[Redacted], Linda A., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022000831 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linda A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000831 Hearing No. 570-2021-00683X Agency No. ARCEHECSA20FEB01152 DECISION On December 1, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Two days after Complainant filed her appeal, the Agency issued a final order implementing the EEOC Administrative Judge (AJ)’s finding no discrimination.2 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. 2 Though Complainant filed her appeal prematurely, we find that her appeal is ripe upon the Agency’s issuance of its final decision. See Mirta L. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001116 (Mar. 23, 2021) (finding premature appeal to be perfected upon the issuance of the agency’s final decision). 2022000831 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Procurement Analyst, GS-1102-14, at the Agency’s Directorate of Contracting in Washington, D.C. As a Procurement Analyst, Complainant’s duties included developing and implementing various acquisitions programs, interpreting higher-level contracting policies and directives, providing guidance and assistance to contracting personnel, reviewing proposed acquisition regulations, and participating in the implementation of formal contracting training programs. See Report of Investigation (ROI) at 74-80. She was directly supervised by the Chief of Strategic Operations (Chief).3 Id. at 106 and 121. The Director of Contracting (Director) led the directorate and served as Complainant’s fourth level supervisor. Id.4 In June 2019, Complainant was hospitalized due to an undiagnosed condition and took leave for approximately six weeks. See ROI at 133. According to Complainant, when she returned to work, the Chief’s “initial response was for [Complainant] to get the help [that she needed] and to make sure that [she] had the tools need[ed] to telework and guidelines for telework.” Id. at 111. The Chief ultimately allowed Complainant to telework beginning October 11, 2019, after receiving a medical note from Complainant’s medical provider that indicated that Complainant had a medical need to telework. Id. at 72. In November 2019, the Chief allegedly informed Complainant over the telephone that she would be sending reasonable accommodation forms to her because the Chief had allegedly gotten into trouble for accepting notes from Complainant’s physicians. See ROI at 44 and 108. The following month, the Chief formally notified Complainant by memorandum dated December 5, 2019, that if Complainant wished to continue full-time telework, Complainant needed to submit a formal request for reasonable accommodation no later than January 6, 2020. Id. at 49. Complainant timely submitted the request and provided medical documentation in support of her request, which indicated that Complainant could not drive or engage in prolonged standing due to frequent dizziness, chronic headaches, cervical radiculopathy, and impaired fasting glucose. Id. at 73. On January 31, 2020, the Director issued a memorandum instituting a new directorate-wide telework policy. ROI at 84-87. In issuing the memorandum, the Director expressed her desire to utilize telework to allow for “discretionary workplace flexibility.” Id. However, the Director emphasized that telework was not an entitlement and categorically forbade supervisors, military, and administrative personnel and anyone on alternate work schedules from participating in regular and recurring telework. Id. The Director required employees desiring telework on medical grounds to file a separate request for “medical telework.” Id. 3 The Chief formally held the title of Supervisory Procurement Analyst. ROI at 120. 4 Though Complainant declared in her affidavit that the Director was her third level supervisor, we note that both the Chief and the Director maintained that the Director was Complainant’s fourth level supervisor. ROI at 121 and 128. 2022000831 3 Following the issuance of the Director’s memorandum, the Chief formally responded to Complainant’s request for reasonable accommodation on February 6, 2020. ROI at 83. While the Chief acknowledged that the effects of Complainant’s impairments caused Complainant to “experience frequent dizziness and have trouble driving and standing for prolonged periods of time,” the Chief determined that Complainant was not entitled to full-time telework as a reasonable accommodation “due to the existence of employee van pools commuting between [Complainant’s] residential area and [her] work site, [which provided Complainant] alternatives to driving daily to work.” Id. In denying Complainant’s request, the Chief emphasized that the needs of the office required Complainant’s in-person presence. Id. As Complainant worked an alternate work schedule, the Chief informed Complainant that Complainant was not eligible for telework under the new telework policy that the Director signed on January 31, 2020 and ordered her to report to work in-person by March 2, 2020. Id. On February 28, 2020, Complainant initiated EEO contact to begin the process for filing a discrimination complaint. ROI at 10. During the informal complaint process, the Director informed the Agency’s EEO Office that while she would not allow Complainant to telework full- time, she was willing to purchase a scooter for Complainant to get to work. Id. at 13 and 123. Complainant, however, declined the alternate accommodation and was “really bothered” by the proposal. Id. at 117-18. Complainant recalled that she specifically told the Director that she did not have the physical strength to get the scooter on and off or to get to the Uber and employee van pool vehicles that she needed to take each morning and evening. Id. She emphasized that she did not want to be responsible for a government owned scooter. Id. On May 4, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), color (black), age (over 40), sex (female), and disability (physical),5 when on February 6, 2020,6 she was denied a reasonable accommodation by her first and fourth level managers.7 During the EEO investigation, Complainant acknowledged that she was able to commute to work in person by using paid rideshare services, the employee van pool, and public transportation to get to the office; however, she noted that on her first day back to the office, she experienced “three episodes” while “working and walking around with [the Chief].” ROI at 11 and 107. 5 Though Complainant’s disability had not yet been diagnosed at the time of the EEO investigation, the record reflects that Complainant alleged that she experienced limited mobility as well as frequent dizziness, chronic headaches, cervical radiculopathy, and impaired fasting glucose. ROI at 73, 101, and 107. 6 The record shows that the Agency emailed Complainant its decision on her request for reasonable accommodation on February 6, 2020, not February 4, 2020, as indicated. ROI at 82- 83. 7 In the Agency’s notice of acceptance, the Agency incorrectly referred to Complainant’s fourth level supervisor as her second level supervisor. ROI at 33. We have reframed the claim to correct this error. 2022000831 4 Complainant recalled that the Chief volunteered to take her to the metro station to ensure her safety. Id. She emphasized that her duties could be performed at home and maintained that she “successfully completed all assignments and executed the mission requirements” and kept the Chief fully apprised of her activities while teleworking full-time. ROI at 110. Complainant asserted that the Chief treated her less favorably than similarly situated employees and maintained that the Chief’s decision to deny her request for reasonable accommodation unnecessarily placed her safety and life in jeopardy. Id. at 11 and 107 The Chief did not deny Complainant’s assertion that Complainant “was able to perform the essential functions of her position without accommodation” and acknowledged that she had allowed Complainant to telework “for a number of months” prior to Complainant’s request for reasonable accommodation. ROI at 123. The Chief emphasized, however, that she denied Complainant’s full-time telework as a reasonable accommodation because the medical documentation that Complainant provided “did not state that [Complainant] was unable to commute to the office.” Id. Given that Complainant “had previously taken a van pool and metro to the office,” the Chief determined that the Agency was not obligated to grant Complainant full- time telework as a reasonable accommodation. Id. The Director added that she did not make the decision to deny Complainant’s request for reasonable accommodation and maintained that she merely informed the Chief of the documentation that was needed to process the request. ROI at 130. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC AJ. In accordance with Complainant’s request, the matter was assigned to an AJ. On August 16, 2021, the AJ assigned to the matter determined sua sponte that the complaint did not warrant a hearing and consequently proposed to issue a decision without a hearing in favor of the Agency. The Agency responded to the AJ’s proposal by urging the AJ to rule in its favor on the grounds that it had effectively accommodated Complainant and did not subject her to disparate treatment. Complainant, however, vehemently opposed the AJ’s proposal. In arguing that the Agency unlawfully denied her reasonable accommodation, Complainant emphasized that her commute did not solely consist of the employee van pool. Complainant asserted that to get to work, she needed to use rideshare services to get to the employee van pool, which, in turn, took her to the metro station. She then walked 1.5 blocks from the metro station to her office. Complainant reiterated that her commute would cause her to experience “multiple episodes” and emphasized that “[s]ome episodes were so bad that [she] was off [her] feet for up to five days.” Given how her disability affected her mobility, Complainant argued that the offered accommodations were not effective. 2022000831 5 Furthermore, Complainant characterized the Director’s offer of a scooter, as a “blatant disregard for an understanding and intent of the physical burden that [she] would have to undergo in accepting the [reasonable accommodation] offer from [the Director].”8 Over Complainant’s objections, the AJ issued a decision on November 4, 2021, finding that the Agency’s denial of Complainant’s request for full time telework as a reasonable accommodation was not discriminatory because the Agency had legitimate, non-discriminatory reasons for denying Complainant’s request. In so finding, the AJ acknowledged that “Complainant disagreed wholly with management’s actions.” However, the AJ ultimately determined that Complainant failed to demonstrate pretext because her allegations were mostly based on her perception that the Director was “not a fan of telework” and nothing in the record showed that the Agency deviated from its established policies and procedures or treated Complainant less favorably than similarly situated employees. As the AJ found the offered alternate accommodations to be effective, the AJ concluded that the Agency did not engage in a discriminatory manner when it exercised its “ultimate discretion to choose between effective accommodations.” Complainant filed her appeal prior to the Agency’s issuance of a final order. Two days later, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of her appeal. The Agency opposes the appeal and requests that we affirm its final order. In so arguing, the Agency maintains that it provided Complainant with effective alternate accommodations and did not subject her to disparate treatment. The Agency emphasizes that Complainant is not entitled to the accommodation of her choice. 8 We note that Complainant alleged in her opposition that the Chief subjected her to various acts of reprisal following her engaging in protected EEO activity, such as lowering her performance appraisal for Fiscal Year 2020. She alleged that despite her attempts to amend her complaint to include these allegations, the Agency failed to do so. While we are mindful of Complainant’s claims of reprisal, we are disinclined to remand the complaint as Complainant has not, on appeal, specifically challenged the AJ’s decision to only address the sole claim accepted by the Agency. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at Chap. 9, § IV.A.3 (Aug. 5, 2015) (noting Commission’s discretion to only review issues specifically raised on appeal). 2022000831 6 STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not done so. Accordingly, the AJ properly issued a summary judgment decision. 2022000831 7 After a careful review of the record, however, we find that the AJ erred in issuing a decision without a hearing in favor of the Agency. We note that the AJ, in finding no discrimination, appears to have applied the three-part disparate treatment analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to a claim alleging the denial of reasonable accommodation. While the McDonnell-Douglas analysis is appropriate when determining whether a complainant was subjected to disparate treatment based on his or her disability, a complainant does not have to prove that the agency was motivated by discriminatory animus to prevail on a claim concerning reasonable accommodation. Rather, 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) and (p). Complainant has the burden of proving, by a preponderance of the evidence, that she was a qualified individual with a disability. The Agency, in turn, has the burden of establishing undue hardship. In applying the proper standard, we agree with the AJ that summary judgment is indeed warranted, but we conclude that Complainant is the prevailing party for the reasons discussed below. Denial of Reasonable Accommodation 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) and (p). To prevail on her denial of reasonable accommodation claim, Complainant must show that: (1) she was an individual with a disability; (2) she was 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 (Reasonable Accommodation Guidance), No. 915.002 (Oct. 17, 2002). The threshold question is whether a complainant was an individual with a disability within the meaning of the regulations during the relevant period. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, and the operation of a major bodily function. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). As the record contains two medical opinions indicating that Complainant had 1) a medical need to telework, and 2) could not drive or engage in prolonged standing due to frequent dizziness, chronic headaches, cervical radiculopathy, and impaired fasting glucose, we find that she was an individual with a disability during the relevant period. ROI at 72-73. Complainant averred that her specific disability was not known at that time because, due to COVID-19, her Neurologist’s office had stopped testing. ROI at 107. 2022000831 8 However, she indicated that due to her dizziness and severe lightheadedness, she began to walk with a cane to make sure she did not fall. Id. Based on the evidence, we determine that Complainant is substantially limited in the major life activity of walking, as reflected in the fact that she used a cane to walk. See Latarsha A. v. Fed. Energy Regul. Comm’n., EEOC Appeal Nos. 0120123215 & 0120131079 (Mar. 15, 2016) (finding that complainant established that they were substantially limited in the major life activity of walking, as reflected in the fact that she often uses a cane to walk); see also Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Part 1630 (Interpretive Guidance), 1630.2(i) (walking is a major life activity) and 1630.2(j) (an individual is substantially limited if she is significantly restricted in her ability to perform a major life activity as compared to the average person in the general population). As Complainant has met the threshold requirement that would entitle her to the protections of the Rehabilitation Act, she must now show that she was a “qualified” individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). The regulation defines such an individual as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position in question. Given the Chief’s admission that Complainant “was able to perform the essential functions of her position without accommodation,” we find Complainant to be a qualified individual with a disability. ROI at 123. The burden now shifts to the Agency to provide case-specific evidence showing that it would be an undue hardship to grant Complainant’s request for reasonable accommodation. See Reasonable Accommodation Guidance. Our review of the record here shows that the Chief originally denied Complainant’s request for full-time telework because the Chief determined that the needs of the office required Complainant’s in-person presence and there were alternative accommodations in the form of rideshare services and public transportation that Complainant could effectively use in lieu of her requested accommodation. ROI at 83. Ultimately, we find the Agency’s arguments to be unpersuasive. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: • the nature and cost of the accommodation needed; • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); 2022000831 9 • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and • the impact of the accommodation on the operation of the facility. After reviewing the record, we are unable to discern how Complainant’s request for full time telework would constitute an undue hardship. We note that Complainant had been full-time teleworking for a number of months and that the Chief asked Complainant to submit a request for a reasonable accommodation if she wished to continue full-time telework. ROI at 49. By the Chief’s own admission, she had allowed Complainant to telework “for a number of months” prior to Complainant’s formal request for reasonable accommodation, and Complainant “was able to perform the essential functions of her position without accommodation.” ROI at 123. We note that the Chief, in denying, Complainant’s request for reasonable accommodation, made no mention of any challenges faced by the Agency as a result of allowing Complainant to telework. Id. at 83. Given the lack of specificity, we find the Chief’s claim of undue hardship to be unsupported, as we are unable to discern how the Agency would face undue hardship in continuing Complainant’s request to telework as she had “for a number of months.” Furthermore, we find the Chief’s denial of Complainant’s request for reasonable accommodation “due to the existence of employee van pools commuting between [Complainant’s] residential area and [her] work site” to be invalid because this alternative did not effectively address Complainant’s limitations. While we acknowledge that Complainant previously used the employee van pool, as well as rideshare services and public transportation, to commute to work, we note that Complainant clearly stated that she suffered medical episodes as a result of having to commute to work. As the Agency never disputed the claimed effects of Complainant’s commute on her health and wellbeing, we discern no reason to question her assertions and ultimately find the offered alternative accommodation to be ineffective. Finally with regard to the Director’s offer to purchase a scooter for Complainant, given that Complainant’s medical records clearly stated that Complainant could not drive or engage in prolonged standing due, in part, to her frequent dizziness and chronic headaches, and that she needed to use a cane when walking, we fail to envision how Complainant would operate a scooter on public streets and/or sidewalks and lift it in and out of rideshare and employee van pool vehicles. For these reasons, we also find this alternative accommodation to be ineffective. Based on the foregoing, we conclude that the Agency violated the Rehabilitation Act by failing to reasonably accommodate Complainant’s disabilities. 2022000831 10 Disparate Treatment We note that Complainant alleged that the denial of her request for reasonable accommodation was also based on her race, color, age, and sex. 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 against by the Agency on the bases of her race, color, age, or sex, as alleged. Compensatory Damages Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the Agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his or her disability. 42 U.S.C. § 1981a(a)(3); Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). In this case, we find that the Agency did not act in good faith. We are particularly troubled by the Chief’s decision to deny Complainant’s request for full time telework based on generalized claims about the needs of the office. We are also troubled by the Chief’s decision to deny Complainant’s request based on the existence of employee van pools without considering the impact of such an accommodation on Complainant’s health and wellbeing. And, finally, we find the Director’s offer to purchase a scooter for Complainant to be particularly insensitive and clearly, not a good faith effort at accommodating Complainant. We therefore find that compensatory damages are warranted. CONCLUSION We AFFIRM in part the Agency’s final order implementing the AJ’s finding of no discrimination on Complainant’s claim of disparate treatment. However, we REVERSE the Agency’s final order regarding Complainant’s denial of reasonable accommodation claim and REMAND the matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall take the following actions. 1. The Agency shall within thirty (30) calendar days, if not immediately, take all steps necessary to provide Complainant with effective reasonable accommodation, to include allowing her to telework full time. 2. The Agency shall determine the amount of compensatory damages to which Complainant is entitled and pay Complainant that amount: 2022000831 11 a. Within sixty (60) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s claim of compensatory damages in connection with her claim that she was denied a reasonable accommodation as alleged in claim (2). i. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). ii. Complainant shall cooperate with the Agency in this regard, including by responding to Agency requests for information and by completing any Agency forms. Complainant shall reply to any Agency requests for information within 30 calendar days. b. Within thirty (30) calendar days of the completion of the supplemental investigation, the Agency shall issue a final decision, with appeal rights to the Commission, addressing the issue of compensatory damages. c. Within sixty (60) calendar days of determining the amount of compensatory damages due Complainant, the Agency shall issue a check to Complainant for the undisputed amount. 3. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide four hours of training to the Chief of Strategic Operations (Supervisory Procurement Analyst), and the Director who are identified on pages 120 and 127 of the ROI. The training shall address the Agency’s obligations under the Rehabilitation Act with respect to reasonable accommodation requests. The required training shall address unlawful disability discrimination, with a special emphasis on management’s obligation under Section 501 of the Rehabilitation Act to reasonably accommodate individuals with disabilities. The Commission does not consider training to constitute disciplinary action. For assistance in obtaining the necessary training, the Agency may contact the Commission’s Training and Outreach Division via email, at FederalTrainingandOutreach@eeoc.gov. 4. Within one hundred twenty (120) calendar days from the date this decision is issued the Agency shall consider disciplining the Chief and the Director. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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 the Chief has left the Agency’s employ, the Agency shall furnish documentation of her departure date. 5. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the Statement entitled “Posting Order.” 2022000831 12 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 evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at the Agency’s Directorate of Contracting (Washington, D.C.) 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 thirty (30) calendar days of the date this decision was issued, and shall remain posted for sixty (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 ten (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). ATTORNEY’S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The 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. 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). 2022000831 13 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. 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. 2022000831 14 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 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. 2022000831 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 March 15, 2023 Date