Augustine V.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120180513 (E.E.O.C. Sep. 30, 2019)

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

Augustine V.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180513

Hearing No. 550-2013-00045X

Agency Nos. SF-11-0636-SSA
SF-11-0972-SSA

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 11, 2017, final
order 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., 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue is whether the Administrative Judge properly issued a decision without a hearing
finding that Complainant did not establish that the Agency discriminated against, or harassed,
him based on his age or disability, or in reprisal for prior EEO activity.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer
(BA) (GS-07) at the Agency’s Western Program Service Center, San Francisco Region in
Richmond, California. Complainant stated that in the spring of 2010, he was hospitalized and
diagnosed with chronic bronchitis, and he experienced a relapse of bronchitis in November and
December 2010.

On January 26, 2011, Complainant submitted a request for a reasonable accommodation for a
transfer to a warmer, drier climate to accommodate his weakened respiratory system.
Complainant noted that his home in Rancho Santa Margarita2 was six miles from the Agency’s
Mission Viejo Office, and twenty-six miles from the Fountain Valley Field Office, in Southern
California. Complainant also noted that he previously had worked as a Claims Representative,
and he stated that “[p]erhaps [he] could be relocated to one of those offices in [his] former
position as a Claims Representative.”

On February 11, 2011, the Agency’s Medical Officer (MO) reviewed Complainant’s request and
supporting documents and determined that Complainant was an individual with a disability
because he was substantially limited in the major life activity of breathing. MO then found that
because Complainant commuted from Southern California to work in Northern California, it was
difficult to determine in which location the potential allergens existed, if not in both locations.
Further, MO noted that Complainant’s statement that “perhaps a worksite change may be in
order for me,” implied that he was not convinced that a relocation would be effective.

On April 13, 2011, an Operations Manager (OM1) (age 57, unknown disability status) denied
Complainant’s request to transfer to either the Fountain Valley Office or the Mission Viejo Field
Office as an accommodation. OM1 stated that a review of Complainant’s medical documentation
showed, in part, that no environmental triggers or allergens that exacerbated his bronchitis had
been identified; due to his commute back and forth between Southern and Northern California, it
was indeterminate whether environmental triggers and allergens exist in Southern California; and
while his condition was chronic, Complainant’s doctor stated that it was manageable to a fair
degree.

On April 20, 2011, Complainant responded to OM1’s denial, and requested that the decision be
reassessed. Complainant provided additional medical information and requested a reassignment
to a Social Insurance Specialist position, which he previously had held for approximately eight
years. On June 8, 2011, MO reviewed Complainant’s request and relevant documents. MO noted
that while Complainant’s physician stated that living in a dry environment would “likely”
improve Complainant’s symptoms, research indicates that dry, cool air increases bronchial
narrowing and can make breathing more difficult.

2 During the workweek, Complainant lived in San Francisco, and he went to his home in
Southern California on the weekends.
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MO also noted that a common treatment plan for bronchitis is delivery of medication via
humidified air or oxygen, and it was unclear why Complainant’s physician believed that a dry
environment would improve Complainant’s symptoms. On August 23, 2011, another Operations
Manager (OM2) (age 56, unknown disability status) upheld OM1’s original decision, stating that
there was no medical or environmental documentation to support that Complainant’s bronchitis
is worse in Northern California as compared to Southern California.

On May 19, 2011, the union sent a notice stating that an employee was identified with active
tuberculosis (TB), and that employees who reasonably believed that they were exposed could be
granted a reasonable amount of administrative leave for a TB screening-test during work hours.
On May 20, 2011, Complainant’s first-line supervisor (S1) (age 37, unknown disability status)
held a staff meeting to discuss the matter and noted that Complainant asked if he would be
allowed time from work to fly to Southern California to get tested because his doctor was located
there. S1 responded that the Agency would look into the possibility of employees getting tested
locally. Complainant also spoke with his second-line supervisor (S2) (age 51, unknown disability
status), and stated that S2 advised him to “do what I had to do.” Complainant visited his doctor
on May 23, 2011, and he requested eight hours of administrative leave. Complainant requested
an additional eight hours of administrative leave for May 26, 2011, when he returned to his
doctor to have his TB test read. S1 denied Complainant’s requests for administrative leave and
informed him that he could request sick or annual leave instead. Complainant did not change his
request, and S1 placed him on absence without leave (AWOL) for May 23 and 26, 2011.

On September 29, 2011, Complainant’s representative emailed S1 to inform her that
Complainant would be working on his “EEO rebuttal” for two and one-half hours. S1 responded
to ask why Complainant needed the additional time, noting that Complainant had already been
granted over eleven hours of official time for his EEO complaint. On September 30, 2011,
Complainant’s representative renewed the request for October 3, 2011, which S1 denied.

On September 30, 2011, S1 issued Complainant a Performance Assistance Plan (PAP) based on
“significant and repeated problems” with his performance. Specifically, Complainant’s accuracy
was expected to be at 89-90%, but it ranged from 50 to 77.27%. Additionally, Complainant was
expected to review at least eight cases per day, and his average ranged from 0.26 to 2.21 cases
per day. S1 noted that Complainant completed a 10-month classroom training course and many
refresher training classes but continued to struggle. She stated that Complainant would receive
guidance and daily one-hour training sessions during the PAP, effective October 3, 2011,
through November 2, 2011.

On October 14, 2011, S1 informed Complainant that she scheduled a meeting for October 17,
2011, to discuss his progress on his PAP. On October 17, 2011, S1 sent Complainant an email
noting that she waited for Complainant, who did not show up for the meeting. S1 stated that S2
informed her that S2 reminded Complainant of the meeting, who responded that he was not
attending because he did not have union representation. S1 stated that she informed Complainant
and his union representatives, on several occasions, that there was no contractual obligation to
allow a union representative during performance discussions.
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On November 30, 2011, S1 issued Complainant an Official Reprimand for three specifications of
Failure to Follow Supervisor’s Instructions and four specifications of Conduct Unbecoming a
Federal Employee. S1 noted that Complainant sent “discourteous emails,” in which he
disparaged management officials.

EEO Complaints

On July 16, 2011, Complainant filed an EEO complaint (Agency No. SF-11-0636-SSA) alleging
that the Agency discriminated against him on the basis of disability (chronic bronchitis) when:

1. management did not approve his requests for administrative leave for May 23 and 26,
2011.

On February 2, 2012, Complainant filed another EEO complaint (Agency No. SF-11-0972-SSA)
alleging that the Agency discriminated against him based on his age (62) and disability when:

2. on August 23, 2011, OM2 denied his request to reassess the denial of his January 26,
2011, reasonable accommodation request.

Complainant also alleged that he was harassed based on his age and disability, and in reprisal for
prior protected EEO activity when:

3. from the fall of 2010, and ongoing, management hindered his proficiency by not
providing him with remedial training;

4. from the fall of 2010, and ongoing, S1 denied his requests to allow his personal and union
representatives to attend discussions concerning his PAP, including on October 14 and
17, 2011;

5. in the fall of 2011, S1 approached him a rude manner, issued a direct order, and
threatened to discipline him if he did not attend a meeting alone; and

6. on September 30, 2011, he was placed on a PAP.

Additionally, Complainant alleged that the Agency discriminated against him based on his age
and disability, and in reprisal for prior EEO activity when:

7. on October 4, 2011, S1 denied his request for official time; and

8. on November 30, 2011, he was issued an Official Reprimand.3

3 Complainant also alleged discrimination when on March 28, 2012, he was frisked, handcuffed,
and led out of the building by Federal Protective Service officers and placed on administrative
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. On April 4, 2012, the initial
AJ (AJ1) dismissed Complainant’s hearing request for Agency No. SF-11-0636-SSA, without
prejudice, because Complainant had other related EEO cases pending an investigation.

On November 23, 2012, Complainant submitted a new hearing request. Over Complainant's
objections,4 the second AJ (AJ2) granted the Agency’s November 14, 2016, motion for a
decision without a hearing and issued a decision without a hearing on August 25, 2017. As an
initial matter, AJ2 found that Complainant was given an opportunity to respond to the Agency’s
motion. She noted that Complainant’s disputes were with facts that are immaterial, and she
determined that this case was appropriate for a summary disposition.

For claim 1, AJ2 found that Complainant did not show that he was treated differently from any
other similarly-situated comparator, primarily because no other employee asked for two full days
off in connection with the TB testing. Further, AJ2 noted that Complainant had not proffered
sufficient evidence that he required TB testing in Southern California as a reasonable
accommodation. AJ2 found that even if Complainant “misunderstood” S2’s comment that he “do
what you have to do,” there was no evidence that the misunderstanding was due to
discrimination, or reprisal.

Regarding a failure to provide a reasonable accommodation, AJ2 found that Complainant did not
proffer sufficient medical evidence to show that he required a reassignment to Southern
California. AJ2 noted that Complainant’s physician stated that the causal link between
environmental triggers in Northern California and an exacerbation of Complainant’s bronchitis
was “still being investigated,” and that it was “likely, but not certain, that a change to a different
environment w[ould] result in fewer exacerbations in his bronchitis.” Further, AJ2 noted that
MO stated that Complainant’s weekly travels between Southern and Northern California made it
“difficult to determine in which location the potential allergens exist[ed].” Additionally, AJ2
found that Complainant’s willingness to commute to worksites that were “fifty or sixty miles
away near the ocean” suggested that his “primary concern was not working in a drier climate but
eliminating his Northern California work situation.” AJ2 noted that the Agency pointed out that
there were a number of counties within the same 50-mile range of his current office that would
provide Complainant with a less humid living environment. AJ2 concluded that the Agency did
not violate the Rehabilitation Act when it denied Complainant’s request to transfer to Southern
California.

leave until his removal from federal service on or about November 27, 2012. However, these
claims were remanded, and processed separately, as a mixed-case complaint.

4 Complainant filed his response to the Agency’s Motion for Summary Judgment on June 16,
2017, and the Agency replied to Complainant’s response on August 23, 2017.
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AJ2 also noted that Complainant had not demonstrated that he was subject to age discrimination,
or reprisal, when the Agency denied his request to transfer to Southern California.

For Complainant’s harassment claim, AJ2 found that Complainant had not shown that he was
treated differently from his coworkers with regard to remedial training and assistance, union
representation for performance-related meetings, and the PAP. For claim 7, AJ2 determined that
while Complainant was given an opportunity to provide a rebuttal, the Agency was not
requesting this information and, as such, the rebuttal did not fall within the parameters of 29
C.F.R. § 1614.605(b). Additionally, AJ2 noted that the remedy for an improper denial of official
time was to restore personal leave that a complainant may have used, and in this case, there was
no indication that Complainant used any personal leave to prepare his rebuttal.

Regarding the reprimand, AJ2 found that the language strongly suggested that S1 intended to
issue it for Complainant’s refusal to meet with her to discuss his performance, even after giving
him a direct order, and that the “conduct unbecoming” charge was not the primary reason for its
issuance. AJ2 noted that, even presuming that Complainant could demonstrate that the reprimand
stemmed from a combination of retaliatory and non-retaliatory motivations, Complainant did not
incur attorney’s fees, and he was no longer a federal employee.5 AJ2 concluded that
Complainant did not proffer sufficient evidence showing that he was discriminated against, or
harassed, based on his age or disability, or in retaliation for his prior EEO activity.

The Agency subsequently issued a final order adopting AJ2’s finding that Complainant did not
prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that AJ2 construed the evidence in favor of the Agency,
misstated Complainant’s evidence, and conducted a faulty analysis of his claims. Complainant
also argues that AJ2 relied upon “perjurious statements.” For example, Complainant states that
AJ2 found that S2 denied his request to go to his private physician in Southern California, but
“conveniently leaves out any discussion of the information provided by Complainant.”
Complainant requests that the Commission vacate AJ2’s decision and remand the case back for a
hearing.

The Agency did not respond to Complainant’s appeal.

5 Once a complainant demonstrates that discrimination was a motivating factor in the agency's
action, it is the agency's burden to demonstrate that it would have taken the same action, even if
it had not considered the discriminatory factor. If the agency is able to make this demonstration,
the complainant is not entitled to personal relief, i.e., damages, reinstatement, hiring, promotion,
or back pay, but may be entitled to declaratory relief, injunctive relief, attorney's fees or costs.
See Walker v. Social Security Administration, EEOC Request No. 05980504 (Apr. 8, 1999).
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ANALYSIS AND FINDINGS

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 the 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 Chapter 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”).

Decision without a Hearing

We determine whether the AJ appropriately issued the decision without a hearing. 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
argues that AJ2’s finding that he raised many “immaterial” disputes is a “lazy and sloppy
analysis.”
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However, we find that Complainant has not identified material facts that are in dispute, nor
presented any evidence to show a dispute. Mere allegations, speculations, and conclusory
statements, without more, are insufficient to create a genuine issue of material fact. See Lee v.
Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012) (citing Baker v.
U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration
denied, EEOC Request No. 05A10914 (Oct. 19, 2001)).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-16 (1983).

Assuming, arguendo, that Complainant established prima facie cases of discrimination based on
his age and disability, and in reprisal for prior EEO activity, we find that management officials
proffered legitimate, nondiscriminatory reasons for their actions. For claim 1, S1 and S2 stated
that they did not approve Complainant’s request for administrative leave for his TB test in
Southern California because there were local options available. S1 stated that when she informed
Complainant that he could request sick or annual leave, and that he would be charged AWOL if
he did not change his leave request, Complainant did not change his request.

For claim 2, OM2 stated that he denied Complainant’s request to reassess his transfer request to
Southern California because Complainant was a struggling probationary employee, and that “a
medical ruling” found that the air was no different in Southern California. Regarding the
reprimand, S1 stated that she issued it based on Complainant’s conduct for failing to follow a
direct order and sending emails that disparaged management officials.

We find that Complainant has not shown that the proffered reasons were pretext for
discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer's proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
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motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.

On appeal, Complainant argues that AJ2 relied upon “perjurious” statements and did not
consider Complainant’s statements. However, we find that Complainant did not provide
evidence showing that any of S2’s statements were untrue. Additionally, we find that
Complainant only made bare assertions that management officials discriminated against him
based on his age, disability and protected EEO activity, which are insufficient to prove pretext,
or that their actions were discriminatory. As such, we will affirm the Agency’s final order
adopting AJ2’s finding that Complainant did not establish that he was discriminated against
based on his age or disability, or in reprisal for prior EEO activity, when he was denied
administrative leave for his TB test, he was denied a transfer to Southern California, and he was
issued a reprimand.

Failure to Provide Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement
Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job-related requirements
of the employment position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).
An agency is required to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the Agency can show that
accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p).

Assuming, arguendo, that Complainant is a qualified individual with a disability, we find that the
Agency did not violate the Rehabilitation Act when it denied his request to transfer to Southern
California. In this case, Complainant requested reassignments to different positions as a
reasonable accommodation; his initial request was to transfer to a position as a Claims
Representative, and later to a position as a Social Insurance Specialist. However, the
Commission has long held that a 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 Enforcement Guidance. We
note that Complainant did not request any other possible accommodations, other than a
reassignment.

Complainant noted that there was a vacancy for a Social Insurance Specialist position at the
Mission Viejo Field Office (Vacancy No. SC-425418-11-JAR), and he stated that he had
previously been selected as a GS-9.
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Complainant also noted that he previously worked as a GS-10 Claims Representative. However,
these positions were not appropriate reassignments because they would have been promotions for
Complainant, and an employee must compete for any vacant position that would constitute a
promotion. See Enforcement Guidance. As such, we find that the Agency did not violate the
Rehabilitation Act when it denied Complainant’s requests for promotions to positions in
Southern California, and we will affirm the Agency’s final order adopting AJ2’s finding that
Complainant did not establish that the Agency discriminated against him when it denied his
accommodation request to transfer to Southern California.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant's employment. See Enforcement Guidance on Harris v.
Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of
harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No.
01965238 (Oct. 16, 1998).

We find that Complainant belongs to statutorily protected classes based on his age, disability,
and protected EEO activity; and that he was subjected to unwelcome verbal conduct. However,
we find that Complainant has not shown that any of these incidents occurred because of his
protected categories. Rather, we find that the complained of conduct was related to the
management of Complainant’s performance and training. Additionally, to the extent that
Complainant states that S1 was rude to him, we note that Title VII is not a civility code, and it
forbids “only behavior so objectively offensive as to alter the conditions of the victim's
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Accordingly,
we find that Complainant did not establish that he was subjected to a hostile work environment
based on his age, or disability, or in reprisal for his protected EEO activity, and we will affirm
the Agency’s final order adopting AJ2’s finding that Complainant did not establish that he was
subjected to a discriminatorily hostile work environment.

Denial of Official Time

EEOC Regulation 29 C.F.R. § 1614.605(b) provides that, “[i]f the complainant is an employee of
the agency, he or she shall have a reasonable amount of official time , if otherwise on duty, to
prepare the complaint and to respond to agency and EEOC requests for information.”
“Reasonable” means “whatever is appropriate, under the particular circumstances of the
complaint, in order to allow a complete presentation of the relevant information associated with
the complaint and to respond to agency requests for information.” EEO MD-110, Chap. 6
§ VII.C.1.
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In this case, the record shows that Complainant was denied official time to prepare his rebuttal
statements.6 However, even assuming that Complainant was improperly denied official time, he
has not shown that he used any personal leave, paid or unpaid, when his request for official time
was denied. Accordingly, we will affirm the Agency’s final order adopting AJ2’s finding on
Complainant’s claim regarding denial of official time.

CONCLUSION

We find that AJ2 properly issued a decision without a hearing finding that Complainant did not
establish that the Agency: (1) discriminated against him based on his age or disability, or in
reprisal for prior EEO activity, when it denied his request for administrative leave for his TB test,
denied his request to transfer to Southern California, issued him a reprimand, and denied his
request for official time; (2) failed to provide a reasonable accommodation; and (3) subjected
him to a hostile work environment based on his age or disability, or in reprisal for his protected
EEO activity. Therefore, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting
AJ2’s decision without a hearing.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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).

6 The Commission has recognized that it is appropriate to grant official time for a complainant to
work on rebuttals for an EEO complaint. See Complainant v. Department of the Air Force,
EEOC Appeal No. 0120131469 (Mar 6. 2014)(the Commission found that the complainant did
not demonstrate that the granted official time to complete his rebuttal statement was
insufficient); Saez v. Dep’t of Homeland Security, EEOC Appeal No. 0120060433 (Oct. 24,
2007) (the Commission found that the complainant was not denied official time for his rebuttal
because he worked on it during his regular shift).
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All requests and arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission. Complainant’s request 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 received by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in
digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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

September 30, 2019
Date