[Redacted], Fidela B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2021002428 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fidela B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2021002428 Hearing No. 410-2016-00335X Agency No. PH-14-0121 DECISION 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 February 12, 2021, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding that the Agency discriminated against Complainant based on disability by failing to provide her with a reasonable accommodation and finding no discrimination as to the remaining claims. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Terminations Contracting Officer (TCO) at the Agency’s facility in Smyrna, Georgia. 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. 2021002428 2 On January 23, 2015, Complainant filed an EEO complaint alleging that the Agency failed to provide her a reasonable accommodation and subjected her to discrimination and harassment based on race (African American), sex (female), color (black), disability (physical and mental), age (Year of birth: 1961), and in reprisal for her current EEO activity when: 1. Between May 2014 and January 21, 2015, Complainant’s first line supervisor (S1) denied her reasonable accommodation requests to telework four days a week and ad hoc telework on the fifth day.2 2. In September 2014, S1 negatively affected the terms and conditions of Complainant’s employment when he informed her that she could use a desk of a teleworking coworker that is located on the second floor. 3. Between May 2014 and May 2015, S1 caused Complainant to use her annual/sick leave and credit hours when her second line supervisor (S2) failed to take action regarding her concerns about the unpleasant body odor of a co-worker. 4. During February 2015, S1 failed to provide her with a performance appraisal for calendar year 2014. 5. Between May 2014 and May 2015, S1 and S2 harassed her to return to work without a reasonable accommodation being implemented, despite her disability and against her doctor’s prognosis and recommendations. 6. On April 17, 2015, S1 and S2 denied Complainant’s reasonable accommodation request to be relocated to the first floor. 7. On April 20, 2015, S1 and S2 failed to respond to Complainant’s reasonable accommodation request for an extension of a leave of absence. 8. Between August 2013 and June 6, 2015, Complainant was treated differently than a White female coworker when that coworker was provided a reasonable accommodation due to her concerns with the odor of a male coworker. 9. Between August 2013 and June 6, 2015, Complainant was treated differently than a White female coworker because the coworker was able to telework four days a week as a reasonable accommodation for her personal situation and permitted to relocate from the third floor. 10. Between May 2014 and June 2015, S1 and S2 did not take appropriate actions to make the reasonable accommodation process available to Complainant. 2 We have renumbered the issues for ease of adjudication. 2021002428 3 11. Between February 2015 and May 2015, S1 and S2 agreed with Complainant’s request to communicate with her husband on her behalf while she was incapacitated and then refused to communicate with him. 12. Between April 2015 and May 2015, S1 failed to provide copies of her last three years of performance appraisals upon her request. 13. In March 2015, S1 and S2 failed and/or refused to complete Section 1 of the Federal Medical Leave Act (FMLA) form (WH-380) and provide the required position description (PD), adding to delayed submission of the form. 14. Between October and December 2014, S1 conducted performance counseling with Complainant, informed her he would give her a poor evaluation, and did not consider her for a performance award for calendar year 2014. 15. Between June 2012 and May 2015, S1 and S2 failed to respond to Complainant’s reasonable accommodation requests to provide a healthy and safe environment for Complainant to return to work. 16. On June 30, 2015, S1 continued to harass Complainant via electronic correspondence and accused her of “fictitious acts of unprofessional behavior” when she requested official time to work on her EEO complaint. 17. On July 8, 2015, S1 denied Complainant’s request to have office supplies mailed to her home for work purposes, while she was on medical telework related to her reasonable accommodation. 18. On July 21, 2015, Complainant became aware that S1 provided her with a low performance evaluation and gave her a lower cash amount than other employees. 19. On July 23, 2015, S1 denied Complainant’s request to utilize 40 hours of official time to work on her EEO complaint. 20. Beginning in July 2015, S1 attempted to coerce Complainant into changing her reasonable accommodation/Telework agreement. 21. On November 2, 2015, S1 placed Complainant on absence without leave (AWOL) during the pay period of October 18, 2015, while she was on FMLA approved leave and under medical care. 22. S1 and S2 failed to resolve Complainant’s concerns of the odor of a male employee, thus causing her to lose wages. 2021002428 4 23. In August 2015, S3 and S2 denied Complainant’s reasonable accommodation request to be temporarily reassigned to her previous supervisor or to any other supervisor. 24. On July 28, 2015, S1 and S2 denied her request to change her telework agreement and work schedule. 25. On August 7, 2015, S1 issued her a Notice of Proposed Suspension citing unprofessional conduct and failure to follow instructions. 26. On September 17, 2015, S2 issued Complainant a Notice of Decision to Suspend. 27. On or about April 15, 2015, S1 and S2 failed to provide Complainant with information and forms needed to apply for workers’ compensation benefits, delaying the processing of her claim with the Office of Workers’ Compensation Program (OWCP).3 28. On May 15, 2015, S1 and S2 changed the signature date and entered erroneous information into the system which was different from the information Complainant included on the CA-2 form she submitted to OWCP. 29. During October 2015, S1 provided false, misleading, and incomplete information responding to the Department of Labor (DOL), OWCP claims examiner, which caused Complainant’s workers’ compensation claim to be denied. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing from October 5, 2020 - October 8, 2020, and October 26, 2020. The AJ issued a bench decision on November 6, 2020. As to the reasonable accommodation claims, the AJ found that the Agency discriminated against Complainant based on her disability when it failed to provide her with a reasonable accommodation from June 18, 2014 through September 29, 2014, and from November 8, 2014 through January 23, 2015. The AJ found that there was no denial of a reasonable accommodation from January 26, 2015 through June 29, 2015. The AJ found no discrimination regarding the remaining claims. The AJ ordered the following relief: (1) The Agency shall restore all leave and credit hours Complainant used on Wednesdays and Fridays during the period of June 18, 2014 to September 29, 2014, and from November 8, 2014 to January 23, 2015; (2) The Agency shall allow 3 In an April 22, 2020, Order Partially Granting the Agency’s Motion for a Decision Without a Hearing, the AJ dismissed claims 27 - 29 for failure to state a claim (collateral attack) pursuant to 29 C.F.R. § 1614.107(a)(1). 2021002428 5 Complainant to retroactively use restored leave and credit hours on days after January 23, 2015 that she received LWOP; (3) For any portion of the restored leave and credit hours that Complainant retroactively uses for days after January 23, 2015, on which she previously received LWOP, the Agency shall provide back pay with interest. Such backpay shall be computed in the manner prescribed by 5 C.F.R. § 550.805; (4) Two hours of EEO training to S1 that focuses on an employer’s obligation to provide reasonable accommodations to individuals with disabilities; (5) The Agency was ordered to post copies of the notice indicating that management has been found to have failed to satisfy its obligations under the EEOC’s regulations and the Rehabilitation Act. The AJ denied compensatory damages based on a finding that the Agency demonstrated that it made a good faith effort to reasonably accommodate Complainant’s disability. In a January 14, 2021 order, the AJ denied Complainant’s request for attorney’s fees and awarded Complainant $3,114.07 in costs. On February 12, 2021, the Agency issued a final order fully implementing the AJ’s findings. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Dismissal of OWCP Claims As an initial matter, we find the AJ properly dismissed claims 27, 28, and 29 for failure to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wilis v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process was within that forum itself. The Commission has held that an allegation that the Agency delayed processing of her claim or submitted incomplete or faulty paperwork because of discriminatory animus does not state a cognizable claim. See Lynnette M. v. U.S. Postal Serv., EEOC Appeal No. 2019002965 (Jul. 23, 2019; Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 16, 2002). 2021002428 6 Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. §1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). 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); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A modification or adjustment is “reasonable” if it appears to be “feasible” or “plausible.” Enforcement Guidance at 4. An accommodation also must be effective in meeting the needs of the individual and enable the employee to perform the essential functions of the position. Id. at 4-5. The evidence shows that Complainant began working on the 3rd floor at the Agency’s Smyrna facility in August 2013. Upon her arrival, she noticed a bad odor coming from a male coworker (M) that worked in her division and also sat on the 3rd floor. Complainant began to experience physical symptoms in response to M’s odor, including nausea, and complained to her supervisor (A1) in September 2013. In response, A1 allowed Complainant to telework four days per week and on her one in-office day, she could request ad hoc telework if the odor bothered her. After working under this arrangement for a period of time, Complainant felt the odor issue had improved and agreed to return to her prior three-day telework/two day in-office schedule. In April 2014, Complainant was assigned a new first line supervisor (S1). S1 worked out of the Agency’s Boston office. In May or June 2014, Complainant met with S1 in the Smyrna office and informed him that M’s odor caused her to experience nausea, headaches, dizziness, lightheadedness, and loss of appetite. Complainant requested to resume the four-day telework/one day in-office schedule that she had under A1. S1 denied the request asserting that as a new supervisor, he did not want to alter any of his employees’ telework agreements. 2021002428 7 In a June 18, 2014, email, Complainant told S1 she was leaving the office to work at home due to the odor issue. In an email response the same day, S1 apologized for the inconvenience the odor was causing and ensured her he would work with S2 to find a proper way to handle it. S1 also offered to move Complainant to a cubicle further away from M or to a workstation on the second floor. Complainant rejected the offer. S1 also told Complainant that on her in-office days, he would approve ad hoc telework if the odor bothered her while she was in the office. Complainant informed S1 that she may not be able to work when she returned home because the effects from the odor exposure remained after she was no longer exposed. On July 30, 2014, Complainant emailed all his staff requesting that they submit new telework agreements so that he can sign them as their new supervisor. Complainant emailed S1 indicating that M’s odor was causing nausea and upset stomach and requiring her to increase the number of days she worked at home. She submitted a revised telework schedule requesting four days of telework because the odor issue had not been resolved. She acknowledged that S1 had previously offered to relocate her desk but stated that solution did not work for her because she liked working with her peers. In a July 31, 2014, email, S1 told Complainant that he would only approve three nonconsecutive days for telework. In response, Complainant told S1 that her prior supervisor - A1 - had allowed four days telework. S1 told Complainant he is mindful of the ongoing situation and feels three days of telework is a fair and reasonable accommodation. On August 1, 2014, Complainant sent an email to S1 titled “Telework Schedule Change/Intolerable Working Environment” inquiring as to the reason for the three-day telework restriction he imposed. She noted that there was no such restriction noted in the Agency’s telework policy. S1 responded that for the cohesiveness of the team he would allow up to three nonconsecutive days of telework per week unless there is a compelling reason or specific situation which required particular consideration. He further noted that he would update her on the odor issue involving M once she submitted her revised telework form. In response, Complainant submitted a revised telework agreement reflecting three days of telework. One August 4, 2014, Complainant emailed S1 for an update regarding the status of M’s odor issue. On August 5, 2014, S1 responded that he had been continuously working on the issue and was looking into a more permanent accommodation in lieu of her requesting to finish her workdays at home. He then offered to relocate her permanently to another cubicle or use of a coworker’s cubicle when unoccupied. 2021002428 8 In response, Complainant copied S2 and declined to move to the alternate workstations S1 suggested noting that one of the cubicles still placed her in M’s area. She requested that S2 intervene and suggested mediation. She noted that she would continue to request ad hoc telework until a viable solution is reached. On August 5, 2014, Complainant sent a separate email to S2 indicating that S1 had denied her request for four days of telework to avoid symptoms related exposure to M’s smell and requested his assistance. S2 did not respond. On August 18, 2014, Complainant emailed S1 requesting the assistance of Work Force Intervention to resolve the disapproval of her four-day telework request relating to the odor issue. S2 was copied on the email. S2 responded that S1 was on leave until September 1st. On September 4, 2014, Complainant emailed S1 requesting an update on the odor issue. On September 8, 2014, S1 responded that management initiated the process to move M to the next aisle over. On September 9, 2014, Complainant sent S1 and email titled “Request for ad hoc telework (due to physical environment)” stating: [T]he prolonged physical environment of the office; body odor, hygiene, dirty clothes, exposed underwear and body parts, is so debilitating to me that they cause me to become nauseous, dizzy, and have headaches to the point where I have to leave work and physically lay down when I get home. Within the last 45 days or so, just the thought of having to come to work and being subjected to the adverse odor causes the same physical symptoms and is equally incapacitating. In the past, I’ve requested leave at my expense. As a result of this prolonged adverse physical environment, I am requesting ad hoc telework to mitigate exposure to avoid further personal injury. While my current schedule requires me to be in the office Wednesday and Friday (especially since my request for four days of telework was denied) this will allow a reasonable accommodation so I will not have to subject myself to the environment and become ill prior to being able to request telework ad hoc. On September 9, 2014, S1 responded approving Complainant’s request. On September 10, 2014, Complainant sent an additional email to S1 titled “Reasonable accommodation to telework/Compelling Circumstances” with a revised telework agreement for four days of telework. She stated that she is requesting a “reasonable accommodation to telework” because as a result of management’s failure to resolve the odor issues she is “now dealing with feeling nauseous with the thought of coming into the office environment.” S1 did not respond. 2021002428 9 In a September 29, 2014, email, S1 noted that the request to relocate M is taking longer than anticipated and a “renewed focus and action will be [taken] to speed up the move.” He noted that until then, he would accommodate her ad hoc telework requests. In response, Complainant submitted a revised telework form requesting four days of telework. In response, S1 stated that he will revisit her telework agreement once M is relocated, and in the meantime, he will accommodate her requests for ad hoc telework as needed. On November 5, 2014, Complainant emailed S2 requesting that he review her reasonable accommodation to telework. In response, S2 stated that he felt the odor issue had been resolved. On November 6, 2014, Complainant emailed S2 requesting permission to address her concern with her third line supervisor (S3). S2 did not respond. On November 6, 2014, email, S1 granted Complainant’s ad hoc telework request for November 7, 2014, but stated that the odor concern is no longer an issue as far as management is concerned. S1 stated he received eyewitness accounts that M’s odor and hygiene had shown tremendous improvement and that going forward he would no longer approve ad hoc telework requests based on this issue. In response Complainant asserted that M’s odor had not improved and noted that assurance that M would be relocated also had not been met. On November 7, 2014, Complainant emailed S3 regarding the odor issue and indicating that the working environment has made her ill, nauseous, light-headed, and unable to work. S3 responded indicating that because she initiated an EEO complaint against her supervisor, communications regarding the issue should be channeled through the EEO office. On November 12, 2014, Complainant sent an email to S2 indicating the requirement that she take leave to protect her health and avoid the offensive environment in the office is resulting in a significantly reduced work schedule. In response, S2 told her to address her issues with S1. On November 13, 2014, Complainant submitted an ad hoc telework request for November 19 and November 21st based on M’s odor. S1 approved the request. On November 21, 2014, S1 approved Complainant’s request for ad hoc telework for November 26th and November 28th. On December 16, 2014, S1 denied Complainant’s request for ad hoc telework for December 17 and December 19 again asserting that the odor issue with M had resolved and noting that M was scheduled to be out of the office on December 19th. On December 18, 2014, Complainant emailed S1 requesting information regarding the Family Medical Leave Act (FMLA). In a January 6, 2015, email, S1 denied Complainant’s request for ad hoc telework for January 7 and 9, 2015. S1 noted that M’s condition had tremendously improved, but Complainant had not been in the office to witness it. S1 noted that if being in the office has a negative impact on her health, she should provide medical documentation for consideration. 2021002428 10 In a January 20, 2015 email Complainant requested ad hoc telework based on the odor issue for January 21, 23, 28, and 30th. In a January 21, 2015 response, S1 denied her requests for ad hoc telework stating that S2 had confirmed that the odor issues had been resolved. He further noted that he would not approve any more annual leave requests based on her unfounded complaints and noted that her excessive unscheduled leave usage impacts the mission and his confidence in her ability to perform her duties. On January 20, 2015, Complainant emailed S1 requesting FMLA leave. On January 21, 2015, S1 approved her absence under FMLA contingent upon submission of medical documentation to Federal Occupational Health (FOH). During the week of January 26, 2015, S1 did not approve Complainant’s telework, and she opted to take sick leave. In a February 1, 2015, email, Complainant emailed S1 and S2 asking that they direct all correspondence for her attention to her husband because she was incapacitated and unable to respond to emails or phone calls. On February 2, 2015, Complainant began FMLA leave. A March 13, 2015 letter from Complainant’s doctor indicated that Complainant was unable to be physically present in the office due to severe major depression with psychosomatic features. The medical service provider noted that it appeared that Complainant had been severely impacted by workplace conditions including odors and nausea that have developed into a conditional response (of nausea, headaches, and agitation), which has evolved into a severe depression partly in response to her sense of helplessness to change the condition. Her physician indicated that Complainant would be incapacitated for three to six months and would need to seek continuous treatment. An April 1, 2015, letter from the Federal Occupational Health Service confirmed Complainant had a medical condition that is considered “serious” under FMLA and stated Complainant may require up to 480 hours of continuous leave beginning January 21, 2015, to care for this condition.4 It was noted that based on Complainant’s medical documentation, a return to work date could not be determined. On April 20, 2015, Complainant - through her husband - submitted a formal reasonable accommodation form requesting: (1) to be relocated to the IT office on the first floor; and (2) be provided written procedures for the protection of Complainant’s health if she was exposed to M’s odor. In an April 20, 2015 email, Complainant’s husband requested additional leave through the Americans with Disabilities Act (ADA) in conjunction with FMLA because Complainant’s FMLA was to expire May 2, 2015. Complainant’s husband noted that they were hoping Complainant could return to work by June. On April 23, April 27, and May 4, 2015, Complainant’s husband sent additional emails to S1 and S2 requesting the status of Complainant’s ADA leave request. 4 During the hearing, the Agency stipulated the Complainant’s FMLA leave did not start until on or about February 2, 2015. 2021002428 11 On April 30, 2015, Complainant received a letter from S1 titled “Return to Work Order.” The letter asserted that Complainant’s 12 weeks of FMLA expired on or about April 21, 2015, and that as of the date of the letter she was on provisional leave without pay status. Complainant was advised to report to work no later than May 13, 2015. The letter also advised that if she required additional leave due to her medical condition to submit medical documentation by May 11, 2015. On June 15, 2015, Complainant submitted an additional reasonable accommodation request which included a request for five days of telework. The request was granted on June 17, 2015. Complainant returned to work on June 29, 2015, and was allowed five days telework as a reasonable accommodation. The AJ found that Complainant made a reasonable accommodation request on June 18, 2014, when she notified S1 of the symptoms she experienced when exposed to M’s odor. Although S1 offered several options to Complainant to accommodate her sensitivity, none of the options occurred before September 29, 2014. In addition, the AJ found that requiring Complainant to come to the office and suffer adverse symptoms prior to approving ad hoc telework was not an effective accommodation to her odor sensitivity. On September 29, 2014, S1 acknowledged that efforts to relieve her exposure to the odor were taking longer than expected and said he would approve ad hoc telework without having her first report to the office until a more permanent solution was reached. The AJ found that allowing Complainant to telework every day was an effective accommodation. The AJ further noted that after November 7, 2014, S1 refused to grant Complainant’s ad hoc telework requests before Complainant had to report to the office because management believed M was no longer emitting an odor. The AJ found that because Complainant informed S1 that she was suffering symptoms from the mere thought of entering the office, the refusal to grant telework was a denial of a reasonable accommodation. The AJ found no denial of a reasonable accommodation from January 26, 2015, to June 29, 2015, because Complainant testified that she would not have worked during this period even if the Agency granted her telework five days a week. The AJ found that the Agency discriminated against Complainant based on her disability when it failed to provide her with a reasonable accommodation from June 18, 2014 through September 29, 2014, and November 8, 2014, through January 23, 2015. We find substantial evidence supports the findings that Complainant was not denied a reasonable accommodation at all other alleged times. Disparate Treatment & Harassment Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 2021002428 12 For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). This 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 Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order to establish a claim of harassment, a 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 her 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021002428 13 In order to meet the requirements of prong 4, 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show she was subjected to a discriminatory hostile work environment. Regarding the disparate treatment claims of the Agency’s denial and handling of Complainant’s reasonable accommodation requests and events connected to those requests (which are many of the claims in the complaint - claims 1, 2, 3, 5, 6, 7, 10, 11, 15, 22, and 23), we find that substantial evidence supports the AJ’s finding of no discrimination. Regarding claim 4, Complainant alleges that S1 did not provide her a performance appraisal meeting for calendar year 2014. The evidence shows that Complainant did receive a performance evaluation of “fully successful” for calendar year 2014. However, S1 asserts that he did not meet with Complainant to discuss her performance evaluation because she was on FMLA leave at the time. We find that substantial evidence supports the finding of no discrimination for claim 4. Regarding claim 8, Complainant asserts that between August 2013 and June 2015, she was treated differently from Coworker 1 (C1) - a White female - who was permitted an isolated office space on the second floor when she complained of M’s odor and smoking. S2 asserted that prior to Complainant’s arrival at the Agency, C1 was assigned a second-floor office so that she could be located closer to his office because he was her immediate supervisor at the time. He noted that C1 was assigned this desk prior to M joining the organization. Notably, the evidence shows that when Complainant first addressed the odor exposure issue with S1, he offered her relocation to the second floor, and she declined. We find that substantial evidence supports the finding of no discrimination for claim 8. Regarding claim 9, Complainant asserts that between August 2013 and June 2015, she was treated differently from Coworker 2 (C2) - a White female - who was permitted four days of telework to care for her elderly father even though the Agency’s telework policy specifies that telework is not a substitute for dependent care. S1 asserts that C2 was already on a four-day telework agreement upon his arrival, and he did not approve or alter any telework agreements. In addition, the evidence shows that C2 had already been assigned to a second-floor office prior to Complainant and M’s employment with the organization. We find that substantial evidence supports the finding of no discrimination for claim 9. Regarding claim 12, the evidence shows that on April 27, 2015 and May 4, 2015, Complainant’s husband emailed S1 and S2 requesting copies of her past three performance appraisals. 2021002428 14 S1 asserts that he did not have access to Complainant’s prior performance appraisals, and he mailed the Complainant a letter informing her that she could access her prior performance appraisals through her Electronic Official Personnel Folder. We find that substantial evidence supports the finding of no discrimination for claim 12. Regarding claim 13, the evidence shows that on March 18, 2015, Complainant’s husband emailed S1 and S2 requesting that they complete section 1 of her FMLA form. S1 asserted that any delay was caused by their attempts to coordinate with the Agency’s FMLA and OWCP specialist. We find that substantial evidence supports the finding of no discrimination for claim 13. Regarding claim 14, S1 denied conducting any performance counseling with S1 between October 2014 and December 2014, and denied telling Complainant he would provide her a poor evaluation and not consider her for a performance award. We find that substantial evidence supports the finding of no discrimination for claim 14. Regarding claim 16, Complainant asserts that on June 30, 2015, S1 continued to harass her via electronic correspondence and accused her of “fictitious acts of unprofessional behavior.” The evidence shows that in the June 30, 2015 email at issue, S1 stated that Complainant had ignored his greeting during their earlier phone call, and he found the action unprofessional and unacceptable. S1 asserted that he made the statement because he found her communications to be extremely unprofessional. We find that substantial evidence supports the finding of no discrimination for claim 16. Regarding claim 17, Complainant asserts that on July 8, 2015, the Agency denied her request to have office supplies sent to her house while she was on medical telework related to her disability. S2 stated that the organization’s telework policy provides that employees must supply themselves with office supplies or they could pick them up from the office. We find that substantial evidence supports the finding of no discrimination for claim 17. Regarding claim 18, Complainant asserts that S1 provided her a low performance evaluation and gave her a lower cash award than other employees. The evidence shows that all employees that received a fully successful rating received an $800 award - including Complainant. Employees that received higher monetary awards received an outstanding rating on their performance evaluations. S1 stated that his “fully successful” evaluation of Complainant was based solely on his observation of her work between April 2014, when he became her supervisor, and December 2014. We find that substantial evidence supports the finding of no discrimination for claim 18. Regarding claim 19, Complainant asserts S1 denied her request to utilize 40 hours of official time to work on her EEO complaint. The Commission has long held that an allegation pertaining to the denial of official time states a separately cognizable claim alleging a violation of the Commission’s regulations, without requiring a determination of whether the action was motivated by discrimination. Sheryl S. v. Soc. Sec. Admin., EEOC Appeal No. 0120150144 (Nov. 1, 2016). 2021002428 15 The Commission has the authority to adjudicate and remedy a violation of 29 C.F.R. § 1614.605(b) without a finding of discrimination, as the focus of an investigation is not on the motivation of the allegedly offending agency, but strictly on whether the employee was denied a reasonable amount of requested official time. Id.; see Chere S. v. Dep’t of Treas., EEOC Appeal No. 0120171056 (Aug. 9, 2018), req. for recon. denied, EEOC Request No. 2019000552 (Feb. 14, 2019). Here, Complainant requested 40 hours of official time to work on her EEO claim and the Agency granted three hours. We find the amount of time granted was reasonable under the specific circumstances of this case and therefore there was no improper denial of official time. Regarding claim 20, Complainant asserts that beginning in July 2015, management attempted to coerce Complainant into changing her reasonable accommodation telework agreement. The evidence shows that during this period, the Agency granted Complainant’s request for five days telework as a reasonable accommodation. Management asserts that they directed her to annotate her timecard to reflect this, but Complainant refused to do so and submitted her timecard as showing regular telework five days a week. We find no persuasive evidence of harassment or attempt to force Complainant to change her reasonable accommodation. We find that substantial evidence supports the finding of no discrimination for claim 20. Regarding claim 21, Complainant alleged that on November 2, 2015, S1 placed her on absence without leave (AWOL) during the pay period of October 18, 2015, while she was on FMLA approved leave. S1 stated that Complainant coded her time sheet with LWOP for October 28 through October 30, 2015, without requesting approval. The evidence shows that on October 28, 2015, S1 emailed Complainant inquiring about the LWOP and Complainant did not respond. Two days later, S1 sent an additional email indicating that if she did not respond, LWOP would be changed to AWOL. S1 stated that during that period, Complainant had a pending FMLA extension request but had not submitted the required medical documentation. We find that substantial evidence supports the finding of no discrimination for claim 21. Regarding claim 24, Complainant alleged that on July 28, 2015, S1 and S2 denied her request to change her telework agreement and work schedule. She asserts that she requested to change her telework schedule from fixed to standard so that she could earn credit hours and be flexible to accommodate customers in the evenings. S2 asserts Complainant emailed management stating that she was going to work credit hours; however, because she was on a regular schedule, she could not earn credit hours. S1 noted that Complainant picked her schedule when she filed her reasonable accommodation agreement. We find that substantial evidence supports the finding of no discrimination for claim 24. Regarding claims 25 and 26, S1 asserted that he initiated the suspension for unprofessional conduct and failure to follow instructions because Complainant spoke to him in rude and disrespectful way in several calls and emails. S1 also noted four instances of Complainant failing to follow instructions. 2021002428 16 In one specification, S1 noted that he asked Complainant to remove an automatic reply message that stated that she was out of the office “due to prolonged exposure to an odor in [her] office which has caused a serious illness,” and Complainant continued to use the same verbiage in her out-of-office communication. S2 stated he approved the suspension because he agreed that the cited actions were inappropriate. Complainant failed to show that similarly situated people were treated differently. We find that substantial evidence supports the finding of no discrimination for claims 25 and 26. We find, in sum, that Complainant has failed to show the Agency’s asserted nondiscriminatory reasons for its actions were pretextual. Complainant has provided no evidence other than her own opinion that the Agency was motivated by discrimination or retaliation in any of its actions at issue in this complaint. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Compensatory Damages An agency is not liable for compensatory damages under the Rehabilitation Act where it has consulted with a complainant and engaged in good faith efforts to provide a reasonable accommodation but has fallen short of what is legally required. Ashely H. v. Nat’l Transp, Safety Bd., EEOC Appeal No. 0120180038 (Sept. 17, 2019). Here, the AJ found that the Agency wrongfully denied Complainant a reasonable accommodation by not allowing her to telework five days a week, but immediately following Complainant’s June 18, 2014, request for a reasonable accommodation, the Agency regularly granted her requests for leave when her disability precluded her from working in the office and also granted ad hoc telework when she was unable to continue working in the office due to her disability. The evidence also shows that prior to granting Complainant’s telework requests, she was offered alternative workspace. We find that the AJ’s finding that the Agency demonstrated it made a good faith effort accommodate Complainant is supported by substantial evidence. Thus, Complainant is not entitled to compensatory damages for the Agency’s failure to provide her a reasonable accommodation. Attorney’s Fees & Costs A finding that the Agency subjected Complainant to discrimination in violated of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et. seq. raises a presumption that Complainant is entitled to an award of attorney’s fees and costs. 2021002428 17 Complainant was represented by Attorney 1 from May 2015 to June 2015. She was represented by Attorney 2 from June 2015 through November 2015 and then concluded the litigation of her claim pro se. The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a “lodestar.” See 29 C.F.R. §1614.501(e)(2)(ii)(B); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining the number of hours expended the Commission recognizes that the attorney “is not required to record in great detail the manner in which each minute of his time was expended.” Id. However, the attorney has the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. Furthermore, to recover attorney’s fees, a complainant must provide an affidavit executed by the attorney who performed the services for which reimbursement is sought. See 29 C.F.R. §1614.501(e)(2)(i); Equal Opportunity Management Directive (EEO-MD-110), Ch. 11, sec. VI.G.1 (Aug. 5, 2015). Complainant requested a total of $9,775.86 in attorney’s fees - $3,680 for Attorney 1 and $6,081.86 for Attorney 2. Complainant also requested $5,756.45 in costs. In a January 14, 2021, order, the AJ denied Complainant’s request for attorney’s fees and awarded $3,144.07 in costs. Regarding attorney’s fees, Complainant submitted billing statements from both attorneys but failed to included affidavits or statements of verification as required by law. See 29 C.F.R. §1614.501(e)(2)(i). On appeal, Complainant argues that the denial of attorney’s fees was erroneous because during the hearing addressing damages, the AJ gave the impression that the billing statements she provided were sufficient and the AJ did not inform her that an affidavit was required. However, in his November 6, 2020, bench decision, the AJ explicitly stated that Complainant had until December 7, 2020, to submit a statement of attorney’s fees and costs with an affidavit by the attorney. We find no confusion in the AJ’s instructions. The Commission has found that invoices are not a substitute for an attorney’s verified statement of fees and costs. See Garland C. v. Dep’t of Transp., EEOC Appeal No. 0120182009 (Jan. 29, 2020). Thus, we find that the AJ properly concluded that Complainant is not entitled to attorney’s fees. Regarding costs, Complainant requested $5,756.45 in costs. The AJ awarded $3,144.07 in costs. Complainant disputes the AJ’s denial of the following costs: $1,135 in representation services by an advocacy organization, $935 for books on compensatory damages, $154.52 for printing the hearing transcript, and $110.83 in FedEx expenses from October 23, 2015. As representational services to Complainant rendered by a non-attorney may not be awarded fees, we find the AJ’s denial of $1,135 was proper. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141551 (Oct. 24, 2014). 2021002428 18 Furthermore, we agree with the AJ that even if the services were not representational, Complainant did not submit sufficient documentation or receipts to prove she incurred such expense. We further find that the AJ’s remaining conclusions regarding the award of costs is supported by substantial evidence. We shall restate the AJ’s order herein with minor clarifications and additional training and consideration of discipline. We note that Complainant seems to be seeking compliance with the AJ’s order. Because Complainant filed an appeal, the Agency was under no obligation to comply with the remedies set forth by the AJ until this appeal was adjudicated. Pursuant to the Order herein, the Agency is now obligated to comply with the remedies herein. If Complainant feels the Agency has not complied, then she may file a petition for enforcement pursuant to 29 C.F.R. § 1614.503. CONCLUSION Accordingly, the Agency’s final order finding that the Agency discriminated against Complainant based on disability by failing to provide her with a reasonable accommodation and finding no discrimination as to the remaining claims is AFFIRMED. ORDER To the extent that it has not already done so, the Agency shall take the following actions: 1. Within 60 days of the date this decision is issued, the Agency shall restore all leave and credit hours Complainant used on Wednesdays and Fridays during the period of June 18, 2014 to September 29, 2014, and from November 8, 2014 to January 23, 2015. 2. Within 60 days of the date this decision is issued, the Agency shall allow Complainant to retroactively use restored leave and credit hours on days after January 23, 2015, that she received LWOP. 3. For any portion of the restored leave and credit hours that Complainant retroactively uses for days after January 23, 2015, on which she previously received LWOP, the Agency shall provide back pay with interest. Such backpay shall be computed in the manner prescribed by 5 C.F.R. § 550.805 and shall be paid 60 days from the date Complainant retroactively used restored leave and credit hours under this provision of this Order. 4. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $3,144.07 in costs. 2021002428 19 5. Within 90 days of the date this decision is issued, the Agency shall provide eight hours of in person or interactive EEO training to S1 that focuses on an employer’s obligation to provide reasonable accommodations to individuals with disabilities. 6. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employment, then the Agency shall furnish documentation of their departure date(s). POSTING ORDER (G0617) The Agency is ordered to post at its Smyrna, Georgia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 2021002428 20 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021002428 21 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). 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 27, 2022 Date