[Redacted], Aline A., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2022003111 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aline A.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency. Appeal No. 2022003111 Hearing Nos. 410-2020-00142X 410-2020-00326X Agency Nos. ARS-2018-00915 ARS-2019-00847 ARS-2020-00325 ARS-2020-00425 DECISION 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 April 13, 2022 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. 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. 2022003111 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Biological Science Laboratory Technician (GS-404-8) at the Agency’s Agricultural Research Service (ARS) Poultry Research Center in Athens, Georgia. Starting on September 24, 2018, Complainant filed EEO complaints alleging that the Agency discriminated against her.2 Agency Case No. ARS-2018-00915 (Complaint 1) Complainant alleged discrimination on the bases of sex (female) and age (55), and in reprisal for the instant EEO complaint, when: 1. on February 27, 2019, during her quarterly performance review, Complainant learned that management again changed her promotion requirements by adding two additional requirements that had to be completed before she could be promoted to GS-9; 2. on October 25, 2018, management issued Complainant a “Fully Successful” rating on her 2018 annual performance appraisal; 3. on September 11, 2018, management required Complainant to add additional areas of proficiency to her Individual Development Plan (IDP) in order to qualify for a promotion to GS-9; 4. on an unspecified date in September 2018, management revised Complainant’s 2019 annual performance plan to include: a. a reduced number of performance elements from six to four; b. additional standards for each of the performance elements; c. a change to performance element number 2: “Supports Common USNPCR Research Functions and Laboratory Areas” from critical to non-critical; d. a change to performance element number 2 to require Complainant to be solely responsible for purchasing and stocking all common laboratory supplies; 5. on an unspecified date on or after August 24, 2018, Complainant learned that two of her younger, less experienced Biological Science Laboratory Technician colleagues were promoted to GS-9; 6. on August 17, 2018, Complainant learned that management denied her request to be reclassified as an Inventory Management Specialist (GS-2010-12); 7. beginning on an unspecified date in 2015, Complainant served as an Inventory Management Specialist (GS-12) but paid as a GS-8. 2 The EEOC Administrative Judge granted Complainant’s Motion to Clarify and Reformulate Accepted Claims. Accordingly, the claims will be presented as they appear in Complainant’s motion. 2022003111 3 Agency Case No. ARS-2019-00847 (Complaint 2) Complainant alleged that the Agency subjected her to discrimination and non-sexual harassment based on her sex, and in reprisal for prior EEO activity, when: 8. on October 25, 2019, Complainant’s Supervisor denied her three hours of official time to work on her EEO activity; 9. beginning October 17, 2019, management failed to follow Agency guidelines to allow Complainant to submit a three-page self-evaluation report; rather, they forced her to edit critical job duties to reduce the report; 10. on October 11, 2019, management denied Complainant’s request to correct her fiscal year (FY) 2019 performance plan; 11. on October 30, 2019, Complainant was issued a “Fully Successful” on her FY 2019 appraisal, rather than an “Outstanding”; 12. on or about August 5, 2019, Complainant’s Supervisor prevented Complainant from working on her EEO complaint and denied her six hours of overtime as a result; 13. on July 23, 2019, Complainant’s Supervisor abruptly removed Complainant’s inventory duties and reassigned them to a male employee (Coworker 1); 14. on July 2, 2019, management denied Complainant’s promotion to a GS-9, for failure to satisfy additional requirements outside of regulations; 15. on July 2, 2019, Complainant’s Supervisor issued Complainant an unacceptable negative performance evaluation; 16. on July 2, 2019, management failed to adhere to Agency regulations and rejected Complainant’s request for new performance plans that would reflect her duties as an Inventory Management Specialist, but required her to perform duties outside of her position description, including performing the duties of an Inventory Management Specialist; 17. on several dates, Complainant was subjected to various incidents of harassment, including, but not limited to: a. on July 2, 2019, during her performance evaluation, Complainant’s Supervisor told Complainant that she would not be promoted because she spent too much time on her EEO case; and b. during her yearly performance review on October 30, 2019, Complainant’s Supervisor repeatedly commented on her prior and current EEO complaints, and suggested she withdraw her EEO complaint, stating that if she dropped the EEO case, a desk audit would probably result in a promotion to GS-9 a lot quicker. 2022003111 4 Agency Case No. ARS-2020-00325 (Complaint 3) Complainant alleged that the Agency subjected her to discrimination and non-sexual harassment based on sex and disability (mental), and in reprisal for prior EEO activity, when: 18. on December 19, 2019, management denied Complainant sufficient time to meet with her attorney or designated representative regarding her pending EEO complaint; 19. on December 18, 2019, management issued Complainant a Letter of Caution; 20. on November 6, 2019, management removed Complainant as an Inventory Management Specialist, and replaced her with a younger male worker; 21. on several dates, Complainant was subjected to additional incidents of harassment, including, but not limited to: a. beginning on December 5, and 11, 2019, management required Complainant to give daily updates regarding her work; b. beginning on December 11, and 12, 2019, management created a hostile work environment while communicating with Complainant’s coworkers and previous close friends; and c. on an unspecified date, Complainant’s Supervisor restricted Complainant from filing an EEO complaint, including limiting her time to work on her complaint. Agency Case No. ARS-2020-00425 (Complaint 4) Complainant alleged that the Agency subjected her to discrimination and non-sexual harassment based on sex and disability, and in reprisal for prior EEO activity, when: 22. on February 14, 2020, management denied Complainant’s request for sick leave; falsified her validated time sheet; removed her sick leave pay request; and deemed her absent without leave; and 23. from November to December 2019, Complainant was denied a reasonable accommodation, without an individualized assessment or discussion, and to date, management continues to deny her requests for a reasonable accommodation. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigations (ROIs),3 and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. On July 8, 2020, Complainant moved to consolidate her hearing requests, and the AJ granted her motion. 3 The Agency combined the investigations for Complaints 1, 2, and 3, As such, we will refer to that investigative file as “ROI 2” in the instant decision. The Agency also conducted a supplemental investigation for the complaints, which will be referred to as “Supplemental ROI”. 2022003111 5 Complainant subsequently withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged.4 The instant appeal followed, and Complainant filed briefs in support of her appeal. The Agency opposed Complainant’s appeal. 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 Chap. 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”). Timeliness of Appeal Briefs As an initial matter, we note that Complainant timely filed an initial appeal brief on June 15, 2022, and then submitted a “corrected” brief on June 20, 2022. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Complainant provided no explanation for filing a “corrected” brief and failed to request an extension from the Commission. Since Complainant’s “corrected” brief was not timely filed, we will only consider the arguments in Complainant’s initial timely brief. The Agency filed its opposition brief on July 20, 2022, and Complainant requests that the Commission dismiss the Agency’s brief as untimely. The Commission’s regulations provide that “any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.” 29 C.F.R. §1614.403(f). 4 We note that the Agency’s final decision did not include the claims in Complaint 1. The Agency previously issued a final decision for Complaint 1, but the Administrative Judge granted Complainant’s Motion to Strike the final decision. However, neither party took issue with the omission of Complaint 1 in the April 13, 2022 final decision. We also find that there is sufficient information in the record to make a fair and reasoned determination on the claims, and we will address the merits of these claims in the instant decision. 2022003111 6 The Agency submitted its opposition brief past the 30-day deadline of July 15, 2022, and as such, we will not consider the Agency’s brief. Timeliness of Appeal On appeal, the Agency challenges the timeliness of Complainant’s appeal and requests its dismissal. The Agency argues that it emailed the final decision to Complainant on April 13, 2022, and her appeal was due on May 13, 2022. However, Complainant did not file her appeal until May 16, 2022, which the Agency asserts was three days past her deadline. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). The Agency provided no evidence to prove that Complainant received the final decision on April 13, 2022. Accordingly, we decline to dismiss Complainant’s appeal. Sanctions Through her attorney, Complainant requests that the Commission issue a default judgment against the Agency for Complaint 2, and she argues that the AJ improperly denied her request. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). Here, Complainant only asserts that the AJ should have issued a default judgment due to the Agency’s failure to complete the investigation for Complaint 2 within 180 days and its violation of the Commission’s order to produce the investigative file within 15 days. In the Order Denying Complainant’s Motion for Default Judgment, the AJ determined that the Agency properly amended the complaint with like or related claims and timely completed the investigation. Further, the AJ found that a default judgment was an inappropriate remedy, and that Complainant cited to no caselaw to support her request. Complainant only states that she did not agree to any amendment prior to the completion of the investigative stage, and we find that Complainant did not show that there was an abuse of the AJ’s discretion. As such, we decline to sanction the Agency with a default judgment for Complaint 2. 2022003111 7 Sex Discrimination - Equal Pay Act and Title VII (Claim 7) To establish a prima facie case of discrimination under the Equal Pay Act, Complainant must show that she received less pay than an employee of the opposite sex for equal work, for equal skill, effort, and responsibility, and under similar working conditions within the same establishment. See Sheppard v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 01A02919 (Sept. 12, 2000); Corning Glass Works. V. Brennan, 417 U.S. 188 (1974). We find that Complainant did not establish a prima facie case of sex discrimination under the Equal Pay Act. Complainant argues that she was paid less than a male employee (Employee) for substantially equal work from 2015 through November 8, 2019. Complainant asserts that the Employee was paid at the GS-12 level, while Complainant performed the “same duties” and was paid as a GS-8. While the Agency responded that the Employee was a “Microbiologist” and Complainant was not, she avers that the job requirements and performance, and not job title, determine whether a job is substantially equivalent. Complainant argues that she and the Employee spent 50% of their time performing common inventory management duties. Complainant Appeal brief at 13, 16. However, the Employee’s supervisor responded that Employee did not spend 50% of his daily duties ordering supplies. Rather, the Employee spent approximately one day per week on inventory duties. ROI 1 at 616. Further, the Laboratory Director testified that the Employee’s position as a Microbiologist was not based on maintaining supplies, but on scientific duties, such as production of hybridoma, and operation and maintenance of fluorescent activated cell sorter. ROI 1 at 511. Complainant points out that she also had duties of ordering and maintaining supplies, but she offered no evidence to show that she performed substantially equal work in her position as a Biological Science Laboratory Technician to the Microbiologist Employee. We also find that Complainant did not establish a prima facie case of sex discrimination under Title VII because she did not show that she was similarly situated to the Employee. To be considered “similarly situated,” all relevant aspects of the comparative employee’s work situation must be identical, or nearly identical, to that of Complainant, including, but not limited to reporting to the same supervisor, performing the same job function, and working the same schedule. See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006); Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). As previously noted, the Employee held a different position at a different grade level and reported to a different supervisor; and as such, he was not similarly situated to Complainant. Accordingly, we find that Complainant did not prove sex discrimination, under the Equal Pay Act or Title VII, for claim 7. Official Time (Claims 8, 12, 18, and 21(c)) The Commission’s regulations state that agencies shall afford complainants a reasonable amount of official time to allow a complete presentation of the relevant information associated with their complaint and to respond to agency requests for information. 29 C.F.R. § 1614.605. 2022003111 8 The actual number of hours to which a complainant is entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the Agency and the Agency’s need to have its employees available to perform their normal duties on a regular basis. The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed, and so an agency may restrict the overall hours of official time afforded. Id. Complainant alleges that the Agency denied her official time to work on her EEO complaint. However, we find that the Agency acted appropriately in response to Complainant’s requests. For claims 8 and 21(c),5 the Supervisor explained that he had scheduled a performance evaluation with Complainant on October 25, 2019, which she asked to reschedule, and he denied her request for three hours of official time due to the conflict. After the Supervisor conducted the performance evaluation, he approved three hours of official time for October 30, 2019. ROI 2 at 317-8. On appeal, Complainant only offers her opinion that the Agency’s response “does not pass muster” because the deadline for performance reviews was not until the following week on October 30th. Complainant Appeal Brief at 35. However, Complainant’s second-line supervisor, the Research Leader, stated that the Supervisor was scheduled for annual leave for October 28, and 29, 2019. ROI 2 at 438. We find that the Agency reasonably delayed Complainant’s request for three hours of official time to balance her need with business reasons. Regarding claim 12, the Supervisor denied preventing Complainant from working on her EEO complaint. The Supervisor stated that Complainant claimed six hours of overtime for her EEO activity, which was premium pay, and required pre-approval. The Supervisor disapproved the overtime but provided six hours of credit hours. ROI 2 at 328. The Branch Chief of the Personnel and Labor Solutions (“Branch Chief”) corroborated that overtime required pre-approval, and we note that Complainant does not dispute that she did not request pre-approval for her overtime request. Supplemental ROI at 88. Further, an agency is no obligated to incur overtime wages for an employee’s official time for EEO activity. 29 C.F.R. § 1614.605(b). We find that the Agency properly denied Complainant’s request for overtime pay for her EEO activity, and that Complainant provided no evidence to show that she was prevented from working on her EEO complaint. For claim 18, the Research Leader responded that Complainant contacted him on December 19, 2019, after meeting with her attorney and requested six hours of official time, which included four hours of driving and two hours for the meeting. The Research Leader did not think it was reasonable to provide official time for travel, but he was willing to grant Complainant four hours of official time, to include one leg of travel. ROI 2 at 473. The Commission’s regulations provide that an agency is not obligated to pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer. 29 C.F.R. § 1614.605(b). 5 Complainant stated that incident 21(c) occurred on October 25, 2019, which is the same as claim 8. ROI 2 at 298-9. 2022003111 9 Here, the Agency covered some of the travel time for Complainant to meet with her attorney, even though it was not obligated to do so. Accordingly, we find that Complainant did not establish that the Agency improperly denied her official time for her EEO activity. Reasonable Accommodation (Claim 23) In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant. The record shows that Complainant initiated her reasonable accommodation request on October 31, 2019, for no requirement to speak publicly in lab meetings; performance reviews and research progress meetings to be conducted by phone or email; to continue having a private office; and unscheduled leave when she experienced symptoms of her medical condition. ROI 2 at 741. On November 18, 2019, the Supervisor responded to Complainant’s request. The Supervisor noted that Complainant’s position required interaction with the team and the Supervisor to discuss experiments, results, troubleshooting, and training. As such, the Supervisor determined that Complainant should email the Supervisor the day before a lab meeting to share progress of her work; and in lieu of face-to-face interaction with the Supervisor, Complainant was required to send a daily email by 3:00 p.m. of her accomplishments and submit her laboratory notebook on Fridays for the Supervisor’s review. Regarding the private office, the Supervisor responded that there were space constraints and to accommodate Complainant, they would transfer her desk to the laboratory where she currently performed her duties, which would provide privacy for the majority of her workday. The Supervisor also granted Complainant’s request for leave when needed. ROI 2 at 749-50. Complainant subsequently requested additional accommodations of a reassignment to another position and to another supervisor. The Supervisor responded that a reassignment was an accommodation of last resort, and while Complainant asserted that she was unable to perform the essential functions of her position, the Supervisor believed that Complainant was able to do so. ROI 2 at 743. 2022003111 10 On appeal, Complainant argues that the Agency is liable for denying her request for a reassignment to another supervisor and that it did not offer alternatives. Complainant concedes that the Agency was not required to alter Complainant’s supervisory chain, but she asserts that the Agency failed to engage in the interactive process, and it could have modified management’s supervisory methods as an accommodation. Complainant Appeal Brief at 61. After receiving a request for reasonable accommodation, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also Enforcement Guidance at Ques. 5. 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., EEOC 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 fact 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 argues that the Agency failed to engage in the interactive process, after it denied her request for a reassignment or a new supervisor. However, we find that the Agency previously granted her request for a modification to supervisory methods when the Supervisor granted Complainant’s specific request to avoid face-to-face interactions with him and provided alternative methods of communication regarding her work. Complainant asserts that this new method “seems punitive,” and suggests that they reduce the daily communications between Complainant and the Supervisor. Complainant Appeal Brief at 62. However, 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. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Ques. 9. It was reasonable for the Supervisor to expect regular communication from Complainant regarding the progress of her work, and Complainant’s dissatisfaction with the granted accommodations does not prove a failure to accommodate. Complainant provided no arguments or evidence to prove that the alternative methods of communication, via emails and a review of Complainant’s laboratory notebook, were ineffective. To the extent that the Agency failed to further engage in the interactive process after denying Complainant’s requested reassignment, we find that any failure to engage did not result in a failure to accommodate since the Agency already granted Complainant alternative accommodations. As such, we find that Complainant did not establish a violation of the Rehabilitation Act. 2022003111 11 Disparate Treatment (Claims 1-6, 9-11, 13-16, 19-20, and 22) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age, disability, and sex, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for claims 1-6, 9-11, 13-16, 19-20, and 22. Promotion and Additional Duties (Claims 1, 3-6, 10, 14, and 16) We note that many of Complainant’s claims are related to her belief that she should occupy a GS-12 Inventory Management Specialist position (claim 6). However, management officials averred that there was no such position as an Inventory Management Specialist at the Southeast Poultry Research Lab. ROI 1 at 478, 500, 593. Further, the record shows that the Agency attempted a desk audit to examine the proper classification of Complainant’s duties, but Complainant canceled the desk audit. The Branch Chief offered that Complainant’s position already included the task of ordering supplies and materials, and a desk audit would have been the best way to “get to the bottom of her true position.” The Branch Chief noted that she discussed the desk audit with Complainant and informed her that the goal of a desk audit is to be accurate, and once Complainant realized that a desk audit might not be favorable for her position, she declined the desk audit. Supplemental ROI at 93-4, 106. Regarding Complainant’s promotion to the GS-9 level, the record shows that various management officials informed Complainant of the necessary requirements for promotion. For example, Complainant’s former second-line supervisor, a Research Microbiologist, explained that she and the Supervisor developed a plan to get Complainant’s duties in line with a GS-9 level. The Research Microbiologist noted that they added specific lab skills, such as making recombinant vaccines and metagenomic analyses to Complainant’s 2018 performance plan, and they communicated to Complainant that the new skills did not mean that she would be promoted immediately because she needed to demonstrate proficiency at the GS-9 level. 2022003111 12 The Research Biologist added that other technicians achieved the GS-9 level after four to five years. ROI 1 at 763-4. The Supervisor responded that a promotion to the GS-9 level was not solely based upon past experience and performance ratings, but on increased duties and responsibilities. The Supervisor stated that they offered Complainant the opportunity to learn virus titration and characterization approximately six to seven times, but Complainant only showed up twice to learn the techniques. ROI 1 at 588, 592. The Research Leader averred that the Supervisor informed him that Complainant was to perform the following: (1) support/involve metagenomics study and work closely with the postdoc to produce accountable results, i.e., publication, technology transfer, or patent; and (2) learn new techniques used in the development of recombinant vaccines and be able to perform the techniques independently (claim 1). The Research Leader confirmed that, once Complainant fulfilled the criteria, the Supervisor would recommend Complainant for promotion. ROI 1 at 572. For claim 3, the Research Leader responded that management did not require additions to Complainant’s IDP, but he suggested a Time Management course. Complainant chose not to incorporate management’s suggestions, and they were not included in the signed version. ROI 1 at 559. The Research Leader noted that, when Complainant raised concerns about ordering supplies, he compared her purchase logs with another Biological Science Laboratory Technician’s, who reported that purchasing took 3-5% of his time. Accordingly, the Research Leader suggested a Time Management course to Complainant. ROI 1 at 562. Regarding claim 4, the Supervisor explained that ARS made changes to the 2019 performance plans for all employees. ROI 1 at 605. In response to claim 5, the Research Leader stated that one comparator was promoted based on her independent development of a variety of new methods or improvement of existing methods, which resulted in significant time and cost savings. She also mastered a variety of techniques to benefit the lab. The Research Leader was not aware of the second named comparator. ROI 1 at 575-6. Regarding claim 10, the Supervisor explained that any changes to a performance plan must be made no later than 90 days prior to the end of the performance period, and Complainant requested changes after the performance period ended. ROI 2 at 322. For claims 14, and 16, the Supervisor admitted that he did not recommend Complainant for promotion on July 2, 2019, because she did not show the motivation to learn new techniques and did not perform them in a timely manner. The Supervisor again noted that Complainant missed appointments to learn techniques. ROI 2 at 334. Management officials also denied failing to adhere to Agency regulations. The Research Leader and Laboratory Director both noted that Complainant performed the duties of a Biological Science Laboratory Technician, which included the task of ordering supplies and materials, and she did not have an Inventory Management Specialist position. ROI 2 at 342, 400, 461. Performance Ratings (Claims 2, 9, 11, and 15) 2022003111 13 For claim 2, the Supervisor stated that Complainant’s 2018 Fully Successful rating was fair and accurate for her position as a Biological Science Laboratory Technician. The Supervisor noted that, since Complainant was not an Inventory Management Specialist, he only had authority to evaluate her performance as a Biological Science Laboratory Technician. ROI 1 at 586-7. The Research Leader responded that he advised the Supervisor to be factual and objective, and while he made some edits to the narrative of Complainant’s rating, they did not affect her rating. ROI 1 at 556. Regarding claim 9, the Laboratory Director responded that the ARS Southeast Area required a maximum of two pages of accomplishments for all employees, and that the management officials followed the Area Director’s guidance. ROI 2 at 441. The record shows that an ARS official sent a global email on September 5, 2019 and specified that employee accomplishments should be a maximum of two pages. ROI 2 at 764. For Complainant’s 2019 performance rating (claim 11), the Supervisor explained that Complainant received a Fully Successful because her performance was not above and beyond the requirements to warrant an Outstanding rating. For example, for Element 1: Mission Results- Oriented, Complainant performed extractions and helped with training postdocs, but there were major deficiencies in her performance when she failed to attend the last four laboratory meetings without an excused absence; refused to meet with face-to-face with the Supervisor to discuss research progress,6 and she failed to send data and research updates. ROI 2 at 325. The Research Leader stated that Complainant received a Fully Successful for each element, which resulted in an overall rating of Fully Successful. The Research Leader noted that the Supervisor consulted him, and he reviewed the appraisal to ensure consistency. ROI 2 at 446. The Supervisor averred that he conducted the third quarter performance review for Complainant on July 2, 2019, but he did not issue an unacceptable performance evaluation and there is no rating of record issued for quarterly reviews (claim 15). ROI 2 at 336. Duties Removed (Claims 13, and 20) For claim 13, the Laboratory Director asserted that Complainant did not proffer accurate facts. The Laboratory Director explained that they needed to place a large supply order of over $14,000, and Complainant’s credit card limit was $4,999 per order. Complainant placed an order of $2,853, and the remainder was submitted through a purchase order. The Laboratory Director added that splitting the order to get around the credit card limit was illegal. The Laboratory Director denied reassigning duties from Complainant, as she did not have the legal authority to make the purchase. ROI 2 at 389-40. 6 We note that Complainant did not request to avoid face-to-face interactions with the Supervisor as a reasonable accommodation until after the 2019 performance evaluation. 2022003111 14 On November 6, 2019, the Laboratory Director reduced Complainant’s duties of ordering common supplies to provide her with additional time to improve her research skills to support her promotion to the GS-9 level (claim 20). ROI 2 at 417. Letter of Caution (Claim 19) The Research Leader issued Complainant a Letter of Caution on December 18, 2019, because Complainant only submitted one daily progress report since December 5, 2019. The Research Leader noted that the Supervisor was on leave for three weeks, and Complainant was to provide her daily updates to the Research Leader. He also noted that Complainant recorded a conversation with a coworker (“Coworker 2”) without permission, which Coworker 2 found to be intimidating. The Research Leader informed Complainant that it was imperative to follow supervisory instruction and to refrain from recording conversations with coworkers without their expressed consent. Supplemental ROI at 283, ROI 2 at 483. The record contains Coworker 2’s emails to the Research Leader reporting that Complainant had recorded their conversation, without Coworker 2’s permission. While Complainant stated that she recorded their conversation because she had questions about lab procedures and wanted the recording of their conversation as a “memory jogger,” Coworker 2 disputed that their conversation was about lab procedures. ROI 2 at 772, 774, 778. Sick Leave (Claim 22) With Complainant’s request for sick leave, she included the remarks, “Personal leave taken for official time spent on EEO activity.” The Research Leader stated that he consulted with the Branch Chief, who informed him that EEO activity was not an appropriate use for sick leave. The Research Leader then asked that Complainant change her request to a different type of leave. Complainant resubmitted her sick leave request with different comments. The Branch Chief advised the Research Leader to deny the sick leave request because he was unable to know if the reason for sick leave was accurate. When the Research Leader recommended that Complainant change her request for another type of leave, she submitted her sick leave request a third time, without any comments. The Research Leader averred that he did not certify Complainant’s sick leave because he was unable to determine if her reason for sick leave was accurate. ROI 2 at 489, 752, 755, 758. For claims 1-6, 9-11, 13, 15, 16, 19-20, and 22, we conclude Complainant has not proven, by a preponderance of the evidence, that the legitimate reasons proffered by management were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2022003111 15 For example, for claim 2, Complainant argues that pretext is demonstrated by the Supervisor’s alleged perjury. The Supervisor falsely testified that Complainant never mentioned that she felt discriminated against even though she had sent an email complaining that she was a female employee who was not paid the same as a male coworker. Complainant Appeal Brief at 20-21. However, the Commission has consistently held that the falseness of one reason does not impeach the credibility of the remaining reasons. See Vito E. v. U.S. Postal Serv., EEOC Appeal No. 0120173065 (Aug. 7, 2018); McCleary v. Dep’t of the Navy, EEOC Appeal No. 01933036 (Mar. 7, 1994) (citing Logue v. International Rehabilitation Associates, Inc., 837 F.2d 150, 153 (3d Cir. 1988), request for recon. denied, EEOC Request No05940526 (Dec. 15, 1994)). Complainant asserts that the Supervisor is not a reliable witness, but she did not provide arguments that the Supervisor’s explanation for her 2018 performance rating was not credible. Regarding changes to Complainant’s performance plan (claim 10), she avers that the Agency’s representations are not true because the Research Leader suggested that they revise her performance plan in August 2018. However, we note that Complainant alleged that the Agency denied her request on October 11, 2019, and to the extent that Complainant argues that the Agency failed to change her performance plan prior to October 2019, this was not an accepted claim for investigation, and is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). Complainant also argues that the Supervisor’s general statements regarding her 2019 performance evaluation are not sufficient to rebut the inference of discrimination (claim 11). However, as described above, we find that the Supervisor’s responses to this claim, such as the specific deficiencies in Complainant’s performance, were more than the “bare and conclusory statements” that Complainant alleges. Complainant Appeal Brief at 46. Further, Complainant’s belief that she should have received a higher rating is insufficient to establish pretext for discrimination. Regarding claim 13, Complainant avers that the Laboratory Director increased her purchase card limit from $4,999 to $50,000, but she cites to no evidence in the record to support her contention. Complainant Appeal Brief at 54. Complainant also asserts pretext for the Letter of Caution (claim 19), because Georgia law does not require her coworkers’ permission to record their conversations. However, the Agency issued the Letter of Caution because Complainant’s conduct was in violation of Department Regulation 4070-735-001 §11(h) and (i). Supplemental ROI at 283. In response to claim 22, Complainant argues that the Agency only provided vague reasons for the Supervisor’s denial of Complainant’s sick leave request on February 14, 2020. Complainant Appeal Brief at 58. However, the record clearly shows that the Research Leader denied Complainant’s request because her shifting reasons raised doubts for the true reason for her sick leave request. 2022003111 16 We find that Complainant did not show that the proffered reasons for claims 1-6, 9-11, 13, 15, 16, 19-20, and 22, are not worthy of belief and her bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, or sex, or in reprisal for prior protected EEO activity, for claims 1-6, 9-11, 13, 15, 16, 19-20, and 22. Mixed Motive (Claim 14) For claim 14, we find that there is evidence of a retaliatory motive when the Supervisor denied Complainant’s request for a promotion on July 2, 2019. Specifically, the Supervisor stated that Complainant “spent too much time working on her EEO case,” and that she “wasn’t putting enough time into her laboratory work or learning advanced techniques to qualify her for a GS- 09.” Supervisor Declaration.7 Cases where there is evidence that discrimination or unlawful retaliation was one of multiple motivating factors for an employment action - that is, the employer acted on the bases of both lawful and unlawful reasons - are known as “mixed motive” cases. Once an employee demonstrates that discrimination was a motivating factor in the employer’s action, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep’t of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). If the employer is able to meet this burden, the employee is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, and/or back pay. But the employee may be entitled to declaratory relief, injunctive relief, attorneys’ fees, or costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). To meet its burden, the employer must offer objective evidence that it would have taken the same action even absent the discrimination. In this showing, the employer must produce proof of a legitimate reason for the action that actually motivated it at the time of the decision. A mere assertion of a legitimate motive, without additional evidence proving that this motive was a factor in the decision and that it would independently have produced the same result, is not sufficient. The employer must prove “that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same employment action.” Price Waterhouse, 490 U.S. at 276-77 (O’Connor J., concurring). Here, we find that the Agency provided objective evidence that it would have taken the same action, absent any retaliatory motive. 7 The Agency submitted the Supervisor’s Declaration as an unlabeled exhibit with its Opposition to Complainant’s Motion for Partial Summary Judgment. We note that the declaration is undated and unsigned, but the Agency did not dispute that the Supervisor made the statements. 2022003111 17 The Research Leader corroborated the Supervisor’s explanation that Complainant had not met the criteria for promotion in July 2019, noting Complainant had missed meetings for training and research, and there was a lack of progress in her development of skills for promotion. ROI 2 at 455-6. As such, we find that Complainant is not entitled to personal relief such as a retroactive promotion. However, the Agency will be ordered to take certain actions as a result of this mixed motive finding, as set forth in the Order below. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases for claims 8-13, 15, 16, 18-20, and 22.8 Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of these actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based her age, disability, or sex, or in reprisal for prior protected EEO activity, for claims 8-13, 15, 16, 18-20, and 22. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to protected classes based on her age, disability, sex, and prior EEO activity, and that she was subjected to unwelcome verbal conduct. For incident 17(b), Complainant alleged that the Supervisor and the Laboratory Director suggested that she withdraw her EEO complaint and pursue a desk audit on October 30, 2019. ROI 2 at 274. The Supervisor denied suggesting that Complainant withdraw her EEO complaint and stated that he suggested a desk audit as a way to possibly reclassify her position, per her wishes. ROI 2 at 346- 7. The Laboratory Director denied speaking with Complainant about any of her EEO complaints, except through the EEO process. ROI 2 at 406. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't 8 Complainant did not allege harassment for claims 1-7. 2022003111 18 of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). In addition to denying making any statements about Complainant’s EEO complaints, the Laboratory Director did not witness the Supervisor, or any other management official, making the alleged statements, and we find that she has not met her burden to establish that the Supervisor or Laboratory Director made comments about her EEO activity on October 30, 2019. ROI 2 at 406. For incidents 21(a) and 21(b), we find that Complainant did not prove that they were due to a protected basis. Complainant alleged harassment when she was required to provide daily updates on her work (incident 21(a)). However, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). We note that the requirement to provide daily updates was a result of Complainant’s request for a reasonable accommodation, and there is no evidence that the work-related incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. Regarding incident 21(b), Complainant asserted that her relationships with Coworker 1 and Coworker 2 changed from friendly to distanced. Complainant contended that the Laboratory Director spoke with Coworker 1, and that he possibly directed Coworker 1 to not talk to Complainant. She also alleged that Coworker 2 was “best friends” with the Supervisor. ROI 2 at 294. However, Complainant provided no more than speculation that the changes in her relationships with her coworkers were due to any management action. Coworker 1 stated that he had no direct knowledge of management’s actions involving Complainant, and when Complainant contacted him via email, he was unable to respond due to time constraints by being in the lab away from communication devices. Coworker 1 Affidavit at 4-5. Coworker 2 responded that her knowledge of Complainant’s harassment allegation involved the secret recording of their conversation, which Coworker 2 reported to management officials. Coworker 2 Affidavit at 5. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on age, disability, or sex, or in reprisal for prior protected EEO activity, for incidents 17(b), 21(a), or 21(b). For incident 17(a), we find that Complainant established that she was subjected to retaliatory harassment when the Supervisor stated that she spent too much time on her EEO case. As noted above, the Supervisor confirmed that he stated that “Complainant spent too much time working on her EEO case.” Supervisor Declaration. 2022003111 19 To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find that the Supervisor’s comment that Complainant spent too much time on her EEO complaint was clearly based on her protected activity and would reasonably chill EEO activity. The Supervisor explained that his statement “was in the context of time management.” Supervisor Declaration. However, given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions of Title VII, the Commission has found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, the Commission has found that a supervisor attempting to counsel an employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), request for recon. denied, EEOC Request No. 0520090560 (Aug. 21, 2009). Accordingly, we find that Complainant established retaliatory harassment for incident 17(a). 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 findings of no discrimination on any basis for claims 1-13, 15, 16, 17(b), and 18-23. However, we REVERSE the Agency’s findings for claims 14 and 17(a), and we ORDER the Agency to provide the remedies specified in the Order herein. ORDER The Agency is ordered to take the following remedial action: 1. Within 90 days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s claim of compensatory damages related to our finding that Complainant was subjected to unlawful retaliation in claim 17(a).9 The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep’t of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. 9 The Agency should not consider compensatory damages for claim 14 because we have determined that Complainant was not entitled to personal relief for this claim based on the mixed motive analysis. 2022003111 20 2. The Agency shall issue a final decision addressing the issue of compensatory damages no later than 30 days after the completion of the investigation. 3. Complainant is entitled to an award of reasonable attorney's fees incurred in the processing of claims 14 and 17(a) of the complaint. Complainant’s attorney shall submit a verified statement of fees to the Agency - not to the Equal Employment Opportunity Commission, Office of Federal Operations - within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 4. Within 90 days of the date this decision is issued, the Agency shall provide four (4) hours of interactive EEO training to the Supervisor,10 with an emphasis on the Agency’s obligation to avoid retaliation against employees who have engaged in protected EEO activity. 5. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the Supervisor. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management official has left the Agency’s employment, then the Agency shall furnish documentation of his departure date. 6. Within 30 days of the date this decision is issued, the Agency shall post notices in accordance with the paragraph below. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of evidence that the corrective action has been implemented. 10 The Supervisor’s identity can be found on page 579 of ROI 1. 2022003111 21 POSTING ORDER (G0617) The Agency is ordered to post at its Agricultural Research Service Poultry Research Center in Athens, Georgia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022003111 22 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022003111 23 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 8, 2023 Date