[Redacted], Angela R., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2022002317 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angela R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2022002317 Hearing No. 570-2020-00374X Agency No. NGAE-0035-2018 DECISION On March 17, 2022, 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 February 11, 2022, final decision 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., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, IA-0000-04 at the Agency’s Office of Contract Services Policy Office in Springfield, Virginia. On June 20, 2018, Complainant filed an EEO complaint. Complainant subsequently amended her complaint five times. Complainant alleged that the Agency discriminated against her in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2022002317 2 1. On March 14, 2018, Supervisor-1 accused Complainant of reassigning Complainant’s work to Coworker-1; 2. On February 13, 2018, Complainant was not recognized for work Complainant accomplished; 3. On January 19, 2018, Complainant’s request for compensatory time was not approved; 4. On January 18, 2018, during a quarterly feedback self-assessment feedback session held with Supervisor-1, Supervisor-2, and an HD representative, the session became adversarial, and Complainant felt as though she had to defend her position; 5. In December 2017, Supervisor-1 made it difficult for Complainant to respond to requests for information related to Complainant’s prior EEO complaint; 6. In December 2017, Supervisor-1 accused Complainant of not setting up a Warrant Board briefing; 7. In December 2017, Supervisor-1 placed extreme urgency on the protest data Complainant was working, even though the data was not used until four months later; 8. On December 14, 2017, after informing Supervisor-1 that Complainant’s pending leave requests need to remain in that status in PeopleSoft, Supervisor-1 changed the status to approved; 9. On November 2, 2017, Supervisor-1 told Complainant to find another job outside of the Agency; 10. On November 2, 2017, Supervisor-1 failed to change Complainant’s Fiscal Year (FY) 2017 performance evaluation even though she agreed to make the change; 11. On November 1, 2017, Complainant’s performance evaluation feedback session was changed four times and was eventually held 30 days after the rating period ended; 12. On May 11, 2017, Supervisor-1 informed Complainant that Complainant was not updating Complainant’s leave on Complainant’s leave calendar; 13. On April 4, 2017, Supervisor-1 became upset and shouted, “It’s your responsibility to keep copies of all FAR2/DFARS3 and to secure and account for them;” 14. On March 23, 2017, Supervisor-1 informed Complainant that Complainant did not perform the purchase FAR/DFARS in a timely manner; 15. On March 21, 2017, Complainant received a generic performance evaluation plan that was geared towards the buying organization and lacked quantifiable objectives; 16. On September 17, 2018, Complainant’s managers consistently refused to assign Complainant responsibilities that are commensurate with Complainant’s skills and experience and assigned Complainant Contract Officer Representative (COR) duties; 17. On February 14, 2019, Complainant received a three-day suspension; 18. On February 14, 2019, during a staff meeting, Manager-1 defamed Complainant’s character by calling Complainant incompetent and pathetic in the presence of other employees; 19. On or about April 1, 2019, Complainant was placed on an Opportunity for Improvement Plan (OIP); 20. On April 10, 2019, Complainant learned that Supervisor-3, a non-contracting 2 Federal Acquisition Regulation (FAR) 3 Defense of Federal Acquisition Regulation (DFARS) 2022002317 3 professional, was placed as Complainant’s supervisor by Supervisor-2, Supervisor-4, Supervisor-5, and Manager-2; 21. On April 22, 2019, Complainant learned that Complainant’s leadership in Office of Contract Services (OCS) was sending less qualified employees or contractors on temporary duty to provide training, while providing Complainant with menial tasks; 22. On April 16, 2019, Complainant learned that OCS management took responsibilities from Complainant and gave them to other employees in an effort to provide them with developmental opportunities to make them more competitive for promotion; 23. On April 17, 2019, Supervisor-3 denied Complainant’s request for a reasonable accommodation; and 24. On or about April 17, 2019, OCS management took away Complainant’s incentive bonus before giving Complainant a three-day suspension that Complainant disputed. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The following Agency employees are relevant to this complaint: Complainant’s first-line supervisor from December 2016 to December 22, 2018 (Supervisor-1); Complainant’s second line-supervisor (Supervisor-2); Complainant’s first-line supervisor beginning December 23, 2018 (Supervisor-3); a fellow Contract Specialist (Coworker-1); a colleague with an unidentified position (Coworker-2); a Supervisory Contract Specialist not in Complainant’s chain of command (Manager-1); Complainant’s third-level supervisor (Supervisor-4); Complainant’s fourth-level supervisor (Supervisor-5); and a Contracting Career Services Manager who is not in Complainant’s chain of command (Manager-2). Regarding claim 1, Complainant reported that she asked Coworker-1 to follow up on one Freedom of Information Act (FOIA) request. Complainant stated that she was the FOIA point of contact and that Coworker-1 was the alternate FOIA point of contact. Complainant stated that asking Coworker-1 to follow up on one FOIA report was not reassigning work because Complainant had already performed all of the groundwork. Complainant reported that Supervisor-1 told Complainant not to pass work on to Coworker-1. Complainant characterized the communication as an accusation. Supervisor-1 denied making the accusation. Supervisor-1 reported asking Complainant to have all work come through Supervisor-1 so that Supervisor-1 could balance the workload with available staff. Supervisor-1 stated that her concern was the workload assigned to Coworker-1 and maintaining Coworker-1’s work-life balance. 2022002317 4 Regarding claim 2, Complainant reported that she was the primary Agency employee working on the ORBIT project. Complainant stated that she provided over 85 percent of the information for the project. Complainant indicated, however, that the secondary employee working on the project was assigned to present the project at the Field Management All Hands meeting. Complainant characterized the non-selection (as presenter) as a denial of a leadership role and the downplaying of her input. Complainant admitted that, ultimately, she was the one who made the presentation. Supervisor-1 stated that she did not have any input into the selection of the panel members and that Complainant was the speaker on the ORBIT project. Regarding claim 3, Complainant reported that she followed appropriate procedure for requesting compensatory time. Complainant stated that she did not remember if she was told verbally or in writing that the time was not approved. Supervisor-1 stated that to the best of her knowledge she approved all compensatory time requests. Supervisor-1 reported that OCS management is very understanding with extra hours worked because of being understaffed. Supervisor-1 stated that compensatory time is routinely approved. Regarding claim 4, Complainant stated that Supervisor-1 provided a written evaluation of Complainant’s performance at the feedback session. Complainant reported that the evaluation “conflicted tremendously” with Complainant’s self-assessment. Complainant indicated that when she tried to explain that most of what Supervisor-1 had written was “watered down,” it became adversarial. Complainant stated that Supervisor-1 became loud in defending her position. Supervisor-1 stated that the meeting was not adversarial. Supervisor-1 indicated that the purpose of the feedback session is to help people understand where they are and what they need to work on to be successful. Supervisor-2 stated that Complainant received positive feedback on her customer service ability and her ability to speak to senior management and staff. Supervisor-2 reported that Complainant received feedback that her written communication and critical thinking skills needed work. Supervisor-2 described Complainant feeling that this was not the case and becoming defensive. Supervisor-2 reported that Complainant made statements indicating that the position was less than what she thought it should be and it was not doing anything to enhance her career. Regarding claim 5, Complainant stated that every time she had to deal with an EEO issue, she was required to get supervisory approval. Complainant reported that Supervisor-1 told Complainant she had to talk to the EEO point of contact to get documentation that she was allowed to work on her EEO complaint. Complainant stated that she should not have to go to someone else to ask for documentation for approval when it was under Supervisor-1’s authority to approve/disapprove the time. Supervisor-1 stated that Complainant reported needing official time for an EEO matter. Supervisor-1 denied knowing the specifics or that Complainant was filing a complaint. Supervisor-1 reported reaching out to an Agency employee in the EEO office. Supervisor-1 stated that the EEO official told her to grant the request if it was reasonable. 2022002317 5 Supervisor-1 stated that following the receipt of that advice, she granted Complainant’s requests. Supervisor-1 denied making it difficult for Complainant. Supervisor-1 stated she was just verifying the rules and regulations. Regarding claim 6, Complainant stated that Supervisor-1 tasked Complainant with setting up the conference room for the warrant board briefing. She reported that Supervisor-1 did not provide much instruction. Complainant stated that Supervisor-1 accused Complainant of not setting up the briefing room instead of asking Complainant whether the briefing was organized. Complainant characterized the communication as intimidation. Supervisor-1 stated that setting up the warrant board briefing is a normal part of Complainant’s duties. Supervisor-1 described asking Complainant the status of the briefing and Supervisor-1 denied making any accusation. Regarding claim 7, Complainant reported that the Agency Acquisition Regulation Instruction provides guidelines on how to complete the protest data. Complainant described Supervisor-2 requesting Complainant and a coworker come up with ideas to streamline the process. Complainant stated that Supervisor-1 then pushed the agenda to a timeline that Supervisor-1 set. Supervisor-1 stated that she wanted Complainant to procure the data as soon as possible because the Director of OCS had not received the protest data for quite some time. Supervisor-1 reported that the data was not used for four months because there were some changes in the Policy Board dates and that this was explained to Complainant. Regarding claim 8, Complainant stated that the leave requests were originally submitted to her previous supervisor. Complainant stated that she had to keep these requests in the system to support her previous EEO case. Complainant reported that Supervisor-1 knew of her previous EEO matter. Complainant reported that Supervisor-1 told her the requests needed to be out of the system. Complainant stated that she was harmed because if she cannot provide supporting documentation, she has no evidence of mismanagement. She reported feeling that Supervisor-1 was trying to destroy evidence. Supervisor-1 stated that Complainant had two pending leave requests and that Complainant had informed Supervisor-1 that they needed to remain pending. Supervisor-1 reported that Complainant did not tell her why the requests needed to remain pending. Supervisor-1 stated that the requests remained pending for almost a year. Supervisor-1 reported mistakenly changing one of the requests to approved status and that she immediately informed Complainant of the mistake. Supervisor-1 stated that it occurred because she was rushing to get other staff requests approved and unintentionally included Complainant’s request with the others. Regarding claim 9, Complainant reported that the comment occurred the day after she received her performance evaluation. Complainant stated that Supervisor-1 told Complainant, “[Complainant] should consider finding another job outside of [the Agency].” Supervisor-1 reported that she had a conversation with Complainant where Complainant described being unhappy and miserable. 2022002317 6 Supervisor-1 stated that Complainant commented that the Agency did not do things right. Supervisor-1 reported responding that Complainant could go anywhere with her skill set and that there was no reason to be in a job where she was unhappy. Supervisor-1 reported that the comment was made because she cared for Complainant as a person and as an employee. Regarding claim 10, Complainant reported that Supervisor-1 agreed to increase Complainant’s rating from the original 3.2. Complainant stated that Supervisor-1 was not specific about what areas of the evaluation she was going to change. Complainant stated that she informed Supervisor-1 that the rating did not support Complainant’s caliber of work throughout the evaluation period. Complainant described going through the reconsideration process to get her rating change and that it was a grueling four-month process. Supervisor-1 denied agreeing to make changes to Complainant’s FY 2017 performance evaluation. Supervisor-1 stated that she told Complainant that there was a reconsideration procedure which Complainant must request. Supervisor-1 noted that she does not have the authority to change the performance evaluation. Regarding claim 11, Complainant stated that Supervisor-1 changed the timing of the feedback session. Complainant reported that Supervisor-1 provided feedback to other personnel under her supervision before Complainant. Complainant did not consider her feedback session to be timely. Supervisor-1 admitted that the feedback session was changed four times. Supervisor-1 noted that one change was at Complainant’s request. Supervisor-1 stated that the date of the feedback session changed due to work priorities and that she explained the reason for the change to Complainant in each instance. Regarding claim 12, Complainant reported responding in an email to show that she had updated her calendar. Complainant stated that there were no specific guidelines for updating the calendar but only a precedent. Complainant reported that at the time of the accusation there was no written policy. Supervisor-1 admitted to telling Complainant that Complainant was not updating her leave on the calendar. Supervisor-1 stated that the calendar is an important tool and safety issue that allows management to see if an employee is on leave. Supervisor-1 reported that if an employee’s leave is not on the calendar and management does not know where that employee is, they start to check on the employee’s whereabouts to ensure the employee is safe and not in a critical situation. Regarding claim 13, Complainant stated that Supervisor-1 became upset and shouted because an employee needed another copy of the FAR/DFAR. Complainant reported placing a copy of both the FAR/DFAR on each employees’ desk. Complainant stated that Coworker-2 returned to the office from leave and was missing a copy of one of the regulations. Coworker-2 did not state whether Supervisor-1 shouted at Complainant. Coworker-2 stated that the way Supervisor-1 spoke to Complainant was hostile, unfair, and not called for in the situation. Coworker-2 stated that Supervisor-1 is known to be kind of aggressive and forceful with everyone. 2022002317 7 Supervisor-1 denied shouting at Complainant. Supervisor-1 stated that her voice does carry but that she did not shout. Supervisor-1 noted that providing a copy of the regulations to employees, if they want one, is a duty assigned to Complainant. Regarding claim 14, Complainant stated that Office of Contract Services (OCS) did not have a time frame for performing the purchases and that Supervisor-1 had not set a timeframe for it. Complainant stated that Supervisor-1 made an arbitrary statement without any metrics to support it. Supervisor-1 admits to making the statement. Supervisor-1 stated that she received information that the purchase could be made within three weeks. Supervisor-1 reported that the purchase was assigned to Complainant but that a different employee eventually made the purchase. Supervisor-1 stated that Complainant reported being too busy to make the purchase in that time frame. Regarding claim 15, Complainant stated that the objectives were not quantifiable because they were just broad statements and there was no way to measure them. Supervisor-1 stated that the head of OCS decided that all persons in the 1102 job description would receive the same performance plan. Supervisor-1 stated that Complainant received the same plan as others in her job series. Supervisor-1 reported that OCS Policy currently has a different plan that is more specific and has measurable standards. Regarding claim 16, Complainant stated that COR duties are entry level and a downgrade on her resume. Complainant reported that she has over 25 years of contracting experience and that a COR is an individual who is not trained in the contracting field and does not have the qualifications of a Contracting Specialist. Complainant stated that she worked on voluminous menial tasks and that such duties would reduce her ability to be selected for future assignments. Supervisor-2 explained that recent departures in OCS created a need to cover the COR responsibilities. Supervisor-2 reported that the Agency requires the work an employee receives to be commensurate with that employee’s pay band level and that the COR duties matched Complainant’s pay band 4 level. Supervisor-2 noted that work assignments are at a supervisor’s discretion and generally based on needs and an employee’s skill set. Supervisor-2 stated that Complainant had some of the skills and experience needed to perform the position. Supervisor-2 stated that the characterization of the COR duties as insignificant and not commensurate with Complainant’s skills is incorrect. Supervisor-2 explained that the COR position Complainant held was important and that the previous employee who held the position went on to be a Division Chief in OCS. Supervisor-2 stated that the position gave Complainant more visibility with senior management. Regarding claim 17, Supervisor-4 affirmed a proposed three-day suspension of Complainant effective February 14, 2019. The two charges in support of the suspension were conduct unbecoming of a federal employee and insubordination. The conduct referenced in the first charge was an email Complainant sent on November 27, 2018. Complainant instructed a colleague to approve access to an Agency system for two contractors and Complainant courtesy copied one of those contractors on the email. 2022002317 8 Complainant also wrote, “I know that you might be instructed to do otherwise but please know I was thrown into the COR position with limited training on these NGA systems.” Supervisor-4 noted that the email resulted in another Agency employee performing work that had been assigned to Complainant and served to undermine the authority of another federal employee in front of a contractor, which constituted conduct unbecoming of a federal employee. Regarding the charge of insubordination, Complainant failed to comply with a formal order to sign the COR designation memorandum by a certain date. Complainant contends that the suspension was unjustified. When Complainant appealed the proposed suspension, Complainant admitted to sending the November 27, 2018 email and to not signing the COR designation memorandum. Regarding claim 18, Complainant stated that two individuals, who she declined to identify, informed her that Manager-1 made the derogatory statements. Complainant reported that she was not present at the meeting. Manager-1 denied making the statements. Manager-1 stated that she does not know Complainant or Complainant’s work and would have no reason to make such statements. Regarding claim 19, Complainant reported that Supervisor-2 and Supervisor-3 told her they placed her on an OIP to ensure she took the upcoming warrant test. She reported a belief that the real reason was retaliation for her EEO complaints. Supervisor-3 explained that Complainant had to sign a COR designation memorandum and obtain her warrant to successfully perform her duties. Supervisor-3 noted that Complainant’s performance plan specifically listed a warrant as required, but that she did not have one at that time. Supervisor-3 reported meeting with Complainant in March 2019, to provide her with reminders of these responsibilities. Supervisor- 3 stated that Complainant reiterated that she would not sign the COR Designation Letter nor obtain a warrant. Supervisor-3 described working with Human Resources to initiate an OIP because Complainant was still not performing her Program Management duties or taking any action to get her warrant. Regarding claim 20, Complainant contends that Supervisor-3 is not qualified under the Defense Acquisition Workforce and Improvement Act (DAWIA) to supervise contracting professionals. Complainant contends that a supervisor must have five subordinate personnel, but that Supervisor-3 only supervised Complainant. Supervisor-2 explained that Supervisor-3 was selected for the position because Supervisor-3 was qualified and the most highly rated candidate for the position. Supervisor-2 noted that Supervisor-3 was a well-respected COR in the Agency with a deep understanding of acquisitions who had received many awards for his work. Supervisor-2 explained that Supervisor-3 was chosen through the Marketplace and by a hiring panel. Supervisor-3 reported that he is DAWIA certified in Program Management and Production Quality Management. He noted that he has worked directly with contracting for the Agency since 1994, and that he had served as a COR for many years. 2022002317 9 Regarding claim 21, Complainant stated that she volunteered to work on an OCS contracting training program to help develop the workforce. Complainant reported that she was pushed out of that opportunity while other people were tasked to provide the training. Complainant stated that she continuously requested training and developmental opportunities but that these were often denied. Complainant provided examples of Program Management training, Small Business Qualification training, National Contract Management Association training, and a Senior Executive Qualification course. We note that Complainant did not clarify what menial tasks meant with regard to this claim. Supervisor-3 explained that contractors are not typically sent to training on government funds. Supervisor-3 provided examples where Complainant requested to attend training in California or Florida. Supervisor-3 stated that the training in California that Complainant requested was geared for small business owners trying to get contracts with the Air Force, which was not relevant to Agency contracting. Regarding claim 22, Complainant provided the example of a task that came in through N- CERTS, the tracking system used to track Agency suspenses, Complainant reported performing all the research, coordinating the information, and submitting the package, but that she was instructed to provide the package to a colleague who then took credit for Complainant’s work. Supervisor-2 explained that the work that was distributed to other personnel was due to the expansion of a team’s duties. Supervisor-2 noted that the duties Complainant referred to were minor activities and few in number. Regarding claim 23, on March 21, 2019, Complainant submitted the relevant paperwork to request a reasonable accommodation. In the documents, she requested that she be assigned to a different supervisor as a reasonable accommodation. The Agency’s Office of Diversity, Inclusion, and Equal Employment Opportunity (ODE) reviewed the application and attached physician’s note. ODE instructed Supervisor-3 to engage Complainant in an interactive process to find a reasonable accommodation to address Complainant’s claimed disability. On April 16, 2019, Supervisor-3 met with Complainant, and she requested a different job or a different supervisor as a reasonable accommodation. While at the meeting, Complainant admitted that she could perform the essential functions of her current position with or without reasonable accommodation. Supervisor-3 determined that there was not an identifiable reasonable accommodation for Complainant and documented this determination and the process for how it was reached in a memorandum for the record dated May 7, 2019. Regarding claim 24, Complainant stated that Supervisor-2 met with her in March 2019, and informed her that she would not qualify for the contracting incentive bonus due to her suspension. Complainant reported that management manufactured information to ensure she is not eligible for the incentive bonus. Supervisor-3 explained that the retention bonus is paid quarterly to supplement salaries and keep positions filled. Supervisor-3 noted that there is a list of requirements to qualify for the bonus which includes that the employee cannot have any disciplinary actions. Supervisor-3 stated that Complainant did not qualify because of the three- day suspension in February 2019, which is the subject of claim 17. 2022002317 10 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). 2022002317 11 To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged basis. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions at issue. Regarding claim 3, Supervisor-1 stated that to the best of her knowledge she approved all compensatory time requests. Supervisor-1 reported that OCS management is very understanding with extra hours worked because of being understaffed. Supervisor-1 stated that compensatory time is routinely approved. Complainant failed to produce any persuasive evidence that she was denied compensatory time. Regarding claim 10, Supervisor-1 explained that she does not have the authority to change the performance evaluation. Supervisor-1 also stated that she did not agree to make the changes. Regarding claim 16, Supervisor-2 explained that the Agency needed to cover the COR responsibilities due to recent departures in OCS. Supervisor-2 noted that the COR duties matched Complainant’s pay band level, thus were appropriate for her, and that the position was an important one. Regarding claim 17, Complainant was suspended for conduct unbecoming of a federal employee and insubordination. The record shows that Complainant admitted to the conduct that formed the foundation for both charges. Regarding claim 19, it is not in dispute that the Supervisor-2 and Supervisor-3 advised Complainant that the OIP was issued to ensure that Complainant took the upcoming warrant test which was a requirement to perform Complainant’s responsibilities. Complainant had previously missed the test despite advanced notice of the test and the job requirement. Regarding claim 21, Supervisor-3 explained that contractors are not typically sent to training on government funds. Supervisor-3 provided an example of how the training Complainant requested was not related to her position. Regarding claim 22, Supervisor-2 explained that the work was distributed to other personnel due to an expansion of a team’s duties. Supervisor-2 characterized the tasks as minor and few in number. 2022002317 12 Regarding claim 24, Supervisor-3 explained that there is a list of requirements to qualify for the retention bonus which includes that the employee cannot have any disciplinary actions. Supervisor-3 noted that Complainant did not qualify because of the three-day suspension from February 2019. We find Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment actions were a mere pretext for discrimination. Regarding Complainant’s claim of harassment, we find Complainant failed to prove that the conduct complained of was based on Complainant’s membership in a statutorily protected class. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. Official Time (Claim 5) EEOC Regulation 29 CFR § 1614.605 (b) requires, in part, the agency to provide a reasonable amount of official time for the complaint to prepare the complaint and to respond to requests for information. Complainant reported that Supervisor-1 required Complainant to get supervisory approval prior to every time Complainant had to deal with an EEO issue. Complainant stated that Supervisor-1 had to verify what was necessary when an individual requested time to work on an EEO complaint. Supervisor-1 clarified that she was unsure about the requirement when an individual requests official time for an EEO matter. Supervisor-1 stated that once she received guidance that reasonable requests should be granted, she granted Complainant’s requests. Complainant does not dispute that she received official time to work on the prior EEO complaint. We find there is no violation of 29 CFR § 1614.605(b). Reasonable Accommodation (claim 23) The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). Under the Commission’s regulations, 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. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A request for a reassignment to a new supervisor does not constitute a request for a reasonable accommodation. See Complainant v. Dep’t of Defense, EEOC Appeal No. 0120160652 (May 16, 2018). 2022002317 13 Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable complainant to perform the essential functions of his current position or all other reasonable accommodations would impose an undue hardship. See Complainant v. Soc. Sec. Admin., EEOC Appeal No. 2021002133 (August 3, 2022). Complainant has not alleged disability discrimination. Furthermore, she has not contested the definition of the complaint or claim 23. Thus, there can be no finding that Complainant was denied a reasonable accommodation. Complainant requested a new supervisor as an accommodation. We find no evidence that the Agency’s inaction in reassigning her to a new supervisor was motivated by retaliation. Even if we analyzed the matter as a denial of a reasonable accommodation based on her disability, Complainant would not be entitled to such an accommodation. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022002317 14 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). 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 (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. 2022002317 15 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 February 21, 2023 Date