Casandra N.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 18, 2020

2019005423 (E.E.O.C. Nov. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Casandra N.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 2019005423 Agency No. DOS-0328-18 DECISION On July 26, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 26, 2019 final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final decision, and REMANDS it for a supplemental investigation. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Assistant (SA), GS-09, with the Agency’s Bureau of Public Affairs (PA) in Washington, D.C. On August 18, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (Black/African American), disability (Polycystic Ovarian Syndrome, Depression, Recurring Generalized Anxiety Disorder, Bipolar Disorder), and retaliation (prior EEO activity) when: (1) her request for a reasonable accommodation was denied; (2) on May 18, 2018, her request for leave was denied; (3) on June 7, 2018, she was placed on leave restrictions; (4) on July 17, 2018, her request for Family and Medical Leave Act (FMLA) leave was denied and she was placed on Absent without Leave (AWOL) status; and (5) she was subjected to a hostile 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. 2019005423 2 work environment characterized by, but not limited to negative comments and lack of support from leadership. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND Complainant started her position in November 2016 and is one of two Staff Assistants in the PA front office who is responsible for greeting visitors, answering phones, and managing the schedules for two senior officials. Complainant’s position is full-time (40 hours per week). Complainant’s position description includes the following: (a) Prepares as needed, the state of play, daily activity sheet and opinion monitoring, a daily compilation of PA's initiatives and programs and reactions from the media on PA's initiatives and programs. Along with Special Assistants, monitors the PA Reviews database and inbox and sends materials to clearing officials. This needs to be monitored consistently, approximately every 20-30 minutes. In addition, monitors the high side clearances- flagging for Specials and other clearing officials; (b) Conducts research and coordinates material for review for information required for meetings principals attend. Establishes and maintains office files of correspondence, reports, publications and other sensitive documents for office use. Handles logistics for the Deputy Spokesperson such as, making travel arrangements, liaison with travel agent and posts as required, creating travel authorizations in E2, submitting travel vouchers in E2 in a timely fashion, scheduling meetings for A/SPDX, working with PRS and IME to schedule media interviews, as well as compiling any press guidance needed for the interview. Also handles meeting logistics, such as, booking conference rooms, setting up with AN and liaising with PA Help Desk, arranging transportation when needed, escorting visitors, etc; (c) Utilizes computer equipment to finalize reports, correspondence and sensitive materials ensuring final correct format. Ensures that the final product is grammatically correct, contains proper punctuation, and is error free: (d) Receives and makes proper disposition of incoming telephone calls to the office by answering the telephone, talking the name of the caller and advising who is calling prior to transferring telephone calls. Instances when a principal is not available to take a call, independently handles such calls by taking a message or answering a question, or, as appropriate, refers callers to other appropriate members of the office. Complainant asserted that within three weeks of beginning her job, and due to a sudden departure of an employee (FE) (African-American), she was placed in charge of FE’s former duties for which she had no prior training or experience.2 Complainant claimed that she has constantly struggled to perform these additional duties in a satisfactory manner which caused her to suffer chronic workplace anxiety. While trying to find her footing during Spring 2017, her mother fell ill. 2 Complainant was put in charge of the PA Reviews Database which is a computer program that monitors the clearance process of various routine and very important documents. 2019005423 3 Complainant asserted that her coworkers were unhelpful and crass, and her supervisor (S1A) (Caucasian) was unsupportive. Complainant’s mother’s health emergency lasted from late April 2017 to August 2017. While dealing with her mother’s health issue, and throughout the relevant timeframe, Complainant also experienced her own health issues which she argued were exacerbated by the unnecessary stress at work. This resulted in her being absent from work more frequently in 2017 and 2018 than in previous years. Complainant used Advanced Sick Leave (ASL) and Leave Without Pay (LWOP) at times, and later applied for FMLA leave. Complainant was viewed by her staff as “unreliable” because she would often fail to notify her colleagues of her absences and late arrivals/early departures prior to the start of her shift. Complainant asserted that she was unable to provide earlier notification. Claim 1 - Reasonable Accommodation Complainant stated that her medical conditions are permanent and are managed with medication. She further claimed that stressors can exacerbate her condition. Complainant also stated that she can perform all duties of her position when given proper support and training. Complainant describes the effect of her medical conditions as follows: I frequently ignore friends and loved ones. I do not reach out to them; I've become a hermit. I sit in my room and sleep. I have no desire to take care of myself. I have lost about 15 pounds in the last year from not eating. When I'm on my period, my PCOS debilitates me like my depression does. I get physically ill (vomiting, diarrhea, chills, headache, etc.). I become irritable, struggle to maintain focus on tasks, and have no interest in doing anything - from feeding my animals to cleaning up, etc. In June 2017, Complainant mentioned to S1A that she was overwhelmed with her assigned tasks. S1A told Complainant that she was unable to provide additional help for the foreseeable future because management could not yet fill FE’s position. Complainant stated that she explained to S1A that she was struggling with the work/life balance, having recently had to care for her mother due to her heart condition. In addition, Complainant affirmed that she told S1A that her menstrual cycle was debilitating and that she was considering starting medication for depression and anxiety. Complainant also asserted that she told S1A that she “was tired of [her co-worker’s (C1)] quips daily” and the lack of support from the Special Assistants at the time. Complainant stated that over time, S1A pressured her to request a reasonable accommodation with the Disability/Reasonable Accommodations Division (DRAD) of the Office of Accessibility and Accommodations. It appeared from the testimonial record that S1A believed that Complainant’s erratic attendance was not sustainable, and that pursuit of a reasonable accommodation would help resolve the disruption in the workplace. 2019005423 4 The record shows that on December 21, 2017, Complainant initiated a request for an accommodation. Complainant requested an alternate work schedule (AWS) and one telework day each pay period.3 Upon receipt of Complainant’s accommodation request, the DRAD representative (DRAD1) provided Complainant information, requested supporting medical documentation, and scheduled a meeting with Complainant for January 9, 2018.4 On February 6 and 8, 2018, S1A informed DRAD1 that telework or an AWS would be problematic due to the office’s needs for daily front office coverage. S1A explained that it is not possible for Complainant to answer the telephone, greet guests, or know who is in the office to route requests to review public outreach if she was not physically present. S1A felt that allowing Complainant to telework one day per week would amount to an undue hardship because of the impact on the operation of the office’s mission, including the impact on the ability of other employees to perform their duties and to conduct business. In addition, according to S1A, the general nature of the position requires the incumbent to be physically present in the office during core business hours (arriving no later than 9:30 a.m. and leaving not earlier than 3:00 p.m.). DRAD1 informed Complainant about the telework/AWS issue. On February 9, 2018, DRAD1 notified Complainant via email that after receiving a detailed description of Complainant’s job functions and the impact her absence from the office would have on the staff, her request for telework or working under an AWS schedule would not be reasonable. Upon S1A’s suggestion, Complainant responded to DRAD1’s email about the possibility of reassignment in lieu of telework. DRAD1 subsequently provided Complainant with information about reassignment. The record shows that Complainant wanted to be reassigned. However, after Complainant learned that management could not guarantee a reassignment within the same pay- grade, on February 21, 2018, Complainant emailed DRAD1 stating that she wished to withdraw her accommodation request. Complainant submitted another accommodation request on May 31, 2018.5 DRAD1 responded to the request on June 4, 2018, to start the interactive process but on June 14, 2018, Complainant informed him that she was withdrawing the request again. DRAD received an inquiry from S1B on October 25, 2018 about Complainant’s request to S1B for a modified work schedule of four-to-five hours per day that started during the week of October 15-19, 2018. 3 Complainant noted that FE was permitted to work from home one day per week. In addition, the record shows that Complainant was permitted to work from home on a limited basis in 2016 because her mother was ill. 4 It is undisputed that Complainant provided medical documentation in response to DRAD1’s request; however, the Report of Investigation (ROI) does not contain the DRAD file, including the medical records provided by Complainant. 5 It appears from the record that Complainant wanted to start the process again because she was hoping that her new supervisor (S1B) (Caucasian) would be more open to approving her accommodation request. 2019005423 5 On the same day, Complainant contacted the DRAD Chief (DRADC), authorizing her union representative (U1), to represent her in all future correspondence with her supervisors and DRAD in discussing her request. DRADC, Complainant, U1 and DRAD1 met on December 14, 2018 to discuss Complainant’s request for a modified work schedule. Complainant explained that she has been working from 11:00 a.m. to 5:00 p.m. with LWOP for the past several weeks and planned to return to a normal, eight-hour work day schedule on January 28, 2019. On January 24, 2019, DRAD1 followed up with Complainant about her work schedule and she responded that she has been working seven hours a day during that week and will start working at a normal, eight-hour day schedule on January 28, 2019. On January 25, 2019, DRAD1 inquired whether Complainant needed any other accommodations and she responded that she did not need any further assistance from DRAD. Claim 2 - Leave Denied on May 18, 20186 In April 2018, S1A became Complainant’s second-line supervisor. Complainant requested sick leave on Friday, May 18, 2018 to attend to business relating to her father’s death. S1A emailed Complainant stating: I just sent your leave request back to you to see if you could schedule for Thursday rather than Friday. [The other Staff Assistant in the office (C2)] is scheduled to be out half a day on Friday, so your requested absence would place an additional strain on the front office. Let me know if that will be possible. Thanks. Complainant asserted that employees were supposed to request days off work at least two business days in advance and she had given S1A four days of notice. In addition, Complainant noted that since “[t]he office was able to provide coverage during [her] erratic attendance, [it] should have been able to do so within the timeframe [she] gave them.” Complainant claimed that in the end, her leave request for May 18, 2018 was denied. Nevertheless, Complainant indicated that she took the leave anyway, stating: “I'm not sure what the end result was; if I was charged AWOL, or what.” S1A asserted that she did not deny Complainant’s leave but instead informed Complainant that May 18, 2018, would need to be charged as Leave without Pay (LWOP) as she had exhausted her leave balance. Claim 3 - June 7, 2018 Leave Restrictions On June 7, 2018, Complainant was placed on leave restriction for excessive absenteeism. S1A asserts that the decision to place Complainant on leave restriction on June 7, 2018, was made in consultation with the Executive Office Director, (EOD) (African-American) and S1B. S1A explained that Complainant’s attendance was erratic. In addition, Complainant did not appear for work for several weeks over the Spring and Summer 2018, often without informing her front office colleagues ahead of time. 6 The ROI does not contain Complainant’s leave record. 2019005423 6 S1A stated that she urged Complainant to apply for reasonable accommodation so that any legitimate issues would be taken into consideration and she expressed concern that Complainant had withdrawn her initial request for accommodation. S1A maintained that Complainant’s placement on leave restriction was based on her frequent late arrival for duty, excessive absences, and her failure to submit paperwork for medical appointments thus improperly using sick leave. S1B asserted that Complainant was placed on leave restrictions on June 7, 2018, and that the decision was made by Human Resources (HR). S1B also stated that it was his recollection that HR alerted him and S1A that Complainant had used up all her leave. According to S1B, when he spoke to Complainant about the issue she said she understood that going forward whenever she was tardy or absent, she would be considered AWOL. Claim 4 - Denied FMLA Leave Complainant stated in her affidavit that on June 15, 2018, her FMLA leave request to attend an Intensive Outpatient Program (IOP) was denied for the stated reason that her documentation did not match what she requested. However, Complainant asserted the request for medical documentation was unclear. After resubmitting new documentation, Complainant stated that her request was still not approved. While Complainant conceded that charging her with AWOL was automatic due to her leave restriction status, she asserted that the leave restriction was improperly implemented out of S1A’s animosity toward her. EOD asserted that he first received Complainant’s FMLA leave request in August (not June) 2018.7 EOD explained that Complainant’s FMLA form was returned because it was not properly completed. Complainant’s medical documentation indicated a need for intermittent leave, yet she was requesting and took extended continuous leave. S1A testified that, as she understood it, Complainant had not provided the necessary documentation for FMLA leave and was counseled several times in writing on the need for this documentation. S1A also stated that since they did not receive the requested documentation for FMLA leave and because Complainant was not reporting to work, she would have automatically been charged AWOL. S1A further confirmed that management expectation was that FMLA leave would be approved retroactively if the correct paperwork was submitted. Claim 5 - Harassment Complainant claimed that she was subjected to a hostile work environment involving negative comments and lack of support from her supervisors. Specifically, Complainant asserted that shortly after being hired, she was given an additional job (the PA Reviews Database) that she was not hired to perform. Complainant stated that she was instructed to learn this new job with the assistance of a co-worker and was assured that SAs were there to help her, but her requests for help went unanswered. 7 The ROI does not contain the FMLA request file or the medical documentation provided by Complainant to support her request. 2019005423 7 Complainant further claimed that she told S1A several times that the SAs were not as helpful as she needed them to be and that she was struggling balancing two jobs. According to Complainant, S1A explained that the SAs were not as helpful because they did not see her as reliable, due to Complainant’s history of leaving her work to them during her absences without advanced notice. In addition, Complainant alleged that when she asked for assistance, she was told to figure it out because S1A had no knowledge of the PA Reviews Database and another time S1A responded that she thought Complainant was joking about needing assistance. Complainant noted that she stopped asking for help because she did not feel she was being taken seriously and felt her requests were not important enough to warrant assistance. Complainant also alleged that when meeting with S1A in April 2017 regarding the overall unhelpfulness of the office, S1A replied that “the only reason you’re here is because [HMO]8 hired you.” Complainant conceded that from February 2017 to July 2017, her attendance was erratic due to her mother’s medical condition but noted that she informed management regarding the fact that her attendance was going to fluctuate due to an ongoing situation with her mother. Complainant describes one situation that occurred on June 1, 2017 when her mother called her at work in a panic because her ride had cancelled on her, and she needed Complainant to take her to a doctor’s appointment within the next hour. Complainant stated that S1A told her they do not give extended lunches and stated: “Can’t you just put her in an Uber.” Complainant also asserted that in her mid- year review, she was accused of poor judgment and told that family emergencies could have been handled by scheduled annual leave. Complainant further claimed that in August 2017, she first began to take medication to help with her depression and anxiety. Complainant claimed that during that time-frame, she met with S1A regarding daily comments by a coworker (C1), including the statement: “Oh you are early today. You must have slept at your boyfriend’s house.” Complainant further claims: “Every day that I arrive at my desk [C1] leaves her office or makes it a point to walk past me and snicker. She then sends an email to [S1A] stating the time that I arrived.” Complainant stated that C1 also accused her of stealing tissues and giving them to Complainant’s previous office. Complainant further asserted that C1 would repeatedly tell her that she needed to be accustomed to the “front office environment.” Complainant claimed that such comments and actions made coming to work very stressful. Complainant further alleged that she had “a miscommunication with S1A in August of 2017 about a new employee and from that point they struggled with communication.” In addition, Complainant stated that she requested her work expectations several times but S1A told her that they were documented in Agency’s central personnel system (GEMS) and she should have seen them already. However, Complainant contended that the work requirements were not entered into the GEMS database until two days after this conversation. 8 HMO was one of the hiring officials and a respected colleague. 2019005423 8 Complainant further alleged that on September 22, 2017, S1A told her that she was being placed on a PIP with leave restrictions until she sought an accommodation through DRAD. Complainant stated that after she sought an accommodation and learned that telework was not an option for her, she considered the option of reassignment. Complainant contacted HR to obtain information about what constituted a hostile work environment and her options for reassignment. Complainant claimed that she requested telework or to be transferred but that neither option was accepted and when she complained about S1A she was told that is just how S1A talks to people. In early April 2018, Complainant took leave to grieve the death of her father. She returned to work on April 11, 2018. Complainant asserted that around this time, S1B had taken over as her new first-line supervisor. In addition, Complainant states that since August 2017, she is the only one not included in the weekly “Look Ahead” meetings. She asserted that in early June 2018 she had a conversation with S1B in which he informed her that she was receiving a second chance that she did not deserve. According to Complainant, she was floored and could only speculate as to what he was referring to. In mid-June 2018, Complainant decided to attend an IOP and was told by HR that she would have to take FMLA leave. She explained that she originally opted for the three-week period of IOP and put in the paperwork. Complainant contended that the next day, she received a voicemail from HR who informed Complainant that she needed to speak with her about her request. Complainant asserted that the HR representative failed to hang up the phone after the intended voice message and inadvertently recorded a conversation where the HR representative spoke ill of Complainant and stated that there was a plan to put her on another PIP because S1A was mad about the first PIP not going through. Complainant asserted that there was a lot of back and forth about what she needed for the FMLA leave paperwork and there were days that passed when no one responded to her emails. She noted that she was finally able to submit the correct paperwork but that months went by and she was still listed AWOL as noted in Claim 4. Complainant further stated that she then decided to seek “EEOC protection” and informed S1B by email. Complainant’s email dated August 20, 2018 states: Being transparent, I'm afraid to come to work. I was hoping that my FMLA would be approved since I gave the revised, corrected paperwork about two weeks ago. However, since I've received no confirmation, after asking for an update on Aug 6, I'm led to believe that my AWOL status has not been fixed. This, along with other things, has led me to the very difficult decision to seek EEOC protection. I will return to the office tomorrow. Also, since I've been emailing you these last two weeks, I've not received a response from you. I wanted to reiterate that I will be out of the office due to two upcoming doctor's appointments on Friday and Tuesday of next week. 2019005423 9 The record indicates that S1B forwarded her email to the entire office and to HR. Complainant believes that forwarding her email was an act of harassment. In addition, Complainant asserted that after receiving this email, HR “summoned” her and “badgered” her about why she was seeking EEOC protection. Complainant also asserted that she felt that she was not properly supported and trained while in the position, and as a result, found herself being scrutinized for every action she took and had her ability questioned. S1A testified that Complainant often complained that she felt unsupported by her colleagues. She advised that in Spring 2017, she met with Complainant and posited that her colleagues may be mirroring her treatment of them. For instance, S1A told Complainant, that if she does not inform them of her whereabouts and is not a “team player,” they may not see her as a member of their team. S1A informed Complainant that this does not justify anyone being rude to her but that she may not get any extra help from them because they do not view her as reliable. S1A also asserted that she met with Complainant’s coworkers who expressed frustration that Complainant often disappeared from her desk without informing them that she was leaving or where she was going. S1A further stated that her coworkers were frustrated by Complainant’s excessive habit of arriving late to work or not at all without alerting any of her coworkers. S1A affirmed that she spoke to C1 about the inappropriate comments she made about Complainant sleeping at her boyfriend’s house when she arrives to work on time. S1A stated that she was not aware of any other inappropriate comments made to Complainant. In addition, S1A explained that when she counseled Complainant on her performance at the end of 2017, she noted that Complainant did not check the PA Reviews database as frequently as stated in her work performance expectations and that Complainant informed her that checking the database every 20 minutes was not realistic. S1A did not think Complainant was overburdened. Nevertheless, S1A asked Complainant what she thought was a more reasonable schedule for checking the database but did not get a specific response. S1A further stated that after S1B became Complainant’s first-line supervisor, Complainant no longer came to her for assistance. Regarding the weekly Look Ahead meetings, S1A explained that those were meetings to review the calendars for the Assistant Secretary, Spokesperson and Principal Deputy Assistant Secretary and since Complainant did not provide direct support to any of those positions, there was no reason for her to attend the meetings. According to S1A, Complainant never mentioned to her that she believed she was being excluded and if she had, she would have explained the purpose of the meeting and why she did not need to attend. S1B denied telling Complainant that she did not deserve a second chance. Rather, he communicated to Complainant the importance of meeting the work commitments and that the switch to a new supervisor would be an opportunity for a fresh start. S1B also stated that when Complainant returned from leave, he met with her to discuss her concerns and he explained that he alerted her colleagues of her attendance for planning purposes and that he may have sent Complainant’s email in this same spirit. 2019005423 10 Regarding the alleged lack of support from leadership, S1B testified that he and Complainant met sometime in August 2018 and he tried to explain the impact of her frequent tardiness, absences and inconsistent meeting of her work commitments on the morale of her colleagues and the strain it put on the front office team. He noted that contrary to a lack of support, there was significant effort to both provide Complainant with options for reasonable accommodation as well as to arrange for others to cover her responsibilities. S1B also explained that Complainant’s colleagues had to take on additional responsibilities on her behalf on a regular basis. S1B stated that Complainant never told him that she was being excluded from the weekly Look Ahead meetings or that it constituted a hostile work environment. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD- 110, at Chap. 6, § IV.B. An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees...and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.” Id. at § IV.C. In addition, an investigator must identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at § VI.D. Upon review, the Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the fact finder to address the ultimate issue of whether discrimination occurred. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. To establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. § 1630.2(o) and (p). In this matter, Complainant sets forth a credible claim that the Agency failed to provide her with a reasonable accommodation in the form of telework, AWS, flexible leave, or reduced workload. The record also indicates that DRAD1 raised the possibility of a job share program as an accommodation for Complainant, but the record is devoid of evidence as to the extent of any discussions regarding this possibility. The record shows that, contrary to DRAD1’s testimony, Complainant was denied telework and AWS on February 9, 2018. 2019005423 11 Unfortunately, the record does not contain Complainant’s DRAD file which the testimonial evidence shows contains medical documentation to support her need for a reasonable accommodation. Without Complainant’s entire DRAD file. it is not possible to understand the true nature of Complainant’s medical limitations and whether those limitations could have been accommodated within Complainant’s current position. In addition, contrary to the Agency’s contentions, it is not clear whether teleworking one day per week and/or altering Complainant’s work schedule would pose an undue hardship on the Agency, especially given the fact that S1A permitted Complainant that option at one point to care for her mother. While the record shows that Complainant withdrew her request for a reasonable accommodation, such withdrawal was only after her telework/AWS request was denied, and she was informed that reassignment was her only option. In general, reassignment is the reasonable accommodation of last resort and should be considered only when: (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position; or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002); Shad R. v. Dep’t of Veterans’ Affairs, EEOC Appeal No. 2019003139 (Aug. 12, 2020). Complainant’s withdrawal of her accommodation requests is not dispositive here if it is determined that there was an effective accommodation available for her that did not pose an undue burden on the Agency. The evidence before us is insufficient to make this determination. We also find a credible claim that Complainant’s leave usage was tied to her medical conditions. Clearly, Complainant took a lot of leave and her supervisors resisted such leave usage. However, it is not clear from the record to what extent such leave was used or resisted because Complainant’s leave history is not contained in the ROI. Without this information, it is impossible to evaluate the merits of Complainant’s leave-related claims. While the denial of FMLA leave may not be within our purview,9 the medical documentation that Complainant provided to management to request FMLA leave is relevant to her need for an accommodation and the Agency’s knowledge of such need. In addition, the record does not provide adequate evidence to evaluate management’s decision to place Complainant on leave restriction.10 Lastly, we find that Complainant’s assertion as to what motivated the alleged retaliation unclear. While the Agency argues that Complainant dropped this claim, we find contradictory statements in the record leave open the question of Complainant’s intent. We note that Complainant’s attempt to seek a reasonable accommodation is a protected EEO activity, as are her statements to management about workplace harassment. We also note that Complainant asserted that individuals in HR “badgered” her after learning that she intended to file an EEO complaint. 9 See Wills v. Dep’t. of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993); see also, Romaine H. v. U.S. Postal Serv. EEOC Appeal No. 0120180249, (Jan. 4, 2018). 10 Along with the absence of Complainant’s leave records, the ROI is missing several pages seemingly relevant to the leave restriction decision found in blank pages from page 195-219. 2019005423 12 Accordingly, the supplemental investigation should obtain evidence to clarify Complainant’s position regarding this claim.11 CONCLUSION Accordingly, we find that the record before us contains insufficient information for us to issue a determination on the merits of Complainant's complaint and that further investigation is necessary. Accordingly, we VACATE the Agency’s final decision and REMAND this matter to the Agency for a supplemental investigation. ORDER TO SUPPLEMENT RECORD (B0617) Within one-hundred and twenty (120) calendar days of receipt of this Order, the Agency shall conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110, Chapter 6 and consistent with this decision. The supplemental investigation shall include, but is not limited to, (1) whether Complainant's medical condition could have been accommodated within her position during the relevant time-frame; (2) whether Complainant continues to allege retaliation and, if so, identify the protected EEO activity that forms the bases of this claim. The Agency shall develop the record to address the outstanding issues by obtaining documentary and testimonial evidence, including but not limited to: (1) Complainant’s entire DRAD file; (2) Complainant’s entire FMLA file; (3) Complainant’s leave records for 2017 and 2018; (4) Any correspondence pertaining to Complainant’s request for accommodation, including, but not limited to request for: (a) telework; (b) AWS; (c) job sharing; a reduction in work assignments; (d) a request for assistance; and (e) flexible leave; (5) all correspondence pertaining to FMLA or other leave; (5) all correspondence, medical documentation, and drafts, pertaining to any leave restriction placed on Complainant; (6) testimonial evidence from relevant witnesses pertaining to whether any of the identified potential accommodations posed an undue hardship as defined by the Rehabilitation Act; (7) rebuttal statement from Complainant. The Agency shall issue to Complainant a copy of the supplemental investigative file and shall notify Complainant in writing of her right to request a hearing before a Commission AJ or the issuance of an Agency decision, unless the matter is otherwise resolved. If Complainant requests an Agency decision without a hearing, the Agency shall issue its decision within sixty (60) days of receipt of Complainant's request. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case to comply with the time frames contained in this Order. 11 Because we have decided to remand Complainant's disability and reprisal claims for a supplemental investigation, we decline to address the merits of the harassment and race-based claims at this time. 2019005423 13 The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. 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 directed action has been taken. 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). 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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 2019005423 14 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, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2019005423 15 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 November 18, 2020 Date