Tynisha H.,1 Complainant,v.Rex W. Tillerson, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0120141395 (E.E.O.C. Mar. 17, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tynisha H.,1
Complainant,

v.

Rex W. Tillerson,
Secretary,
Department of State,
Agency.

Appeal No. 0120141395

Agency No. DOS-F-075-11

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 30, 2013, final decision 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. and 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

Complainant worked as a Nurse Practitioner Supervisor at United States Consulate General in
Jerusalem, Israel, where she was in charge of the Health Unit. Because Complainant
possessed dual American-Israeli citizenship, she was able to be hired by the Agency as Locally
Employed Staff (LES), rather than as a career U.S. Government employee. Investigative
Report (IR) 2221. Consequently, she was covered by Israeli national health insurance and
subject to Israeli law governing medical licensure and practice.

On May 23, 2011, Complainant filed an EEO complaint in which she alleged that numerous
Agency officials had subjected her to disparate treatment and a hostile work environment
because of her national origin (Israeli), sex (female), religion (Jewish), disability (bilateral

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.

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wrist tendonitis), and in reprisal for prior protected EEO activity. She also alleged that the
Agency failed to provide her with a reasonable accommodation for her disability. She
amended her complaint on February 8, 2012, June 8, 2012, and August 15, 2012. She
identified the following individuals as being responsible for or otherwise involved in the
various incidents that comprise her discrimination claims:

• Management Counselor (MC);
• Supervisory General Services Officer (SGSO);
• Information Management Officer (IMO);
• Regional Medical Officer (RMO);
• Regional Security Officer (RSO);
• Human Resources Officer from October 31, 2009, to July 1, 2011 (HRO1);
• Human Resources Officer since September 9, 2011 (HRO2);
• Deputy Principal Officer from August 2008 through August 2011 (DPO1);
• Deputy Principal Officer since August 2011 (DPO2); and
• Facilities Manager (FM).

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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.

Claims

1. Failure to reasonably accommodate Complainant’s disabilities.

2. Disparate treatment and harassment:

a. Providing disability accommodations for Palestinian LES but not for Jewish
LES;

b. Anti-Semitic comment by HRO1;

c. Providing religious accommodations for Muslim LES but not for Jewish LES;

d. Editing of comments made in customer satisfaction survey in order to make
Complainant look bad;

e. Endangering Complainant’s security;

f. Slander of Complainant by spouse of obstetrics patient;
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g. Investigation by IMO and RMO regarding Complainant’s use of government-
owned vehicle;

h. Slanderous comment by RMO;

i. MC’s rejection of Complainant’s nominations of her staff for awards;

j. Elimination of Complainant’s job duties;

k. IMO counseling Complainant and using profanity during that session; and

l. Denial of tuition reimbursement for a doctoral program.

Disability Accommodation

In October of 2010, Complainant was diagnosed with bilateral wrist tendonitis, characterized
by atrophy of the wrists and fingers which, over time, would result in a 50% to 70% reduction
in finger strength and pincer-grasp strength. IR 157-59. She averred that if left untreated, the
condition would become permanent. IR 159-60. In February of 2012, Complainant’s physical
therapist informed her that she would need long-term occupational therapy lasting for at least a
year in order to attain significant improvement in her hands and pincer-grasp functions. IR
653.

Complainant’s condition required that she wear wrist braces, which she had to remove when
writing or typing. IR 159. She averred that she was substantially limited in the major life
activities, among others, of caring for herself, performing manual tasks, pulling, pushing,
lifting, concentrating, and working. IR 160-65. When asked by the investigator what
accommodations, if any, she needed, Complainant replied that between September 2010 and
October 2011 she asked the MC, the IMO and the FM for the following accommodations:

• Personal digital assistant (PDA) touch-screen for her desktop and laptop computers;
• Modified / ergonomic keyboard that she could use with her PDA device;
• Voice-recognition software;
• Ergonomic evaluation;
• Flexible work schedule;
• Minimization of use of hands at work;
• Locks changed in the office;
• Relief from performing some medical exams;
• Use of a fob.2

2 A fob, also called a key fob, is a small security hardware device with a built-in authentication
mechanism used to control and security access to network services and data. Vangie Beal, Key
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IR 165-66. Complainant averred that some, but not all of her accommodation requests were
granted. In particular, she stated that the touch screen worked only 10% of the time and was
not supported in Israel, and that when she asked for another, she was told that the device she
had was the only one available. She also stated that the SGSO offered to provide her with
some ergonomic equipment in October 2010 but that she did not receive that equipment.
Additionally she stated that nothing was done regarding her request for an ergonomic
evaluation. IR 166-67. When asked about the keyboard for her PDA, she attested to being told
that the keyboard was not an approved device and that she did not have a security clearance to
use a fob. IR 164. She maintained that those officials responsible for providing her with an
accommodation for her disability did not explore all their options, such as the use of a stylus
for touch screens. IR 168.

Complainant’s supervisor, the MC, averred that Complainant informed her of wrist problems
periodically during 2011, and that she did not receive medical documentation of Complainant’s
condition until February of 2012, after she had returned to the Consulate following home
leave. IR 850-51. The MC averred that the limitations she eventually saw in the
documentation included writing and typing up to point of pain with 30 minutes of rest
afterward, minimized repetitive movements, and utilization of PDA technology requiring a
very light touch. IR 851-52. She also averred that the accommodations that Complainant
requested were granted expeditiously, with the exception of the fob, and that there were
problems with the operation of the PDA. IR 852-54.

The IMO served as the Acting MC whenever the MC was away from the Consulate, and
consequently, acted as Complainant’s supervisor on those occasions. He acknowledged being
aware of Complainant’s medical condition but averred that he had not seen medical
documentation. IR 1389-90. As to the fob, the IMO stated that beginning in December 2010
and during 2011, he had attempted to procure a fob for Complainant but was informed by the
RSO that the Agency’s security regulations precluded LES from having fobs. Regarding the
voice recognition software, the IMO averred that he sent Complainant’s accommodation
request to the Agency’s headquarters in Washington, D.C. in September or October of 2011,
and that the software was provided along with a training module. IR 1390. The Information
Systems Officer (ISO) who worked under the IMO and who actually processed Complainant’s
reasonable accommodation request stated that he had sent Complainant’s request for voice
recognition software to Washington and that the software arrived in December 2011. IR 2164,
2197. The IMO emphasized that Complainant had been provided with all Agency-approved
information technology items.

Regarding the PDA, the IMO, ISO, and SGSO all averred that the device was not defective,
but was not compatible with the local telecommunications network. IR 2166, 2222-23. The
IMO also acknowledged that even after the problems had been resolved, the PDA could not

Fob, Webopedia (visited March 2, 2017), http://www.webopedia.com/
TERM/K/key_fob.html.
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work at Complainant’s residence because of the surrounding terrain. IR 1391-92. The SGSO
averred that Complainant had declined an offer from the Agency to install an antenna at her
residence. IR 2223-24. Concerning the keyboard, the IMO and ISO averred that he had told
Complainant that the external keyboard she had originally requested was not approved for use
at the Agency because of security protocols that required the disabling of USB ports. IR 2122,
2164, 2167. The SGSO averred that she personally had searched for a keyboard that was
compatible with Complainant’s PDA, but that the one model available from the local provider
did not have a compatible keyboard. IR 2224. The IMO along with other officials stated that
LES were not authorized to use fobs. IR 1392, 1618, 2224.

HRO1 averred that Complainant had been given a touch-screen PDA but that her request for a
keyboard could not be granted for security-related reasons. IR 1598-99. She also averred that
many PDAs were not fully operational, and not just Complainant’s. IR 1599-1600. HRO2
averred that there was no need to change the locks in the office because the doorknobs were
the lever type which did not require twisting of the hands to open them. IR 1617. As to the
requested job modifications, minimized use of hands and relief from having to perform certain
medical examinations, HRO2 averred that these were among the core functions of
Complainant’s position as a Nurse Practitioner Supervisor, and that her inability to perform
these functions could potentially lead to her medical certification being revoked. IR 1617.
There are no indications in the record, however, that such a step was ever undertaken.
Complainant did remain on an alternate work schedule which gave her Fridays off. IR 1617.

Complainant averred that she was told that she could not be given a reasonable accommodation
because of her status as a member of the LES. The MC, IMO, HRO1, HRO2, RMO, and ISO
all denied having made such a statement to Complainant. IR 853, 1391-92, 1599, 1618, 2122,
2166. The SGSO averred that there was some general discussion regarding the level of
support that headquarters would be able to provide to an LES member. IR 2223.

Disparate Treatment and Harassment

Complainant alleged in her complaint that incidents 2(a) through 2(l) constituted a pattern of
harassment as well as separate acts of discrimination. Each incident is described in detail
below.

Incident 2(a)

Complainant alleged that the Consulate’s management denied disability accommodations to
Jewish LES but granted disability accommodations to Palestinian LES. Complainant
identified a Palestinian LES member who had been employed at the Consulate prior to the
tenure of the management team she identified in her complaint. She averred that this
individual, who was similarly deployed to Complainant but, unlike Complainant, had no
security clearance, was given a fob by her previous supervisor. IR 168-69. Complainant also
identified a Jewish LES member who also possessed dual American-Israeli citizenship, stating
that this individual’s request for a PDA had been denied. IR 169-70. The IMO, HRO2, ISO,
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SGSO, and DPO2 all denied being involved with any accommodation requests made by the
Palestinian LES member, and in so doing, confirmed that the Palestinian LES member
Complainant referenced was no longer with the Consulate. IR 1393, 1618, 2083, 2167.
DPO2 averred that, to her knowledge, no LES at the Consulate had ever been given a fob. IR
2083. Regarding the Jewish LES member, the IMO averred that this individual’s request for a
PDA as a reasonable accommodation was sent to headquarters in Washington, D.C. and
processed in the same manner as Complainant’s. IR 1393. HRO2 averred that the Jewish LES
member’s request concerned an unlocked PDA, and was initially denied due to the non-
availability of a vendor in the region. IR 1619. The ISO averred that the Jewish LES member
submitted a second request, this time for a touch-screen PDA, and that this request had been
approved at the same time as Complainant’s request for a touch-screen PDA. IR 2167.

Incident 2(b)

Complainant alleged that on January 20, 2011, HRO1 made the comment, “People don’t want
to wait in a waiting room full of Orthodox Jews,” which she characterized as anti-Semitic. IR
175. HRO1 averred that she made the comment while explaining to Complainant the
Consulate’s need to retain an Arabic-speaking physician to complete medical certifications for
Palestinian employees, which comprised 65% of the Consulate’s local workforce. HRO1
questioned Complainant’s insistence that all employees and new hires go only to
Hebrew/English-speaking physicians, frequently primarily by Orthodox Jewish Jerusalemites.
HRO1 further averred that Complainant’s interpretation of the Consulate’s policy forced
Palestinian employees and new hires to go to physicians with whom they could not
communicate, and that she, HRO1, had personally witnessed an incident in which a Palestinian
employee, who had to visit a Jewish clinic was made to feel uncomfortable in the waiting room
by the other patients, many of whom were, in fact, Orthodox Jews. HRO1 also pointed out
that Israeli law required all Gaza-resident Palestinians working for the Consulate and having
business inside Israel proper to be escorted by U.S. diplomatic personnel, which further taxed
the Consulate’s resources. IR 1600-01.

Incident 2(c)

Complainant listed a number of incidents which she claimed showed that the Consulate’s
management accommodated the religious observances of Muslim employees, but did not do so
for Jewish employees. She initially averred that religious accommodations were granted only
for Muslim fasting days, but did not provide any dates upon which those occurrences allegedly
took place. IR 174, 210. She also averred that during the Fast of Gedalia in 2009 or 2010,
which coincided with Ramadan, a Muslim employee was allowed to leave work early while she
was not. The MC could not recall whether Complainant had asked for permission to leave
work early due to the need to fast. IR 856. Policy posts from the MC dated September 24,
2009, indicated that the Consulate was closed on both Ramadan and the Jewish High Holidays.
IR 1044, 1047, 1049-51. HRO2 disputed Complainant’s assertion, characterizing it as “totally
false.” IR 1620.

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Complainant stated that on July 19, 2011, the Consulate scheduled a planned fire drill during a
Jewish fast day, that the Consulate denied her request to have the fire drill rescheduled, and
that an evacuation during very hot weather would be taxing for those who were fasting. IR
184. The RSO responded that the fire drill had been scheduled long in advance, that
emergency drills and exercises were essential given the constant threat of terrorism in the
region, and that the evacuation would only be for ten minutes and would not require any
strenuous physical exertion. IR 2207-08.

Complainant claimed that as of November 30, 2011, Jewish employees were no longer allowed
to participate in Arabic language training courses, but Palestinian employees were still
permitted to participate in Hebrew language training. IR 1621. DPO 2 disputed this version of
the event. He stated that the Consulate’s language officer had observed that LES were taking
Agency-sponsored language courses in violation of department policy, which allows only for
U.S. Government employees to avail themselves of such courses, and that all LES participating
in language courses were informed that they could no longer do so. IR 2087.

Complainant averred that on December 20, 2011, the IMO, in his capacity as acting MC
during MC’s home leave, denied her request to allow one of her staff members to leave early
in celebration of Chanukah while allowing a Muslim employee to leave early in observance of
Ramadan, and that this request led to her being counseled by the IMO on December 29, 2011.
IR 181, 654, 659-60. The IMO responded that Complainant misrepresented the facts of the
situation. He pointed out that comparing Ramadan and Chanukah was not appropriate because
Ramadan required observance by fasting whereas Chanukah did not, and that his decision was
consistent with the policy that identified local holidays for which employees were allowed to
leave early. IR 314.

Incident 2(d)

Complainant alleged that comments made about her in an International Cooperative
Administrative Services System (ICASS) survey in effect at the Consulate had been edited to
make her look bad, and referred to those comments as “anti-Semitic” several times in her
affidavit. IR 177-80, 211. The MC averred that the ICASS survey was conducted annually,
and that when the survey was completed, she provided Complainant and the other section
chiefs with the results. The MC denied that she or anyone had edited the comments, which she
characterized as a mixture of positive and negative. She averred that she told the section chiefs
not to take the negative comments personally, and that despite her admonition, Complainant
characterized the outcome of the 2011 ICASS Survey as “cyber-bullying.” IR 860. According
to the RMO, the ICASS survey results showed that for 2010, 2011, and 2012, the Jerusalem
Health Unit had the lowest ratings in the entire region, and that as the leader of that unit,
Complainant had yet to demonstrate an analysis of the situation or the implementation of a
process to improve customer service. IR 2125.

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Incident 2(e)

Complainant alleged that in October 2011, the Consulate’s management jeopardized her
personal security when they forced the health unit to enter into a referral agreement with a
clinic in East Jerusalem whose point-of-contact had been arrested by the Israeli police for being
a member of a terrorist organization. IR 176, 211, 704. The IMO averred that the Consulate
had been trying to secure a contract with this particular health clinic for four years, that
Complainant had imposed various requirements and qualifications upon this clinic that were not
required for other clinics used by the Consulate in Jewish areas, and that the clinic’s staff had
become so frustrated with Complainant and her tactics that they refused to have any further
discussions with the Consulate. IR 1388-89. The RMO reviewed the requirements that
Complainant was attempting to impose on the clinic and ruled that they were not necessary.
The RSO, DPO2, and RMO averred that they had looked into Complainant’s security concerns
and found them unwarranted, noting that the RSO’s office had repeatedly determined that there
were no security risks in connection with the clinic. IR 2083, 2122-23, 2130-35, 2230.

Incident 2(f)

Complainant alleged that on an unspecified date, the husband of an obstetrics patient became
hostile and called her a racist when she tried to explain to them the medical and security risks
they would have to face if they chose to have the baby in Nazareth or Bethelem, as the couple
preferred. IR 183-84. The husband averred that he tried to explain to Complainant that he
preferred that his daughter not be born in Jerusalem because of travel limitations, restrictions,
or outright bans imposed by other countries in the region upon those whose passport declares
Jerusalem as their place of birth. He further stated that he informed Complainant that he
understood the security restrictions that would have to be imposed upon their movement within
Nazareth or Bethlehem, and that Complainant told him and his wife that the Agency would not
support them either medically or financially if they chose to have their baby in an Arab
hospital. When he checked with the Agency’s Health Office in Washington, D.C., he was told
that they could have their baby in any hospital they chose and would be completely supported,
both medically and financially. IR 2275. He characterized Complainant’s recommendations
for service providers as “biased,” as evidenced by the fact that when he mentioned the name of
one of the most prominent OB-GYN physicians in Jerusalem, who worked in an Arab hospital,
Complainant denied knowing that physician and said to them that they would only seek medical
care at that hospital if they did not care about their baby. IR 2275-76.

Incident 2(g)

Complainant alleged that on July 20, 2011, the IMO and the RSO interrogated her over her use
of a government-owned vehicle (GOV) in a harsh and mean-spirited manner, in effect treating
her as though she were a criminal. IR 184-93, 243-44. The IMO averred that he had recently
been named acting MC and that the investigation by the RSO had already been underway. He
stated that he reviewed the policy regarding employee use of GOVs and that the RSO had
conducted the interview. Both the IMO and the RSO averred that the RSO treated
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Complainant with utmost respect and professionalism. IR 1393-94, 2208-09. DPO1 averred
that he authorized the investigation after receiving reports of what appeared to be excessive
usage of the GOV, and that Complainant appeared to be offended by the RSO’s skepticism at
her answers to his questions regarding her personal use of the GOV. IR 2048-49. DPO2
averred that she had concerns about why the Health Unit needed a dedicated GOV in the first
place, noting along with the RMO that there was no precedent for providing health units with
dedicated automobiles. IR 2084, 2123. She also averred that the privilege was rescinded on
October 19, 2011, in order to bring the Consulate’s practice in line with that of other overseas
missions. IR 2084-85.

Incident 2(h)

Complainant averred that after the RMO met with one of her medical contacts who was very
complimentary of her, he made the comment, “I guess the check’s in the mail, huh?”
Complainant interpreted this comment as an accusation from RMO that she was taking illegal
kickbacks from her medical contact. IR 193. The RMO responded that he met with the doctor
in question in September 2011, and that he was very impressed with his comments about
Complainant’s skills and service. He stated that he did not recall making a comment about a
check being in the mail. IR 2123.

Incident 2(i)

Complainant averred that the MC rejected all of her staff award nominations for the Spring of
2011. IR 195. The MC stated that Complainant’s nominations came through on facsimiles
that were of poor quality, that parts of Complainant’s nominations were handwritten, and that
she did not have enough time to spend working on sorting out the nominations that
Complainant had submitted. IR 858-59. When asked whether she issued awards to members
of other units, she replied that although she sometimes nominates employees for awards, she
herself did not issue them. IR 858-59.

Incident 2(j)

Complainant alleged that the MC and other management officials took away some of her job
duties.3 She averred that the Consulate’s management forced her to recommend Palestinian
physicians to her patients and had taken away her authority to prescribe medications. IR 243-
43. She also alleged that on an unspecified date, the Consulate issued a new policy which
eliminated her telecommuting privilege. IR 246-47. Thus, she also appears to be alleging that

3 This issue was not addressed in the Agency’s final decision. However, it was raised in an
amendment to the complaint and investigated. There are no indications in the record that the
incident was part of a dismissed claim. Accordingly, we will rule on Complainant’s claim as it
pertains to this incident.

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in addition to her job duties, the Consulate’s management had also taken away an employment
privilege that she had previously enjoyed.

Regarding physician recommendations, the MC averred that she made the decision to instruct
Complainant to give patients referrals to both Jewish and Palestinian physicians when she
observed that Complainant had not been doing so. The MC explained that a large percentage
of the LES were Palestinian and needed to be served by diverse physicians. IR 863. As to
Complainant’s claimed authority to prescribe medication, the RMO averred that the State of
Israel did not legally recognize mid-level practitioners such as Nurse Practitioners and
Physician Assistants as independent medical providers with prescribing authority. He
maintained that Israel’s pharmacy regulations authorize prescriptions to be written only by
Israeli-licensed physicians. IR 2126.

As to the rescission of Complainant’s telecommuting privileges, the MC averred that this had
occurred while she was on home leave between October 6, 2011 and January 18, 2012. IR
863. During that time frame, the IMO was acting for the MC. He averred that the decision to
terminate Complainant’s teleworking privilege had already been made and that Complainant
was given a 30-day grace period to get her personal affairs in order. The IMO also stated that
his priority was maintaining adequate coverage at the Health Unit. IR 1394-95. Both he and
HRO2 averred that although Complainant had claimed that she had been allowed to telework
under a previous Management Counselor, she had not been able to produce any documentation
for that authorization. IR 1397, 1623. The RMO had questioned how a direct healthcare
provider like Complainant could perform her job while telecommuting. IR 2125.
Complainant was allowed to keep her flexible work schedule, pursuant to which she did not
have to work on Fridays. IR 2148.

Incident 2(k)

Complainant alleged that the IMO, as acting MC, counseled Complainant on December 29,
2011, after she had tried to request a religious accommodation for her subordinate to leave
work early in celebration of Chanukah. IR 654. Complainant averred that the IMO was
suspicious of her when she complained about inadequate cell phone coverage, that he accused
her of not cooperating with his request for an inspection of her laptop, and that he referred to
the counseling as a “bitch session” in her presence, while she was being counseled. IR 655-
57, 663-66. The IMO admitted to making the comment out of frustration with the multiplicity
of unsubstantiated accusations that Complainant had been making. In particular, he stated that
he used the term “bitch session,” in order to ensure that Complainant clearly understood what
he was talking about. IR 1395-99. Following the counseling, Complainant filed a grievance,
which was ultimately resolved with an apology from the IMO to Complainant in February
2012. IR 675-78, 1401, 1622, 2087-88.

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Incident 2(l)

Complainant alleged that after she was accepted into a doctoral nursing program at Yale
University, the Consulate’s management rejected her request for tuition reimbursement. IR
742-44. She identified HRO2, the MC, DPO2, and the RMO as directly responsible for the
decision. IR 747. HRO2 averred that as the Training Officer for the Consulate, he was
responsible for processing Complainant’s funding request. IR 1938. He further stated that
admission into an educational or training program does not guarantee funding, and that only
those modules or subjects that are directly relevant to Complainant’s position description would
be considered in determining eligibility for reimbursement, which was limited to fifty percent
of the total cost. He also averred that when he reviewed Complainant’s application, he found
that Complainant’s request was considered to be continuing education, as opposed to job-
related training. IR 1939-40. DPO2 averred that the funding that Complainant would need to
complete her doctoral program would substantially exceed the funding allotted in the
Consulate’s training budget. IR 2071-73, 2076. RMO2 averred that he had reviewed the
curriculum of the program and had determined that none of the courses comprising the
program were relevant to Complainant’s duties as a Nurse Practitioner. IR 2115.

ANALYSIS AND FINDINGS

Standard of Review

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”).

Disability Accommodation

The Agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability unless it can show that doing so would cause an undue hardship to
its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v.
Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015).

A qualified individual with a disability is an individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
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can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). The record in
this case establishes that Complainant’s bilateral wrist tendonitis was a long-term condition that
substantially limited her ability to use her hands, which affected her ability to type, write, and
examine patients. The accommodations provided to Complainant included a PDA touch screen
for her computers, voice-recognition software, and a flexible work schedule that gave her
Fridays off. When the PDA arrived, it had to be adjusted so that it could work with the
Agency’s local telecommunications network. This was eventually accomplished, although
Complainant still had difficulty using the device at home due to the terrain surrounding her
residence. With the accommodations she was given, Complainant was able to perform the
essential functions of her position. We therefore find that Complainant is a qualified individual
with a disability.

While Complainant is entitled to an effective reasonable accommodation, she is not entitled to
the accommodation of her choice. Lynette B. v. Dept. of Justice, EEOC Appeal No.
0720140010 (Dec. 3, 2015). Regarding the ergonomic keyboard that Complainant had
requested, the SGSO and other officials had tried to find a keyboard that complied with the
Agency’s extensive security protocols, but were unsuccessful in doing so. As to the fob, those
devices were only given to U.S. government employees due to the strict security protocols that
had to be observed throughout the region. Concerning the locks on the doors to and within the
office, there was no need to change those locks because the shape of the door handles
precluded the need to twist one’s hands in order to open the doors. Consequently,
Complainant would not have to engage in any hand motions in opening and closing doors that
would have aggravated her condition. Concerning the use of her hands, the PDA and the
voice-recognition software had minimized her need to type and write. Finally, Complainant’s
staff and colleagues provided assistance whenever she needed to conduct a medical
examination that required her to use her hands extensively. Accordingly, we find that the
Agency had satisfied its obligation to provide Complainant with a reasonable accommodation
for her disability.

Disparate Treatment & Harassment

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). After reviewing the record in its entirety, we find that the Agency articulated
legitimate and nondiscriminatory reasons for every incident set forth in the instant complaint.
Those reasons are briefly summarized below.

Incident 2(a): The Palestinian LES member who Complainant alleges was granted disability
accommodations that she was denied had been employed at the Consulate several years before
and had left before any of the officials identified as being responsible for denying
Complainant’s reasonable accommodation requests had come on board. As to the Jewish LES
who Complainant alleges had been denied a reasonable accommodation because of her religion
and national origin, this individual’s initial request for an unlocked PDA had been denied, but
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her subsequent request for a touch-screen PDA had been granted. She received her PDA at
approximately the same time that Complainant had received hers.

Incident 2(b): HRO1 admitted to making the remark about people not wanting to wait in a
room full of Orthodox Jews. She maintained that she had done so in the course of trying to
explain to Complainant why she should not continue to send Muslim and other Arabic-speaking
employees who needed medical certifications to Jewish/Israeli medical providers. Moreover,
HRO1’s comment was based upon her personal observation of an encounter between a Muslim
employee who was forced to go to an Israeli provider and that provider’s Orthodox Jewish
patients. HRO1 had repeatedly urged Complainant to refer Muslim employees to Arab
providers in East Jerusalem, but for her own reasons, Complainant had resisted doing so.

Incident 2(c): There are no indications in the record that any management official at the
Consulate granted Muslim LES leave to observe their holy days but denied the same
accommodations to Jewish LES. The MC had posted clearly written policy statements which
explicitly stated that the Consulate would be closed for observance of the Jewish High Holidays
and for Ramadan. As to the fire drill that took place on July 19, 2011, Complainant had not
presented any evidence tending to show that anyone who participated in the fire drill was
inconvenienced or adversely affected by the exercise in terms of their religious observance.
Regarding the Arabic language education issue, the policy all along had been that only U.S.
Government employees were allowed to partake of the Agency’s language training resources,
and that this privilege had not been extended to LES. As soon as DPO2 became aware that
LES were enrolled in language training courses, he issued an order that such enrollments by
LES cease. Finally, on December 20, 2011, the IMO, while serving as Acting MC, allowed
employees to leave early in observance of Ramadan but not for Chanukah which was consistent
with the Consulate’s policy identifying local holidays for which employees were allowed to
leave early. Chanukah was not among them.

Incidents 2(d)-2(f): The ICASS survey results indicated that for three consecutive years, the
Health Unit supervised by Complainant had the lowest customer satisfaction ratings in the
region. This assessment was borne out by the Consulate’s inability to reach a service
agreement with the clinic in East Jerusalem due to Complainant’s unsubstantiated accusations
that the point of contact with that clinic was a terrorist. It was also confirmed by
Complainant’s treatment of the couple that did not want their daughter to be born in Jerusalem
because of the negative impact it would have on their ability to travel in the Middle East, and
by Complainant’s blatantly false representations that the Agency would not provide medical or
financial support to them if they decided to have their baby in an Arab hospital. Contrary to
Complainant’s claims of “cyber-bullying,” the comments in the ICASS survey appear to be
consistent with these and other observations of Complainant’s leadership of the Jerusalem
Health Unit. She has not presented any documents or sworn statements tending to show that
any management official had edited the comments in any of the ICASS surveys conducted
during Complainant’s tenure.

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Incident 2(g): The investigation conducted by the IMO and the RSO on July 20, 2011 had two
purposes. The first was to ascertain whether and to what extent the Jerusalem Health Unit
needed a dedicated GOV in order to carry out its responsibilities. The second was to
determine whether Complainant or any member of her staff had used the Health Unit’s GOV
for personal purposes. In October 2011 the Consulate rescinded its practice of providing the
Health Unit with a dedicated GOV. It did so based on the results of the RSO’s investigation
and in order to bring its policy in line with that of other U.S. overseas missions. The RSO
treated Complainant with courtesy and professionalism during the course of his interview with
her, and while Complainant may have been offended by the RSO’s tone of skepticism,
Complainant has not provided any evidence that he treated her rudely or with disrespect.

Incidents 2(h) and 2(i): While Complainant claims that the RMO made a comment suggesting
that she took illegal kickbacks and that the MC rejected her staff award nominations, she has
not presented any evidence beyond her own assertions that these occurrences had actually taken
place.

Incident 2(j): Regarding the requirement imposed upon Complainant to refer patients to Arab
providers as well as Jewish providers, the MC had found that while 65% of the LES were
Palestinian, Complainant had been referring them exclusively to Jewish providers, and
consequently, many Muslim patients were being sent to health care providers with whom they
could not even communicate due to the presence of language barriers and long-simmering
cultural hostility between Palestinians and Israelis. The MC explained that achieving diversity
among outside health care providers was an extremely important priority and that Complainant
had often been recalcitrant in doing so. As to Complainant’s claim that the RMO took away
her authority to prescribe medication, she never had that privilege to begin with under Israeli
law to which, as we previously noted, she was subject as a citizen of the State of Israel. Israeli
pharmaceutical regulations mandated that medications be prescribed only by Israeli-licensed
physicians. Concerning the rescission of Complainant’s telework privilege, the IMO, HRO2,
and the RMO had determined that Complainant’s position as the Health Unit supervisor did not
lend itself to teleworking, and her privilege was rescinded after she was unable to produce
documentation from the previous management team allegedly authorizing her to telecommute.

Incident 2(k): There is no question that the IMO referred to the counseling session with
Complainant as a “bitch session.” He admitted that he had done so in a fit of anger at having
to deal with what he regarded as her numerous complaints and issues, especially with regard to
referring patients to Palestinian health care providers. The IMO was counseled by the MC
upon her return to the Consulate and the matter was ultimately resolved in a grievance.

Incident 2(l): According to DPO2, the MC, and the RMO, the doctoral program to which
Complainant had been accepted was beyond the scope of on-the-job training programs for
which tuition reimbursement was typically granted. The RMO had reviewed the proposed
curriculum and had determined that none of the coursework was related to her duties as the
Health Unit Supervisor, and that the program amounted to unreimbursable continuing
education.
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To ultimately prevail on her claims of discrimination and discriminatory harassment,
Complainant would have to prove, by a preponderance of the evidence, that despite their
legitimate, nondiscriminatory reasons, the officials named her complaint were nevertheless
motivated by unlawful considerations of her gender, religion, national origin, disability, or
previous EEO activity in connection with the various incidents that she described in her
complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In circumstantial-evidence cases
such as this, Complainant can establish motive by presenting evidence tending to show that the
reasons articulated by those officials for their actions were pretexts, i.e., not the real reason
but rather a cover for discrimination and reprisal. St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 515 (1993).

Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past
personal treatment attributable to those responsible for the personnel action that led to the filing
of the complaint, comparative or statistical data revealing differences in treatment across
various protected-group lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697
(Nov.12, 2015).

In an attempt to establish the existence of a discriminatory motive on the part of the IMO,
Complainant presented on appeal the affidavit of an Information Technology Manager who had
been the Information Programs Officer (IPO) at the Consulate. This affidavit came from the
investigative report of Agency No. DOS-F-023-13, not the report in the instant case. The
issues accepted for investigation in Agency No. DOS-F-023-13 were as follows:

1. Whether, because of her religion (Jewish), national origin (American-Israeli), disability
and reprisal (prior EEO activity), Complainant was discriminated against when:

a. In June 2012, she was not selected for a Registered Professional Nurse position
at Embassy Tel Aviv;

b. Her prescription-writing privileges were removed;

c. She received a low rating on her annual employee performance report; and

d. She was subjected to an ongoing hostile environment characterized by, but not
limited to, inappropriate comments and management monitoring her computer
use.
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2. Management improperly disclosed and/or discussed her medical information.

3. As an act of reprisal, Complainant was discriminated against when she was terminated
from her position on November 21, 2012.

IR - DOS-F-023-13, pp. 74-75. The IPO reported directly to the IMP. IR - DOS-F-023-13, p.
453. She averred that after Complainant had requested a reasonable accommodation, the IMO
confided in her that, “Complainant was a royal pain in the ass and he wanted her gone.” IR -
DOS-F-023-13, p. 455. She further averred that the IMO had become obsessed with having
Complainant fired, and had been systematically and illegally accessing Complainant’s
personnel file, emails, and voice communications, and in so doing, repeated his desire to
terminate Complainant. IR - DOS-F-023-13, pp. 457-61. But when asked whether
Complainant’s religion, national origin, or previous EEO complaint were factors in the way
Complainant was treated, the IPO replied that she “had no idea.” IR - DOS-F-023-13, p. 462.

The investigator in Complaint No. IR - DOS-F-023-13 also asked the IPO whether
Complainant’s impairment accounted for how she was treated. The IPO replied that she
observed that the IMO would immediately deny Complainant’s requests for services, including
services related to her medical condition, and that the intensity of these denials heightened after
Complainant had announced her medical issues and filed her EEO complaint. IR - DOS-F-
023-13, p. 462. We have a number of concerns that cause us to question the evidentiary value
of this statement. First, it is inconsistent with the sworn statements made by the ISO, the
SGSO, and HRO1 in the instant case that Complainant was provided with the accommodations
that she needed. More problematical is that the IPO’s affidavit was taken in connection with a
case that is currently awaiting a hearing before an Equal Employment Opportunity Commission
Administrative Judge. In the absence of indications to the contrary, we must assume that the
IPO’s statements concerned the IMO’s conduct in response to the allegations Complainant
raised in Complaint No. DOS-F-023-13, not to those she raised in the complaint now before
us. We therefore cannot accord any evidentiary weight to the IPO’s affidavit from Complaint
No. DOS-F-023-13.

The only other evidence provided by Complainant in support of her discrimination claims are
her own assertions, which are set forth in her affidavit. When asked why she believed that she
was denied accommodations because of her medical restrictions, she replied that the managers
“did not care,” and that “my suffering was not important to them.” She also accused HRO1 of
being an anti-Semite. IR 168-69, 176-77. As to the counseling session with the IMO that took
place on December 29, 2011, the investigator had asked Complainant why she believed that
her sex, religion and national origin were the reasons that the IMO had initiated the counseling
and had made the “bitch session” comment. Complainant responded that she was the only
section supervisor who was Israeli/American and Jewish, that the session occurred right after
the IMO had denied Complainant’s request for a religious accommodation for one of her staff
members, and that the comment itself was a “vicious and inappropriate” reference to women.
IR 654, 657-60. When asked why she believed that her prior EEO activity was a factor in the
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Agency’s decision to deny her request for tuition reimbursement, she stated that the
Consulate’s management, particularly the FM, the IMO and the MC had coerced one of her
staff members to discuss her personal information with them. IR 747-50. In addition,
Complainant reiterated that she was treated as a second-class citizen, that Palestinian
employees were treated more favorably than Jewish employees at the Consulate, that her
religious observances were the reason her performance was criticized, and that she was not
afforded the same accommodations for her disability that were afforded to Palestinian
employees. IR 216-29, 232-41.

Apart from these assertions, Complainant has not provided any evidence of the indicators of
pretext listed above. See Mellissa F, supra. She has not presented any affidavits, declarations,
or sworn statements from witnesses other than herself, or documents that contradict the
explanations provided by the MC, the IMO, the DPOs, the HROs, or any other management
official for the various incidents enumerated in the instant complaint. She has likewise not
submitted any evidence which would cause us to question the veracity of any of those
management officials. Since Complainant failed to prove the existence of an unlawful motive in
connection with the incidents described herein, no further inquiry is necessary as to whether
those incidents rise to the level of harassment or constitute separate acts of discrimination
under disparate treatment theory. Johnathon M. v. Dept. of Homeland Security, EEOC
Appeal No. 0120141100 (Jan. 12, 2017); Gregory F. v. Dept. of the Treasury, EEOC Appeal
No. 0120141037 (Dec. 2, 2016); Celinda L. v. Dept. of Defense – Defense Logistics Agency,
EEOC Appeal No. 0120143166 (Sept. 8, 2016); Alfonso T. v. Dept. of State, EEOC Appeal
No. 0120142502 (August 3, 2016); Crysta T. v. Social Security Admin., EEOC Appeal No.
0120142957 (February 3, 2016); Nicki D. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120133247 (Oct. 15, 2015). We therefore agree with the Agency that Complainant has not
established that she had been subjected to discrimination or discriminatory harassment in
connection with any of the incidents described in her complaint as amended.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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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 17, 2017
Date