[Redacted], Kendra W., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

May 4, 2022

Appeal No. 2021000801 (E.E.O.C. May. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kendra W.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021000801 Hearing No. 570-2017-00933X Agency No. DOI-OS-16-0608 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 30, 2020 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Contract Specialist, GS-1102-09, in the Agency’s Acquisition Management Branch (AMB), Acquisition Services Division (ASD), Interior Business Center (IBC), Office of the Secretary (OS), in Herndon, Virginia. On December 16, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (Post Traumatic Stress Disorder, Anxiety Disorder and depression) and reprisal (prior protected EEO activity) when: (1) on September 14, 2016, she was terminated from her position as a Contract Specialist, at the GS-1109-9 level for failing to demonstrate her fitness and qualifications for continued employment with the Agency; and (2) from September 15, 2015 to September 14, 2016, management failed to appropriately accommodate her disability. 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. 2021000801 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding her termination during her probationary period, Complainant’s first-level supervisor (S1) provided numerous examples of Complainant’s performance deficiencies, including but not limited to: lack of communication with her supervisor team lead, and coworkers; inability to complete assignments within expected timeframes; poor time management; and inability to process a high volume of invoices. S1 added that Complainant was informed of these performance deficiencies at her mid-year progress review on April 27, 2016, at which time she also provided information to Complainant’s team lead and Complainant’s Vocational Rehabilitation coach to discuss additional ways to support Complainant and help her succeed. Additionally, S1 explained that Complainant requested leave on September 2 and 6, 2016 (the workdays surrounding the Labor Day holiday), and S1 informed Complainant that new employees had been notified that they were under a leave restriction for the month of September due to demands associated with the final quarter of the fiscal year. Despite this instruction, Complainant failed to show up to work on September 2 and 6, 2016, when her leave request had been denied, and she was therefore charged as absent without leave. The AJ concluded that Complainant failed to show that these reasons were pretextual. With respect to her denial of reasonable accommodation claim, the AJ found that the record demonstrated that Complainant requested a number of accommodations on various dates including, headphones, bathroom breaks, the ability to get fresh air and stretch, time off and telework to accommodate medical appointments, and a Livescribe pen. In some instances, Complainant’s accommodation requests were granted within weeks, and the longest approval took two months. Complainant failed to show that Agency management unreasonably delayed granting the accommodations. The AJ found that the only request for accommodation that was not granted as it was requested was Complainant’s request for a Livescribe pen due to security and encryption concerns. In the alternative, the Agency provided Complainant a digital recording device. Complainant failed to demonstrate that the granted alternative reasonable accommodation was ineffective. As a result, the AJ found that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence, is such that a reasonable fact finder could find in favor of the non- moving party. 2021000801 3 Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021000801 4 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). 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. 2021000801 5 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 May 4, 2022 Date