Al W.,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 3, 2017

0120150119 (E.E.O.C. Mar. 3, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Al W.,1
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120150119

Hearing No. 471-2014-00007X

Agency No. ARCEDET12DEC04900

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the March 11, 2015, final Agency decision (FAD) concerning his 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et
seq.2 The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Contract Specialist at the Agency’s U.S. Army Corps of Engineers, Detroit District in Detroit,

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 Complainant filed his October 6, 2014, appeal following his receipt of the Equal Employment
Opportunity Commission Administrative Judge’s (AJ) August 26, 2014, Order of Dismissal of
his hearing request. The Agency did not issue its FAD until March 11, 2015. Although the
appeal was initially premature at the time of the filing, the Commission finds that it is currently
ripe for review.
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Michigan. Complainant claimed that he experiences complications from a chronic back injury
that affects his ability to bend over, lift objects, and perform manual tasks. Complainant
alleged that his condition is exacerbated the longer he remains in a seated position.
Complainant claimed that the Chief Logistics Officer initially accommodated his request to
lower his keyboard in 2009 when cubicles were reconfigured, and that he used a space heater
as a footstool.

In April 2011, Complainant claimed that his second-level supervisor (S2-1) wrote false,
punitive comments on his mid-year evaluation with which his first-level supervisor (S1-1) did
not agree. Complainant alleged that S2-1 subsequently took out the comments and he was
provided a revised evaluation. Complainant claimed that S1-1 told him that S2-1 had initially
included negative remarks in his annual evaluation in December 2011, but he did not see them
because they were removed prior to his receiving that evaluation. Additionally, Complainant
alleged that S1-1 informed him that S2-1 did not allow him to score Complainant as highly as
he actually performed.

Complainant alleged that the evaluation he received in December 2012 contained punitive
comments that referred to the sick leave he took in September 2012. Complainant stated that
during the discussions he had with his new supervisor (S1-2) on December 5 and 7, 2012, S1-2
told him that his sick leave absences on September 14 and 28, 2012, hurt the Contracting
Office and showed his lack of commitment. Complainant claimed he asked S2-1 and S1-2 to
provide him the criteria used in his evaluation of 2012, but they failed to provide it to him.

In May 2012, Complainant alleged that he submitted a leave schedule to S2-1 and discussed
with her each leave date he scheduled through September 2012, to get her approval. S2-1
accepted or denied the requested dates and he placed the accepted dates on his calendar.
Complainant did not submit a leave form for the dates at that time. On July 24, 2012, S2-1
sent an email to the contracting staff explaining that they would be down to two people by that
next week because of employees leaving. On August 2, 2012, S2-1 stated in an email that any
leave requests would be “by special request only, as the workload will not permit time off until
October.” S2-1 directed Complainant to coordinate his leave requests with S1-2 using the
proper leave forms. Later that day, S1-2 denied Complainant’s request for annual leave for
September 14 and 28, 2012, explaining that he could not approve any leave for September at
that time. Complainant later submitted sick leave requests for those days and S1-2 approved
both requests.

Complainant claimed that he reported an accident to S1-2 in September 2012. Complainant
alleged that he suffered an injury to his lower back which was related to his pre-existing
condition. Complainant claimed that S1-2 told him that he would report the accident. In July
2013, Complainant requested assistance from the Agency’s Safety Representative in
completing a form regarding the injury. The Safety Representative could find no record of
Complainant or anyone reporting the accident. Subsequently, the Detroit District Deputy
Commander determined that Complainant would need to file a workers’ compensation claim
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instead of an accident report based on the aggravation of Complainant’s pre-existing condition
and that the injury was not the result of a one-time accident.

On November 1, 2012, the Agency posted Vacancy Announcement No.
SWGJ12225485709800 for a GS-12 Contract Specialist position. Complainant was found
qualified for the position and his name appeared on the selection certificate. S2-1 was the
selecting official and was on the selection panel with S1-2 and one other official. Each panel
member ranked the same top four candidates in the same order and interviewed the four
candidates. S2-1 ultimately selected the Selectee over Complainant.

In February 2013, Complainant believed that he was performing GS-12 level duties and
indicated what duties he believed he was performing on a position description for a GS-12.
S1-2 scored Complainant based on four classification factors and determined that
Complainant’s duties and classification factors were consistent with a GS-11 position. In a
May 19, 2013, memorandum, the District Commander reported that after reviewing
Complainant’s position classification, he concluded that Complainant had not demonstrated that
he had been required to perform duties at the GS-12 level. On or about August 10, 2013, the
Human Resources Specialist conducted an audit of Complainant’s position and concluded that
Complainant’s position fell within the scoring range for a GS-11 position.

On March 19, 2013, Complainant submitted a written request for reasonable accommodation
for a footstool on which to rest his feet while sitting. Complainant submitted copies of his
Family Medical Leave Act (FMLA) documentation from September and November 2012 in
support. On April 8, 2013, S1-2 notified Complainant that his request had been approved and
that once he made a choice among available options, a footstool would be provided.
Complainant made a selection and Complainant received a footstool.

On January 29, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of sex (male), disability, and in reprisal for prior
protected EEO activity when:

1. In April 2011, his senior rater made punitive comments and reduced the ratings on
his mid-year evaluation;
2. In December 2011, his senior rater wrote punitive comments and reduced the
ratings on his year-end evaluation in an unsuccessful attempt to impact his final
rating;
3. From August 2012 through September 2012, two of four days of his previously
approved leave were cancelled, while two female employees had their leave
approved;
4. On September 22, 2012, he reported a workplace injury to his immediate
supervisor, but that report of injury has not been processed;
5. On December 5, 2012, he received punitive comments during a conversation with
his supervisor and senior rater, and received reduced ratings on his end-of-year
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evaluation as a result of requesting and receiving prior approved sick leave for his
disability;
6. On December 11, 2012, he learned he was non-selected when the selecting official
and his supervisor told him a female candidate was selected over him for the
position of Contract Specialist, GS-1102-12, for Job Announcement Number
SWGJ12225485709800;
7. As of January 24, 2013, no action or communication occurred regarding the
reasonable accommodation requests he submitted to his senior rater on May 18,
2012, and to his supervisor on September 11, 2012; and
8. Based on his disability, from his date of hire in 2009 as a GS-1102-09 and later as a
GS-1102-11, the Chief, Contracting Division knowingly assigned him GS-1102-12
work and responsibilities, refused to provide him a GS-1102-12 position description
(PD) upon his direct request, and refused to pay him for the GS-1102-12 level work
he performed.

In addition, Complainant alleged that the Agency subjected him to discrimination in reprisal
for prior protected EEO activity when:

9. He was informed he would not receive a promotion as a result of the position audit
he requested; and when the Agency failed to follow the appropriate process and
necessary procedures to properly evaluate his GS-12 job evaluation request.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing, however, by order dated August 26, 2014, the AJ dismissed the hearing request as a
sanction under the authority of 29 C.F.R. § 1614.109(f)(3), because Complainant had failed to
comply with the AJ’s previously issued orders . The AJ remanded the case back to the Agency
for the issuance of a FAD.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal, and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect to claims (1) and (2), S2-1
stated that she never made any punitive comments as senior rater on Complainant’s April 2011
mid-year evaluation. S2-1 explained that the mid-year review did not have a rating, but was
instead an informal process whereby the first-level supervisor discussed the employee’s
performance and annotated any comments on the form. S2-1 affirmed that she did not make
any comments on the document and the form only included comments that the first-level
supervisor might want to make. S2-1 acknowledged making verbal comments to S1-1
regarding Complainant’s lack of attentiveness during staff meetings, noting that he brought
large files to meetings and appeared not to be engaged in the discussions. Likewise, S2-1
denied writing any punitive comments in Complainant’s December 2011 evaluation, denied
discussing punitive comments with S1-1, and denied attempting to reduce Complainant’s
rating.
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Regarding claim (5), S2-1 stated that she never discussed performance appraisals with any of
the employees for whom she served as senior rater, including Complainant. S2-1 denied being
in the meeting with S1-2 and Complainant when punitive comments were allegedly made. S2-
1 confirmed that Complainant’s rating of “2” was appropriate in light of his ratings on each of
the individual performance elements. S2-1 noted that she expressed concern about
Complainant not working on Fridays in September because it was a hardship on the office.
S1-2 added that none of the comments used to justify the ratings were punitive in nature. S2-1
explained Complainant’s deficiencies in each performance element, and added that
Complainant’s evaluation was not lowered because he took leave.

With respect to claim (3), S2-1 stated that each January and February, she asked employees to
project their leave through the year. S2-1 stated that she approved Complainant’s request to
take Fridays off during the summer, but made it clear that approval of leave in August through
September would be subject to workload demands as it was their busiest time of the year. S2-1
confirmed that she informed staff on August 2, 2012, that from August 17 through September
30, 2012, leave would be by exception only. S2-1 noted that her earlier conversations about
leave were verbal and that Complainant had not yet been approved for the leave for the
requested dates. When Complainant requested the leave for September 14 and 28, 2012, she
and S1-2 discussed the request and agreed that Complainant had critical projects and was
needed in the office. As a result, S1-2 denied the requests. S2-1 added that one of the named
comparators took one day of leave in connection with the Labor Day weekend, but she did not
have any outstanding work and the other named comparator was approved for leave outside of
the restricted leave period. S1-2 stated that after he disapproved Complainant’s annual leave
request, Complainant requested sick leave supported by FMLA documentation and he
approved the request.

As to claim (4), S1-2 and S2-1 both denied any knowledge of Complainant reporting a
workplace injury. The Safety Representative was unable to find an accident report from
September 2012. The District Deputy Commander determined that the matter should be
addressed through the workers’ compensation program and an accident report was not
appropriate. The Agency determined that management did not recognize Complainant’s
communications about his back condition, his need for leave, and the reported exacerbation of
his pain from extended sitting to be an injury report. When management became aware that
Complainant was asserting that he had sustained a workplace injury, they took the necessary
steps to address his concerns through the appropriate process.

Regarding claim (6), S2-1 denied Complainant’s claim that she delayed posting the vacancy
announcement so that the Selectee could obtain one year in grade as a GS-11 to be eligible to
apply. Further, S2-1 explained that she and the panel members asked each candidate the same
questions, which came from Headquarters. S2-1 stated that the interviews were not
numerically rated for each question. S2-1 affirmed that the primary focus was to select a
candidate who had significant construction and architect engineering experience in contracting,
was proficient in Federal Acquisition regulations, and who could work independently. S2-1
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explained that the Selectee was unanimously recommended by the panel and was more
qualified for the position than Complainant, who ranked second among the candidates. S2-1
stated that the Selectee was the stronger candidate based on her construction contract
administration experience and her two degrees, including a Master’s degree in Engineering.
S2-1 noted that Complainant had a Bachelor’s degree in psychology, had taken a few graduate-
level courses in business-related disciplines, and did not have construction administration
experience. Each panel member concurred that the Selectee was the best-qualified candidate,
and S2-1 selected her.

With respect to claim (7), S1-2 and S2-1 both denied knowledge of any limitation in
Complainant’s ability to perform his duties prior to his March 2013 reasonable accommodation
request. S2-1 stated that Complainant requested telework to work around his medical
appointments, but she did not consider the request a request for reasonable accommodation.
S2-1 added that Complainant had contractual bid documents that could not leave the office and
no one was allowed to telework in September 2012. S1-2 stated that Complainant requested a
footstool to replace the heater he had been using as a footrest since 2009. S1-2 confirmed that
the footstool was provided in April 2013. S1-2 added that Complainant was never required to
remain seated for long periods of time and employees were allowed to freely get up and stretch
at any time.

As to claims (8) and (9), S2-1 denied assigning Complainant GS-12 level work and stated that
Complainant was not asked to perform GS-12 duties without additional compensation. S1-2
affirmed that Complainant approached him in February 2013 claiming that he was misclassified
as GS-11 because he was working actions at the GS-12 level. S1-2 agreed to look into
Complainant’s concerns and sought the advice of the District Deputy Commander and the
Chief of HR. S1-2 asserted that his own analysis confirmed that Complainant was performing
at the GS-11 level. The District Deputy Commander performed an analysis and determined
that Complainant was being assigned GS-11 level work and was properly graded as such. The
District Deputy Commander agreed that the Agency’s policy is for the first-level supervisor to
conduct the analysis and that the Agency followed correct procedures in evaluating
Complainant’s re-classification request. Thereafter, management forwarded the issue for an
additional review by the position classification expert, the Human Resources Specialist. The
Human Resources Specialist confirmed that management followed the correct procedures and
that her audit confirmed that Complainant was accurately classified.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As Complainant failed to show that the alleged incidents were based
on discriminatory or retaliatory animus, the Agency found that his hostile work environment
claim must fail. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant challenges the AJ’s dismissal of his hearing request. Complainant
alleges that he had no assistance during the hearing phase and that he did not have a reasonable
amount of time to prepare and present his case. Complainant argues that the evidence supports
his claims. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

The AJ’s Dismissal of Complainant’s Hearing Request

The Commission will first address Complainant’s contentions on appeal that AJ abused her
discretion when she dismissed Complainant's hearing request as a sanction for failure to follow
her orders. The Commission’s regulations afford broad authority to AJs for the conduct of
hearings, including the authority to sanction a party for failure, without good cause shown, to
fully comply with an order. See 29 C.F.R. § 1614.109; see also Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug.
5, 2015). However, such sanctions must be tailored in each case to appropriately address the
underlying conduct of the party being sanctioned. A sanction may be used to both deter the
non-complying party from similar conduct in the future, as well as to equitably remedy the
opposing party

More specifically, our regulations provide that where a party, inter alia, fails to respond to an
order of an AJ, the AJ may, as appropriate, take action against the non-complying party
pursuant to 29 C.F.R. § 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the
requested information would have reflected unfavorably on the non-complying party; (2)
consider the requested information to be established in favor of the opposing party; (3) exclude
other evidence offered by the non-complying party; (4) issue a decision fully or partially in
favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of
costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show
Cause to the non-complying party. EEO MD-110, Chap. 7, § III(D), n.6; see DaCosta v.
Dep't of Educ., EEOC Appeal No. 01995992 (Feb. 25, 2000). The AJ did so here in her July
31, 2014, Order ordering Complainant to respond to the Agency’s Motion for Sanctions and
informing him that failure to do so would result in dismissal of his hearing request.
Additionally, the AJ ordered the Agency to grant Complainant four hours of official time to
allow him to prepare his response.

Upon review, the Commission finds that the AJ did not abuse her discretion in dismissing
Complainant’s request for a hearing as a sanction for not complying with her orders. The
Commission finds that the AJ properly set forth in her August 26, 2014, Order her reasons for
remanding the matter to the Agency. While Complainant asserts on appeal that he did not have
legal representation and was not provided a reasonable amount of time to present his case, the
record clearly shows that Agency officials granted Complainant official time multiple times
throughout the hearing process including 16 hours between July 16 and 23, 2014, which
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Complainant declined to use completely. The Commission finds that Complainant’s arguments
on appeal are insufficient to find that the AJ abused her discretion in remanding the matter to
the Agency for a decision on the merits of Complainant’s complaint. As the sanction of
dismissing the hearing request was within the AJ’s discretion, she properly remanded the case
to the Agency to issue a decision on the record.

Disparate Treatment

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 was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming Complainant established a prima facie case of
discrimination on the alleged bases, the Commission finds that the Agency articulated
legitimate and nondiscriminatory reasons for its actions. Specifically, as to claims (1) and (2),
S2-1 denied making any punitive comments or lowering Complainant’s rating in his mid-year
appraisal or his annual appraisal. ROI, at 1036-39. S2-1 explained that Complainant’s ratings
were completed by his first-level supervisor and that she simply concurred with the ratings.
Id. at 1039. S2-1 added that the only comments she made were verbal discussions she had
with S1-1 during the mid-term appraisal period about Complainant’s lack of attentiveness
during staff meetings. Id. Regarding claim (3), S1-2 explained that Complainant’s leave was
never previously approved as he had not yet submitted leave requests. Id. at 1068. S1-2
affirmed that he denied Complainant’s submitted September 2012 leave request due to the
office’s high workload. Id. S1-2 later approved Complainant’s sick leave request for the same
dates. Id.

As to claim (4), there is no evidence supporting Complainant’s claim that he submitted an
accident report in September 2012, and S1-2 affirmed that Complainant never submitted a
report to him. ROI, at 1072. The record reveals that after meeting with Complainant, S1-2,
and the Safety Representative in July 2013, the Deputy Commander determined that
Complainant’s injury was not the result of a one-time accident and the matter was better
addressed through the workers’ compensation process. Id. at 1170-72.

With regard to claim (5), S1-2 denied lowering Complainant’s December 2012 performance
appraisal rating because of his use of sick leave. ROI, at 1073. S1-2 commented in one
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objective in the appraisal that Complainant’s “unwillingness to work Fridays at the end of the
fiscal year with responsibilities for his projects left to other team members put some projects at
risk.” S1-2 noted that he believed this needed to be included in the appraisal because
Complainant’s insistence of taking every Friday off at the end of the fiscal year impacted the
rest of the office and was not supported by his FMLA documentation. Id. S1-2 stated that he
based Complainant’s rating solely on information he observed and input given by previous
supervisors. Id. at 1076. S1-2 noted that Complainant’s leave usage was not a factor, but
even if the one objective was changed, it would not have resulted in a higher rating than the
“2” overall rating he received. Id.

With respect to claim (6), S2-1 affirmed that the selection panel unanimously recommended the
Selectee for selection. ROI, at 1051. S2-1 explained that the Selectee was chosen because she
was more highly qualified for the position than Complainant as she had a Master’s degree in
Engineering Management and had relevant experience in the administration of construction
contracts at the Detroit Arsenal. Id. at 1051-52. By contrast, Complainant had a Bachelor’s
degree in psychology, had only taken a few Master’s degree courses in business-related
disciplines, and did not have any construction administration experience. Id. at 1052.
Additionally, S2-1 noted that based on feedback she received, the Selectee had better work
relationships with other employees than Complainant. Id. S2-1 added that the Selectee
possessed important Davis Beacon payroll processing experience. Id. Another panel member
concurred with S2-1’s assessment of the candidates and asserted that the Selectee demonstrated
in her interview her broader procurement experience with much more detail that closely fit
with the type of work performed in the Detroit District. Id. at 1111. Based on the panel’s
unanimous recommendation, S2-1 selected the Selectee.

As to claims (8) and (9), S1-2 and S2-1 affirmed that Complainant did not perform GS-12 level
work and that Complainant performed the same GS-11 level duties that his co-workers
performed. ROI, at 1056-57, 1081. The record indicates that S1-2 and the Deputy
Commander both conducted reviews based on Complainant’s concerns, and both determined
that Complainant was performing duties at the GS-11 level. Id. at 1081, 1119. The HR
Specialist later performed an audit of the position and determined that the duties performed
were appropriately classified at the GS-11 level. ROI, Ex. F-49.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
With regard to his non-selection claim, one way Complainant can establish pretext is by
showing that his qualifications are observably superior to those of the selectee. Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way
Complainant may establish pretext as to his non-selection claim.

As Complainant’s hearing request was dismissed as a sanction for his failure to follow the AJ’s
orders, the Commission does not have the benefit of an Administrative Judge’s credibility
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determinations after a hearing. Therefore, the Commission can only evaluate the facts based
on the weight of the evidence presented. The Commission finds no persuasive evidence that
Complainant’s protected classes were a factor in any of the Agency’s actions. Specifically as
to his non-selection claim, the Commission finds that Complainant failed to show that his
qualifications for the position at issue were plainly superior to those of the Selectee. In this
case, the Selectee had attributes that justified her selection, and the selecting official and
interview panel members affirmed that they believed the Selectee was better equipped to meet
the Agency’s needs. In the absence of evidence of unlawful discrimination, the Commission
will not second guess the Agency's assessment of the candidates’ qualifications. Tx. Dept. of
Cmty. Affairs v. Burdine, 450 U.S. at 259.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons and that discriminatory or
retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a
result, the Commission finds that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

Denial of Reasonable Accommodation

With respect to claim (7), the Commission notes that under the Commission’s regulations, an
agency is required to make reasonable accommodations to the known physical and mental
limitations of an otherwise qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission
will assume without deciding that Complainant is a qualified individual with a disability.

Complainant claimed that he submitted requests for reasonable accommodation in May 2012
and September 2012 for his back condition. The record reveals that Complainant was
previously accommodated by the Chief Logistics Officer by lowering his keyboard equipment.
ROI, at 1054. Additionally, Complainant used a space heater as a footrest. Complainant
alleged that he requested a footstool in May 2012, and that S2-1 took no action. There is no
evidence supporting Complainant’s claim that he requested a reasonable accommodation in
May 2012, and S2-1 denied that Complainant ever requested made an accommodation request
to her. Id. at 1055. The record indicates that Complainant asked to telework around medical
appointments in September 2012. S2-1 stated that she did not consider Complainant’s telework
request a request for reasonable accommodation. Id. Even so, S2-1 affirmed that
Complainant had contractual bid documents that could not leave the office and no one in the
office was allowed to telework in September 2012. Id. Even assuming that the request for
telework could be considered a request for reasonable accommodation, the record reveals that
the Agency granted Complainant leave to attend the medical appointments, which is a form of
accommodation.

Furthermore, the record indicates that Complainant submitted a written request for reasonable
accommodation for a footstool on March 19, 2013. ROI, Ex. F-17. The request was granted
in April 2013, and Complainant received the footstool on April 22, 2013. Id. Complainant
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has presented no evidence that the granted accommodation was ineffective. Accordingly, the
Commission finds that Complainant failed to establish that he was denied reasonable
accommodation in violation of the Rehabilitation Act.

Hostile Work Environment

Finally, with respect to Complainant's contention that he was subject to a hostile work
environment with respect to the matters set forth in his complaint, the Commission finds that
under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that his
claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work
environment is precluded by the Commission’s determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory or
retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000).

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
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received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 3, 2017
Date