subjected to a hostile work environment comprised of the following alleged incidents: a. On February 20, 2019, Complainant’s supervisor attempted to “push” her out under the guise of trying to find her another position outside her organization; b. On April 9, 2019, Complainant received a response regarding her mid-term performance review after a four-month delay; c. On April 24, 2019, Complainant received an email giving her only 10 to 15 days to pack up her office and move to another office, while other were informed months in advance of their moves; d. On May 1, 2019, Complainant was questioned about her telework and leave status; e. On May 24, 2019, Complainant was forced to stay in a meeting after she had expressed physical discomfort;2 f. On July 1, 2019, Complainant learned that effective July 8, 2019, her job functions would be removed, and she would be assigned lower-level work; g. On August 20, 2019, she was pressured by her supervisors to accept a position in the Center Operations Directorate, effective October 13, 2019; h. On October 17, 2019, Complainant was denied access to her office in Building N233 after core hours; and i. On November 20, 2019, Complainant’s office move from Building N233 Room 220 to Building N248 Room 116 occurred despite her disagreement with the date and inability to be present for the move. 2. On June 6, 2019, her request for a reasonable accommodation was denied. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond to the Agency’s May 28, 2020, notice, the Agency contacted Complainant via email on July 14, 2020, to inquire about her intent. On July 19, 2020, Complainant responded to the Agency’s email and explained to the Agency that she did not respond to the Agency’s notice because she was under the assumption that the Agency would automatically issue a final decision on the merits of the complaint if she failed to make an election. Complainant ultimately asked the Agency to issue a final decision. In responding to the Agency’s email, Complainant also expressed concern regarding the EEO investigator’s failure to interview her witnesses. 2 According to Complainant’s affidavit, Complainant felt physically uncomfortable at the prospective of meeting with her supervisor alone without a union representative. ROI at 170. 2021000073 3 Additionally, Complainant claimed that she had been denied the opportunity to “examine the ROIs and to provide written notification to the Agency of any perceived deficiencies in the investigation.” The following day, the Agency notified Complainant that it had received Complainant’s election and advised her that the “ROI deficiencies were not sought from neither [Complainant] nor the Agency.” In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In finding no discrimination, the Agency initially determined that claims 1(a)-(h) were untimely raised due to Complainant’s failure to initiate EEO contact within 45 days of the dates of the matters alleged to be discriminatory. While the Agency dismissed these claims pursuant to 29 C.F.R. § 1614.105(a)(1), the Agency nevertheless considered them as part of Complainant’s overall hostile work environment claim. Having reviewed the record regarding Complainant’s hostile work environment claim, the Agency determined that management had legitimate, nondiscriminatory reasons for taking the alleged actions in claim 1(a)-(i). The Agency ultimately concluded that “Complainant wholly failed to prove any of the alleged incidents of harassment were related to her protected bases” or show that the alleged incidents were sufficiently severe or pervasive to constitute harassment. The Agency then turned to claim (2) regarding the Agency’s failure to grant her request for fulltime telework as an accommodation for her chronic neck and back pain. In analyzing the claim, Agency assumed, without finding, that “Complainant is an individual with a disability within the meaning of the Rehabilitation Act.” Ultimately, the Agency determined that it did discriminatorily deny Complainant’s request for fulltime telework because 1) Complainant’s duties involved cybersecurity matters that were not conducive to fulltime telework due to the sensitive nature of the work; and 2) management offered her effective alternate accommodations consisting of the following: a. telework three times a week; b. situational telework as needed to attend doctor’s appointments with advance supervisory approval; c. a private office to allow Complainant to stretch and engage in physical stress relief; d. maxi-flex schedule to avoid traffic; e. ergonomic evaluation to identify equipment that could be provided; f. self-managed breaks to allow time to walk and stretch; and g. availability of fitness center or women’s lounge to provide privacy for stretching. In finding no discrimination, the Agency acknowledged that Complainant was not given her accommodation of choice; however, the Agency concluded that Complainant could not prevail because she “failed to demonstrate the ineffectiveness of the accommodations provided by the Agency.” This appeal followed. 2021000073 4 On appeal, Complainant resubmits numerous documents that she previously submitted. Examples of her submissions include: the “EEO Issue Statement” which she submitted in support of her formal complaint; the rebuttal statement that is already included in the ROI; and the same previously submitted emails between Complainant and the Agency regarding deficiencies with the EEO investigation. The Agency opposes the appeal and requests that the Commission affirm its final decision. 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 Chap. 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”). Having reviewed the record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. In reaching this conclusion, we are mindful of Complainant’s concerns regarding the sufficiency of the ROI; however, we find that Complainant did not timely raise her concerns regarding the EEO investigator’s failure to interview all of her witnesses. We note that Complainant received the ROI on June 1, 2020 but Complainant raised her concerns in mid-July 2020, well after the EEO investigation had concluded. Given this undue delay and her failure to request a hearing, we are disinclined to find the ROI to be deficient. To the extent Complainant believes that the Agency denied her the opportunities to submit rebuttal statements, we note that the ROI does in fact contain her rebuttal statements. See, e.g., ROI at 279. As for the merits of the complaint, we are unable to discern any basis to reverse the Agency’s legal conclusions, as the record persuasively shows that the Agency provided Complainant with effective alternate accommodations and had legitimate, nondiscriminatory reasons for taking the alleged actions. Furthermore, we find no persuasive evidence showing that the alleged discriminatory acts raised in claim 1 were based on Complainant’s protected bases. As Complainant has not offered any compelling arguments as to why the Agency erred in finding no discrimination, we shall AFFIRM the Agency’s final decision. 2021000073 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021000073 6 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 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 August 25, 2022 Date