Kendra W., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120112074 Agency No. 200P-0664-2010100381 DECISION On February 28, 2011, Complainant appealed the Agency's January 25, 2011, 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. The Commission accepts the appeal, according to 29 C.F.R. § 1614.405(a). The Commission AFFIRMS in part, and REVERSES in part, the Agency's final decision. ISSUES PRESENTED 1. Whether the Agency retaliated against Complainant when it counseled her for using an Agency business envelope to mail EEO correspondence to her EEO non-legal representative? 2. Whether the Agency provided Complainant with a reasonable accommodation by allowing her to take paid and unpaid leave to attend medical appointments, instead of modifying her work schedule? 3. Whether the Agency subjected Complainant to hostile work environment harassment? BACKGROUND Complainant worked as a Medical Records Technician at the Agency's San Diego Healthcare System, in San Diego, CA. She worked on a team of four technicians that supported various services, such as surgery, medicine, psychiatry, neurology and spinal cord injury. Complainant supported surgery service. She audited medical records for timeliness, completeness, and efficiency, making sure that the doctors signed all of the documents that they were required to sign within a timely fashion. Complainant Affidavit (Aff.), at 20. Initially, she "had an excellent, excellent working relationship" with her first-level supervisor," receiving excellent performance ratings and cash bonuses in 2006 and 2007. Id. at 25-26. But then in 2008, things began to change, in 2008, she went on leave for two and a half months because of family reasons. Id. at 30, 36. During Complainant's leave, the team's newest technician was moved from medicine service to surgery service. And there the newest technician remained, even after Complainant returned from leave. Complainant, in turn, was moved to medicine service. Id. at 30. Even though the processes and goals in medicine service were the same as in surgery service, Complainant began to fall behind in her work. She believed part of the reason was due to her supervisor failing to notify her of the move, and the lack of guidelines or training on medicine service's points of contact and how to run their reports. Id. at 30, 33. After two weeks supporting medicine service, Complainant told her supervisor that she had received no guidelines on medicine service parameters. Id. at 82. According to Complainant, the supervisor replied, "I can't believe you don't know what you're doing, or you don't think you know what you're doing. Everything should be fine. People will provide you with the information you need. Now suck it up and move on." Id. at 82-83. Reasonable Accommodations a. Request for a Modified Work Schedule Complainant had numerous physical and mental impairments,1 which were being treated by two primary care doctors, a psychiatrist, and a grief therapist. Sometimes, Complainant's medical appointments had to be scheduled during her work hours from 7:00 am to 3:30 pm. The Agency allowed Complainant to take leave for her medical appointments during work hours. But because Complainant had exhausted her annual and sick leave during her extended absence, Complainant had to take leave without pay for such medical appointments. For example, Complainant was placed on leave without pay to attend 2:45 pm physical therapy sessions. On September 1, 2009, Complainant formally requested several different types of accommodations that would allow her to attend medical appointments without exhausting her leave. One of her requested options was for a flexible work schedule: Have arrangements in place for medical conditions, last minute medical treatments and/or appointments and/or unforeseen emergencies. Allow chance to make up unplanned, missed time at the end of the next consecutive workday(s) in that week or on that following Saturday versus having to lose the time automatically and be forced to take leave, of which I have almost none left, even after being blessed with some donated leave. Report of Investigation (ROI), at 262. Another of her requested options was for a modified work schedule: Consider Compressed Work Schedule. I could concentrate during a later shift or the later part of a longer shift without constant chaos of the daytime shift. . . . I used this year's sick leave for surgery recovery at the end of last year and have used all of my annual leave for all of my medical appointments that I have been unable to make outside of duty hours, including many recent in-house physical therapy appointments. Id. On February 16, 2010, the Agency's reasonable accommodation committee responded to Complainant's requests. For a flexible work schedule, the committee wrote: [Complainant] can definitely have a flexible work schedule for appointments and other needs within her regularly scheduled tour. It will have to be within the hours as designated by the Service. [Complainant] will be required to request some form of leave for her appointments. Any requests for weekend or evening hours are not available. The Service has discontinued these tours in order to provide customer service to our Veterans. There is also no supervisor on duty to manage staff. ROI, at 267. As for her request for a modified work schedule, the committee stated: The Service is able to accommodate [Complainant] with a temporary modified work schedule. If she chooses to work reduced hours, she will have to supplement the non-working hours utilizing some form of leave (e.g. 8 hours worked, 2 hours LWOP). Id. In her affidavit, Complainant maintains that she wanted to modify her work schedule, so that she could work earlier from 6:00 am to 2:30 pm and attend afternoon medical appointments without having to take leave. b. Keyboard tray Complainant also requested as a reasonable accommodation to be moved to a quieter work environment. She maintained that after she was moved to a new office location, it was missing a tray for the keyboard. Although Complainant "was able to kind of rig a system that kind of worked for me," while the Agency took about seven weeks to install a keyboard tray for the keyboard, Complainant felt that she could not perform her duties as efficiently or as effectively as she wanted to. Id. at 114. Letter of Counseling On January 11, 2010, the first-level supervisor issued written counseling to Complainant for using the Agency's official business envelope to mail personal items. Complainant maintained that she used the envelope to send correspondence to her EEO representative, and believed that such use of an official business envelope was permissible. Id. at 75. Other Harassing Incidents Complainant maintained that she heard males in her office make sexual innuendos and remarks: * One male coworker referred to his testicles as "the twins." * Two male coworkers remarked on their way to the bathroom that "there's too much built up" and they "better go relieve" themselves. * One coworker told Complainant he had dreamed about her, but would not say anything else. After she insisted that he tell her what the dream was about, he replied that "it was really good" and raised his eyebrows. Id. at 97. * The first-level supervisor and the two male coworkers used the term "blue balls." According to Complainant, the first-level supervisor spoke to the two male coworkers numerous times to stop their sexual remarks, but according to Complainant, they simply continued with their behavior. Id. at 89. Complainant also alleged that her first-level supervisor used to watch female coworkers on a regular basis by standing at a door at the time female employees were supposed to arrive and he would watch the clock. Id. at 84. Complainant maintained that on February 25, 2010, she was talking with two coworkers when her supervisor walked up and asked Complainant whether she was on break. Her coworker stated that they were discussing business. The supervisor turned and walked away. As he was walking away, Complainant asked the supervisor to not interrupt her and humiliate her in front of her coworkers. The supervisor then demanded that Complainant go with him into his office and warned her to never speak to him in that tone of voice again. Complainant again asked him to stop ostracizing her and embarrassing her in front of other employees. Id. at 118-119. Formal Complaint Complainant filed an EEO complaint, alleging that the Agency discriminated against her on the bases of sex (female) and disability when: 1. from July 2008 to February 26, 2010, management "switched" Complainant's duties and responsibilities with another employee; 2. from October 28, 2009 to the present, Complainant was denied the opportunity to revise her work schedule to accommodate medical appointments (physical therapy); 3. on January 11, 2010, Complainant was issued a letter of counseling; In addition, Complainant alleged that she was subjected to hostile work environment harassment on the bases of sex (female) and disability when: 1. from July 2008 to February 26, 2010, management "switched" Complainant's duties and responsibilities with another employee; 2. from May 2009 to October 2009, her first-level supervisor stood at the door watching the clock to monitor the time all female employees reported to work; 3. from July 2009 to February 26, 2010, two male coworkers made sexual remarks (such as referring to their testicles as "the twins") within hearing distance of female workers in the unit; 4. from October 28, 2009 to the present, Complainant was denied the opportunity to revise her work schedule to accommodate medical appointments (physical therapy); 5. on January 11, 2010, Complainant was issued a letter of counseling; 6. In January 2010, her first-level supervisor instructed Complainant to monitor her coworker's lunch breaks; 7. on February 19, 2010, management moved Complainant's work station without the appropriate equipment (keyboard tray) to perform her duties; 8. on February 25, 2010, the first-level supervisor ostracized and humiliated Complainant in the presence of other employees; 9. on April 1, 2010, the first-level supervisor "sabotaged" Complainant's database from March 26-30, 2010 as well as ten backlogged records she had completed. When the Agency finished investigating Complainant's claims, it gave her with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final decision by the Agency without a hearing. So on January 25, 2011, the Agency issued a final decision, under 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that management articulated legitimate, nondiscriminatory reasons for moving her from surgery service to medicine service. Management explained that all medical records technicians were rotated to different service areas so they could gain knowledge and experience in performing in all areas. Management did not want to modify Complainant's work schedule to the hours she requested (6:00 am to 2:30 pm) because there would not be a supervisor or a lead technician to supervisor Complainant during the entire shift. Because Complainant in the past had made some mistakes that had been caught by her supervisor, management felt it important to have a supervisor work alongside Complainant. Furthermore, the Agency concluded that the Agency had provided a reasonable accommodation to Complainant by allowing her to take leave to attend her medical appointments. According to management, the Agency received an unclaimed official business envelope addressed to Complainant's EEO representative in Tustin, California on December 24, 2009. Report of Investigation (ROI), Exhibit (Ex.) C4, at 8. Attached to the envelope was a return receipt with Complainant's name. Management opened the envelope, and determined that Complainant had used a government envelope to mail personal items. On January 11, 2010, management issued a written counseling to Complainant for using a government envelope for personal use. ROI, Ex. C4, at 1. The Agency determined that Complainant failed to prove that these reasons were pretexts for discrimination, so found that she was not subjected to discriminatory disparate treatment. As for the harassment claim, the Agency found that the sexual remarks allegedly made by coworkers were isolated and were not sufficiently severe or pervasive to constitute sexual harassment. Nor did Complainant sufficiently show that the other alleged incidents were motivated by Complainant's sex or disability. Therefore, the Agency found that Complainant did not prove hostile work environment harassment. CONTENTIONS ON APPEAL On appeal, Complainant submits a number of documents, such as email messages, and other records, as evidence to support her claims of discrimination. However, she did not submit a brief in support of her appeal. ANALYSIS AND FINDINGS The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. § 1614.405(a). "The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v, Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). a. Move from Surgery Service to Medicine Service Complainant alleges she was discriminated against when her supervisor "switched" the newest technician (a female) to surgery service, and moved Complainant to medicine service. Complainant admitted in her affidavit that "the processes and the goals are the same." Report of Investigation (ROI), Complainant's Affidavit (Aff.), at 30. We find that Complainant has failed to establish a prima facie case of sex discrimination, in that she did not allege that she was treated differently than a similarly situated male employee. Further, we find that the supervisor articulated a legitimate, nondiscriminatory reason for moving the technicians to different areas in order to gain more experience and knowledge. "[W]hat we do to make everybody consistent and know how to do all services, we rotate them and we rotated everybody, not just [Complainant.]" Supervisor's Aff., at 11. In her testimony, Complainant appears to argue that this reason was pretextual, because the supervisor did not contemporaneously notify her of her reassignment or the reasons for the move. When she returned from leave, Complainant tried to access her old database in surgery service but was unable to do so. It was her coworkers who told her she had been moved to medicine service and instructed her how to use the new database. The supervisor provided no training in how to run reports or a list of medicine doctors. An employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. The fact that the supervisor appeared to poorly handle Complainant's return to work after her extended leave in rotating her to medicine service does not by itself demonstrate that the supervisor had been motivated to move Complainant because of her sex or disability. To show pretext, Complainant averred, "I feel that [management] was discriminating against my disability in that it was my cognitive disability that I started to experience after the loss of six family members in six months. And I think he started feeding on the fact that I was in shock." Complainant's Aff., at 56. "[Management] has ostracized me since I came back in 2008, He tends to prey on the weak. He likes the shock value when he discriminates against somebody . . . ." Id. at 58. "I feel like he's using my disability because of my cognitive impairment to write me up as much as he can, which is harassing me and making it a hostile work environment. He loves the shock value of messing with people." Id. at 60. Such testimony, that the supervisor preyed on the weak and delighted in shocking Complainant, is speculative and conclusory, and does not constitute sufficient proof of pretext. Therefore, we find that Complainant failed to establish that the supervisor's decision to move her from surgery service to medicine service was motivated by discrimination. b. Reasonable Accommodation: Work Schedule For claim 2, we find it more appropriate to analyze this claim as a denial of reasonable accommodation, rather than as a claim of disparate treatment on the basis of disability.2 Here, the Agency permitted Complainant to use accrued paid leave and unpaid leave to attend medical appointments to treat her impairments. Complainant, however, felt this arrangement disadvantaged her, since she had exhausted her paid leave, and was now being forced to use unpaid leave to obtain medical treatments. She requested to have either a flexible or modified work schedule to attend medical appointments outside of her work hours, so she would avoid using unpaid leave. For the sake of argument, we will assume, without deciding, that Complainant is an individual with a disability. We find that the Agency properly provided Complainant with an effective, reasonable accommodation. According to the Commission's Enforcement Guidance, an agency may permit an employee to use accrued paid leave, or unpaid leave, as a form of reasonable accommodation, when the employee with a disability needs leave for reasons related to the disability (such as obtaining medical treatment). "An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave." EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) That was exactly what the Agency provided in this case to allow Complainant to obtain medical treatment. Although Complainant preferred to avoid using unpaid leave to attend medical appointments, she is not necessarily entitled to the accommodation of her choice. The Agency may choose among reasonable accommodations as long as the chosen accommodation is effective. Here, Complainant needed an accommodation that would allow her to attend her various medical appointments. And the Agency satisfied this need by permitting her to first use accrued paid leave, and when that was exhausted, to then use unpaid leave. Therefore, we find that the Agency did not discriminate against Complainant on the basis of disability when it denied her request for a flexible or modified work schedule, because it was already providing her with a reasonable accommodation. c. Using an Agency business envelope to send EEO correspondence Complainant argues that the Agency should not have given her a written consultation for using an Agency business envelope to send correspondence to her EEO representative because sending correspondence to her EEO representative, as part of the Agency's EEO process, is part of the business of the Government and constitutes protected EEO activity. The Agency maintains that it was justified in issuing a written consultation because this involved a personal matter, and so it was inappropriate for Complainant to use the Agency's business envelope, even if Complainant paid for the postage and shipping herself. The anti-retaliation provisions make it unlawful to discriminate against any individual because she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under the employment discrimination statutes. Included in the broad protection offered by the anti-retaliation provisions is "freedom from discriminatory interference with the EEO process. The existence of regulations for the proper use of franked mail does not preclude the possibility that [a complainant] has been treated unfairly or differently." Ginish v. U.S. Postal Serv., EEOC Appeal No. 01901847 (May 7, 1990). We find that Complainant engaged in protected EEO activity, under the participation clause, when she attempted to mail correspondence to her EEO representative. The question is whether she was free to mail such EEO-related correspondence using the Agency's business envelope and paying for postage herself, without fear of being counseled by her supervisor. Here, the relevant Agency policy for mail management provides: Mailing indicia, including meter impressions and permit imprint authorizations, will never be used by employees for personal mail (any mail which does not relate exclusively to the business of the Government). Such mail includes, but is not limited to, holiday greetings, retirement announcements, job resumes (including Standard Forms 171, Application for Federal Employment), and all similar materials. Individuals using any official mailing indicia item authorized by law to avoid the payment of postage or registry fee on private mail can be fined not more than $300. ROI, Ex. C11 (VA Directive 6340), at 54. Based on the specific relevant policy in this case, we find that the Agency erred in counseling Complainant. The relevant mail management policy does not expressively prohibit Complainant from using business envelopes for EEO-related participatory activities, such as sending EEO correspondence either to the Agency's EEO investigator or to her EEO representative. Rather, the Agency's policy gives examples of "personal mail" for which using the Agency's "mailing indicia" would be inappropriate, such as holiday greetings, retirement announcements, job resumes, and similar materials. We find that correspondence relating to pending EEO matters is different from the type of examples given by the Agency's policy. EEO correspondence is related to internal business processes that the Agency has set up to administer the EEO process. Further, it would seem anomalous and inconsistent for some correspondence to be deemed either a business correspondence, or a personal correspondence, depending on which Agency employee sent the document. For example, it would seem odd to allow Agency employees who worked in the Agency's EEO office, or general counsel's office, to use business envelopes to send copies of affidavits, investigations, or motions, to an Agency employee with a pending EEO complaint, but then require the same complainant to send those same documents back using personal envelopes because such correspondence is now considered "personal" rather than business-related. Normally, agencies discourage employees from using business envelopes for their "personal mail" to avoid appearing to others as though the employee is speaking for the Agency when in actuality the employee is representing her own views and opinions. But we think in this case, such a risk of confusion is minimal when mailed to an EEO representative who is already involved in interacting with the complainant and the agency as part of the Agency's EEO federal sector process. Considering that employees can take official time to participate in the EEO process, and the fact that our Management Directive 110 permits complainants and their non-attorney representatives to use government property such as copiers, telephones, and word processors as long as they are authorized by the agency and do not cause undue disruption (see Chapter 6, Section VIII, part E), we find it reasonable in this case for the Complainant to mail her EEO correspondence to her EEO representative, using the Agency's business envelope, and personally paying for the cost of postage. Such EEO participation activity did not appear to explicitly violate this Agency's relevant mail management policy, and did not appear to unduly disrupt the Agency's operations or pose a financial burden on the Agency. We find that reprimanding Complainant for exercising a legitimate method of corresponding with her EEO representative is reasonably likely to deter EEO activity. Therefore, we conclude that the Agency erred in counseling Complainant for such EEO participation activity, and such counseling amounted to a per se violation of our anti-retaliation regulations and guidance. Hostile Work Environment Harassment To establish hostile work environment harassment, Complainant must show five things. First, Complainant must be a member of a statutorily protected class. Second, the alleged harasser engaged in unwelcome verbal or physical conduct. Third, the unwelcome conduct was based on Complainant's statutorily protected class. Fourth, the unwelcome conduct either (a) affected a term or condition of employment, or (b) had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. Fifth, there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Complainant alleged that she was harassed on the bases of sex and disability when: 1. from July 2008 to February 26, 2010, management "switched" Complainant's duties and responsibilities with another employee; 2. from May 2009 to October 2009, her first-level supervisor stood at the door watching the clock to monitor the time all female employees reported to work; 3. from July 2009 to February 26, 2010, two male coworkers made sexual remarks (such as referring to their testicles as "the twins") within hearing distance of female workers in the unit; 4. from October 28, 2009 to the present, Complainant was denied the opportunity to revise her work schedule to accommodate medical appointments (physical therapy); 5. on January 11, 2010, Complainant was issued a letter of counseling; 6. In January 2010, her first-level supervisor instructed Complainant to monitor her coworker's lunch breaks; 7. on February 19, 2010, management moved Complainant's work station without the appropriate equipment (keyboard tray) to perform her duties; 8. on February 25, 2010, the first-level supervisor ostracized and humiliated Complainant in the presence of other employees; 9. on April 1, 2010, the first-level supervisor "sabotaged" Complainant's database from March 26-30, 2010 as well as ten backlogged records she had completed. Complainant again speculates that the supervisor was motivated to harass her because "he likes to harass weak people and he has a problem with females." Complainant Aff., at 86. Complainant reiterated her belief that the supervisor liked to prey on her "temporary cognitive ability" and "loves the shock value" by harassing Complainant. Id. at 86-87. We again find such speculation to be insufficient to prove the third element of a hostile work environment claim, that the unwelcome conduct was based on Complainant's statutorily protected classes of sex and disability. We further discuss the merits of each claim in detail. For claims 1 and 4, we previously found no discrimination, when the Agency rotated Complainant to medicine service and provided her with a reasonable accommodation, even though it was not the one Complainant preferred. For claim 2, the supervisor denied watching only female employees reporting to work. While the supervisor admitted to previously reprimanding one female employee who was constantly late to work, he denied monitoring only female employees, and described his routine as a benign way to greet everybody in the morning. "I go out and see who's there and if they're there on time. I do it every morning . . . . I go around the entire office just to see who's there and greet everybody in the morning." Supervisor Aff., at 37. We find that Complainant has not presented enough evidence to establish that the supervisor monitored only female employees when they reported to work for claim 2. Similarly, for claim 6, the supervisor denied "instructing" Complainant to monitor her coworkers' lunch breaks. According to the supervisor, Complainant had informed him that a male coworker (the one referenced in footnote 2 of this decision) was taking extensive lunch breaks. The supervisor allegedly told Complainant, "I'm not everywhere all the time, but is the responsibility of a Government Federal employee that when they see something being done wrong, that they need to report it. This is the way I put it to her. And she took it to say that she's suppose to watch them and monitor them. . . . No, I did not tell her you watch the door . . . But I told her, if you see something being done wrong, you need to let me know about it." Supervisor Aff., at 53-54. We find that a supervisor asking the complainant to report something she sees as wrong does not constitute unwelcome conduct that could constitute harassment. For claim 3, Complainant maintained that two male coworkers constantly talked back and forth to each other and made sexual innuendoes: "I might have to go relieve myself because it's building up." Complainant's Aff., at 89. Complainant acknowledged that the supervisor spoke to them and asked them to stop making such comments. Id. Complainant maintained that on another occasion, a male coworker told Complainant that "he had a dream about me and he wouldn't say anything else. And I kept saying . . . that's not fair that you tell me that and then you don't tell me about what the dream is. And all he did is, he finally came over and he said, oh, I can't tell you, but it was really good and he raised his eyebrows. And when I came home and told my husband, he said, that was a sex dream. That's why he couldn't tell you." Id. at 97-98. In April 2010, Complainant alleged that she overhead the supervisor and a male coworker use the term "blue balls." The supervisor denied using that term, and instead felt that Complainant must have misheard him talk about Lakers playoff basketball in his office. "During that time was the basketball playoffs. Now, we were talking about basketball playoffs. She, for some reason, she thinks she heard us saying something about blue balls, okay, referring to sexual organs, but I have no idea what she's talking about." Supervisor Aff., at 41. We find that Complainant has not clearly established that she was subjected to unwelcome sexual verbal conduct from the male coworkers or the supervisor. There are no other witnesses who offer corroborative testimony in the record. And in particular with the dream incident, and the one-time alleged use of the term "blue balls," we find those to be isolated incidents that are not severe or pervasive enough to constitute hostile work environment harassment. As for claim 7, the supervisor averred that Complainant had spent time selecting a place to move her work station, but it was only after the move was over that she discovered that the workstation was missing a keyboard tray. Complainant admitted that she was able to perform her duties by temporarily placing her keyboard on a book or a binder while she waited for the keyboard tray to arrive. Complainant Aff., at 110. The supervisor averred that he obtained a keyboard tray in "a couple of days." Supervisor Aff., at 57. We find that the short, temporary delay of about 3 days in obtaining a keyboard tray was not sufficiently severe or pervasive enough to constitute hostile work environment harassment. Nor did Complainant show that such a delay was motivated by animus based on her sex or disability. For claim 8, we find that the supervisor's conduct was not as severe as Complainant characterized in her complaint (as an attempt to ostracize and embarrass her in front of other employees). According to Complainant's own description of the event, the supervisor asked Complainant whether she was on break while she was talking to two coworkers. The supervisor walked away after a coworker said that they were discussing business. It was only after the supervisor turned and walked away that Complainant told the supervisor to not interrupt her and humiliate her in front of her coworkers. It was because of this public comment made by Complainant to the supervisor that the supervisor then asked Complainant to go with him into this office, and privately warned her to not speak to him in that tone of voice again. Although Complainant may have subjectively felt embarrassed by having her supervisor initially ask her whether she was on a break while she was talking to two coworkers, we find such conduct is not severe enough to constitute hostile work environment harassment. Nor do we find it harassing for the supervisor to privately caution Complainant against publicly accusing him of interrupting and humiliating her in front of other coworkers. In total, we find that claim 8 is not sufficient to establish a claim of hostile work environment harassment. For claim 9, Complainant testified that her records disappeared on April 1, 2010. She thought her supervisor was behind it since he was the only one with access to the database and had a reason to do such a thing. The supervisor denied "sabotaging" Complainant's database. He testified that he has never made any changes to any medical records technician database. Instead, he testified that has lost her database at least three times, and for the particular dates from March 26 to March 30, Complainant lost the relevant analysis information. He and the Chief decided to move forward and instructed Complainant to always save her database. We find that Complainant has failed to establish who was responsible, if anyone, for the disappearance of the records in the Agency database. Complainant speculates that it could have been the supervisor behind it, but she offers no details as to how the supervisor could have sabotaged her records, or why he was motivated to do it based on her sex or disability. Therefore, we find that Complainant failed to prove claim 9 constituted hostile work environment harassment. Finally, for claim 5, even though we found above that the Agency retaliated against Complainant when it counseled her for using a business envelope to mail EEO correspondence to her EEO representative, we find that Complainant has failed to demonstrate how this incident was motivated by Complainant's sex or disability. Moreover, a single incident of counseling is not enough, by itself, to constitute hostile work environment harassment. Therefore, we conclude that Complainant did not present sufficient evidence to establish hostile work environment harassment on the bases of sex and disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE in part, the Agency's final decision regarding the finding of no retaliation for issuing a letter of counseling on January 11, 2010. We AFFIRM in part, the Agency's final decision finding no discrimination for the other claims. ORDER The Agency, within one hundred and twenty (120) calendar days of this decision becoming final, is ordered to take the following remedial action: I. The Agency shall remove from Complainant's personnel record the January 2010 written counseling regarding her use of a business envelope to mail EEO correspondence to her EEO representative. II. The Agency shall train the responsible management officials to ensure that they become aware and continue to be aware of their obligations, responsibilities and rights under EEO law, including the right to work in an environment free from reprisal discrimination. III. The Agency shall post a notice in accordance with the order below. IV. The Agency shall consider taking disciplinary actions against the responsible management officials. The Agency shall report its decision whether to issue discipline in its compliance report. 3 The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its San Diego Healthcare System facility, in San Diego, CA copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 77960, Washington, DC 20013. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 __4/18/14________________ Date 1 Complainant averred that she had the following impairments: a left shoulder strain; adjustment disorder with depressed mood; left lower extremity lumbar rediculopathy associated with low back pain; low back strain; cervical spine degenerative disk; left knee injury and pain; rosacea; siriasis, facial scars; ankle sprains; and acne. 2 In her testimony, Complainant appeared to argue she was disparately treated on the basis of sex, in that a male coworker with a disability received preferential treatment by taking 1 hour for lunch, while she could take only half an hour for lunch. The accumulative difference in time spent for lunch over the course of a week was therefore 2.5 hours. Complainant argues that she could have used those extra 2.5 hours to go to her medical appointments without having to take leave without pay. We find that this argument is not really one about disparate treatment on the basis of sex, for Complainant is not arguing that the male coworker in question was granted the reasonable accommodation that Complainant desired (a modified work schedule) and was denied. 3 We note that Complainant does not to appear to have requested compensatory damages as a remedy. In the EEO counselor's report, the counselor noted that Complainant requested that the harassment stop immediately; the male coworkers should be made accountable for their time and male-oriented conversations; and she should be accommodated for her disabilities. In her formal EEO complaint, under the box labeled "Remedies Sought," Complainant wrote only that one of the male coworkers "has settled considerably & my desk moved today." Finally, in her affidavit, Complainant testified she was seeking the following to resolve her complaint: (1) removal of her first-level supervisor; (2) a flexible schedule to attend her medical appointments; (3) 2.5 hours given to another coworker so that she could use it as paid leave to attend medical appointments; (4) either telework or a quieter work space until her cognitive impairment improves. Complainant Aff., at 127-128. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2011-2074 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013