Geneva Ellis-Balone v. Department of Energy 07A30125 December 29, 2004 . Geneva Ellis-Balone, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency. Appeal No. 07A30125 Agency No. 98(105)RL Hearing No. 380-2000-08082X DECISION Following its August 18, 2003 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding that the agency discriminated against complainant on the basis of her race and sex. The agency also requests that the Commission affirm its rejection of the AJ's orders to pay complainant compensatory damages in the amount of $100,000.00, to pay attorney's fees and to conduct management training. For the following reasons, the Commission REVERSES the agency's final order. The record reflects that complainant, a GS-13 Physical Scientist employed at the agency's Richland, Washington, Field Office (“facility”), filed a formal EEO complaint with the agency on March 22, 1998, alleging that the agency had discriminated against her on the bases of race (African-American) and sex (female) for delays associated with: (1) granting approval for her to participate in the agency's telecommuting program; (2) granting approval for her to use advanced sick leave; and (3) processing her request for advanced sick leave. Complainant also alleged that she was harassed by the staff of the facility's Human Resources Manager (HRM) during her pregnancy and that she was treated differently by the staff of the HRM in processing, approving and conditioning her requests. A review of the record establishes that complainant began working at the facility on September 30, 1996. The record further establishes that the reason complainant initially sought to telecommute is due to a chronic eye condition, uvitus, which causes her severe pain and blurred vision and which prevents her from driving and limits her reading. In November of 1996, complainant informed the agency that she was having a flare-up of uvitis, and the agency accommodated her condition by changing the lighting in her office and providing her with a computer screen magnifier. The record reflects that complainant's immediate Supervisor (S1) supported her requests to telecommute. In January of 1997, complainant became aware that she was pregnant and she began having severe medical problems such as fatigue, nausea, cramping, vomiting and an inability to eat. Complainant also suffered from a flare-up of uvitus in the later months of her pregnancy. Complainant was reluctant to take leave when she was not feeling well as she was a new facility employee, but her physician recommended that she either work at home or work part-time. Complainant informed the facility's Human Resources representative of her condition and she was told that she could use a flexi-schedule or telecommuting so she did not have to work at the facility. On May 1, 1997, complainant met with S1 and developed a work at home plan acceptable to both and approved by S1. However, the telecommuting plan was never approved by the facility's HRM office and the HRM office's Program/Policy Team Leader (TL) believed that the memo request had been misplaced and did not come to her attention until May 29, 1997. In the meantime, complainant's physical condition became worse, as she began to have heart palpitations which necessitated a heart monitor. On May 30, 1997, after S1 had approved complainant's telecommuting request, the TL informed S1 that the request could not be approved without additional information regarding the care of complainant's children while she worked at home. In preparing a response to the TL, complainant became aware that a male facility employee had made a similar request to telecommute and his request had been granted.<1> A June 3, 1997 e-mail between complainant and the TL documents the additional information that was requested before her telecommuting request could be approved. The information regarded whether complainant's older children would be at home while complainant was working, and who would take care of the newborn while complainant worked. On June 11, 1997, S1 received complainant's revised telecommuting request, and he forwarded it to the HRM office. The telecommuting memo initially stated that complainant would be on “full maternity leave,” but S1, apparently upon advice from the TL, changed the language by deleting full maternity leave and replacing it with a statement that complainant would be on leave utilizing annual leave and leave without pay and that no advanced sick leave could be granted. When complainant learned of this conditional limitation to her telecommuting, complainant advised S1 that she would not participate in the telecommuting program until after she had met with him. However, there is a dispute in the record regarding whether complainant participated in the telecommuting program prior to the birth of her child or after. Believing she was the victim of discrimination, complainant sought EEO counseling and filed the aforementioned formal complaint. At the conclusion of the investigation, complainant was provided a copy of the investigative report and requested a hearing before an AJ. Following a hearing, the AJ found that complainant established a prima facie case of race discrimination when her request for approval of her telecommuting reqquest was delayed for 42 days. In so finding, the AJ found that the one month misplacement of complainant's request was unexplained and “highly suspicious.” AJ's Decision at 20. The AJ found that the evidence suggested that the agency generally granted telecommuting approval for White employees in an expeditious manner, while it delayed complainant's approval for over one month and subsequently delayed complainant's approval on impermissible reasons. Further, the AJ found that the agency failed to present any evidence that it insisted on physically inspecting the homes of other facility employees who requested telecommuting or that it demanded detailed, specific reasons of the benefit to the government in granting the request. The AJ then found that the agency's proffered reasons for its actions were more likely than not pretextual in nature. In addition, the AJ found that complainant established a prima facie case of sex discrimination. In so finding, the AJ noted the agency's “admitted” policy of not granting sick leave to pregnant women unless accompanied by medical documentation specifying the serious pregnancy related medical condition. The AJ found that the agency stated that advance sick leave was not available for pregnant women, and if advance sick leave was available, it was limited to a maximum of forty hours for pregnant women. As such, the AJ found that this policy regarding pregnant women was discriminatory as it treated female employees differently than male employees due to their sex. The AJ further found that complainant established a hostile work environment when it discriminated against her on the bases of race and sex. In so finding, the AJ noted that complainant established that she was subjected to disparate treatment sufficiently severe to alter the terms and conditions of her employment. AJ's Decision at 29. Specifically, the AJ noted that complainant was treated with hostility by personnel at HRM, and the TL conditioned the granting of authority to telecommute by adding limiting language in complainant's memo that would preclude her from requesting advance sick leave. The AJ also found that there was no basis for the HRM calling complainant at home four (4) days after she gave birth, to demand medical documentation for complainant's requested telecommuting. The AJ then found that the agency failed to articulate legitimate, nondiscriminatory reasons for its actions. The AJ concluded that complainant established that more likely than not, the reasons provided by the agency were a pretext for discrimination. In reaching this conclusion, the AJ found that the testimony provided by the TL and the HRM's Human Resources Specialist (HRS) regarding complainant's requests to telecommute was not credible. AJ's Decision at 31. Further, the AJ found that the agency officials who testified at the hearing failed to articulate legitimate reasons for their actions. In addition, the AJ noted that while both the TL and the HRS denied making negative comments about women, their testimony was contradicted by the testimony of complainant, S1 and the preponderance of testimony and facts in the record. AJ's Decision at 33. The AJ also found that the agency's failure to produce complainant's telecommuting request memo during discovery led him to conclude that it was possible that HRM staff also withheld other documents material to the case. AJ's Decision at 34. Ultimately, the AJ found that in imposing conditions and requirements on female employees, and specifically on complainant, which were not imposed on the male employees, the TL violated her professional obligations and discriminated against complainant. Addressing the issue of damages, the AJ considered the testimony of complainant and her husband on the effect of the discrimination on their lives, as well as the testimony of complainant's treating physician stating that work related stress was a causative factor in complainant's early delivery. As a result, the AJ ordered the agency to pay complainant $100,000.00 in non-pecuniary compensatory damages for emotional distress. The AJ also ordered the agency to compensate complainant for all her costs, expunge any adverse materials in its records relating to complainant's job performance, and to pay complainant's counsel the amount of $35,060.50 in attorney's fees and $6,400.53 in costs. The AJ also ordered the agency to conduct training for all its HRM personnel at the facility on race and sex discrimination under Title VII. The agency's final order rejected the AJ's decision. On appeal, the agency argues that the AJ's decision was in error on several issues. Initially, the agency alleges that the AJ's decision contained numerous erroneous findings of fact which are not supported by the record. In addition, the agency alleges that the AJ's decision was so strident and derisive so as to border on unprofessional. Further, in relying on numerous erroneous statements of fact, the AJ's decision impugned the integrity of the two (2) named agency personnel. In addition, the agency contends that the AJ erred in finding that the testimony of S1 and two other agency employees was credible, while the testimony of three other agency employees was not credible. Agency's Brief (AB) at 13. Throughout the brief, the agency points to specific substantive errors by the AJ regarding issues such as complainant's leave status, the intentions of agency employees and complainant's actual participation in the agency's telecommuting policy. The agency contends that the facility provided all of the accommodations she sought, and that her complaint focused upon the delays associated in getting all of her requests regarding her pregnancy and illness. Further, the agency states that the record supports neither the finding of discrimination nor the monetary damages of $100,000.00 awarded to complainant by the AJ. Complainant, through counsel, responded to the agency's assertions. Complainant contends that the AJ's findings of fact are supported by the record, and that the AJ's credibility determinations regarding the hearing testimony of the TL and the HRS should be upheld by the Commission. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Findings and Conclusions After a careful review of the record, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Initially, the Commission concurs with the AJ's finding that complainant established a prima facie case of race and sex discrimination as she was treated differently than was a White, male employee at the facility with regard to processing and approval of his application for telecommuting. As found by the AJ, the male comparison employee (E1; White male) at issue had his request to telecommute approved by the TL without further information although like complainant, he had children living at home.<2> However, complainant's request to telecommute was not acted upon for one (1) month,<3> and she was then told that her request could not be approved without seven (7) items of further information. Further, as found by the AJ, complainant's request was not approved although she sought to telecommute from roughly the same area as the facility, while E1's request was approved while he lived 150 miles away from the facility. AJ's Decision at 14. We further concur with the AJ's finding that the record established that complainant was disparately treated as the TL initially required a home inspection of complainant's residence, while a physical inspection of E1's home was never suggested. We note that in finding that complainant was discriminated against on the bases of race and sex, the AJ noted the credible hearing testimony of another White, female employee (E2) at the facility, who stated that the TL and the HRS delayed and questioned her request to telecommute and continually informed her that she could not use telecommuting as a substitute for babysitting or child care. The AJ noted that this line of questioning was not employed with E1. In finding that the agency discriminated against women on the basis of their sex, we note the AJ's finding that E2 testified that she was discouraged by HRM staff from requesting advance sick leave, and that she was told that if she was granted advance sick leave she would probably not return to work.<4> Having concurred with the AJ's finding that complainant established a prima facie case of race and sex discrimination, we further concur with the AJ's finding that complainant established that the agency's articulated reasons for its actions were more likely than not a pretext for discrimination. In so finding, we note that the AJ found that the TL and the HRS were not credible witnesses. Specifically, the AJ found that despite the denials of the TL and the HRS that they did not make statements to complainant that the HRM did not grant advance sick leave to pregnant women or to women who wanted to take postpartum leave, the testimony of these witnesses was not credible. AJ's Decision at 32. Conversely, the AJ found the testimony of S1, E1 and E2 describing their difficulties with the HRM staff to be credible, and contradicting the statements of the TL and the HRM regarding the delay in granting complainant's request to telecommute during her pregnancy.<5> AJ's Decision at 33. Finally, the AJ concluded that the inconsistencies in the agency's rationale as articulated by the TL and the HRS regarding the difficulties complainant had in getting approval from the HRM to telecommute and use advance sick leave were “sufficient to draw an adverse inference of discriminatory intent based on the disparate and inconsistent application of rules and regulations to the disadvantage of the complainant.” AJ's Decision at 34. The Commission has held that it will generally not disturb the credibility determinations of an AJ, where, as here, such determinations are based on the credibility of the witnesses. See Esquer v. United States Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of the Treasury, EEOC Request No. 0590059 (July 26, 1990). As such, we concur with the AJ's finding that the agency's articulated reasons for its actions were more likely than not pretext for discrimination on the bases of race and sex, as the AJ's conclusions regarding pretext were based on her findings that the hearing testimony of HRM staff was not credible. Compensatory Damages In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. Section 102(a) of the CRA, codified as 42 U.S.C. § 1981a, authorizes an award of compensatory damages as part of the "make whole" relief for intentional discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. Section 1981a(b)(3) limits the total amount of compensatory damages that may be awarded to each complaining party for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, according to the number of persons employed by the respondent employer. we note that the limit for an employer with more than 500 employees, such as the agency herein, is $300,000.00. 42 U.S.C. § 1981a(b)(3)(D). An award for compensatory damages must be predicated on the harm experienced as a result of the agency's actions, and the agency is only responsible for those damages that are clearly shown to be caused by its actions. Rivera v. Department of the Navy, EEOC Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC Request No. 05940927 (December 11, 1995); Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993); Fazekas v. USPS, EEOC Appeal No. 01954627 (April 7, 1997). To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of his/her loss, that is, whether the complaining party incurred the pecuniary losses as a result of the agency's discriminatory action or conduct. See Enforcement Guidance: Compensatory and Punitive Damages Available under 102 of the Civil Rights Act of 1991 (July 14, 1992). We note that the AJ considered the evidence of record and ordered the agency to pay complainant $100,000.00 in non-pecuniary damages. In making the determination on compensatory damages, the AJ specifically considered the testimony of complainant and her husband, who credibly testified that their lives were negatively impacted as a result of the harassment and discrimination she received by facility HRM staff. The AJ noted that the period of the discrimination was from about March of 1997 to October of 1997, and she stated that during this period she was in pain and depressed, and felt physically and emotionally drained by having to satisfy the HRM's demands due to her telecommuting request. The AJ also noted that complainant's testimony with regard to having difficulty with the HRM staff and being unable to have advanced sick leave approved was consistent with E1's testimony. Further, the AJ noted that during this period, complainant had an uvitis flare-up in August of 1997, but cited the testimony of the agency's expert physician in concluding that the evidence did not support the conclusion that complainant suffered stress-related cardiac palpitations during the period at issue. AJ's Decision at 38. Further, the AJ found that the evidence did not support a relationship between stress and the premature rupture of membranes, nor did the AJ find that complainant's newborn child was in any way negatively affected due to her premature birth. In awarding complainant $100,000.00 in compensatory damages for emotional pain and suffering, as well as exacerbation of physical symptoms, the AJ referenced the testimony of complainant and her husband. We note that complainant did not indicate if she was treated medically for her emotional pain and suffering. The Commission finds that although a claim for non-pecuniary damages may rest on a complainant's statement alone, we note that she did not submit evidence other than the statements of herself and her husband regarding the effects of her emotional distress on her family. Nevertheless, complainant has indicated that she experienced emotional/mental pain and suffering during the nine months that the agency discriminated against her with regard to her requests for telecommuting and advanced sick leave. The evidence does establish that based on the actions of the facility's HRM office's staff, complainant suffered discomfort and pain related to her pregnancy, had several uvitis flare-ups, and was depressed and stressed. The evidence also supports complaint's statements that she felt emotionally and physically drained by having to meet the unreasonable demands of HRM staff. Further, the AJ found that the evidence of record clearly supported a finding that the physical and emotional difficulties complainant underwent over an eight month period were related to the agency's “campaign” of harassment and discrimination. AJ's Decision at 37. As noted by the AJ, the medical evidence submitted by complainant did not support a finding that stress related to the discrimination was a proximate cause of the premature rupture of her membranes during her pregnancy, nor was the premature delivery of her daughter affected by stress related to the discrimination. The Commission notes that a decision regarding compensatory damages is a question of fact, and, as such, an AJ's post-hearing finding regarding compensatory damages will be upheld if supported by substantial evidence. 29 C.F.R. § 1614.405(a); Ferrall v. Department of the Navy, EEOC Appeal No. 07A30054 (April 23, 2003); McCleese v. USPS, EEOC Appeal No. 01A32993 (April 22, 2004). In addition, we note that the Commission has granted similar awards of non-pecuniary damages in cases where the complainant suffered symptoms such as the complainant did in the instant case. See Glockner v. Dept. Of Veterans Affairs, EEOC Appeal No. 07A30105 (September 23, 2004); Kloock v. USPS, EEOC Appeal No. 01A31159 (February 5, 2004). After a review of the record and the contentions of the parties, we find that the AJ's finding regarding compensatory damages is supported by substantial evidence, and that complainant is entitled to an award of non-pecuniary damages for physical and emotional pain and suffering in the amount of $100,000. This amount is not motivated by passion or prejudice, is not monstrously excessive, and is not inconsistent with amounts awarded in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Therefore, after a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission REVERSES the agency's final order on the issue of discrimination. We MODIFY the agency's final order on the issue of compensatory damages and direct the agency to take corrective action in accordance with this decision and the Order below. ORDER 1. Within thirty (30) days of the date on which this decision becomes final, the agency shall tender to complainant non-pecuniary compensatory damages in the amount of $100,000.00, to the extent that the agency has not already paid any non-pecuniary compensatory damages to complainant. The agency shall also pay complainant all costs to which she is entitled in connection with this complaint. 2. The agency shall not take any retaliatory action against complainant for having filed, prosecuted and prevailed on this discrimination complaint. 3. The agency shall expunge any adverse or derogatory materials in its records relating to complainant's performance as a Physical Scientist at the facility. 4. Within thirty (30) days of the date on which this decision becomes final, the agency shall tender to complainant the total of $35,060.50 in attorney's fees and $3,500.00 in costs associated with the litigation of this matter. 5. The agency shall provide eight (8) hours of training to the HRM staff at the facility in the obligations and duties imposed by Title VII, specifically regarding race and sex discrimination, conducted by an experienced Title VII employment discrimination instructor. 6. The agency shall consider taking disciplinary action against those members of the facility's HRM staff that were found to discriminate against complainant, if they are still employed by the agency. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If these individuals have left the agency's employ, the agency shall furnish documentation of their departure date. The agency is further directed to submit a report of compliance, as provided in the statement below entitled "Implementation of the Commission's Decision." The report shall include evidence that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Richland, Washington Operations facility 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 (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 (K0501) 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 19848, Washington, D.C. 20036. 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. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations December 29, 2004 __________________ Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. (Title VII) has occurred at the agency's Richland, Washington Field Office (hereinafter “facility”). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The facility supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The facility was found to have discriminated against an employee on the basis of race and sex. The agency was therefore ordered to: (1) provide training on Title VII to the management officials involved; (2) consider taking appropriate disciplinary action against the responsible management officials; (3) award $100,000.00 in non-pecuniary compensatory damages; (4) expunge any adverse or derogatory materials in its records relating to complainant's job performance; and (5) post this notice. The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. Date Posted: Posting Expires: 29 C.F.R. Part 16141 The record establishes that the TL provided a sample telecommuting memo for complainant's use, and it was clear to complainant that the writer of the sample memo was a male. The additional information that the TL requested of complainant was not provided in the sample memo. 2 We note that the AJ found that the TL was justified in her questioning of complainant's child care arrangements by stating that she had an obligation to ascertain that dependent children would not affect and employee's ability to perform her job at home. 3 As found by the AJ, several other facility employees had their requests for telecommuting approved in less than ten days. However, the AJ found that the employees whose requests for telecommuting took the longest to process were both pregnant females. AJ's Decision at 14. 4 As we find that complainant established that she was discriminated against on the bases of race and sex, we will not consider the AJ's finding that the agency created a hostile work environment when it discriminated against her. 5 The Commission notes that there is conflicting evidence in the record regarding whether complainant was ever allowed to telecommute during her pregnancy. However, we note that the AJ found that complainant was discriminated against by the agency due to disparate treatment associated with the delay in processing complainant's request to telecommute during her pregnancy, not that she was discriminated against because the agency denied her request outright.