[Redacted], Opal V., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Mar 28, 2023

Appeal No. 2022002178 (E.E.O.C. Mar. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Opal V.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2022002178 Hearing No. 430-2021-00293X Agency No. FSIS-2020-00955 DECISION On March 11, 2022, 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 10, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Consumer Safety Inspector, GS-1862-09 at the Agency’s Raleigh Branch facility in Dayton, Virginia. On November 17, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the basis of disability (asthma) 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. 2022002178 2 1. Beginning on or about August 24, 2020,2 and continuing through September 21, 2020, management placed her on Leave Without Pay (LWOP); 2. Beginning on August 25, 2020, and continuing to the present, her first-level manager failed to provide her a reasonable accommodation (RA); 3. Beginning on August 17, 2020, and continuing through September 21, 2020, her first- level manager shared her confidential medical information with her colleagues; and 4. On several dates, she was subjected to various incidents of harassment, including, but not limited to: a. On September 22, 2020, management denied her request to utilize a union representative during a meeting; and b. On unspecified dates, her first-level supervisor told her that she could “reasonably accommodate herself right out of a job.” 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). The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The following Agency employees are relevant to the claims: Complainant’s first-line supervisor (Manager-1); an occasional substitute supervisor for Complainant when Manager-1 is out of the office (Manager-1B); Complainant’s second-line supervisor (Manager-2); Complainant’s third- line supervisor (Manager-3); and Complainant’s fourth-line supervisor (Manager-4). Regarding claim 1, Complainant reported that she was placed on LWOP from August 24 through September 21, 2020. Complainant reported being told that she needed to either get a reasonable accommodation or a doctor’s note to change the wording on Complainant’s FMLA papers. Complainant contends that she was able to work but that management decided she was not able to work because of her disability. Manager-1B reported that Manager-4 instructed her to remove Complainant from work. Manager-1B stated that the reason indicated was that Complainant could not work due to the restrictions noted by her doctor on her FMLA paperwork. Manager-1B reported that the doctor’s note stated that Complainant could not work in excessive humidity, excessive dampness, exposure to noxious fumes, or wear the appropriate safety protection as stated in her job description. Manager-1B stated she explained the situation to Complainant and asked Complainant to fill out a request for LWOP because Complainant did not have any leave. Manager-1B stated she provided Complainant with forms for a reasonable accommodation per Manager-4’s instructions. 2 Complainant originally alleged the LWOP began on August 17, 2020. Later she corrected the date to be August 24, 2020. 2022002178 3 Regarding claim 2, Complainant reported leaving completed paperwork requesting a reasonable accommodation face down on Manager-1’s desk on August 27, 2020. Complainant stated that she needed the reasonable accommodation of being able to use leave when she had an asthma attack or flare-up. Manager-4 denied the request on the grounds that the requested accommodation would require lowering the performance/production standards, cause an undue hardship, and remove an essential function of the position. Manager-4 reported that Complainant communicated during the interactive process that exposure to chemicals in the plant was causing the trouble and that the request was not temporary. Manager-4 explained that the nature of the assignment requires employees with her job to work in environments where chemicals are present. On November 17, 2020, Manager-4 sent Complainant a reassignment application and asked her to complete the document and return it to the relevant Human Resources contact by a stated deadline. Complainant did not complete the reassignment application by the deadline. Regarding claim 3, Complainant reported that Manager-1 shared her medical information in the following ways: (1) Manager-1 shared it directly with Complainant’s representative; (2) Manager-1 sent an email with the information to multiple people in the district; (3) Manager-1 left the FMLA paperwork on Manager-1’s desk face up and (as Complainant described) Manager-1’s office as “an open office where people are in and out of constantly”; and (4) Manager-1 “made comments to Complainant’s coworkers about whether Complainant’s asthma was really bad and that [Complainant] needed time off.” Manager-1 reported that she turns everything face down on her desk. Manager-1 denied disclosing Complainant’s medical information. Regarding claim 4a, Complainant reported that upon her return to work, she was told she had to attend a meeting with Manager-1 and Manager-3. Complainant stated that she asked for her union representative when she went to the appointed office. Complainant reported that Manager- 1 stated that Complainant did not need representation, and that a separate supervisor could act as Complainant’s witness. Complainant stated that Manager-1 assigned Complainant’s duties to the union representative, thereby preventing the representative from attending the meeting. Complainant stated that coworkers offered to modify their work schedule to allow Complainant to have the representative with her. Complainant admitted that her requested representative attended the meeting. Complainant reported feeling singled out by the initial denial of a representative. Regarding claim 4b, Complainant reported that Manager-2 made the statement during a meeting regarding Complainant’s reasonable accommodation that occurred on September 22, 2020. Complainant stated that Manager-2 wanted Complainant to rescind her request for a reasonable accommodation. Complainant reported that Manager-2 stated that there were no light duty positions, that they did not have any place to put Complainant, and that it would possibly result in Complainant losing her job. 2022002178 4 Complainant stated that she felt threatened because she had asthma. Manager-2 stated he tried to explain to Complainant that any statement made by the doctor that indicated she was unable to work at all in that position because of medical restrictions, might result in her not being able to work in that position. On appeal, Complainant submitted no statement or brief in support. 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 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”). Disparate Treatment (claim 1) To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022002178 5 Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the basis of disability. We find that the Agency has articulated a legitimate, nondiscriminatory reason for the LWOP at issue. We find Complainant failed to show that the Agency’s articulated reason for the LWOP was a mere pretext for discrimination. The FMLA paperwork as completed by Complainant’s doctor contains the language described by Manager-1B. While Complainant contends that the restrictions were meant to only apply during an asthma flare-up, the ambiguity in the doctor’s language and how the doctor completed the form made it reasonable for the Agency to reach the determination to send Complainant home due to an inability to safely perform her duties. Reasonable Accommodation (claim 2) The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual pursuant to 29 C.F.R. § 1630.2(m); 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, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). Under the Commission’s regulations, 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), 1630.2(p). Here, we will assume without deciding (for the purposes of this decision) that Complainant was an individual with a disability. Complainant requested to take leave when she had an asthma attack. The Agency found, and the record indicates that the medical documentation submitted by Complainant indicated she could not perform the essential functions of the position. Complainant communicated during the interactive process that exposure to chemicals in the plant was causing her trouble. Complainant’s doctor indicated that Complainant could not be exposed to noxious fumes. The work description for a Consumer Safety Inspector indicates that the work is performed in a slaughter or food manufacturing facility and the major duties include verifying compliance with sanitation and pathogen reduction, which the facilities achieve via the use of chemicals that create noxious fumes. 2022002178 6 Thus, once it was revealed to the Agency that Complainant Complainant continue working in that environment or position (and also therefore the leave request would never arise). Furthermore, we note that Complainant was provided with the opportunity to pursue reassignment. Specifically, Manager-4 emailed Complainant the necessary paperwork to request a reassignment due to the lack of any form of reasonable accommodation that would allow Complainant to perform the essential functions of her position. This was the appropriate course of action as reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of her current position. The record establishes that Complainant did not complete the necessary paperwork. Accordingly, we do not find a violation of the Rehabilitation Act with regard to reasonable accommodation. Confidential Information (claim 3) The Rehabilitation Act and Federal regulations require employers to maintain medical information in a confidential manner, except when supervisors and managers need to be informed of necessary restrictions on the work duties of the employee or that an accommodation is necessary. See 42 U.S.C. §12112(d); 29 C.F.R. § 1630.14(c)(1). If the Agency discloses medical information pertaining to a complainant in a manner that did not conform to this regulation, then its act of dissemination would constitute a violation of the Rehabilitation Act. See Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0120073832 (May 15, 2009). The following are exceptions to the confidentiality requirement: supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with this part shall be provided relevant information on request. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14; EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 27, 2000)(Guidance 1). We find Complainant failed to show a violation of the Rehabilitation Act. Complainant failed to produce any persuasive evidence that Manager-1 disclosed confidential medical information. For instance, regarding the purported verbal disclosures, Complainant and her supporting witnesses described the conversations with vague and general terms and often referenced individuals who were not Complainant. Additionally, we note Complainant’s asthma diagnosis may no longer be confidential information. Complainant stated, “I feel safer telling a few trusted coworkers of my asthma.” Regarding the email, the record shows that the email was sent to District Management, the officials who needed the information to reach a determination regarding Complainant’s FMLA request. 2022002178 7 Harassment (all claims) To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his 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. 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). We find that Complainant failed to prove that the conduct was motivated by discriminatory animus. Regarding claims 4a and 4b, the conduct occurred in relation to the interactive process required by the Rehabilitation Act. Claim 4a’s conduct was a minor dispute over what individuals were necessary at the meeting and Complainant admitted that her requested representative ultimately participated. The record supports that an objective viewer would perceive Manager-2’s statement to mean that Complainant’s condition could prevent her from working. Furthermore, the claims, evaluated separately or together, are insufficiently severe or pervasive to constitute a hostile work environment. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2022002178 8 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. 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. 2022002178 9 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 March 28, 2023 Date