Mandy B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Mar 26, 2019

0120170313 (E.E.O.C. Mar. 26, 2019)

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

Mandy B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.

Appeal No. 0120170313

Hearing Nos. 570-2015-00380X,
570-2015-00948X

Agency Nos. 20DR-0020-2014102284,
20DR-0020-2015100959

DECISION

On October 25, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 23, 2016, final decision concerning her equal employment opportunity (EEO)
complaints 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.

ISSUES PRESENTED

The issues presented are whether the Agency discriminated against, and subjected Complainant to
a hostile work environment, based on her prior EEO activity, and whether the Agency
discriminated against Complainant based on her disability when it failed to provide a reasonable
accommodation.

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.
0120170313

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist/Team
Lead at the Veterans Benefits Administration (VBA) Office of Diversity Management and Equal
Employment Opportunity (DM&EEO) in Washington, D.C. Complainant’s supervisor (S1) (prior
EEO activity, no disability) became the permanent Director of the Office of Management in
November 2013; he had been acting in that position since June 2013. The DM&EEO Office falls
under the supervision of the Office of Management.

On December 3, 2013, S1 emailed his direct reports informing them that they no longer needed to
designate a back-up to attend the management staff meetings in their absence. Report of
Investigation (ROI) Vol. 1 at pg. 256. On December 13, 2013, S1 emailed his direct reports a list
of expectations. For example, S1 stated that he expected all communications to be professional
and respectful, and for employees to adhere to an approved telework schedule. ROI Vol. 1 at pgs.
396-397. On January 10, 2014, Complainant received the minutes from a management meeting
during which S1 noted he found many issues regarding telework agreements, and that many of the
agreements were no longer valid. ROI Vol. 2 at pgs. 278-279.

On January 17, 2014, S1 met with the DM&EEO staff to introduce himself, and to learn more
about their responsibilities.2 According to two witnesses, Complainant interrupted S1 to announce
that she had prevailed on her earlier EEO case,3 and that S1 was no longer their supervisor. S1
replied that it was news to him and attempted to discuss other business. Complainant interrupted
him again and stood to say that she would leave the meeting if S1 continued. Complainant sat
down after S1 stated that he had other matters to discuss, besides supervision. Complainant’s
behavior during the meeting was described as confrontational, disrespectful, and unprofessional.
ROI Vol. 1 at pgs. 340-341.

S1 followed up with an email message on January 30, 2014, informing the DM&EEO team that
he would serve as their immediate supervisor. S1 stated that if anyone had any questions or
concerns, they should express them “directly and privately to me.” Complainant responded to S1’s
email, copying all the recipients of the original email. She noted that S1’s predecessor did not
directly supervise the DM&EEO staff. Complainant also stated, “[f]or clarification, when we met
yesterday you stated that General Counsel advised you to carry on with your plan to directly
supervise rather than ‘management officials’ as stated below. Is it both?” ROI Vol. 1 at pgs. 337-
338.

On February 10, 2014, S1 issued Complainant a Letter of Counseling for disrespectful and
unprofessional conduct. S1 stated that Complainant’s conduct at the January 17, 2014, DM&EEO
staff meeting was “intemperate and disruptive.”

2 In addition to Complainant, there were three other employees in DM&EEO at the time.

3 See Miriam B. v. Dept. of Veterans Affairs, EEOC Appeal No. 0720150022 (March 20, 2018).
0120170313

3
S1 also stated that despite his statement that the recipients of his January 30, 2014, email express
any concerns directly and privately to him, Complainant replied-all, and S1 found her message
“inappropriate for the audience.” Complainant declined to sign the letter. ROI Vol. 1 at pgs. 333-
334.

On March 25, 2014, S1 emailed Complainant stating that he was contacted twice by an attorney at
another federal agency regarding Complainant’s lack of response. S1 stated that if Complainant
had any information to share, that he would appreciate discussing it in person. Complainant
responded that she “no longer feel[s] safe meeting with you.” S1 invited Complainant to provide
a written response, but also noted that there would be times when they need to “meet to conduct
government business.” ROI Vol. 1 at pgs. 266-267.

On March 31, 2014, Complainant sent an email to S1 requesting to telework the next day because
she came into the office on two days when she was scheduled to telework. S1 responded that there
was no provision for “in lieu of” telework days, and absent an emergent need, he was unable to
approve her request. Complainant responded that she was requesting “ad hoc,” and not “in lieu of”
telework because she was finalizing the Management Directive 715 (MD-715) report. S1
responded that Complainant’s request did not include sufficient information to substantiate either
emergent work or unexpected circumstances to support her ad hoc telework request. ROI Vol. 1
at pgs. 343-345.

On April 7, 2014, S1 sent Complainant an email stating that someone had notified him of
Complainant’s proposed trip to New York for training. S1 informed Complainant that all travel
requests were to be sent directly to him, and should include the proposed itinerary, agenda,
purpose, goal, and any other relevant information. Complainant sent additional information to S1,
who replied that she had not provided the itemized information for her travel request. S1 also
stated that he did not believe that the proposed training was appropriate for the request and
forwarded the information to the Office of Education Development and Training to recommend
an appropriate course. ROI Vol. 1 at pgs. 347-349.

S1 sent Complainant a meeting invitation to discuss her performance standards on April 24, 2014.
S1 noted that since Complainant expressed feelings about being unsafe in meetings with him, he
would arrange for a third party to be present at any meetings. S1 also reminded Complainant that
her attendance was mandatory, and that failure to follow instructions could result in disciplinary
action. Complainant responded that having an individual present on S1’s behalf, and not hers, was
not equitable. ROI Vol. 1 at pgs. 277-278. The parties met, and S1 sent Complainant a meeting
summary describing the various work-related topics they discussed. ROI Vol. 1 at pgs. 356-357.

On April 23, 2014, S1 informed Complainant that the number of telework days would be reduced.
ROI Vol. 1 at pg. 190. On May 15, 2014, Complainant emailed S1 stating that she was changing
her tour of duty from 8:30a.m. to 6:00p.m., to 8:00a.m. to 5:30p.m. S1 responded that he would
like to discuss Complainant’s request because he had concerns about her ability to maintain it and
would send her a meeting invitation shortly. ROI Vol. 1 at pg. 360.

0120170313

4
On May 20, 2014, S1 sent a memo to the Veterans Health Administration (VHA) Equal
Employment Opportunity/Affirmative Employment Office to request a Program Assessment of
the VBA DM&EEO Program. S1 stated that his goal was to further enhance DM&EEO, and that
the assessment would provide the foundation for effective program management and planning.
ROI Vol. 1 at pgs. 296-297.

On May 27, 2014, S1 emailed Complainant stating that he had sent her a meeting planner, and
when she had not responded, he sent an assistant to contact her. S1 stated that he has authority to
call a meeting with staff at any time, and that her attendance was mandatory. Complainant
responded that meeting with S1 would put her health and safety at risk. Complainant stated that
she experienced a severe headache and high blood-pressure, and that her doctor instructed her to
refrain from stressful activities at work. Complainant confirmed that she would not attend the
meeting. ROI Vol. 1 at pgs. 288-289.

In June 2014, Complainant stated that S1 asked a DM&EEO staff member to provide him with a
list of employees who filed EEO complaints. ROI Vol. 1 at pgs. 201-202.

On June 5, 2014, Complainant emailed S1 stating that she faxed him a note from her physician
and requested annual leave until her request for a reasonable accommodation was approved. She
stated that her request was for 30 days of telework. ROI Vol. 1 at pg. 361. On June 20, 2014, S1
issued a decision denying Complainant’s request to telework for 30 days as an accommodation.
Instead, Complainant was granted liberal use of sick or annual leave; or a change of her tour of
duty to Monday through Friday, 8:30a.m. to 5:00p.m., with two days of telework per pay period.4
S1 stated that Complainant’s request for 30 days of telework would not be effective based upon
the essential functions of Complainant’s position and would cause an undue hardship on the
operations of DM&EEO. S1 noted that Complainant needs to be available on site to perform her
functions as a Team Lead, and that he would need to take on her duties if she were not there. ROI
Vol. 1 at pgs. 366-370.

On June 27, 2014, Complainant requested a reconsideration of the denial of her requested
reasonable accommodation from her second-line supervisor (S2) (no prior EEO activity, no
disability). Complainant stated that DM&EEO had two senior EEO Specialists at the GS-13 level,
who have extensive experience; and that their schedules are set so that one of the senior EEO
Specialists was available in the office. Complainant also argued that because S1 is supervising
DM&EEO, he would not be “forced” to take on Complainant’s duties because he was already
performing these functions. On July 24, 2014, S2 issued her decision denying Complainant’s
request, stating that the impact of her 30 days of telework would “cause an undue hardship on the
operation of the organization including the impact on the ability of the other employees in the
office to perform their duties.” ROI Vol. 1 at pgs. 371-377, 379-380.

4 Complainant worked a compressed schedule, with one telework day and one off-day each pay
period.

0120170313

5
On July 31, 2014, S1 emailed Complainant a reprimand for conduct unbecoming a federal
employee5 and failure to follow instructions. S1 noted that Complainant had missed a mandatory
staff meeting; did not attend S1’s scheduled meeting to discuss her requested change in tour of
duty; and refused to attend the May 27, 2014, meeting. S1 stated that he would have preferred to
issue this correspondence in person, but Complainant was returning to duty on the same day that
he started his annual leave. ROI at Vol. 1 pgs. 384-387.

Also on July 31, 2014, S1 emailed Complainant a list of guidelines because he “observed a pattern
of non-responsiveness” with respect to his emails and meeting invitations. S1 instructed her to
respond to messages and meeting invitations from him or his immediate staff within two business
hours, when she is on duty. Complainant responded that she “strongly disagree[d]” with S1’s claim
that she was not responsive to his emails or meeting invitations. ROI Vol. 1 at pgs. 298-301.

On October 17, 2014, the Deputy Assistant Secretary for Diversity and Inclusion sent an email
stating that training staff members should coordinate with S1 to request or coordinate training with
DM&EEO. ROI Vol. 2 at pg. 260. On October 20, 2014, in response to S1’s request, Complainant
sent him a memo outlining a plan for interim coverage in preparation for a staff member’s pending
retirement. Complainant listed how the retiring employee’s (RE) duties would be redistributed to
the remaining DM&EEO team. ROI Vol. 2 at pgs. 276-277.

On November 13, 2014, S2 denied Complainant’s grievance requesting the rescission of the July
31, 2014, reprimand. ROI Vol. 2 at pgs. 237-245. On December 19. 2014, S1 issued Complainant
her fiscal year (FY) 2014 Performance Rating of Fully Successful. ROI Vol. 2 at pg. 225.

EEO Complaints

On July 2, 2014, Complainant filed an EEO complaint (Agency No. 20DR-0020-2014102284)
alleging that the Agency discriminated against her, and subjected her to harassment, on the bases
of race (African-American), disability (high blood pressure),6 and in reprisal for prior protected
EEO activity arising under Title VII when:

1. in December 2013, S1 informed Complainant that only GS-14 level employees and
above will attend the Office of Management staff meetings;
2. in January 2014, S1 instructed Complainant not to respond to his emails in writing;

5 Complainant was initially charged with “insolent conduct,” which was changed to “conduct
unbecoming a federal employee” as a result of Complainant’s informal grievance. ROI Vol. 1 at
pgs. 388-395.

6 Complainant alleged disability discrimination only for incidents 13-21.

0120170313

6
3. on January 20, 2014, S1 began directly supervising the DM&EEO staff, relieving
Complainant from performing several of her duties;7
4. on February 10, 2014, S1 issued Complainant a Letter of Counseling;
5. on February 10, 2014, after Complainant refused to sign the Letter of Counseling,
S1 started “flailing his arms,” raised his voice, and stated that the meeting was over;
6. on March 25, 2014, S1 informed Complainant that he received two complaints
about Complainant failing to respond to telephone messages;
7. on March 31, 2014, S1 denied Complainant’s request for ad hoc telework on April
3, 2014;
8. on April 15, 2014, S1 denied Complainant’s travel request to conduct training;
9. on April 22, 2014, S1 threatened to issue Complainant disciplinary action if she
refused to meet with him on April 24, 2014;
10. on April 23, 2014, Complainant attended a meeting with S1, and was not allowed
to have her representative present;
11. on April 23, 2014, S1 informed Complainant that the number of telework days she
and the DM&EEO staff members were allowed to work was being reduced, and
that one of her staff members would not be able to have both a compressed work
schedule and telework;
12. on May 15, 2014, S1 denied Complainant’s request to change her tour of duty;
13. on May 15, 2014, S1 requested a face-to-face meeting, which caused an
exacerbation of Complainant’s medical condition, resulting in her taking two hours
of annual leave, in lieu of sick leave;
14. on May 27, 2014, S1 requested a face-to-face meeting, which caused an
exacerbation of Complainant’s medical condition, resulting in her taking annual
leave, in lieu of sick leave, on May 30, 2014;
15. as a result of S1’s requests for face-to-face meetings, Complainant took leave on
June 3, 2014, for a medical appointment, which resulted in Complainant taking
annual leave, in lieu of sick leave, from June 5, through August 1, 2014;
16. on June 20, 2014, Complainant learned that her request for reasonable
accommodation was denied;
17. on June 24, 2014, S1 began an assessment of Complainant’s EEO program,
utilizing personnel from the VHA EEO Office, and the VBA Central Office Human
Resources;
18. in June 2014, S1 obtained a copy of Complainant’s master list of employees who
filed EEO complaints;
19. on June 27, 2014, Complainant learned that her request for reconsideration of her
reasonable accommodation request was denied;
20. on July 31, 2014, S1 issued Complainant a Letter of Reprimand; and
21. on July 31, 2014, S1 sent Complainant an email outlining his expectations
regarding leave request and use of the Outlook calendar.

7 On August 26, 2014, the Agency dismissed this claim as a discrete claim of discrimination due
to untimely contact with an EEO counselor on March 26, 2014. However, this claim was
considered as part of Complainant’s overall harassment allegation.
0120170313

7

On January 14, 2015, Complainant filed a second EEO complaint (Agency No. 20DR-0020-
2015100959) alleging that the Agency discriminated against, and subjected her to harassment, on
the bases of race (African-American), religion (Christian), and in reprisal for prior protected EEO
activity under Title VII when:

22. on November 11, 2014, S2 denied Complainant’s request to rescind her July 31,
2014, Letter of Reprimand;
23. on November 25, 2014, S1 removed Complainant’s duties as the point of contact
for VBA EEO training requests;
24. on December 19, 2014, S1 lowered Complainant’s performance rating from
Outstanding to Fully Successful for FY2014; and
25. on December 30, 2014, S1 assigned Complainant the duties of her former coworker
for an indefinite period.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing, but subsequently withdrew her request.
Consequently, 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.

Complaint 1

As an initial matter, the Agency concurred with the dismissal of claim 3 as an independently
actionable claim of disparate treatment because Complainant did not raise it with an EEO
counselor within 45-days but included it as part of Complainant’s overall harassment claim.

The Agency assumed, for the purposes of the decision, that Complainant established a prima facie
case of discrimination based on her race and religion; and that she was a qualified individual with
a disability. The Agency determined that Complainant established a prima facie case of reprisal
for her prior EEO activity for incidents 4, 7, 8, 11, 12, 16, 19, and 20.8 The Agency then found
that management officials articulated legitimate, nondiscriminatory reasons for their actions.

For claim 4, S1 stated that he issued the Letter of Counseling for disrespectful and unprofessional
conduct during the January 17, 2014, meeting. He also stated that two witnesses provided
statements describing Complainant’s behavior during the meeting. S1 stated that Complainant also
failed to follow instructions when she emailed the entire team, despite his instruction to come to
him directly with any questions or concerns.

8 The Agency determined that Complainant established a prima facie case of reprisal
discrimination for claims 16 and 19. However, the Agency did not analyze these claims as
disparate treatment claims of reprisal discrimination, but as a claim of failure to accommodate
based on disability.
0120170313

8

With regards to incident 7, S1 stated that Complainant requested “in lieu of” telework, and that
when he asked for additional information about her request, she did not substantiate her request.
For claim 8, S1 denied Complainant’s travel request because she did not provide the requested
information to support the training request. S1 added that travel was under “extreme scrutiny,” and
that he needed to be careful when approving travel requests. S1 also stated that he did not believe
that the identified training was appropriate for the needs of the requesting office.

For claim 11, S1 stated that he learned that DM&EEO staff members were teleworking more days
than was approved. S1 noted that their previous telework agreements gave the staff members one
day of telework a month, and he increased it to one day per pay period. S1 stated that it was
important to have DM&EEO staff members in the office to provide service to employees who
come in with “emotional and very personal matters.”

With regards to claim 12, S1 stated that he did not deny Complainant’s request to change her tour
of duty. He stated that he wanted to discuss her request, but Complainant refused to meet with him.
For claim 20, S1 stated that he issued the Reprimand to Complainant based on Complainant’s
conduct and her failure to follow instructions when she refused to attend meetings.

The Agency then found that Complainant had not shown that the reasons were pretext for
discrimination. Complainant asserted that she should not have been charged with failure to follow
instructions for refusing to attend meetings with S1 because of her medical condition. However,
the Agency noted that even if an employee states that a disability is the cause of conduct problems,
it may still discipline the employee for misconduct. Additionally, the Agency stated that the
Rehabilitation Act does not require employers to excuse a violation of conduct standards that are
job-related, and consistent with business necessity, as a reasonable accommodation. The Agency
found that Complainant did not provide other testimonial or documentary evidence to support her
assertion that the management’s reasons were pretext for discrimination. Accordingly, the Agency
found that Complainant did not establish pretext for discrimination for claims 4, 7, 8, 11, 12, and
20.

The Agency analyzed claims 16 and 19 as a failure to provide a reasonable accommodation based
on disability. It presumed that Complainant was a qualified individual with a disability, who was
entitled to an accommodation under the Rehabilitation Act. The Agency found that Complainant
was provided a reasonable accommodation, just not the one that she preferred. The Agency noted
that Complainant had not asserted that the alternate accommodations granted were ineffective to
accommodate her disability.

For Complainant’s harassment claim, the Agency excluded incidents 4, 7, 8, 11, 12, 16, 19, and
20 from its analysis because it had already determined that none of those actions were
discriminatory or retaliatory. For the remaining incidents, the Agency found that the incidents were
better characterized as common work-place disagreements between an employee and supervisor.

0120170313

9
The Agency determined that Complainant had not established that she was subjected to
denigrating, offensive, abusive, or physically threatening conduct by S1; or that the incidents
occurred due to her race, disability, religion, or protected EEO activity. Rather, the Agency found
that several of the events occurred as a result of the business practices of a new supervisor. The
Agency also found that the complained of conduct was not sufficiently severe or pervasive to
constitute an objectively hostile work environment.

Complaint 2

For claims 22 through 25, the Agency found that there was insufficient evidence to establish that
similarly situated employees outside of Complainant’s protected bases of race, religion, and
reprisal, were treated differently. Regardless, the Agency found that management officials
provided legitimate, nondiscriminatory reasons for their actions. For claim 22, S2 stated that she
requested an examination by a Grievance Examiner (GE), and accepted his recommendation to
deny Complainant’s request to rescind the Reprimand.

With regards to claim 23, S1 denied removing Complainant as the point of contact for EEO
training. S1 stated that he instructed Complainant to inform him when she receives requests for
services from DM&EEO. S1 added that he needed to know, and consent to, resources for which
he is responsible. For claim 24, S1 stated that he did not “lower” Complainant’s performance
rating. He explained that he rated Complainant Fully Successful based on her performance. With
regards to claim 25, S1 stated that he asked Complainant to develop a plan to re-assign RE’s duties
to the other DM&EEO staff members and followed her recommendations. S1 denied assigning all
of RE’s duties to Complainant.

In an effort to establish pretext, Complainant contends that she never received any type of
discipline prior to her favorable decision for her earlier EEO complaint, which “fueled anger” in
the management officials. However, the Agency found that Complainant had not shown that their
explanations were pretext for discrimination. The Agency noted that a coworker provided a
statement supporting Complainant’s allegations, but the Agency was not persuaded because the
coworker provided only speculation, and not evidence, that S1 was motivated by Complainant’s
race, religion, or protected activity.

With regards to Complainant’s allegations that she was harassed when incidents 22 through 25
occurred, the Agency found that because it had already determined that the events were not
motivated by unlawful discrimination, they were insufficient to rise to the level of discriminatory
harassment. The Agency also noted that these events were more work-related disagreements
between Complainant and her managers.

The Agency concluded that Complainant had not established by a preponderance of the evidence
that she was discriminated against, or subjected to harassment, based on her race, disability,
religion, or in reprisal for her prior EEO activity.
0120170313

10
Complainant filed the instant appeal and submitted a brief in support of her appeal on December
22, 2016.9 The Agency did not file a response.

CONTENTIONS ON APPEAL

Complainant appeals the Agency’s decision in part and submitted new evidence with her appeal.
Complainant argues that the Agency discriminated against, and harassed her, as retaliation for her
prior EEO activity; and discriminated against her based on her disability when it failed to provide
her with an effective accommodation. Complainant states that prior to the EEOC decision in her
favor, she was not subjected to scrutiny and harassment.

With regards to Complainant’s allegation that the Agency failed to provide a reasonable
accommodation, Complainant argues that S1 did not contact her to initiate the interactive process,
and that the Agency did not put forth a good faith attempt to meet with Complainant and explore
alternative accommodations. Complainant also argues that S1’s concerns about Complainant’s
absence and the additional duties he would have to assume were “implausible,” and that if she took
leave, he would still have to assume her duties. Complainant asserts that with the two senior EEO
Specialists in the office, Complainant’s telework would not alter the nature of DM&EEO’s
operations. Complainant argues that her request to telework for 30 days was not costly, extensive,
substantial, or disruptive; and would not have fundamentally altered the nature of operations of
the Agency.

For claim 3, Complainant argues that S1’s explanation that he removed her supervisory duties
because they were not in her position description is inconsistent with S2’s statement. Specifically,
Complainant notes that S1 stated that S2 was aware of, and concurred with, S1 directly supervising
the members of DM&EEO. However, S2 stated that she was not involved in S1’s decision to
supervise the DM&EEO employees and did not give S1 specific direction related to the
supervision of any staff.

With respect to claim 4, Complainant argues that S1 had two of his Program Analysts provide
statements, but the two DM&EEO employees in attendance were not asked to provide statements.
Complainant argues that these two witnesses would have corroborated Complainant’s account that
she was not rude or unprofessional.10

9 Complainant requested, and was granted, an extension to file her statement through December
23, 2016.

10 On January 9, 2015, Complainant contacted the Office of Resolution Management to express
dissatisfaction with her investigation because the investigator failed to interview her witnesses and
did not include “material and reliable” documents into the record. The Agency responded that the
investigator attempted to contact RE (the employee who retired in late 2014), who did not respond
to his messages. Additionally, the Agency noted that an investigator has discretion not to seek
testimony from witnesses that would be duplicative or corroborate facts not in dispute. The Agency
0120170313

11

For claim 7, Complainant states that she informed S1 that she needed to telework to finalize the
MD-715 report, and he still denied her request. With respect to claim 8, Complainant claims that
S1 denied Complainant’s requests to provide local training, and these requests did not involve
travel. For claim 11, Complainant states that S1’s predecessor increased everyone’s telework but
did not have the opportunity to update the telework agreements. With regards to claim 12,
Complainant argues that S1 denied her request to change her tour of duty, and then intimidated her
by scheduling a one-on-one meeting with her.

For claims 20 and 22, Complainant alleges that GE’s review of her request for a rescission of her
Reprimand was not neutral because GE acts on behalf of management and is under S2’s
management chain. For claim 25, Complainant argues that she was performing the majority of
RE’s duties.

In addition to Complainant’s statement in support of her appeal, she submitted the following
documents:

A. Technical Assistance letters from the EEOC, dated September 6, 2005, and September 28,
2015;
B. Organization Charts;
C. Un-redacted medical documentation;
D. The Agency’s Policy on processing requests for reasonable accommodation; and
E. Complainant’s memo regarding her dissatisfaction with the investigation, and the
Agency’s response.

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”).

As an initial matter, we note that Complainant has only appealed the Agency’s findings of no
discrimination based on reprisal for her prior EEO activity for claims 3, 4, 7, 8, 11, 12, 20, 22, and
25; and failure to provide a reasonable accommodation based on disability (claims 16 and 19).

added that because Complainant had requested a hearing, she should raise these issues with the
EEOC AJ, who now had jurisdiction over Complainant’s complaint.
0120170313

12

For claim 3, we affirm the Agency’s dismissal as an independent claim of discrimination due to
untimely contact with an EEO counselor. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires
that complaints of discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date
of the action. EEOC regulations provide that the Agency, or the Commission, shall extend the time
limits when the individual shows that she was not notified of the time limits and was not otherwise
aware of them, that she did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission. Ellis v. United States Postal Service,
EEOC Request No. 01992093 (Nov. 29, 2000). In this case, Complainant has not argued that the
time limits should be extended for claim 3, and we affirm its dismissal as untimely. Accordingly,
this decision will only address Complainant’s reprisal claims for incidents 4, 7, 8, 11, 12, 20, 22,
and 25; and the failure to provide a reasonable accommodation claim.

New Evidence

Complainant provided additional documents as evidence with her appeal. As a general rule, no
new evidence will be considered on appeal absent an affirmative showing that the evidence was
not reasonably available prior to or during the investigation or during the hearing process. See
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Ch. 9, § VI.A.3 (Aug. 5, 2015). On appeal, Complainant provided documents related to her
dissatisfaction with the Agency’s investigation. Specifically, Complainant stated that the
investigator submitted a redacted copy of her medical documentation into the record. We find that
Complainant has shown that she made a good faith effort to submit an un-redacted copy of her
medical document, and that the Agency was unsure why it was redacted in the report of
investigation.11 As such, we will consider the un-redacted medical document on appeal. However,
for the remaining documents, Complainant has not made an affirmative showing that these
documents should be considered, and we will not consider them on appeal.

Pursuant to 29 C.F.R. § 1614.108(b), an agency shall develop an impartial and appropriate factual
record upon which to make findings on the claims raised by the written complaint and define an
appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred. However, the complainant is provided an opportunity to cure
defects in an investigation, after reviewing the report of investigation by notifying the agency (in
writing) of any perceived deficiencies in the investigation or by requesting a hearing before an
EEOC AJ.

11 We note that the first page of the two versions of the medical document look different because
the redacted version is hand-written, while the un-redacted version is typed. However, both
versions of the second page of the document appear to match. We will assume, for the purposes of
this decision, that the information contained on the first page of both versions is identical.
0120170313

13
See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By choosing to withdraw her hearing request
before an AJ, Complainant waived the opportunity to develop the record through discovery and to
cross examine witnesses. See Tommy O. v. United States Postal Serv., EEOC Appeal No.
0120152090 (Jun. 8, 2017).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Reprisal

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a
prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency
was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by
the Agency; and (4) a nexus exists between the protected activity and the adverse treatment.
Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

In this case, we find that Complainant established a prima facie case of reprisal discrimination
because S1 confirmed that he learned of Complainant’s EEO activity in December 2013, which
was around the same time the complained of conduct began to occur. EEOC Enforcement
Guidance on Retaliation and Related Issues, No. 915.004, Sect. II.C (August 25, 2016) (“The
causal link between the adverse action and the protected activity is often established by evidence
that the adverse action occurred shortly after the plaintiff engaged in protected activity”) (citing,
Ouiles-Ouiles v. Henderson, 439 F.3d 1, 8-9 (1st Cir. 2006) (concluding that jury could infer
0120170313

14
causation from evidence that harassment by supervisors intensified shortly after plaintiff filed an
internal complaint)); see also, Clark County School District v. Breeden, 532 U.S. 268, 273 (2001)
(noting that “very close” temporal proximity alone could be evidence of causality sufficient to
establish a prima facie case).

We also find that the management officials proffered legitimate, nondiscriminatory reasons for
their actions. For claim 4, S1 stated that he issued a Letter of Counseling due to Complainant’s
conduct at the January 17, 2014, staff meeting, and her January 31, 2014, email. With regards to
claim 7, S1 stated that he denied Complainant’s request to telework because she did not provide
“substantiation or circumstance” to support her request. For claim 8, S1 stated that despite repeated
requests, Complainant did not provide the necessary information for her request to travel.

For claim 11, S1 stated that the only telework notification memorandum he found was from March
2011, which provided one telework day per month; and that the employees were teleworking “far
in excess” of the agreement. S1 stated that he asked each staff member for documentation to
support their current telework schedules, and they were unable to do so. S1 updated the telework
agreements and increased telework from one day per month to one day per pay period, effectively
giving the employees two telework days per month.

With regards to claim 12, S1 stated that he did not deny Complainant’s request to change her tour
of duty but requested to meet with her to discuss his concerns. S1 stated that he did not understand
why she needed to change her schedule to accommodate the 8:30 a.m. staff meeting because her
start time was already 8:30 a.m., and she should already be at work in time for the meeting. S1
stated that he did not recall Complainant following up with him on this matter. For claim 20, S1
stated that he initially issued the Reprimand based on two instances of “insolent conduct,” and two
instances of failure to follow instructions. S1 stated that upon receiving a response from
Complainant, he changed the insolent conduct to conduct unbecoming a federal employee and
removed one of the specifications.

With regards to claim 22, S2 stated that she requested that GE review Complainant’s request to
rescind the Reprimand to give her a better understanding and guidance on the situation. GE stated
that he was an impartial finder of fact and did not represent labor or management. GE stated that
after a complete review of the record, he recommended denying Complainant’s request. For claim
25, S1 denied assigning all of RE’s duties to Complainant. S1 stated that he requested that
Complainant suggest a plan to equitably divide the work, and that the work was divided amongst
the staff, in accordance with Complainant’s recommendations.

We find that Complainant has not shown that the articulated reasons were pretext for
discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer’s proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
On appeal, Complainant makes bare assertions, which are insufficient to prove pretext.
0120170313

15

With regards to claim 4, Complainant argues that the Agency’s investigator did not contact a
witness who could corroborate her assertion that she was not rude or unprofessional during the
January 17, 2014, meeting.12 However, Complainant has not provided any statement from this
witness showing that she would have testified as Complainant claims. For claim 7, Complainant
argues that she informed S1 that she was requesting telework to focus on the MD-715 report.
However, in her email to S1, she stated that she “came into the office to finalize the MD-715.” We
find Complainant’s request confusing because she is stating that she needed to telework to focus
on the MD-715 report, yet at the same time, she stated that she needed to come into the office to
work on the report. We agree with S1 that Complainant did not adequately explain her need to
telework to work on the MD-715 report.

For claim 8, Complainant alleges that S1 denied training, some of which was local. However, she
has not provided any evidence showing that S1 denied requests to provide training that did not
involve travel. With regards to claim 11, Complainant alleges that S1’s predecessor increased the
number of telework days, but did not update the telework agreements, and that S1 could have
updated their agreements to incorporate the increase, but instead decreased the number of telework
days. Here, Complainant only offers her opinion of what she believes S1 should have done and
has not shown pretext for discrimination.

For claim 12, Complainant argues that S1 denied her request to change her tour of duty time.
However, the record shows that S1 wanted to discuss her request further, and Complainant would
not meet with him. Complainant has not shown any evidence that S1 denied her request. Regarding
claims 20 and 22, Complainant states that she could not meet with S1 because of her health
concerns, and that GE was not neutral. However, we find that Complainant admitted that she
refused to meet with S1 and has only made bare assertions that GE was not neutral. Complainant
has not provided any evidence showing that GE was biased.

For claim 25, Complainant argues that she was performing the majority of RE’s duties after he
retired, and that S1 has not back-filled the position claiming that there was not enough work. The
record contains Complainant’s response to S1’s request that she develop a plan to divide RE’s
work upon his retirement. If Complainant was performing the majority of RE’s duties, it was based
on her own plan, which S1 followed. We find that Complainant has not shown pretext for
discrimination because she has not provided any evidence that the proffered reasons are unworthy
of credence, or that unlawful discrimination more likely motivated her managers. Accordingly, we
affirm the Agency’s final decision finding that the Agency did not discriminate against
Complainant based on reprisal for incidents 4, 7, 8, 11, 12, 20, 22, and 25.

12 The record contains a brief statement from this witness who stated that she had no direct
knowledge of any of the events in Complainant’s second EEO complaint. There is no statement
from this witness regarding the events in Complainant’s first EEO complaint.
0120170313

16
Harassment

As discussed above, we found that Complainant did not establish a case of reprisal discrimination
for incidents 4, 7, 8, 11, 12, 20, 22, and 25. Further, we conclude that a case of harassment is
precluded based on our finding that Complainant failed to establish that any of the actions taken
by the Agency were motivated by her protected basis. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).

Failure to Provide Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodation to
the known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R.
§ 1630.9. In order to establish that Complainant was denied a reasonable accommodation,
Complainant must show that: (1) she is an “individual with a disability,” as defined by 29 C.F.R.
§ 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F. R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).

For the purposes of this decision, we will assume that Complainant is a qualified individual with
a disability. However, we do not find that the Agency failed to provide her with a reasonable
accommodation because Complainant has not shown how telework would effectively
accommodate her medical condition. We note that a complainant has the burden to show a nexus
between the disabling condition and the requested accommodation. See Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC
Appeal No. 01953715 (Apr. 22, 1997)). Complainant’s doctor noted that she is “unable to
participate in meetings and direct contact with supervisor” due to her medical condition.
Complainant has repeatedly refused to meet with S1 in person, even while coming into the office.
Both parties established that they rarely met in person and Complainant and S1 generally
communicated via email. Accordingly, we find that Complainant has not put forth evidence to
demonstrate that she is unable to go to the office to work, nor has she linked that asserted inability
to her medical condition. Therefore, she has not shown that telework would be an effective
accommodation.

We note that while the Rehabilitation Act provides that qualified individuals with a disability be
granted an effective reasonable accommodation, it does not entitle them to the accommodation of
their choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17,
1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002). While
Complainant would have preferred to telework, we find that she has not shown that it would be
effective in accommodating her disability.

0120170313

17
Complainant argues that the Agency failed to contact her to initiate the interactive process.
However, we note that Complainant was on leave during the processing of her reasonable
accommodation request and was unavailable for the Agency to contact. In fact, Complainant
emailed S1 stating that she would be on leave “until my [reasonable accommodation] request is
approved.” ROI Vol. 1 at pg. 361. In her request for reconsideration of the denial of her reasonable
accommodation request, Complainant argued that S1 “could have communicated” with her
through email. ROI Vol. 1 at pg. 376. However, we note that Complainant did not provide S1 with
an alternate email address, nor did she inform him that she would be checking her work email
while on leave.

Complainant further argues that failing to engage in the interactive process is a violation of the
Rehabilitation Act and may create a liability for the Agency. However, the Commission has
recognized that an agency’s failure to engage in the interactive process does not, in itself, constitute
a violation of the Rehabilitation Act. See Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039
(Mar. 13, 2013) (citing Doe v. Social Sec. Admin. Appeal No. 01A14791 (Feb. 21, 2003)).
Liability depends on a finding that, had a good faith interactive process occurred, the parties could
have found a reasonable accommodation. Id. Accordingly, the allegation that the Agency failed
to properly engage in the interactive process, does not, by itself, demand a finding that
Complainant was denied a reasonable accommodation. Rather, to establish a denial of a reasonable
accommodation, Complainant must establish that the failure to engage in the interactive process
resulted in the Agency’s failure to provide a reasonable accommodation. Id. In this case,
Complainant did not show that the Agency’s failure to engage in the interactive process resulted
in the Agency’s failure to provide a reasonable accommodation. Accordingly, we find that the
Agency did not discriminate against Complainant based on disability when it allegedly failed to
provide her with a reasonable accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
has not shown that the Agency discriminated against, or subjected her to a hostile work
environment, based on reprisal; or that it failed to provide her with a reasonable accommodation
based on her disability.

0120170313

18
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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.
0120170313

19
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 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 26, 2019
Date