0120102081
07-20-2012
Patricia Wood, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Patricia Wood,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102081
Hearing No. 450-2009-00151X
Agency No. 2003-0549-2008103041
DECISION
On April 9, 2010, Complainant filed an appeal from the Agency's March 9, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order.
BACKGROUND
From January 24, 2005, through February 4, 2009, Complainant worked as a Medical Support Assistant/Clinic Clerk, GS-5, at the Agency's Forth Worth Mental Health Clinic in Forth Worth, Texas.1 While Complainant worked at Fort Worth, Person A (Team Leader at the Mental Health Clinic) was her first-level supervisor. Prior to May 2007, Complainant was the only Medical Support Assistant at the Forth Worth Mental Health Clinic. In May 2007, Employee X was hired as a Program Support Assistant, GS-5. While Complainant and Employee X did not share the same position, they did share the same job responsibilities. Subsequently, on February 5, 2009, Complainant began working as a Medical Support Assistant in the Agency's Dallas Mental Health Unit.
Complainant filed an EEO complaint dated July 20, 2008, which was subsequently amended, alleging that the Agency discriminated against her based on her disability and in reprisal for protected EEO activity and subjected her to a hostile work environment.
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 and the AJ held a hearing on November 5, 2009. The AJ issued her decision on February 22, 2010. In her decision, the AJ defined the issues as follows:
A. Whether Complainant was discriminated against and/or subjected to a hostile work environment based on her disability based on various incidents which occurred between October 3, 2007, and March 2009;2
B. Whether Complainant was discriminated against based on her disability and/or in reprisal for protected EEO activity with regard to her time and attendance from September 9, 2008, to February 11, 2009;
C. Whether Complainant was discriminated against based on her disability and/or in reprisal for protected EEO activity based on incidents which occurred on February 3 and 4, 2009, with regard to failure to accommodate; and
D. Whether Complainant was discriminated against based on her disability and/or in reprisal for protected EEO activity when she was notified on December 16, 2008, that she would be reassigned.
In her decision, the AJ found Complainant was diagnosed with temporomandibular joint dysfunction (TMJ) in September 1991. The AJ noted that Complainant engaged in prior EEO activity in 1998 and first met with the Agency's EEO Manager with regard to the present case in April 2008. Additionally, the AJ noted that during the hearing, Complainant testified that she has Chronic Depression, Anxiety, and Post Traumatic Stress Disorder (PTSD) and was diagnosed in 1995. The AJ noted Complainant is treated with various medications. The AJ also recognized that when Complainant suffers anxiety, it causes her to clench her teeth, which often triggers a TMJ episode.
The AJ found Complainant failed to show that she was denied a reasonable accommodation for her purported disability. The AJ also determined Complainant failed to show that she was subjected to discrimination or harassment based on her disability or in reprisal for her protected EEO activity.
The Agency subsequently issued a final order dated March 9, 2010. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant contends that she was a qualified individual with a disability. She claims the Agency unreasonably delayed in providing her reasonable accommodations for her disability. Specifically, Complainant contends that the Agency unreasonably delayed in fixing the receptionist window she used and did not grant her any relief until twenty-seven months after her initial request.3 Moreover, Complainant claimed that the solution eventually provided in January 2008, of leaving the window open during portions of the day failed to fully solve the problem, since it still required her to open and close the window a few times per day. Complainant stated it was not until March 2008, that the Agency granted Complainant permission to leave the window open all the time that the Agency reasonably accommodated her. Additionally, Complainant alleges that the Agency delayed her request for a headset for nearly three months and delayed her request for an earpiece another seven months while they inexplicably provided various other headset parts.
Complainant reiterates her arguments that she was subjected to discrimination when the Agency assigned her an unfair workload; gave her a less than favorable performance review; subjected her to harassment when Person A sat directly behind her desk; interfered with her use of sick, annual, and FMLA leave; charged her AWOL; and reluctantly gave her compensatory time. Additionally, Complainant states that Person A continued harassing her when she returned from medical leave on September 8, 2008, when Person A: criticized her; issued two counseling statements to her and a document entitled "Work Matters"; and issued her a low performance rating on November 28, 2008.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
For purposes of this decision, we assume without deciding, that Complainant is a qualified individual with a disability. We find that the AJ's decision is supported by substantial evidence and we find that Complainant has failed to show that any incidents of alleged harassment were motivated by discrimination.
Window
Complainant claimed that the Agency failed to fix the receptionist window she used in the clinic. The record reveals that during the relevant time, Complainant worked at a thick window in reception which was hard to slide because it would stick. In a September 19, 2007 electronic mail message, Complainant inquired if the receptionist's window would be fixed, stating "it may be part of the problem with my TMJ acting up; I know my shoulders and neck sure do hurt from trying to open it." Report of Investigation (ROI), at 967. While the Agency took some actions to attempt to have the window fixed, the record reveals it was not fixed while Complainant worked there. However, in a response sent the same day as her September 19, 2007 electronic mail message, Person A offered Complainant the opportunity to switch desks with Employee X. Complainant declined to switch desks and responded that "switching places would be a big headache since my work station is already 'user friendly' but thank you for offering. What I am doing for now is just standing up to open the window." Id.
Upon review, we find that despite Complainant's contention to the contrary, the Agency did take immediate action to address Complainant's request by providing her the opportunity to switch desks to use the other receptionist window. While Complainant may have preferred to have the receptionist window at her desk fixed, we note that in her September 19, 2007 electronic mail message, she did not indicate at the time that standing to open the window was a problem. Additionally, we note that in her response declining the opportunity to switch desks so she could use the other receptionist window, Complainant did not state that use of the other window was an ineffective accommodation; rather she declined to switch desks because her current work station was already "user friendly."
We note that Complainant testified during the hearing that the second window was hard to open and she stated that she told this to Person A in December 2006.4 However, we note that in her April 17, 2009 affidavit, Complainant stated that she used Employee X's window the last time she returned from sick leave and "there were no problems with that window." Person A acknowledged that the other window was difficult to open; however, she stated it was not as difficult as the first window. Moreover, Person A stated that Complainant never stated that the second window needed to be fixed. Upon review, we find Complainant failed to show that use of the second window was not an effective accommodation. We note the Commission has explained that a complainant is not entitled to the accommodation of the complainant's choice, but must receive an accommodation that works. See Muir v. United States Postal Service, EEOC Appeal No. 01A54191 (October 28, 2005).
Additionally, in pursuing her request to have the window fixed, Complainant stated that in January 2008, she asked Safety Specialist 1 in Dallas to conduct an ergonomic study of her work area. Specifically, she stated that she felt an ergonomic study might be the only way that something would be done to have the window fixed. Complainant stated that Safety Specialist 2 of Fort Worth told her that Person A had interfered and prevented the onsite inspection of the window. Person A stated that Complainant did not contact her to request an ergonomic study and denied telling Safety Specialist 2 not to fix Complainant's window. In his affidavit, Safety Specialist 2 denied that Complainant asked for an ergonomic study and stated that there were no documents or electronic mail messages that she requested such a study. Safety Specialist 2 denied that Person A told him that she did not want an ergonomic study of Complainant's work area conducted. Thus, we find Complainant failed to show by a preponderance of evidence that this issue occurred.
In addition to offering Complainant the opportunity to switch desks in order to use the second receptionist window, the record reveals that Person A offered Complainant the opportunity to leave the window open. We note that at the hearing, Person A testified that when Complainant first told her about the problem with the window, she strongly suggested at the beginning that Complainant leave the window open. Person A noted that in response to her suggestion to leave the window open, Complainant expressed concerns about patient privacy. Person A stated that she later instructed Complainant to leave the window open all the time since she observed Complainant reaching to open the window several times per day which she had stated caused her to be uncomfortable. Person A testified that once the decision was made to have Complainant leave the window open all the time, the Agency decided not to have the window replaced since it was no longer needed.
Complainant testified that in January 2008, Person A told her to open the window in the morning, close it at lunch, and then open it after lunch and close it at the end of the day. Complainant stated that the problem with this option was patient privacy was compromised. Complainant testified that after she filed a Workers' Compensation claim, Person A told her in March 2008, that since Complainant was still complaining, she should leave the window open all the time. Complainant stated afterwards she left it open all the time. While Complainant expressed concerns about patient privacy, we note she does not allege that leaving the window open all the time was an ineffective accommodation.
Headset
As part of her receptionist duties, Complainant answered the telephone and entered patient information into the computer. Additionally, Complainant worked on the Advanced Clinical Assess (ACA) list which involved scheduling follow-up appointments for patients and sending out letters to them regarding their appointments. Complainant stated that she experienced pain while using the telephone and typing at the same time and claimed that on September 27, 2007, she requested a headset for her telephone from Person A. Complainant stated that Person A told her to find the one she needed and to let Person A know which one she wanted. Complainant stated there were some discussions as to which budget the money would come from for the headset.
Complainant explained that in December 2008, she asked the Medical Director at the Clinic if she could obtain a headset and he agreed. The record reveals that Person A was a team leader over the non-medical staff (including Complainant) and the Medical Director supervised the medical staff. The record reveals that Complainant's headset was ordered in December 2007, and arrived in January 2008.
Complainant stated that she used the headset for one month and then noticed it was causing her to have severe headaches. On February 21, 2008, Complainant requested a lighter weight headset per her physician's instructions. Person A acknowledged that Complainant asked for a light-weight headset in February 2008, and had a note from her doctor saying this was needed. Person A advised Complainant to find the one she wanted. At the hearing, Complainant testified that while she was researching the headset, she discovered that the headset she had could use earplugs, so she did not need a new headset.
The record reveals contains a March 14, 2008 electronic mail message from Complainant to the Agency noting that she "signed for the headset that we requested not long ago but it was missing the piece that actually goes into the ear; it appears that it needs to be ordered separately."
The Agency made attempts to order the earplugs; however, Complainant stated that they ordered the voice tubes and the sponge replacement for where the headset sat on her head rather than the earplugs she needed. The record contains a May 1, 2008 electronic mail message by the Agency saying they could only locate the order for the voice plugs so they were going to order the earpiece again.
The record reveals that Complainant was out on leave from July 23, 2008, through September 8, 2008. Complainant returned on September 8, 2008, and told Person A that she could not answer the phone without the earplugs. On September 10, 2008, Person A asked the other receptionist to find the earplugs Complainant needed. Complainant gave the box for her headset to Person A to assist the receptionist in locating the appropriate earplugs. In turn, Person A gave the box to the receptionist who located the earplugs in the original box. Person A gave the earplugs to Complainant on September 10, 2008, and she began answering the phone with them. Upon review, the Commission finds that Complainant has failed to establish that she was denied a reasonable accommodation.
Typing
Complainant explained that as a result of using the telephone and typing at the same time she experienced severe headaches. She stated that in February 2008, Doctor 2 recommended that she type no more than four hours a day. Complainant alleged that the Agency failed to honor her doctor's restrictions.
The record contains a Duty Status Report dated February 26, 2008, completed by Doctor 2 stating Complainant is restricted to four hours per day of continuous keyboarding.
Complainant claimed that she was typing more than four hours continuously every day. She stated that she typed while on the telephone and also while working on the ACA list. Complainant said Person A told her if she did not have a patient in front of her and she was not answering the telephone, she should work on the ACA list at all times which Complainant said involved constant typing since it entailed making appointments for patients.
Complainant submitted a written request for reasonable accommodation on May 7, 2008. In her request she asked to be allowed to work on non-computer related tasks for 10-15 minutes after each hour of continuous keyboarding. Complainant also requested to leave all non-computer related tasks to fill the afternoon. Additionally, Complainant claimed she was having problems keeping up with her workload especially given the large projects that required her immediate attention and she requested to be given more time to accomplish tasks and also asked that she get coverage from Employee 2 when she is assigned large projects.
The record contains a response dated July 10, 2008, from the Chairperson of the Reasonable Accommodation Committee. The response states that Complainant's request to work non- computer related tasks for 10 minutes every hour due to TMJ is covered as part of the Agency/ Union contract. The record contains a copy of Article 28, Section 18 of the relevant contract which provides that employees who use a Video Display Terminal (VDT) or other keying device for at least one hour, shall receive a 10-minute break for every hour of utilization.
Complainant stated that she received no response on her reasonable accommodation request until July 29, 2008, while she was out on medical leave. Complainant stated the Agency's response telling her she could have a 10-minute break did not solve the issue because she stated she was still required to do continuous typing. Complainant stated that when she returned to work on September 8, 2008, a third clerk had been hired which caused the typing to lessen.
Upon review, we find Complainant failed to show that the Agency violated her medical restrictions. The record shows that as of February 26, 2008, Complainant's doctor restricted her to continuous typing of no more than four hours per day. Person A testified that Complainant's job did not involve continuous typing and said that she typed approximately four hours per day. With regard to her work on the ACA list, Person A noted that this task did not involve continuous typing. Thus, we find Complainant did not show that she was required to type more than four hours continuously in violation of her medical restrictions.
Moreover, with regard to her request to leave all non-computer related tasks to be done in the afternoon, we note that Complainant did not have any evidence that this was necessary to accommodate her purported disability. Additionally, Complainant failed to show a nexus between her alleged disability and her requests to have additional time to accomplish tasks or her request to have additional help to perform her work.
Workload
Complainant alleged that on October 3, 2007, she sent an electronic mail message to Person A requesting a meeting to discuss her workload which she thought was unfairly distributed between herself and Employee X. Complainant claimed that Person A deleted the message without reading it and later verbally denied the request. Person A denied deleting Complainant's electronic mail message without reading it. Person A explained that she read the message while it was coming into her mailbox and then deleted it. Person A acknowledged that she told Complainant that she would not meet with Complainant alone. However, Person A explained she scheduled a meeting with Complainant and Employee X within two weeks of Complainant's request for a meeting to discuss division of the workload with both employees at the same time. Complainant failed to show that Person A's actions in delaying a meeting with her were based on discriminatory animus.
Complainant alleged that she was assigned an unfair and disproportionate workload. Complainant noted that in May 2007, after the Agency hired Employee X, Complainant was responsible for scheduling consults, while Employee X was tasked with making follow-up appointments for patients on the ACA list. Complainant states that by the fall, she was struggling to keep up with her caseload, and she asked Person A verbally and in writing for assistance. Complainant stated that after she met with Person A, Person A reversed the assignments, giving consults to Person A and transferring responsibilities for the ACA list completely to Complainant. Complainant states that Person A's actions did not alleviate the problem of Complainant's heavy workload, since Employee X took five to seven smoking breaks daily, ranging from fifteen to twenty minutes each, and leaving her workspace, requiring Complainant to answer the telephones and check in patients. Complainant failed to show that any of the Agency's actions in assigning Complainant her workload were based on discriminatory animus.
Complainant also alleged that on April 8, 2008, she asked Person A for assistance in doing her work, but Person A denied her help. Person A testified that when Complainant asked her for assistance on April 8, 2008, she told Complainant that Employee X had an alternate assignment and would not be able to help. Person A noted that at the time there were two receptionists and that both of their assignments were critical at the time and both needed to be done. Person A stated that about 30 minutes before Complainant came and talked to her, Employee X came to Person A to say she could not get her assignment done. Person A testified that she told Employee X she was aware that she would not be able to get it done and to do as much as she could. Similarly, Person A said that when Complainant made the same complaint and asked for Employee X to help her, she told Complainant she could not have Employee X help and that Complainant should get as much work done as she can. Person A said at the time they were being asked to do work too quickly to accomplish their tasks. We find Complainant failed to show that the denial of assistance on April 8, 2008, was based on her protected status.
Complainant also claimed that in September 2007, she was required to complete reports which she believed contained false data. Complainant alleged that the former medical director took credit for seeing the same patient twice, which she said was incorrect. Person A denied the clinic engaged in illegal record-keeping. Complainant reported her concerns to the Office of the Inspector General who conducted an investigation into the matter and did not find any wrongdoing. Complainant failed to show that the Agency's actions in having her complete the reports at issue were based on discriminatory animus.
Vacant desk
Complainant claimed that on May 14, 2008, and May 16, 2008, Person A sat at the empty desk directly behind her to watch her as she worked. Complainant stated that on June 12, 2008, she complained to the Clinic Director to intervene regarding Person A sitting behind her and monitoring her activities; however, the problem was not corrected.
Person A testified that she initially moved to the security desk after Complainant submitted her request for accommodation stating that she typed one hundred percent of the time. Person A stated that she could not imagine any part of her job that required a hundred percent keyboarding and explained she wanted to see on her own what was happening. Thus, Person A stated that she moved into the area to observe Complainant and Employee X who performed the same duties, to see if there was anything that looked like a hundred percent keyboarding, and there was not. Additionally, Person A stated that after she moved, she was able to give better direction to the clerks. For example, Person A noted that while she sat at the desk she was able to count the number of people in line at Complainant's window as well as Employee X's window. We find Complainant failed to show that the Agency's legitimate, non-discriminatory reasons for sitting at the vacant desk behind Complainant were a pretext for prohibited discrimination.
Signs
Complainant claimed that on May 15, 2008, Person A instructed Complainant to remove the patient instruction signs posted on the reception window except for one sign. She also claimed that on May 16, 2008, Person A instructed her to take down the last sign because it still obstructed the patients' view.
Person A stated that she told Complainant to remove the signs from her window so the patients could more easily see her. Person A stated that after she began sitting at the security desk she noticed patients were not going to Complainant's desk much. Person A thought part of the problem was that there were a lot of Agency announcements on her window. Person A stated they were relevant announcements; however, she thought they were blocking the patient's view of Complainant. Person A stated that after Complainant took the signs down she observed that people were a little more willing to go to Complainant's window.
Complainant denied that she was blocked from the patients' view. Rather, Complainant stated that the window that had the signs on it was always pushed over to the side because her window was open all the time; thus, she said that the patients walked right by her and the window to get to the window that had all the stuff on it.
Person A acknowledged that on May 16, 2008, she had Complainant remove the remaining sign from her window. Person A stated that she had gone out into the waiting room to determine the perspective of the people standing in line and determined that that there was one sign that was right in front of someone's face if they were standing in line. Thus, Person A asked Complainant to remove the last sign.
We find the Agency has presented legitimate, non-discriminatory reasons for having Complainant remove the signs from her window, so that patients' could more clearly see Complainant. Complainant failed to show that the Agency's actions were a pretext for discrimination.
ACA list
Complainant claimed that on June 20, 2008, Person A offered to work the ACA list for Complainant; however, she did not do it. Person A acknowledged that she told Complainant she would work on the ACA list on the day in question because she had no groups scheduled that day. However, Person A stated that patients showed up at the clinic and she did not have the time to work on the list. Complainant failed to show that Person A's legitimate, non-discriminatory reason for not assisting on the ACA list was a pretext for discrimination.
Previous week's activities
Complainant states that on May 12, 2008, Person A asked her about her previous week's activities. Person A testified that several employees had told her during the week that they had asked Complainant to do some clerical tasks, but Complainant was reluctant to do the work. Person A stated that she was told this from several different members of the staff. Person A stated this occurred during a time that Person A was not able to spend very much time in the area and so she asked Complainant what she had been doing that week since Complainant reported to other staff that she was not available to do the clerical tasks they asked her to do. Person A stated that Complainant gave her a detailed assessment that was all work-related. Person A did not question Complainant's explanation. Upon review, we find Complainant failed to show that Person A's actions on May 12, 2008, were based on discriminatory animus.
Counseling
Complainant stated that she received a written letter of counseling on September 8, 2008; received a written letter of counseling on September 9, 2008, which was dated June 25, 2008, for using terms of endearment; and received a written letter on September 9, 2008, for wearing a backless dress to work.
The record reveals that Complainant was off work from July 23, 2008, through September 8, 2008. When she returned to work on September 8, 2008, Person A called Complainant into a conference room and counseled her regarding her inappropriate use of terms of endearment such as "dear, honey, and sweetie." The written counseling issued to Complainant was dated June 25, 2008, and referenced two incidents in May 2008, when the same patient complained twice about Complainant referring to him as "sweetie." The written counseling also noted that other employees have observed Complainant routinely use terms of endearment when addressing veterans and their family members. Person A testified that the information was compiled in June 2008, to issue the counseling. Person A stated that she consulted with the Human Rights (HR) Office at the time and that HR Office was concerned about a claim of retaliation and told her to delay issuing the discipline. Person A stated that she issued the written counseling when Complainant returned out of her concern about Complainant's safety and patient safety. Person A noted that one of the patients who had complained about Complainant's use of terms of endearment had stated that "If she calls me 'sweetie' or 'honey' again, I'm going to jerk her through that window and hurt her."
Also on September 8, 2008, Person A issued Complainant a written counseling regarding rudeness and discourteous behavior towards patients and staff members. The counseling letter noted that Person A received a call from a patient on September 8, 2008, expressing concern that Complainant was rude to his wife several months ago and that Complainant was rude to him several weeks ago. The letter also noted that fellow employees, including supervisors, have been the target of Complainant's "rude comments and negative attitude."
The record reveals that on September 9, 2008, Complainant was issued a written work duty assignment which included a statement that the dress she wore on September 8, 2008, was inappropriate. The letter stated that Complainant should not wear backless attire to work and said that if she does wear such attire, she should cover-up with a sweater. Person A also issued a similar work duty assignment to Employee X and Employee Y, the other two receptionists who worked in the area without mention of the dress code.
In response, Complainant acknowledged that she does use words like "dear," "honey," or "sweetie." She stated that these were words that Person A had complimented her on in the past, because she told Complainant that the way she talked to patients made them feel cared for and cherished. Complainant noted that the patient who complained about her use of the term "sweetie" was the same patient who caused another doctor to feel so threatened that the doctor refused to see him again. Additionally, Complainant also stated that the dress she wore to work on September 8, 2008, tied around the neck and was not backless.
Upon review, we find the Agency presented legitimate, non-discriminatory reasons for issuing Complainant the two counseling letters on September 8, 2008, and for advising her not to wear a backless dress to work. Complainant has failed to show that the Agency's articulated reasons for its actions were a pretext for discrimination.
Compensatory time
Complainant stated that she requested 45 minutes of compensatory time following the counseling on September 9, 2008, because the meeting ran past her normal hours. Complainant stated that Person A told her she could get compensatory time if she requested it at that time. Complainant stated that her computer was already shut down and so she had to wait for it to come back up in order to request the time. Complainant stated that she requested to use the compensatory time the next day and it was refused. Complainant claimed that her request to use compensatory time on September 12, and 19, 2008, were both denied. Complainant stated that she was able to take the time on another day.
Person A testified that she granted Complainant 45 minutes of compensatory time. Person A explained that it was her policy to have employees input compensatory time before they leave for the day. Person A stated that she did not grant Complainant's requests for compensatory time on the dates at issue due to the needs of the clinic.
Complainant also alleged that she was denied leave on September 12, and 19, 2008. Person A stated that she denied Complainant's request to use leave on September 12 and 19, 2008, because she needed Complainant for coverage purposes. Person A stated that Employee X was absent at the time and that although Employee Y was there, he was new to the clinic. In her affidavit, Person A noted that she approved Employee X to be off from September 18, through September 23, 2008, because Employee X had not been off for many months due to Complainant being off on leave.
Upon review, we find the Agency presented legitimate, non-discriminatory reasons for its handling of Complainant's request for compensatory time and leave. We find Complainant failed to show that the Agency's actions with regard to her request for compensatory time or leave were a pretext for discrimination.
Performance Appraisal
Complainant alleged that she was subjected to discrimination and retaliation when on November 26, 2008, she received her performance appraisal, which noted "fully successful" in all areas and a comment regarding the amount of leave that Complainant had taken over the rating period.
Person A stated that in Complainant's performance appraisal she noted that Complainant was away for a third of the year and she said that when Complainant was on duty she did fully successful work. Person A noted that Complainant had issues with rudeness and that was reflected in her "fully successful" rating in the courtesy-related area. Upon review, Complainant failed to show by a preponderance of evidence that her 2008 performance appraisal was based on discriminatory animus.
Miscellaneous touching, harassment
Complainant alleged that during the week of May 12, 2008, Person A came into Complainant's work area and whispered to Employee X. Complainant stated that Person A and Employee X giggled and that Person A caressed Employee X's forearm several times. Complainant stated that she felt she was not part of the team. Complainant also stated that on September 16, 2008, she found it offensive when she witnessed Person A rubbing Employee X's lower back and caressing her arms. Additionally, Complainant stated that on October 17, 2008, her supervisor came up to her and started touching her shoulder and became "very chatty" with her.
In her affidavit, Person A stated she had no recollection of whispering to Employee X, but stated that laughter was allowed in the work setting. Person A testified that she most likely touched Employee X on September 16, 2008; however, she does not caress people. Person A stated that she does tend to touch staff members and makes it a point to touch them in socially acceptable places such as the hand, forearms, upper arms, shoulder, and upper back. Person A said she has touched most of the staff, to include Complainant but not in an inappropriate manner. Person A stated that she might have touched Complainant's shoulder and talked to her, but that was part of her role as Complainant's supervisor. Person A stated that she did not know if she touched or talked to Complainant on October 17, 2008, as nothing was voiced to her about touching her nor was there a bodily reaction that indicated Complainant had an issue with being touched. Person A denied sexually harassing Complainant. Person A noted that Complainant herself often would go around the office and ask for hugs from Person A and other staff members.
Complainant alleged that on September 11, 2008, she was harassed while talking to Person A about her cold. She claimed that Person A said to her "Oh, honey . . . I mean, [Complainant], I already take 1500 mg of Vitamin C a day."
Person A testified that Complainant talked to her about her cold. Person A stated that she did tell Complainant that she took either 1500 or 1000 milligrams of Vitamin C. Person A stated that she did not use the word "honey" in the conversation.
Complainant stated that from November 3, 2008, to November 12, 2008, Complainant was subjected to constant criticism for "everything" she did. Complainant felt she was harassed when her supervisor spoke to her in a negative and disrespectful tone.
Person A testified that she has never spoken to Complainant in a critical or disrespecting tone. Person A stated that there was a time when she instructed Complainant not take out her log and write in front of staff. Person A said this could have happened during November 3, 2008, and November 12, 2008. Person A stated that she informed Complainant of this loud enough for other staff to hear that because she wanted to be certain that Complainant was aware that the staff knew that she was not to do that in front of them anymore, and she wanted the staff to know that Complainant was made aware that she was not to do that anymore. Person A said she did this because she had received complaints that it felt threatening to them.
Complainant stated that on November 26, 2008, while returning from her afternoon break, Complainant felt that she was physically threatened by Person A demanding to know what she was working on and by her supervisor standing to close to her.
Person A stated that she was standing next to Complainant because she needed to speak with Complainant quietly since the receptionist window was open. Person A stated that she asked Complainant what she was working on because Complainant was not working on a job-related task. Person A noticed Complainant was working on a home improvement list.
Complainant claimed that on November 28, 2008, Person A chastised her in front of another co-worker, Employee Y, causing Employee Y to be rude and lewd towards Complainant. Complainant stated she was embarrassed when Employee Y spoke loudly to her in front of other staff and patients.
Person A stated that Employee Y was present when she told Complainant on November 28, 2008, not to remain on the internet for a long period of time because Complainant had been doing that. Person A also stated that she also told Complainant not to write in her log anymore in front of the staff. Person A did not know Employee Y became rude and lewd towards Complainant. She stated that she did not observe Employee Y exhibiting such behavior and she noted Complainant did not complain about such behavior to her.
.
Complainant alleged that on November 28, 2008, she found it unwelcome and offensive when Person A called her "baby." Complainant stated that while she and a co-worker were searching information on the internet, Person A started to assist by becoming overly friendly towards Complainant and touching her arm, saying, "Go down baby, go down, go down."
Person A testified that Complainant and Employee Y both expressed interest in lakefront property. Person A stated that she owned a lake front house and noted there was a website about lake property that might interest Complainant and Employee Y. Person A explained that the three of them sat around the computer looking at lakefront property. Person A noted that the place that she wanted them to look at was down at the bottom of the page and so she instructed Complainant to, "Go down, go down, go down" and may have said, "Baby, go down."
Upon review, we find Complainant has not shown by a preponderance of the evidence that she was subjected to harassment based on her purported disability or in reprisal for her protected EEO activity.
Medical leave - July 23, 2008
Complainant was placed on medical leave by her medical provider in July 2008. Complainant applied for leave on July 23, 2008, under the Family Medical Leave Act (FMLA) and requested six weeks of leave. Complainant alleged that she was subjected to discrimination when the signature process concerning her FMLA leave was delayed. Complainant also alleged that when she called in on August 8, 2008, to request leave for the day, Person A told her she would not sign the FMLA document until the master and desk keys were returned and that she needed them by close of business on August 15, 2008. Complainant claimed that she was subjected to harassment when her supervisor disapproved her request, stating there was insufficient medical information, and she was forced to call in every day for leave approval.
The record contains a copy of Complainant's application for FMLA leave dated July 23, 2008.
Person A stated that she did not receive Complainant's application package until August 6, 2008, when it was forwarded to her from the Dallas, Texas facility. Person A stated she did not know why Complainant submitted the application to the Dallas facility as opposed to the Fort Worth facility where Person A and Complainant worked.
Person A stated that she questioned the need for six weeks of leave based on the information provided in the application. Person A explained she was also concerned that the medical information was provided by an in-house Advanced Nurse Practitioner. Person A stated she spoke with her supervisor, Labor Relations, and HR regarding Complainant's application. Person B, the Chief of Labor and Employee Relations, confirmed discussing Complainant's FMLA application with Person A. Person B stated that based on the information Person A read to her from the FMLA application, it would probably be sent back for the employee to get further medical documentation. The Agency determined that a medical diagnosis and further explanation were warranted as to why Complainant needed to be off duty completely when her doctor recommended treatment of weekly psychotherapy and monthly medical checks. Person A discussed these concerns with Complainant over the telephone on August 7, 2008.
Person A stated that when Complainant called in for leave on August 8, 2008, she informed Complainant that she could not sign her FMLA request or recommend approval until the additional information was provided. Person A stated she told Complainant the additional information was due by close of business on August 15, 2008. Person A denied holding up Complainant's FMLA paperwork until Complainant returned the master key. Person A stated she informed Complainant that since she was off duty she could return the master key to the facility when she brought in the additional information. Person A stated that Complainant turned in the master key on August 14, 2008, however, she did not provide the additional information requested.
Person A explained that Complainant was required to call in and request leave every day while her application was pending. Person B stated it was standard procedure for an employee to call in for approved leave pending approval of an FMLA application.
On August 15, 2008, when Complainant called in to request leave for the day, she informed her supervisor that no further information relating to her FMLA request would be provided. As a result, Person A recommended Complainant's FMLA application be disapproved for refusal to provide the additional information. Thereafter, the Agency stated that in accordance with its policy, Complainant was required to call in for approved absence daily until she returned to work on September 8, 2008, or be subject to AWOL.
Upon review, we Complainant failed to show the Agency's actions surrounding the handling of her FMLA leave request were based on discriminatory animus.
AWOL - December 2008
Complainant stated she was at the Dallas facility on December 2, 2008, for meetings concerning her request for reasonable accommodation to be removed from the Fort Worth Mental Health Clinic. She stated that she asked for annual leave for December 2, 2008, which Person A approved.
Complainant stated that on December 3, 2008, she requested annual leave in lieu of sick leave. Complainant alleged that Person A told her that she was needed at the office. Complainant stayed home that day. On December 4, 2008, Complainant stated that she called Person A and requested annual leave in lieu of sick leave and she said that Person A told her that she was needed at work and that if she did not come in, she would be marked AWOL for December 3, and 4, 2008. Complainant stated that she was charged AWOL on December 3 and 4, 2008.
Person A stated that she charged Complainant AWOL on December 3 and 4, 2008, because Complainant did not call her on those dates regarding her absence and Complainant was still under her supervision. Person A stated that when she looked into the matter, she found out that Complainant had called the Dallas office on December 3 and 4, 2008. Person A stated when she learned this, she had the AWOL changed to annual leave.
Complainant denied calling into the Dallas office to request leave on December 3 and 4, 2008. Complainant stated that she called Person A on both dates and Person A denied her requests to take leave. Complainant stated that on December 8, 2008, she was informed that her AWOL from December 3 and 4, 2008, was changed to annual leave. Upon review, we find Complainant failed to show by a preponderance of evidence that the Agency's actions regarding her leave on December 3 and 4, 2008, were based on discriminatory animus.
Complainant stated that on December 8, 2008, she went to Dallas to meet with her union representative, the EEO Program Manager, and a Labor Relations Specialist. Complainant stated that halfway through the day, Person A called her and accused her of lying about meeting with the EEO Program Manager. Complainant stated that she had not yet met with the EEO Program Manager by that time because the EEO Program Manager was waiting to hear from Mental Health regarding Complainant's status. Complainant stated that she met with the union later in the day. Complainant stated she did not report to Fort Worth on December 8, 2008.
Person A testified that Complainant called her around 10:00 a.m. on December 8, 2008, stating she had met with her union representative and was going to stay at Dallas to check her electronic mail messages and go to the library there. Person A stated that she told Complainant she was needed in Fort Worth, but Complainant said she was staying in Dallas to work. Person A explained that she tried to contact the union representative but could not reach him until 1:00 in the afternoon. Person A stated that the union representative was confused about Complainant's meeting and kept stumbling to respond to Person A's questions. Person A stated that after she got off the phone with the union representative, she was of the impression that Complainant was not going to meet with the union representative. Person A denied accusing Complainant of lying about meeting with her union representative on December 8, 2008. Person A stated that the next day Complainant came in with a letter stating that she had met with the union representative the afternoon of December 8, 2008. Person A did not mark Complainant AWOL on December 8, 2008. Complainant failed to show that the Agency's actions surrounding her December 8, 2008 visit with her union representative were based on discriminatory animus.
Complainant stated that on December 9, 2008, Person A told her that she needed a doctor's note to come back to work.
Person A stated that there was a time in December that Complainant was away for several days. Person A stated that Complainant had a doctor's note that said that she was going to be away from December 9 - December 15, which was longer than three days. Person A noted that if an employee is absent for three days that is fine; however, on the fourth day you have to present a doctor's note approving the employee to return to duty.
The record contains a letter from Doctor 1 dated December 9, 2008. The letter stated that Complainant is incapacitated from December 9, 2008, through December 15, 2008, and noted she will be reevaluated on December 15, 2008.
Upon review, we find the Agency presented legitimate, non-discriminatory reasons for requiring Complainant to bring in a doctor's note prior to her return to duty. Complainant failed to show that the Agency's actions were a pretext for prohibited discrimination.
Leave Request - December 16, 2008
Complainant noted that she submitted a request for FMLA leave from December 16, 2008, through February 2, 2009. Complainant claimed that as of January 6, 2009, Person A had not approved her request for leave and she had to call into the Mental Health Service every day so that she would not be charged AWOL. Person A testified that she was not involved with Complainant's second request for FMLA leave. Upon review, we find Complainant failed to show that the Agency's actions with regard to the processing of her second FMLA request were based on discriminatory animus.
VLTP and Advanced Sick Leave
On January 22, 2009, Complainant submitted a request for leave donations under the Agency's Voluntary Leave Transfer Program (VLTP) and also requested advanced sick leave. Complainant stated that the applications were not received in HR until February 10, 2009. Complainant stated that she learned on February 11, 2009, Person A had disapproved her applications under the VLTP and her request for Advanced Sick Leave. Complainant also stated that on February 11, 2009, she received an electronic mail message from HR stating that there was no medical documentation submitted with her application. Complainant stated she had previously provided medical documentation to the Agency and she noted she sent another copy of the medical documentation to HR on February 12, 2009.
The record shows that Person A approved Complainant's request for leave under the VLTP on January 22, 2009, the same day she received Complainant's application. The record shows that on January 22, 2009, Person A recommended disapproval of Complainant's request for advanced sick leave. Person A testified that she disapproved Complainant's request for advanced sick leave because Complainant's doctor stated that Complainant could work elsewhere in the Mental Health System. The record reveals that the Chief of Staff and the Chief of Human Resources Management were responsible for ultimately disapproving Complainant's VLTP application. During the hearing, Complainant states she was not alleging that the Chief of Staff or the Chief of HR subjected her to discrimination; however, she stated she did not think that they had all the facts. Complainant's applications contain the notation that Complainant's doctor stated that Complainant is able to work in an alternate location; however, Complainant did not want to be reassigned to another location. Upon review, we find substantial evidence supports the AJ's finding that Complainant failed to prove she was subjected to discrimination with regard to the processing of her VLTP and advanced sick leave applications.
Reassignment
Complainant stated by late 2008, her psychiatrist (Doctor 1) determined that she could no longer work at the Fort Worth Mental Health Clinic and stated that she should work in an environment entirely outside of the mental health field. Complainant explained that based on Doctor 1's recommendation, on December 2, 2008, she went to Dallas to submit in person her request for reasonable accommodation. Complainant noted that since December 16, 2008, she was subjected to a stressful situation when she was informed that she had been reassigned from Fort Worth, but she did not know to where she was reassigned. Complainant noted that on January 14, 2009, the Administrative Officer (AO) for Mental Health Services insisted that Complainant report to Dallas as her work assignment in spite of her doctor's advice. Complainant stated that on February 4, 2009, the AO called her and told her that she was to report to the Mental Health Service in Dallas effective February 5, 2009, for her work assignment.
The Agency noted that Complainant claimed that Person A was creating a hostile work environment and that Complainant wanted to be reassigned away from Person A. The Agency provided testimony that it made efforts to find a position for Complainant at its Fort Worth Outpatient Clinic, but that there was no position. Specifically, the AO testified that she spoke with the Program Manager at a homeless program in Fort Worth to see if they had any openings for Complainant; however, they did not. The AO also testified that she asked Medical Administrative Services (MAS) to take Complainant, but the chief of that service refused to do so without receiving her ''FTE," which would have left Mental Health Service with a need that it could not fill. The Agency stated that the Dallas Medical Health Service was the only location that had an opening and a need for her services. The Agency noted initially Complainant was offered the position at Dallas; however, she declined to accept. The Agency stated that a month later it decided to reassign Complainant based on the concerns she raised about her working environment in Fort Worth. The Agency noted that Complainant expressed that she was unhappy with the reassignment based on the length of the commute to Dallas. The Agency noted the mileage between Complainant's home and Forth Worth was not much different from the mileage between Complainant's home and Dallas.
The record contains a letter from Doctor 1 dated December 12, 2008. In his letter, Doctor 1 stated that Complainant is experiencing severe work-related stress and noted the source of her work-related stress is her current supervisor in the Mental Health Clinic. Doctor 1 stated "it is imperative that [Complainant] not return to her position in the mental health clinic at this time. However, she is capable of working at an alternate location such as the outpatient clinic." The record contains a December 15, 2008 letter from Doctor 1 stating that Complainant is incapacitated from December 16, 2008, through February 2, 2009. The letter noted Complainant would be reevaluated on February 2, 2009.5
Upon review, we find the Agency provided legitimate, non-discriminatory reasons to reassign Complainant to Dallas which were Complainant's concerns surrounding her working relationship with Person A and the fact that her doctor asked that she not return to her position with Person A. The record reveals that Doctor 1 stated Complainant was capable of working at an alternate location and the Agency reassigned Complainant to such a position in Dallas. Moreover, we find Complainant failed to show a nexus between her purported disability and her request to be reassigned to a position outside of the mental health field.
February 3,4, and 5, 2009
Complainant had been on medical leave since December 2008, until her doctor released her to return to work on February 3, 2009. Complainant reported to work at the Fort Worth Mental Health Clinic. Complainant alleged that when she reported to work on February 3, 2009, Person A informed Complainant that she just learned that Complainant did not accept the offer of transfer to Dallas, so Person A assigned her to answer the telephones and check patients in until Person A decided what Complainant's duties would be. Complainant also stated that on February 3, 2009, she returned over 25 telephone calls and started reading electronic mail messages when Person A told a co-worker that since Complainant has free time, she can work on the ACA list. Complainant stated that she told Person A that she had over 230 electronic mail messages to read and Person A's responded "I have over 1,200 emails and that beats you."
Person A stated that when Complainant reported to the Fort Worth Clinic on February 3, 2009, she was caught by surprise. Person A stated that the other two clerks had been covering all the work in Complainant's absence and now the work had to be divided between three clerks. Person A said that when she reported to work at 9:00 a.m. on February 3, 2009, Complainant was already there. Person A stated that she asked Complainant to go to one of the unoccupied offices so Complainant could read her electronic mail messages until Person A determined what duties would be assigned to Complainant. Person A said she was under the impression that Complainant was going to be assigned somewhere else and she was surprised that Complainant had reported to the Fort Worth clinic. Person A called the Dallas facility so she could be updated concerning Complainant and asked whether Complainant was supposed to be there and if Person A should be worried about assigning duties to her. Person A said that since Complainant provided a release statement that said she had no restrictions, Person A assigned her to answer the telephones and check patients in until she determined what Complainant's duties would be. Person A noted that Complainant did not voice any concerns regarding the work assignment. Person A noted that Complainant only stayed at the clinic from February 3, 2009, to February 5, 2009, when she was transferred to the Dallas facility.
Complainant alleged that on February 3, 2009, Person A insisted that Complainant continue working on the ACA roster, which meant continuous typing for over four hours.
Person A testified that she did say that Complainant should work on the ACA list because Complainant was sitting at the back desk and not at the front desk. Person A stated she did not have Complainant typing continuously for over four hours on February 3, 2009. Person A admitted making the statement that she had over 1,200 emails to read which beat Complainant's 230 emails. Person A said that Complainant had a period of an hour and a half to two hours to read her electronic mail messages when she took Complainant to the vacant office while she contacted the Dallas Mental Health Office to inquire about Complainant reporting to Fort Worth. Person A said that the ACA list had priority over Complainant's electronic mail messages.
Complainant also alleged that on February 4, 2009, she asked Person A for guidance on two separate work situations regarding two different patients. Complainant alleged that Person A chastised Complainant for asking questions regarding the first patient and for not asking more questions regarding the second patient. Complainant stated that she felt disparately treated since Person A had entertained questions from two clerks and engaged in chit-chat; however, Complainant was not included in the chit-chat.
Person A testified that on February 4, 2009, a patient and his wife came up to the desk and were asking about seeing a doctor. Person A noted that some paperwork needed to be filled out and rather than answer the patient's question, Complainant looked at Person A and shrugged her shoulders looking like she did not know what to do. Person A stated that she stepped in, asked the questions that needed to be asked, and assisted the patient. Afterwards, Person A told Complainant she was surprised Complainant did not ask the questions that needed to be asked since she has seen Complainant handle this situation numerous times in the past. Person A stated that Complainant denied knowing how to handle the situation. Person A stated she reviewed with Complainant the steps that need to be taken in those situations. Person A did not recall another incident with a patient occurring on February 4, 2009.
Complainant also noted that on February 3, 2009, and February 5, 2009, several patients informed Complainant that they had heard that she was not coming back to work at the clinic and that she had been transferred to Dallas. Complainant stated that any one at Fort Worth could have told the patients about Complainant's transfer.
Person A stated that patients did ask about Complainant during her absence. According to Person A, the patients were told that Complainant was away and it was unknown when she would return. Person A denied telling patients that Complainant was no longer going to work at the clinic or that she had been transferred.
Complainant also claimed that on February 5, 2009, Person X from Mental Health Services in Dallas told Complainant that Person A had called for the AO and was upset that Complainant was at the clinic.
Person A stated that she does not know if she used the word "upset" or not; however, she stated that she was sure that Person X could tell by the conversation that she was really not happy. Person A stated that she was not happy because Complainant had stated that Person A created a hostile environment for her, and she was entering back into what she considered a hostile environment caused by Person A and Person A said she did not think this was a good match.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its action on February 3, 4, and 5, 2009. Complainant failed to show that the Agency's articulated reasons were a pretext for discrimination. Additionally, we find Complainant failed to show that she was forced to work beyond her medical restrictions on February 3, 2009.
March 20, 2009
Complainant claimed that on March 20, 2009, she sent an electronic mail message and requested the use of a room and computer from the AO for Mental Health and copied the EEO Program Manager. Complainant stated the AO told her she could have the AO's old office, which Complainant stated would have resolved the issues. However, Complainant noted that the EEO Program Manager questioned Complainant's request, and later indicated that Complainant was not prepared to present her information or defend her complaint. Complainant stated that this situation provided her with more stress. Specifically, in her affidavit, Complainant noted that the EEO Program Manager told her that the person performing the deposition requests a computer, that a court reporter is usually assigned to take the deposition, and that the court reporter brings his or her own computer. Complainant stated that the EEO Program Manager told Complainant they would find her a room to use on April 3, 2009, if her deposition is taken at the facility. Complainant stated that the EEO Program Manager stated that she is sure the investigator wanted Complainant to have her information in front of her when questions are asked. She stated the EEO Program Manager told her that she must come prepared to present her case without stopping the interview to go to the computer. Complainant stated the EEO Program Manager told her this indicates Complainant is not prepared to present her information or defend her complaint.
In her affidavit, the EEO Program Manager stated that in response to Complainant's request she said that they would have a room for Complainant but the use of a computer was up to the investigator. The EEO Program Manager said that a room was made available to Complainant. The EEO Program Manager stated that she found Complainant's request strange because Complainant did not have to type during the interview. The EEO Program Manager also stated that she knew that the Investigator would either tape the interview or utilize a court reporter. The EEO Program Manager stated this is when Complainant mentioned she had many documents at home that she needed to refer to during the interview. The EEO Program Manager explained that she said to Complainant that using the computer often would indicate that she was not prepared to defend her complaint. The EEO Program Manager said that she always informs employees to do their homework before filing a complaint or responding to Counselors or Investigators regarding who, what, when, where, how, and what would resolve their issues when they file a complaint. We find that ultimately Complainant has been allowed through the investigation, the hearing, and submissions on appeal to present all evidence she wished in support of her complaint and that such evidence has been considered in this decision.
Upon review, we find Complainant failed to show that the EEO Program Manager's actions were based on discriminatory animus or resulted in any harm in processing of the instant complaint.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
July 20, 2012
__________________
Date
1 Complainant was also referred to as a receptionist in the record.
2 In its April 9, 2009 Notice of Amendment and Clarification letter, the Agency noted that Complainant's claim of harassment consisted of 53 separate allegations.
3 While Complainant discusses efforts to address her concerns with the receptionist's window in October 2006, we note that the accepted claims concerning the Agency's actions surrounding the receptionist window in the present complaint began in October 2007.
4 We note that any actions occurring in December 2006, pre-date the accepted issues in the present complaint.
5 Complainant's doctor subsequently released Complainant to return to work on February 3, 2009.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2010-2081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102081