Rosemary L. Jimenez, Complainant,v.Linda S. McMahon, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120055577 (E.E.O.C. Feb. 23, 2007)

0120055577

02-23-2007

Rosemary L. Jimenez, Complainant, v. Linda S. McMahon, Acting Commissioner, Social Security Administration, Agency.


Rosemary L. Jimenez,

Complainant,

v.

Linda S. McMahon,

Acting Commissioner,

Social Security Administration,

Agency.

Appeal No. 01200555771

Hearing No. 120-2005-00001X

Agency Nos. 03-0367SSA, 04-0023SSA

DECISION

On August 24, 2005, complainant filed an appeal from the agency's 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.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Budget Analyst at the agency's Office of Budget.2

Complainant filed an EEO complaint (Agency No. 03-0367) dated July

10, 2003, which the agency partially accepted on November 7, 2003.

Thereafter, on April 28, 2004, complainant amended the issues raised in

the complaint. On June 23, 2004, the agency issued an amended acceptance

letter accepting the following claims:

1. Complainant has been subjected to discrimination based on her

color (olive), national origin (Mexican-American), sex (female), race

(Hispanic), religion (Catholic), marital status (single), disability

(Rhino-Allergic Sinusitis, Temporal Mandibular Joint Disorder, Lingual

Nerve Damage, Sciatic Joint Lumbar Instability-lower back/left hip and

Macular Degeneration), parental status (non-parent), age (over 40),

and in reprisal for prior protected activity regarding management's

assignment of duties to her. The following examples are cited:

a. Complainant has been denied tools necessary to complete assignments.

For example, she learned on April 1, 2003, that the GSA Delegation

Staffing assignment (for which she was responsible) was partially

completed without her knowledge or participation. Another example

occurred on August 7, 2003, and it involved the OMB Submission exhibit

(Non-personnel Costs) in which complainant was denied background

information necessary for her full participation in an important August

12 meeting on that topic. Still another example occurred on March 14,

2003, when information relating to the Delegation's program was not

timely provided to complainant.

b. Complainant was given an assignment by her supervisor on March 20,

2003, but only given limited background and insufficient notice to

complete it. Also, on July 14, 2003, complainant was not brought into

the loop regarding discussions involving "RENT Shortfalls," (another area

of her responsibility) when that issue had surfaced as early as July 10,

2003.

c. Complainant's assignment of responsibility for the Rent and Delegation

Budget (a low priority assignment) affords her little access to

information to do her job and few out-of-the-office meetings to attend.

d. Complainant is never assigned as the person-to-contact in the absence

of her team leader; nor is she designated Acting Team Leader.

e. On September 11, 2003, complainant received an assignment from

her Team Leader that involved OMB Rent Exhibit 54. When complainant

received such assignments in years past, management told her to refer

to OMB A-11 for instructions in completing the assignment and management

provided hard copies of background information sent by GSA as an aid in

completing the assignment. For the assignment this year, management did

not initially provide such information. Management's delay has resulted

in complainant having to review, revise, recalculate, and resubmit this

work unnecessarily. In connection with this project, on at least one

occasion (in October 2003), management set deadlines for complainant that

failed to take into account that she was on sick leave or had jury duty.

f. On an assignment involving "Rental Payments for Space & Land" given

to complainant on July 8, 2003, management denied outright or delayed

provision of data necessary for successful completion of the project.

g. On September 15, 2003, complainant was given a memorandum dated

August 12, 2003, regarding "Space Increases" that was addressed from

the Deputy Commissioner for Finance, Assessment and Management (DCFAM).

This memo dealt with issues for which complainant has responsibility,

yet complainant had not had prior opportunity to share in the discussions

giving rise to this memo.

h. On February 25, 2003 (Memorandum of Understanding between GSA and

the agency), March 13, 2003 (House Appropriations Hearing exhibit) and

April 4, 2003 (Delegation's account), complainant's comments, questions

and concerns about various assignments were ignored or disregarded.

2. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and

in reprisal for prior protected activity, her requests for reasonable

accommodation have been repeatedly denied. Some examples are:

a. Complainant learned on March 31, 2003, her official request for

reasonable accommodation was denied.

b. Complainant's requests for other accommodations regarding her work

environment concerns have been denied with two such denials occurring

on March 3, 2003, and April 10, 2003.

3. Complainant claims based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age,

and in reprisal for prior protected activity she has been subjected to

continuous and ongoing harassment (non-sexual). Complainant cites the

following examples of harassment:

a. Complainant's right to privacy was violated by forwarding her medical

information and environmental concerns to the agency's medical officer

without her consent or knowledge.

b. The Office of Facility Management's (OFM) report of investigation

that complainant received on March 17, 2003, failed to resolve her

environmental concerns relating to strong odors from perfumes and other

substances in or around her work space.

c. On January 16, 2003, a co-worker of complainant hampered her ability

to perform a virus abatement exercise through his discourtesy, rudeness,

and disrespect. Management did nothing to intervene.

d. Management routinely disregards complainant's requests for advance

notice of meetings with managers and team leaders that relate to

performance/ personnel/disciplinary/environmental matters. One such

occasion involving the supervisor took place on December 12, 2002, and

another occurred on January 8, 2003. Complainant contends that advance

notice enables her to obtain union representation.

e. Management routinely fails to intervene when co-workers bring to the

work place substances that aggravate complainant's allergies.

f. Management continuously impedes complainant's use of official time

or denies her requests for official time.

g. On July 16, 2003, in a meeting to discuss the Rent Budget status and

estimates, a manager threw complainant's spreadsheets to the floor and

yelled at complainant.

h. On August 28, 2003, while complainant was in the front office

seeking work supplies, the Associate Commissioner (AC) addressed her in

a derogatory manner by asking her whether she was hanging out or waiting

for someone.

i. When complainant was subjected to harassment by a co-worker on May

23, and June 5, 2003, management failed to intervene or take corrective

action.

j. On September 22, 2003, complainant's computer was upgraded from a

1997 Microsoft version to the 2002 Microsoft version. Management has

routinely provided complainant with inferior or outdated equipment

compared to that provided her peers.

k. On January 8, 2003, as a result of an incident that occurred on

December 12, 2002, complainant's supervisor issued her a Note for the

Record and referred her to the Employee Assistance Program.

4. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and

in reprisal for prior protected activity she was denied a performance

award for the period of October 2002, to May 2003.

5. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and in

reprisal for prior protected activity, she has been denied the following

training opportunities:

a. Management has denied or delayed approval of complainant's requests

for training. For example, complainant's Team Leader did not request,

suggest, invite, or recommend that complainant attend a Facilities

Conference in Florida in August 2003. As another example, complainant has

been denied the training opportunities outlined in the Office of Budget

Training Curriculum (OBTC) which was promulgated on October 14, 2003.

b. On August 28, 2003, complainant overheard the AC recommend to

complainant's male co-worker that he take courses such as Budget

Formulation and Budget Execution as background information to see how the

Budget Office works. Since complainant's employ in the Budget Office,

the AC has never conferred with her regarding recommendations on courses

he thought she should take.

c. Management has denied complainant's request for rotational assignments.

Complainant indicated her availability for rotational assignment as

recently as September 29, 2003, yet she was not included among the

rotational assignments announced on October 29, 2003.

d. On March 14, 2003, complainant learned that she had been denied

payroll training.

6. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and

in reprisal for prior protected activity, management failed to undertake

action necessary to enable her to process a Workers' Compensation claim

expeditiously.

7. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and in

reprisal, management discriminated against her in the application of rules

regarding time, leave and attendance and cites the following examples:

a. Management imposed a requirement that complainant request prior

approval for overtime and compensatory time. As of September 24, 2003,

complainant is required to notify an appropriate person whenever she is

going to leave the office, while her peers are not similarly restricted.

b. In response to complainant's having signed in for a number of hours

on Sunday, August 10, 2003, management retaliated by issuing to all

employees a notice regarding the completion of the Time and Attendance

Roster and the Serial Overtime or Holiday Work Attendance Roster.

8. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and

in reprisal for prior protected activity, complainant was denied the

opportunity to participate in the performance awards panel that was

convened on August 12, 2003, although she was a member of the FY 2003

Office of Budget Awards Panel.

9. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and

in reprisal for prior protected activity, she has not been selected to

participate in an Office of Budget vacancy assessment panel despite the

fact that there have been three such panels convened in 2003, and though

she had volunteered to serve.

10. Complainant claims that based on her color, national origin, sex,

race, religion, marital status, disability, parental status, age, and

in reprisal for prior protected activity, she was not promoted to the

position of Budget Analyst, GS-560-13, which was posted under vacancy

announcement number F-707.

Complainant filed a second EEO complaint (Agency No. 04-0023-SSA) dated

October 29, 2003, with amendments, which the agency partially accepted.

On March 31, 2004, the agency issued an acceptance letter identifying

the following claims:

1. Complainant claims she was discriminated against based on color

(olive), national origin (Mexican-American), sex (female), race

(Hispanic), religion (Catholic), disability (Rhino-Allergic Sinusitis,

Temporal Mandibular Joint Dysfuntion, Lingual Nerve Damage, lower

back/left hip problems, Sacral Lumbar Displacement, Macular Degeneration

and Bursitis), marital status (single), parental status (non-parent),

age (over 40), and in reprisal for prior protected activity, when she

was not promoted to the following positions:

a. Budget Analyst, GS-560-13, under vacancy announcement number (VAN)

V-340; and

b. Program Analyst, GS-343-12, under VAN Q-752.

2. Complainant claims that based on her color, national origin, sex,

race, religion, disability, marital status, parental status, age, and in

reprisal for prior protected activity, she has been denied the following

training opportunities:

a. On April 4, 2003, complainant was denied the opportunity to take a

Fundamentals of Cost Accounting seminar offered by the American Management

Association.

b. On May 16, 2003, complainant learned that she had been denied

the opportunity to take her preference of either the Advanced Budget

Simulation course or the Budget Analysis course.

c. While management did give approval for complainant to attend training

relating to The Legislative Process: Working with Congress, this course

was irrelevant to complainant's currently assigned duties.

3. Complainant claims that based on her color, national origin, sex,

race, religion, disability, marital status, parental status, age, and

in reprisal for prior protected activity she was discriminated against

when on August 28, 2003, complainant discovered that two new employees

(one brought on as a Presidential Management Intern and the other under

the Outstanding Scholar Program) had been added to the Office of Budget

roster. As there had been no posting for these positions, complainant

was denied the opportunity to compete for the positions occupied by the

new employees.

4. Complainant claims that based on her color, national origin, sex,

race, religion, disability, marital status, parental status, age, and

in reprisal for prior protected activity she was discriminated against

when she was continuously denied opportunities for reassignments.

5. Complainant was discriminated against based on her marital status and

parental status and has been subjected to a hostile work environment by

two of her former Team Leaders who have commented to her disparagingly

about her single, non-parental status.

6. Complainant was discriminated against based on her color, national

origin, sex, race, religion, disability, marital status, parental

status, age, and in reprisal for prior protected activity when she was

non-selected for the following positions:

a. VAN D-2475, Management Analyst on July 3, 2001.

b. VAN F-694, Management Analyst on February 10, 2002.

c. VAN F-707, Management Analyst on July 14, 2002.

d. VAN F-720, Management Analyst on November 17, 2002.

e. VAN H-1983, Program Analyst on April 21, 2002.

f. VAN H-2059, Program Analyst on August 11, 2002.

g. VAN H-2099, Management Analyst on December 15, 2002.

h. VAN LDP-2, Leadership Development Program on September 27, 2002.

i. VAN L-1162, Management Analyst on June 2, 2002.

j. VAN Q-440, Budget Analyst on February 28, 1999.

k. VAN U-371, Management & Program Analyst on September 23, 2002.

l. VAN U-384, Social Insurance Specialist on August 25, 2002.

m. VAN V-322, Budget Analyst on December 16, 2001.

n. VAN V-323, Budget Analyst on December 16, 2001.

o. VAN W-1139, Management Analyst on June 16, 2002.

p. VAN V-327, Budget Analyst on February 28, 1999.

q. VAN V-305, Management Analyst on September 22, 2002.

r. VAN V-329, Budget Analyst on February 23, 2003.

The agency accepted issues (1) - (4) for investigation. The agency

dismissed issue (5) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure

to state a claim. The agency dismissed issue (6) pursuant to 29 C.F.R. �

1614.107(a)(2), for untimely EEO Counselor contact. The agency noted that

complainant requested EEO counseling on June 30, 2003; however, the most

recent non-selection identified in issue (6) occurred on February 23,

2003, which is beyond the applicable limitations period. The agency

noted that while undergoing counseling for her complaint, complainant

stated that she did not request counseling for the promotions in issue

(6) because the EEO process is tedious and lengthy. The agency also

found that the non-selections constituted discrete acts and thus could

not be analyzed under a continuing violation theory. However, the agency

noted that complainant could submit relevant information related to issues

(5) and (6) that are relevant to the accepted issues.

In a June 23, 2004 letter, the agency consolidated complaints 03-0367

and 04-0023.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. When complainant did not object, the AJ assigned to

the case granted the agency's April 26, 2005 motion for a decision without

a hearing and issued a decision without a hearing on June 7, 2005.

In his decision, the AJ noted that complainant alleged that she was

discriminated against on the bases of her color (olive), national origin

(Mexican-American), sex (female), race (Hispanic), religion (Catholic),

marital status (single), disability (rhino allergic sinusitis, Temporal

Mandibular Disorder (TMJ), lingual nerve damage, sciatic joint lumbar,

instability lower back, left hip, and macular degeneration), parental

status (non parent), age (over 40), and prior EEO activity when:

1. There was a continuous and ongoing manner of

discriminatory harassment regarding management's

assignment of duties to complainant.

2. Complainant's requests for reasonable accommodation were

denied.

3. Complainant was subjected to continuous and ongoing

non-sexual harassment.

4. Complainant was denied a Performance Award for the period of

October 2002, to May 2003.

5. Complainant was denied training opportunities.

6. Management failed to undertake action necessary to enable

her to process a Workers' Compensation

claim expeditiously.

7. Management discriminated against complainant in the

application of rules regarding time,

leave, and attendance.

8. Complainant was denied the opportunity to participate in the

performance awards panel that was convened on August 12, 2003.

9. Complainant was not selected to participate on an Office

of Budget vacancy assessment panel.

10. Complainant was not selected for the GS-560-12 Budget

Analyst position advertised under Vacancy

Announcement V-340.

11. Complainant was not selected for the GS-343-12 Program

Analyst position advertised under Q-752.

The AJ also considered the claim of harassment.

The AJ noted that he was not considering on the merits various

non-selections and other employment actions that were properly dismissed

by the agency. Additionally, the AJ noted the Commission does not have

jurisdiction over complaints involving discrimination based on parental

or marital status.

With regard to issue (1), the AJ noted that it is common practice among

budget analysts to assume assignments and tasks that other employees

have either begun or were finishing.

With regard to issue (2), the AJ noted that complainant has not shown

that she suffered a disability or a combination of impairments that

would lead to a disability. The AJ noted complainant identified she

suffered from numerous impairments; however, she did not show that these

impairments were severely limiting of her major life activities.

With regard to issue (3), the AJ noted complainant belongs to a protected

group based on the various bases she has alleged. However, the AJ found

complainant was not subjected to harassment as a result of her membership

in those protected groups. The AJ also stated that complainant was not

subjected to harassment that affected a term, condition, or privilege of

employment or had the effect of unreasonably interfering with the work

environment and/or creating an intimidating, hostile work environment.

The AJ also stated it has not been shown that the agency knew of the

harassment and failed to take prompt and remedial action. In contrast,

the AJ found this is "a case where the Employee has been harassing the

Agency, based upon what [the AJ has] seen in the record." The AJ noted

the level of hostility failed to rise to the point where the actions

complained of were actionable. The AJ did not discern a severe or

pervasive pattern of offensive conduct.

Assuming complainant had established a prima facie case of harassment,

the AJ found there was not enough evidence for the agency to be held

liable. The AJ found the events described were not sufficiently severe

or pervasive to alter the conditions of complainant's employment and

there was no basis for imputing liability to the agency under general

agency principles.

With regard to issue (4), the AJ noted the award complainant challenged

was decided by a panel of both bargaining unit employees and managers.

The AJ noted that S1, complainant's supervisor from November 2000,

through April 2003, said that complainant did not merit the performance

award because she did not consistently produce timely, accurate and

quality work products that would support such an assessment.

With regard to her claim that she was denied training opportunities (issue

(5)), the AJ found that the agency showed that complainant had been

given as much, if not more, training opportunities than some similarly

situated employees.

The AJ noted that the Workers' Compensation claim (issue (6)) does not

state a claim since it is outside the EEOC's jurisdiction. Further, the

AJ noted that there is nothing to show that the agency did not attempt

to process complainant's paperwork in a timely and accurate matter.

Additionally, the AJ found issue (7) without merit. The AJ noted that

the agency's policies regarding time and attendance is not different

from the policies at most agencies in the federal government.

With regard to issues (8) and (9), the AJ noted that participation in

the awards panel and the Office of Budget vacancy assessment panel were

not entitlements.

With regard to issue (10), the AJ noted that VAN-340 was actually

cancelled and no one was selected.

With regard to issue (11), the AJ noted that the selectee had already

performed as a GS-13 in the past. The AJ found that complainant failed

to rebut the legitimate, non-discriminatory reasons for the non-selection

raised by the agency.

The AJ found that complainant did not meet the elements of her prima

facie case for harassment.

When the agency failed to issue a final order within forty days of receipt

of the AJ's decision, the AJ's decision finding that complainant failed

to prove that she was subjected to discrimination as alleged became the

agency's final action pursuant to 29 C.F.R. � 1614.109(i).

On appeal, complainant contends that the AJ did not change the due

date on the memorandum issued by the agency on January 20, 2005,

regarding the Motion for Summary Judgment and/or Dispositive Motion

filing deadline. Additionally, complainant claims the AJ failed to

consider all her information submitted. Complainant claims that there

are genuine material facts in dispute. Complainant does not challenge

the AJ's definition of the complaint.

In response to complainant's appeal, the agency notes that the AJ

did change the dates contained in the January 20, 2005 memorandum.

Specifically, the agency notes that new discovery dates and a new hearing

date were set in the AJ's February 2, 2005 Order. The agency notes

that complainant objected to certain discovery issues in the January

25, 2005 Order and that on February 2, 2005, the AJ issued an Order on

a variety of motions and provided that discovery was extended to April

2005, to accommodate complainant's retention of counsel in December 2004.

The agency noted that a new hearing date was scheduled for May 17, 18, and

20, 2005. The agency noted that under Commission regulations, dispositive

motions are due 15 days prior to a hearing. The agency notes because the

hearing was rescheduled until May 17, 2005, dispositive motions were due

by May 2, 2005. The agency states it filed its Prehearing Statement and

Memorandum in Support of Motion to Dismiss on April 26, 2005. The agency

notes that although complainant had until May 12, 2005, to respond, she

failed to do so. Further, the agency notes that the AJ considered all

the evidence of record and claims there are no material facts in dispute.

ANALYSIS AND FINDINGS

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when he or

she finds that there is no genuine issue of material fact. 29 C.F.R. �

1614.109(g). This regulation is patterned after the summary judgment

procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.

The U.S. Supreme Court has held that summary judgment is appropriate

where a court determines that, given the substantive legal and

evidentiary standards that apply to the case, there exists no genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). In ruling on a motion for summary judgment, a court's

function is not to weigh the evidence but rather to determine whether

there are genuine issues for trial. Id. at 249. The evidence of the

non-moving party must be believed at the summary judgment stage and all

justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

We first address complainant's claim that the agency's motion for a

decision without a hearing was untimely filed. Despite complainant's

contention, we note the record contains the AJ's February 2, 2005

Order specifying that the discovery deadline in the case was extended

from early January 2005, to early April 2005. Also in this Order,

the AJ noted that the hearing in the case was scheduled for May 17,

18, and 20, 2005. EEOC Regulations provide that a party may file a

statement with the AJ moving for a decision without a hearing at least

fifteen days prior to the date of the hearing. 29 C.F.R. � 1614.109(g).

The agency met the deadline by filing the motion for summary judgment on

April 26, 2005. The regulations provide that the opposing party may file

an opposition to a motion for a decision without a hearing within fifteen

days of receipt of the motion for a decision without a hearing. Id.

Complainant acknowledges she received the agency's motion for a decision

without a hearing and that she failed to respond within fifteen days of

receipt of the motion.

Upon review of the record, we find the AJ properly granted summary

judgment in this case as no genuine dispute of material fact exists.

We find that the AJ's decision properly referenced the appropriate

regulations, policies, and laws. At the outset, we note the AJ properly

noted that the bases of parental status and marital status are outside the

Commission's jurisdiction. Further, we find the AJ properly dismissed the

issue of the agency's interference with her Workers' Compensation claim

for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).

Additionally, we find that on appeal complainant did not show that

the agency's procedural dismissal of any of the issues in her original

complaints was improper.

With regard to her allegations surrounding assignment of duties, we note

the record does not support complainant's contention that she was not

given the necessary tools to complete her assignments as a result of a

protected basis. Specifically, with regard to her claim surrounding

a July 2003 "RENT Shortfalls" assignment, we note the record shows

that on June 4, 2003, complainant received an electronic mail message

from the Office of Facilities Management outlining their analysis of a

rent shortfall. Additionally, the record reveals that on July 3, 2003,

complainant received detailed data from the Office of Financial Policy

and Operations on rent actuals through June 2003. Further, the record

reveals that complainant's team leader wrote to her and gave her the

assignment and necessary information on July 10, 2003. Additionally, with

regard to her claim that she had a low priority assignment which afforded

her little access to information to do her job and few out-of-the-office

meetings, we note the record shows that complainant's assignments involve

SSA Rent and GSA Delegations budgets, which the record reveals make up

a significant portion of the agency's administrative budget and based on

their size of the accounts and relationship to overall agency issues are

considered very important budget accounts. Further, we find complainant

provided no evidence in support of her remaining claims alleging that

based on her protected status that management failed to timely give her

information necessary to complete her assignments or that management

did not consider her input on assignments.

With regard to complainant's claim that the agency denied her a reasonable

accommodation for her disability, we find that even if complainant

were considered a qualified individual with a disability, she has not

shown that the agency failed to provide her a reasonable accommodation.

In her complaint, complainant claims that her requests for reasonable

accommodation have been repeatedly denied. The record reveals that

in November 2002, complainant complained about air fresheners and room

deodorizers present in Room 2117, her workstation, noting that they were

causing her an allergic reaction. In November 2002, complainant was

permitted to relocate to a station near the front office away from the

work location where she observed a cardboard deodorizer which she stated

caused her allergy problems. In a November 29, 2002 electronic mail

message, complainant stated that despite relocating her work station, she

still noticed an increase in her allergy symptoms. Complainant requested

removal of air fresheners and room sprays from the office. In a November

25, 2002 electronic mail message, complainant was offered her choice

of two vacant work stations. In a subsequent electronic mail message

in December 2002, complainant requested that the carpets be cleaned and

the air filters be changed to alleviate her symptoms. In a December 10,

2002 electronic mail message, complainant noted that the changing of the

air filters on the roof and the cleaning of the carpet has not alleviated

the problem. Complainant also noted that going to the computer lab and

the agency's library was not working since she still needed to access

her work station to complete her assignments. Complainant confirmed

that the aromatherapy room spray was removed on December 11, 2002.

Additionally, complainant requested a carbon filtering system be used

and asked for air sampling of Room 2117.

The record contains a December 3, 2002 letter from Doctor 1 who notes

that complainant suffers from rhinoconjunctivitis and allergic headaches

and low grade bronchospasm. Doctor 1 noted that complainant recently

developed a reactive airway with exposure to noxious irritant fumes

relating to air freshening devices and air freshening sprays utilized

in the workplace. Doctor 1 noted that in particular an air freshener

called Ultra Norak and a Spray called Avon Aromatherapy have been

provoking complainant and have resulted in an inflammation of the upper

and lower airway. Doctor 1 recommended all of these devices be removed.

The record also contains a letter from Doctor 2 dated December 18, 2002,

in which he states that complainant can resume duty and should avoid

exposure to allergens. In a December 18, 2002 letter, Doctor 1 notes

that complainant suffers from bronchospasm and rhinosinusitis provoked by

noxious irritant fumes. The doctor recommended that complainant avoid

work areas where she is exposed to strong perfumes, cleaning agents,

and air fresheners.

A December 23, 2002 letter from the Director of the Office of

Environmental Health and Occupational Safety (Health Director),

reveals an air sampling test was conducted in Room 2117 in response to

complainant's concerns. The air sampling report noted a room deodorizer

was detected in Room 2117 and was subsequently removed. According to the

air sampling, no other potential sources for the odor were identified.

The report recommended that all room deodorizers and air fresheners be

removed and confirmed that the room deodorizer was removed on December

4, 2002, and the Avon Aromatherapy Room Spray was removed on December

19, 2002. The report also recommended that the carpet be cleaned which

was conducted on December 6, 2002.

The record reveals that after complainant complained again about odors

in the office, a second air sampling investigation occurred in February

2003. The investigation noted a faint, air-freshener type fragrance

was noticeable upon entering the doorway to Room 2117. However, the

investigation stated no evidence as to the source of the odor could be

identified.

We note that on December 19, 2002, complainant made her formal request

for a reasonable accommodation to be free from exposure to allergens,

noxious fumes, room sprays, and smoke. Complainant also claimed that

the room in the office was not cleaned through the application of an air

cleaning system such as HVAC or HEPA. The record reveals that on March

27, 2003, when complainant's request for a reasonable accommodation

was denied, S1 noted the agency was still interested in resolving

the issue of air quality and urged complainant to share her medical

reports or have her doctor consult with the agency's Medical Officer.

Additionally, the record shows that complainant was sent an April 9,

2003 electronic mail message from the Deputy Commissioner, Office of

Finance, Assessment, and Management in response to complainant's March 17,

2003 request for work accommodations based on environmental concerns.

The Deputy Commissioner informed complainant that he looked into the

situation, but until complainant provided further information that

identified the specific chemicals that might be causing her symptoms,

there was nothing further the agency could do to assist her. Finally,

the record notes that because complainant still complained about the

work environment, S2 offered complainant the opportunity to work from a

new workstation in a different location, which complainant accepted in

July 2003. S2 noted that complainant did not make any further complaints

regarding the work environment.

Upon review, we find that complainant failed to show that the agency

denied her a reasonable accommodation. The record shows that the agency

continually tried to accommodate complainant's purported disability,

which was accomplished, at the latest, by July 2003. To the extent that

complainant claims that she needed any additional accommodations, she

failed to show that any accommodation was necessary for her purported

disability. Complainant failed to provide the medical documentation

necessary to the agency to show what particular fume/odor/fragrance that

still existed in the office actually bothered her medical conditions.

Without such information, the agency could not be expected to provide

any more or different accommodations than what was provided. We do not

address in this decision whether complainant is an individual with a

disability.

With regard to complainant's allegations of harassment, we find the AJ

properly found complainant failed to substantiate her harassment claim.

With regard to her claim that her privacy was violated when her medical

information was forwarded to the agency's medical officer, we note that

complainant's supervisor at the time, S1, stated that since complainant

did not consent to her medical information being shared, he did not

forward her medical history to anyone. Thus, we find that complainant

failed to show that her medical information was shared as complainant

alleged. With regard to her claim that management disregards her requests

for advance notice of meetings, S1 stated that complainant was given

advanced notice and permitted to be accompanied by a union representative

for meetings that could result in disciplinary actions. With regard

to her claim surrounding a January 8, 2003 Note for the Record, we note

the record reveals that as a result of an incident occurring on December

12, 2002, between complainant and a co-worker, complainant was given a

Note for the Record for her disruptive behavior and warned to stay away

from that co-worker. The record also shows that the co-worker involved

in the December 12, 2002 incident was given similar direction by the

co-worker's supervisor. With regard to the claim that complainant was

subjected to harassment by a co-worker on May 23, 2003, and June 5, 2003,

and that management failed to take corrective action, the record reveals

that this claim involved an incident when a co-worker entered a room

in which complainant was present. The record reveals that in a June 5,

2003 electronic mail message complainant informed S2 about the incident

and that S2 spoke with the co-worker's supervisor regarding the incident.

The co-worker's supervisor spoke with the co-worker and witnesses who

confirmed the co-worker was in the same room with complainant but did

not initiate a conversation with her. As a result, complainant was

notified no employee is prohibited from entering any Office of Budget

space, and both complainant and the co-worker were instructed by their

respective supervisors to avoid contact with each other. With regard

to the remaining examples of harassment cited by complainant, we find

complainant failed to show that she was subjected to harassment based

on her membership in any protected group.

With regard to the denial of a performance award for the period of October

2002, to May 2003, the record contains an affidavit from S1 stating that

complainant's work did not merit a performance award for that period.

S1 stated that complainant did not consistently produce timely, accurate,

and quality work products during this time. Complainant presented no

evidence to rebut the agency's legitimate, non-discriminatory reason for

its action or show that the reason provided was a pretext for prohibited

discrimination.

With regard to her claim that she was denied training, we note that

S1 stated that on average complainant had more hours of training per

year than most other employees in the Office of Budget. With regard to

complainant's claim that she was not recommended to attend a Facilities

Conference in Florida in August 2003, we note the record reveals that

the Office of Facilities Management, which organized the conference,

specifically requested the Management Team's team leader attend the

conference and sit on a panel since he was the Office of Budget Lead on

such issues. The record reveals complainant was offered the opportunity

to attend Office of Budget Training Curriculum training. With regard to

her claim that on April 4, 2003, complainant was denied the opportunity to

take a Fundamentals of Cost Accounting seminar, the agency noted that she

was offered to take a class better suited for her job duties. With regard

to her claim that she was denied the opportunity to take her preference of

the Advanced Budget Stimulation course or a Budget Analysis course, the

record reveals S1 approved her to take her preference of either course.

The record also reveals complainant signed up for the Advanced Budged

Simulation course from August 18, through August 21, 2003, and then

after one day of training, she dropped the course because she found it

was similar to one she had already attended. The record reveals that

complainant took another course, Statistical Analysis later in 2003.

Upon review, we find complainant failed to show she was subjected to

discrimination with regard to training based on any of her claimed

protected bases.

With regard to her claim regarding rotational assignments, the record

reveals complainant's supervisor since April 2003, S2, stated that

rotational assignments are provided when an employee has become proficient

in one area of the budget to provide additional experience. S2 stated

that since complainant has completed few assignments in her current budget

areas and there often serous errors in assignment that are completed,

she has not been offered a rotational assignment. Complainant has not

presented any evidence to rebut the agency's articulated legitimate,

non-discriminatory reason for the denial of a rotational assignment.

With regard to her claim surrounding the agency's application of the

rules regarding time, leave, and attendance, we find the record shows

the same policies applied office-wide. Specifically, the record shows

that there was a policy in place that all employees must notify their

team leader or supervisor when they are going to be away from their desk

for a period of time. Also, the record reveals that all employees must

receive advance notice to work overtime and compensatory time from their

supervisor. We find complainant failed to show that she was treated

differently than a similarly situated employee outside her protected

class with regard to time and attendance policies.

With regard to her claim that although she was a member of the 2003 Awards

Panel, she was denied the opportunity to participate in the performance

awards panel, we find the record does not support complainant's claim.

Specifically, the record reveals complainant was a member of the

Awards Panel and was invited to participate in the panel's work.

The record reveals complainant expressed some concern in attending a

meeting head by S1, her former supervisor at the time. The record shows

that complainant's concerns with S1 were not held by other members of

the Awards Panel; however, complainant was provided the opportunity to

provide her input via electronic mail to the Awards Panel as opposed to

attending the August 12, 2003 meeting.

With regard to her claim that she was not selected to the Office of Budget

vacancy assessment panel, the record supports the AJ's determination

that complainant did not express interest in serving on the vacancy

assessment panel. Complainant does not rebut the agency's legitimate,

non-discriminatory explanation for complainant's non-selection for this

panel.

With regard to her non-selection for the Budget Analyst position posted

under VAN-340, the record reveals that the position was cancelled and

no one was selected for this position.

With regard to the non-selection for VAN Q-752, the record reveals

that the selectee was chosen based on her experience and skills.

The selecting official also noted that the selectee had additional

professional expertise, in that she already functioned as a GS-13 and

was a certified public accountant. We note complainant did not rebut

the agency's legitimate, non-discriminatory reasons and did not show

that her qualifications were plainly superior to those of the selectee.

With regard to the claim that she was denied the opportunity to compete

for the Presidential Management Intern and the Outstanding Scholar

Program, we note that the record reveals that both positions were

advertised and complainant failed to apply for either program. Thus,

complainant failed to show that she was discriminatorily denied the

opportunity to compete for these positions.

Finally, with regard to complainant's claim that she was continuously

denied opportunities for reassignments, the record reveals that S2 stated

complainant has not been considered for reassignment because she has not

been completing assignments timely and noted that the team leader and

S2 have completed many of complainant's assignments. Complainant has

not rebutted the agency's legitimate, non-discriminatory reason for not

considering complainant for reassignment. Thus, construing the evidence

to be most favorable to complainant, we note that complainant failed

to present evidence that any of the agency's actions were motivated by

discriminatory animus toward her protected classes.

Accordingly, the agency's final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your 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 (S0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your

time in which to file a civil action. Both the request and the civil

action must be filed within the time limits as stated in the paragraph

above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 23, 2007

__________________

Date

1 Due to a new data system, your case has been redesignated with the

above referenced appeal number.

2 Complainant was subsequently removed from the agency. The removal

action is not at issue in the instant matter.

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2

0120055577

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120055577