[Redacted], Diane H., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionSep 26, 2022Appeal No. 2021000882 (E.E.O.C. Sep. 26, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane H.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021000882 Hearing Nos. 570-2019-01045X; 460-2020-00093X Agency Nos. DOS-0017-18; DOS-0212-19 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 21, 2020 final decision concerning the above-referenced equal employment opportunity (EEO) complaints 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. Complainant worked as a Passport Specialist, GS-0967-11, at the Passport Office in Houston, Texas. On January 25, 2018, Complainant filed a formal EEO complaint (Agency No. DOS-0017- 18) (Complaint (1)) in which she alleged that the Agency2 discriminated against her on the bases of race (Caucasian), sex (female), color (White), disability (Brain, back, neck, wrist hip/pelvis injuries, and cancer), and reprisal (prior protected EEO activity) when: 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. 2 Complainant identified the following individuals as responsible management officials: the Supervisory Passport Specialist who served as her immediate supervisor (S1); the Passport Adjudication Manager (S2); the Assistant Director of the Passport Agency Office (S3); the Passport Agency Office Director (S4); and the Executive Director of the Bureau of Consular Affairs (ED). 2021000882 2 1. Complainant was denied a reasonable accommodation; 2. On or about September 4, 2017, Complainant was denied a performance award; 3. On or about September 4, 2017, Complainant’s request for leave was denied; 4. On or about September 4, 2017, management improperly disclosed Complainant’s medical information; 5. On or about September 4, 2017, Complainant was assigned additional adjudicative duties; 6. On or about September 4, 2017, Complainant received a written counseling; 7. On or about September 4, 2017, Complainant was suspended; 8. On unspecified dates, Complainant’s requests for leave without pay (LWOP) were denied and she was charged with absence without leave (AWOL); and 9. Complainant was subjected to a hostile work environment characterized by lack of recognition of her accomplishments, delays in responding to her leave requests, intimidating and demeaning comments, and heightened scrutiny. On April 26, 2019, Complainant filed a second formal EEO complaint (Agency No. DOS-0212- 19) (Complaint (2)) alleging that the Agency subjected her to a hostile work environment on the bases of race, color, disability, and reprisal when she was subjected to a hostile work environment, characterized by but not limited to intimidation, belittling and demeaning behavior, threats of termination, and failure to cooperate with her security clearance reinvestigation. The Agency investigated each complaint separately. At the conclusion of each investigation, the Agency provided Complainant with copies of the investigative reports (IR1 & IR2 respectively), along with notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested hearings on both of her complaints but subsequently withdrew her requests. The Agency then issued a consolidated final decision on both complaints finding that Complainant was not subjected to discrimination or reprisal as alleged. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the 2021000882 3 previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation: Complaint (1) - Allegations (1) & (5) 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; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that he 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”). Complainant testified that she was in a serious car accident in 2013 and that she was diagnosed with cancer in 2016. Complainant explained that she has traumatic brain injury (TBI), back/neck injuries, hip/pelvis injuries, and cancer. Complainant stated that her TBI condition flared up daily when, for example, she became “cognitive[ly] overstimulated…being forced to read unnecessarily, under stress, the pressure of unnecessary constraints, under bright lights…when forced to unnecessarily recall from memory, under the stress of recalling from memory in front of peers.” In addition, Complainant affirmed that her cancer condition was constant, and she was subject to ongoing treatment and permanent side effects. Complainant’s conditions impacted nearly all of her major life activities. Complainant stated that she provided medical documentation to the Agency’s Disability and Reasonable Accommodation Division (DRAD) and other officials beginning in 2013. Beginning in 2013, Complainant requested extensive reasonable accommodations. Among the accommodations requested, Complainant requested to be removed from production; permission to wear tennis shoes; a monitor with an anti-glare screen; a cubicle shield; flexible hours; frequent breaks; lifting restrictions; speech-to-text assistive technology; additional time for processing; no public counter work; no prolonged standing; and no public demonstrations of knowledge. We find at the outset that Complainant is a qualified individual with a disability. IR1 159-64. We must now determine whether the Agency fulfilled its obligation to offer her a reasonable accommodation. We note that while Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019). Furthermore, in providing Complainant with a reasonable accommodation, the Agency is not required to eliminate the essential functions of the position she encumbers. Alana W. v. Soc. Sec. Admin., EEOC Appeal No. 0120180037 (Apr. 17, 2019). 2021000882 4 In this case, S1 worked extensively with the DRAD to provide Complainant with extensive accommodations, including tennis shoes, a 24-inch computer monitor with an anti-glare screen, font-enlarging visual technology, cubicle shields, a private office, and a white noise machine. S1 denied Complainant’s requests to be excused from production-related passport adjudications, and from working the customer service counter, both of which were essential functions of her position as a Passport Specialist. IR1 1138-39, 1144-45, 1300-01, 1384, 1399-1402, 1412-19, 1435-39, 1440, 1448-49, 2224-31, 2244-61; IR2 3664-83, 3689-98, 3702-09, 3739-51, 3774-85, 3796; IR2 3800-01, 3813-14, 3818-99, 3927-35, 3960-65. Complainant has presented no evidence demonstrating that the provided accommodations were ineffective. As a result, the Commission finds that Complainant has not demonstrated that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. Disclosure of Confidential Medical Information: Complaint (1) - Allegation (4) The Rehabilitation Act prohibits disclosure of confidential medical information except in certain limited situations, including when managers need to be informed regarding necessary accommodations. 29 C.F.R. § 1630.14(c); Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for recon. den'd EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). Complainant averred that on numerous occasions, her Family and Medical Leave Act (FMLA) paperwork and other documentation of her medical conditions was shared with S4 and her management chain despite her requests that such information not be disclosed to anyone. IR1 173-74. S1 averred that she never had a need to see Complainant’s personal medical information because the leave requests for which the documentation was required had already been approved. She also averred that Complainant never specifically requested that information about her impairments not be disclosed to her management chain, and that she, S1, did not know anything about Complainant’s medical issues. IR1 1142-43. S3 averred that in October 2017, Complainant met privately with him to ask that no one other than him, S3, be allowed to see her doctor’s note. S3 explained to Complainant that her supervisory chain might have a need to know and that he could not guarantee that no one else would see the note. IR 2031-32. S4 averred that she was not aware of Complainant’s specific medical conditions, noting that Complainant had provided her medical documentation directly to the Human Resources Division. IR1 1402-03. In an email to Complainant dated October 12, 2017, the Employee Relations Branch Chief stated that in accordance with its regulations and policies, while Complainant was not required to divulge her specific medical diagnosis, she did need to provide information from a physician such as duration of the condition, treatment schedule, if any, and how the condition prevented her from performing her job duties. IR1 1441-42. On the basis of the record before us, we find that Complainant has not presented enough evidence to show that any of her confidential medical documentation was seen by or disclosed to anyone who did not have a need to know. 2021000882 5 Disparate Treatment: Complaint (1) - Allegations (2), (3), (6) - (8) To prevail on her disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to allegation (2), S1, S2, S3, and S4 all averred that Complainant had received an award of $200 and a second award of $750 for her performance during the 2017 performance cycle. IR1 1139-41, 1301, 1402-03, 2030. Concerning allegation (3), S2 and S4 affirmed that Complainant had been denied leave from December 26 through 29, 2017 because of a policy which prohibited senior employees from taking leave during the same two-calendar month period for more than two years in succession. The timekeeper confirmed that Complainant had been approved for leave during the same period during the previous two years. S2 placed Complainant’s name on the waitlist so that she would be notified if another employee who had leave opted to work during that period. IR1 1301-03, 1403. Regarding allegation (6), S4 issued Complainant a letter of reprimand for exhibiting rude and disrespectful behavior toward a supervisory passport specialist. IR1 1146, 1404-05, 2169-72. With respect to allegation (7), ED issued Complainant a one-day suspension for engaging a coworker in a conversation that the coworker perceived as threatening. IR1 1405, 1737-44, 2129, 2137-52, 2156-59, 2163-68, 2207-14. With regard to allegation (8), S1 averred that Complainant had been approved for LWOP on numerous occasions and that around February 23, 2018, she advised Complainant that if she left the office without complying with leave policy, she would be charged with AWOL. IR1 1146-47. S4 asserted that Complainant was never officially charged with AWOL in the Agency’s payroll system. IR1 1405. To ultimately prevail on her disparate treatment claim, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that her race, color, sex, disability, and previous EEO activity were factors in the actions by S1 and the other named management officials, Complainant repeatedly asserted that Caucasian employees were vastly outnumbered by African American employees and were denied the same opportunities for career development and advancement as African American employees. IR1 171-72, 175-80. 2021000882 6 Other than her own statements, Complainant has presented neither affidavits, declarations or unsworn statements nor documents which contradict or undercut the explanations provided by S1, S2, S3, S4, or ED. Likewise, she has not provided any documentary or testimonial evidence that would cause us to question the truthfulness of any of these individuals as witnesses. As Complainant chose to withdraw her hearing request, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. And the weight of that evidence is insufficient to support Complainant’s disparate treatment claim as it pertains to allegations (2), (3), and (6) through (8). Hostile Work Environment To prevail on her claim of discriminatory harassment, Complainant would have to show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find that Complainant satisfies the first two prongs of the Henson test. As a Caucasian female with disabilities who had previously filed several EEO complaints, she belongs to a class protected by Title VII and the Rehabilitation Act by virtue of bringing her complaint on the bases of race, sex, disability and reprisal. The conduct to which she was allegedly subjected, including derogatory comments, threats, and heightened scrutiny, were certainly unwelcome from her own, subjective viewpoint. The antidiscrimination statutes that the Commission enforces are not civility codes, however. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant must therefore present enough evidence to show that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also show that the conduct of Agency officials was motivated by unlawful considerations of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, can the question of Agency liability for discriminatory harassment present itself. Applying the third prong of the Henson test, we note that indicators of discriminatory intent or motive include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or unexplained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2021000882 7 When asked why she believed that her race, color, sex, disabilities, and previous EEO activities played a role in the way she was treated by her management chain, Complainant responded, in essence, that management had used any and all means necessary to force her out after she first raised a discrimination complaint against her African American supervisor in 2008 or 2009. IR1, 181-2; IR2 71-78, 98-100. But as with her disparate treatment claim, Complainant failed to produce any evidence linking the alleged harassment to any discriminatory or retaliatory motive attributable to S1 or any other management official. Even if such a motive had been established, Complainant’s hostile work environment claim would still fail under Henson. In applying the fourth prong of the Henson test, we find that none of the incidents complained of, either singly or collectively, were severe or pervasive enough to rise to the level of harassment. Mikki P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182183 (Feb. 19, 2020). Moreover, it is well established that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences which are not sufficiently severe or pervasive to constitute harassment, unless the incidents occurred to harass complainant for a prohibited reason. Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017). The conduct by management which Complainant characterizes as harassment was nothing more than management’s attempts to get Complainant to perform her duties, to behave professionally toward her supervisors and coworkers, and to hold her accountable if she did not do those things. S1 noted that Complainant had returned to work after extensive leave on December 10, 2018, and as of April 22, 2019, had not done any work since her return. IR2 3718-35. S1 and S4 denied Complainant’s contention that she charged Complainant with leave because she reported to work late during a hurricane, pointing out that the Agency’s facility was closed during Hurricane Harvey. IR1 1147-48, 1405- 06. She also denied Complainant’s assertion that she condoned loud talking by African American employees in the office. IR1 1149-50. S2 and S4 averred that on a number of occasions Complainant had accused supervisors and coworkers of engaging in hostile behavior towards her without providing any details when asked to do so. IR1 1298, 1303-04, 1307, 1406, 2032-33. Moreover, the Agency provided extensive email correspondence documenting management’s efforts to get Complainant to do her job, including providing positive feedback where warranted. This was the behavior that Complainant characterizes as intimidating, threatening, and demeaning. IR2 3685-88, 3699-3701, 3718-38, 3751-58, 3765-69, 3770-73, 3789-95, 3803-06, 3815-17, 3911, 3922-26, 3936-59, 3966-74. We also note emails in which S1 reported to S2 and S4 that it was Complainant who engaged in unprofessional behavior and bullying when management disagreed with her. IR2 3711-17, 3733, 3773. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment 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. 2021000882 8 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). 2021000882 9 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 September 26, 2022 Date Copy with citationCopy as parenthetical citation