[Redacted], Iesha G., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2021003221 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iesha G.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2021003221 Hearing Nos. 480-2018-00193X, 480-2019-00392X Agency Nos. OBD-2017-00177, OBD-2017-01056 DECISION On May 12, 2021, 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 April 13, 2021, final decision concerning her 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. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a GS-0950-11 Paralegal Specialist in the Agency’s U.S. Trustee Program office in San Diego, California. On February 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity (initiating the instant EEO complaint) when: 1. On August 26, 2016, a Legal Assistant (LA) sent an email to Complainant’s supervisor, the Acting U.S. Trustee (AUST), attacking Complainant for having 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. 2021003221 2 taken leave. On August 31, 2016, LA interjected himself into a conversation between Complainant and a coworker, saying in an aggressive and hostile manner, “keep it down”; 2. On September 6, 2016, LA came to Complainant’s office and was belligerent, stood over her and was close to her and raised his voice at her; on September 8, 2016, LA chased her through the office and yelled at her; and, on September 9, 2016, she saw an email from LA on a shared printer and, in the email, he equated her relationship with a female coworker to homosexual pedophiles and accused her of possibly using steroids; 3. On November 7, 2016, Complainant attended a staff meeting. LA was not scheduled to be in attendance but arrived late and came just to get a reaction from Complainant. Upon his arrival, Complainant left the meeting because she was scared of LA. On November 15, 2016, AUST met with Complainant and told her she is not to abruptly get up and run out of a meeting when LA enters the room. On December 12, 2016, AUST told her she was disruptive when she “ran” away from LA when she encounters him; and 4. Since reporting LA’s behavior to AUST in September 2016, AUST’s demeanor has changed towards Complainant. AUST has created rules and limitations that only apply to her; AUST has ridiculed her and picked on her in the presence of others in the office; AUST has spoken to her in an accusatory manner; and AUST has nitpicked her word choices in communications with her. Complainant subsequently amended her complaint, alleging that the Agency discriminated against her on the basis of disability (mental) when: 5. Beginning in October 2016 and continuing to July 2017, Complainant has requested, as a reasonable accommodation, not to attend meetings that LA attends because this causes her to have panic attacks. AUST has delayed responding to her requests and eventually denied her request for reasonable accommodation. 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 (EEOC AJ). Complainant timely requested a hearing. On August 22, 2017, Complainant filed a second EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (mental), and reprisal for prior protected EEO activity when: 6. On August 17, 2017, Complainant was forced to resign from her GS-0950-11 Paralegal Specialist because of the hostile work environment that AUST created. 2021003221 3 The Agency processed this complaint as a mixed-case complaint. The Agency issued a final decision finding no discrimination with appeal rights to the Merit Systems Protection Board (MSPB) on June 6, 2018. Complainant timely appealed the Agency’s final decision to the MSPB, but an MSPB Administrative Judge dismissed the appeal for lack of jurisdiction. In EEOC Petition No. 2019001633 (April 23, 2019), we denied Complainant’s request for review and ordered the Agency to process the complaint as a non-mixed case. The Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. An EEOC AJ joined the two complaints at the hearing stage. Complainant subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that the record did not establish that LA harassed Complainant. The August 26, 2016, email conveyed information about coverage for the office while Complainant and two other employees were on leave and AUST was visiting the Agency’s office in Guam. Although the Agency recognized that Complainant interpreted the email as an attack that led to Post-Traumatic Stress Disorder (PTSD), her interpretation was not supported by the record. The preponderance of the evidence in the record established that Complainant exaggerated her allegations about LA, and the Agency found that Complainant therefore did not establish that the LA’s conduct constituted harassment. The Agency also determined that AUST did not harass Complainant and that she appropriately attempted to encourage professional behavior on the part of both Complainant and LA. The Agency found that the preponderance of the evidence in the record did not establish that Complainant was forced to resign based on discrimination and/or retaliation. The Agency noted that there was evidence in the record that Complainant resigned because her husband was offered a job in Italy. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination 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 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”). 2021003221 4 Upon careful review of the Agency’s decision, the evidence of record, and the contentions on appeal, including those not specifically addressed herein, 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 as alleged. 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 the 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). 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). 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). To ultimately prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe RR. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Despite her arguments on appeal to the contrary, Complainant cannot establish a prima facie case of harassment. We agree with the Agency that the preponderance of the evidence in the record does not establish that Complainant was subjected to discriminatory harassment based on her sex and/or disability or that the alleged harassment was sufficiently severe or pervasive to constitute a hostile work environment. Similarly, we find that the preponderance of the evidence in the record does not establish that Complainant was subjected to harassment based on her EEO activity or that the alleged harassment was reasonably likely to deter protected activity. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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. 29 C.F.R. §§ 1630.2(o) and (p). 2021003221 5 While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). We further find that the preponderance of the evidence does not establish that the Agency denied Complainant a reasonable accommodation. The Agency granted Complainant’s informal requests for workplace modifications such as calling into office meetings, situational telework, and no contact with LA. When the U.S. Trustee Program moved to a new office in San Diego, Complainant objected that her assigned cubicle was too close to LA’s cubicle. Complainant requested a reasonable accommodation, AUST granted Complainant extended telework while considering the request, and AUST offered Complainant a private office as a reasonable accommodation. The record does not establish that the Agency unreasonably delayed or that the accommodation offered to Complainant was ineffective. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). A finding of constructive discharge is precluded by our determination that the preponderance of the evidence in the record does not establish that Complainant was subjected to discrimination based on sex, disability, and/or reprisal as alleged. Moreover, although Complainant asserts that she was forced to resign because of the intolerable actions of LA and AUST, there is evidence in the record suggesting that Complainant actually resigned because her husband accepted a job offer in Italy. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2021003221 6 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). 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. 2021003221 7 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 15, 2022 Date