Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Dec 4, 2014

0120122572 (E.E.O.C. Dec. 4, 2014)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120122572

Hearing No. 420-2011-00119X

Agency No. HS-10-FEMA-00076

DECISION
On June 1, 2012, Complainant filed an appeal from the Agency’s May 4, 2012, final order
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
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Cadre of
Reservist Employees (CORE) Alternative Dispute Resolution (ADR) Advisor in the Agency’s
Mississippi Recovery Office (MSRO). Complainant’s first level supervisor was the Acting
Deputy Director (Person A). Complainant’s Alternative Dispute Resolution Advisor was
Person B.

On July 9, 2009, Complainant injured her leg. Complainant received treatment at the Biloxi
Regional Medical Center and was discharged the same day with instructions to followup with
Doctor 1. Doctor 1 diagnosed Complainant with “derangement of the knee” and released her
to return to light duty work, pending surgical repair of her ACL.

Complainant returned to work after the injury on July 20, 2009. The Agency provided
Complainant with a wheelchair to use when she was on the premises. The Agency also
modified Complainant’s duties so she was not required to travel or walk long distances.

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Complainant took three days of sick leave from August 18, 2009, to August 21, 2009, as a
result of an August 19, 2009 surgery. Prior to the surgery, Complainant approached her
supervisor and requested permission to “medically telework” subsequent to the surgery.
Complainant then rescinded her request for telework. After surgery, Complainant renewed her
request to telework and her request was approved. Complainant began teleworking on August
24, 2009.

On September 14, 2009, Person A sent Complainant two memorandums: (1) Request for Tele-
work Status; and (2) Status of Medical Condition/Return to Duty stating, among other things,
“Telework will not be authorized in the future unless you follow the policy, receive
authorization from me in advance, and provide verifiable work product.” The Agency
provided Complainant with a medical questionnaire for the doctor treating the knee injury to
complete within seven days “clearly identify[ing Complainant’s] return to work date.”

On September 16, 2009, Complainant requested an extension of the deadline for submitting
medical documentation. Complainant explained she had a doctor’s appointment on September
29, 2009, and stated she could have the information by that date. In a September 16, 2009
electronic mail message, Person A told Complainant to get the documentation as soon as she
could, but not later than September 29, 2009.

Doctor 1 submitted a response to the Questionnaire for Medical Information, dated September
25, 2009. The response stated in questions three and four that Complainant could return to
work on September 30, 2009, with no negative impact on her ability to work. The response
also stated in question six “patient unable to work.”

The record contains a September 29, 2009 “Work/School Notes” also signed by Doctor 1
stating that Complainant is “unable to return to work. These restrictions apply until scheduled
follow-up appointment.”

On October 16, 2009, Person A sent Complainant a “Status of Medical Condition/Return to
Duty” memorandum noting that the information provided in Complainant’s responsive
Questionnaire for Medical Information was incomplete and contradictory. The memorandum
also noted Complainant turned in a document stating she was “unable to return to work. These
restrictions apply until scheduled follow-up appointment.” However, the Agency noted that no
date was given for the follow-up appointment. In addition, the memorandum noted that
Complainant provided medical information from the Bienville Orthopedic Clinic; however,
Complainant had previously advised the Agency on September 16, 2009, that she had
terminated the services of the Bienville Orthopedic Clinic. The Agency requested Complainant
clarify from which doctor she is receiving treatment and send the documentation from that
provider.

Additionally, the Agency requested Complainant provide acceptable medical documentation
certifying: her extended absence including information regarding the severity and expected
duration of her impairment; the activities that the impairment limits; the extent to which the
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impairment limits her ability to perform the functions of her job; the accommodations needed
to assist her in performing the essential functions of her job; and the date of her next scheduled
follow-up appointment. The Agency stated that it did not have sufficient information to make
an informed decision regarding Complainant’s status of employment or any necessary
accommodations. Complainant was ordered to provide the requested information by October
22, 2009. The memorandum noted that if Complainant’s doctor was not able to provide the
information within that time period, she could provide an alternative date of when the Agency
can expect to receive the information.

On October 16, 2009, Person A sent Complainant a “Termination of Telework Arrangement”
memorandum stating, among other things, that Complainant’s telework arrangement would be
terminated effective October 21, 2009, because Complainant “ha[d] not provided medical
documentation with any expectations of returning to work, . . . [or] verified any work product
. . . during the past 7 or so weeks that [Complainant had] been on Telework status.”

In an October 18, 2009 response, Complainant stated that in accordance with the September
29, 2009 timeframe, she sent the Agency a completed “Medical Questionnaire With an Unable
to Work.” Complainant stated her next appointment with the doctor is October 29, 2009.
Complainant stated she provided additional verbal information regarding her progress to
include the possibility of additional surgery. Complainant acknowledged that she informed the
Agency that she had changed therapists due to the lack of progress in order to facilitate a faster
recovery. She stated she was unaware of contradictory information submitted. Complainant
noted she signed a Medical Release previously and stated if any additional information was
needed, the Agency could contact her physician.

On October 29, 2009, Complainant sent an electronic mail message to her supervisor stating
that she planned to return to work on November 3, 2009, and work until her second surgery
scheduled for November 11, 2009.

The record contains an October 29, 2009 electronic mail message from Person A advising
Complainant that she is not authorized to return to work until her doctor has completed the
medical questionnaire and she has been medically cleared to return to work.

On October 29, 2009, Person A sent Complainant a memorandum stating, among other things
that Complainant “failed to comply with the terms of the [October 16, 2009] memorandum.”
Person A advised that “If acceptable medical documentation is not provided and you fail to
complete a formal leave request, I will have no choice but to charge your leave to Absent
Without Leave (AWOL).” In addition, the memorandum noted receipt of Complainant’s
electronic mail message stating that Complainant planned to return to work on November 3,
2009; however, Person A directed Complainant was not authorized to return to work until her
physician medically cleared her. Specifically, the Agency noted that Complainant had been
directed to have her doctor complete the medical questionnaire, identify her limitations, and
identify when she can return to work. Complainant was advised she cannot return to work
until the questionnaire is completed and her physician has clearly articulated her ability to
0120122572

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return to work and identified any necessary accommodations. The memorandum also specified
that any further instances of refusal to cooperate or any other instances of misconduct or poor
performance will be addressed with disciplinary action up to and including termination.

The record contains an October 29, 2009 “Work/School Notes” signed by Doctor A stating
Complainant may return to light duty work on November 3, 2009, with the restriction of no
training. The note indicated Complainant will be undergoing surgery on November 11, 2009,
and will be out of work afterwards “until further notice.”

The record also reveals Doctor 1 submitted a response to a second medical questionnaire.1

In
response to the question whether Complainant was able to return to work before November 3,
2009, the response indicated Complainant should have been able to return to light duty at two
weeks post operation with light duty and hour limitations to attend therapy. The response
indicates “[a]t this point she requires manipulation under anesthesia . . . and will require
intense therapy daily for 2 – 4 wks.” The response noted that Complainant was resistant to
therapy and thus, adequate therapy was not obtained and Complainant failed to meet goals.
The doctor indicated Complainant was scheduled for surgery on November 11, 2009, and
stated she will require 4-6 weeks of therapy after surgery. The doctor noted “light duty
capable at 2 weeks, full duty at 6 weeks.” In addition, the doctor indicated Complainant’s
restrictions as “no stairs, ladders, prolonged standing or floor to waist lift > 20 pounds until
further notice.”
Complainant failed to submit a leave request for the period of November 8, 2009, through
November 21, 2009. Complainant was marked as AWOL for that time period.

The record contains a November 24, 2009 “Work/School Notes” signed by Doctor A stating
that Complainant may return to light duty/desk work beginning November 30, 2009, with the
following restrictions: no lifting greater than 10 pounds, must have flexible work schedule to
allow attendance in physical therapy three times per week.

On November 25, 2009, Complainant was terminated from her position as Alternative Dispute
Resolution Advisor (CORE) in the Mississippi Recovery Office.

On March 16, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), disability (leg injury), and in reprisal for prior protected EEO activity
when2

:
1. On October 8, 2009, Complainant received an electronic mail message and phone
call from Employee Labor Relations (ELR) and the Office of Chief Counsel (OCC)

1 The second medical questionnaire does not contain a date it was signed by Doctor 1.
However, the record reveals it was sent via facsimile to Doctor 1 on October 30, 2009.
2 We have renumbered the issues in this decision.
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5
accusing her of going outside her chain of command, questioning her authority to
consult their supervisors, and directing her to write an apology letter concerning the
accusation they were unethical.
2. On October 16, 2009, Complainant’s management official sent her two
memorandums questioning her medical status and accusing her of “uncooperative
behavior, unprofessionalism, misconduct, and falsifying government documents
(time reported in WebTA).”3
3. On October 16, 2009, Complainant learned that her management official challenged
her application for workers’ compensation despite the injury being substantiated as
having occurred during work hours and while performing her duties.

4. On October 21, 2009, Complainant’s management official denied her request to
continue to telework as a reasonable accommodation.
5. On October 29, 2009, Complainant’s management official prohibited her from
returning to work on light duty despite her physician’s medical release to return to
light duty pending her surgery on November 11, 2009.
6. On November 23, 2009, Complainant’s management official refused to provide her
with copies of her medical records, which she authorized him to receive; however,
he did share them with OCC and ELR.
7. On November 25, 2009, Complainant was unfairly terminated from her position as
an Alternative Dispute Resolution Advisor under the charges of failure to follow
written policies and directives and AWOL.
8. On December 18, 2009, Complainant received a “mean-spirited” response to her
termination appeal.
9. On December 1, 2009, Complainant learned that an EEO Counselor visited the
Clinton Area Field Office's Safety Officer and had a conversation about
Complainant which was overheard by other employees.

On June 30, 2010, the Agency accepted issues (1) – (8) for processing. The Agency dismissed
issue (9) pursuant to 29 C.F.R. § 1614.107(a)(8), as alleging dissatisfaction with the
processing of a previously filed complaint. The Agency stated it would conduct an inquiry into
Complainant’s concerns regarding the processing of her complaint and send her a separate
letter notifying her of the results.

At the conclusion of the investigation on the accepted issues, 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 (AJ). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on March 8, 2012.

In her decision, the AJ noted Complainant claimed the Agency discriminated against her with
regard to applying its return to work, telework, and termination policies. The AJ found no

3 Although this issue was originally identified as occurring on October 14, 2009, the record
reveals the memorandums were issued on October 16, 2009.
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record of any similarly situated employee having been treated more favorably under similar
circumstances. Moreover, the AJ found the evidence demonstrated that Complainant violated
the Agency’s “medical telework” policy by providing inadequate medical information from her
doctor and by failing to verify any work product during telework.

With regard to her denial of accommodation claim, the AJ found no evidence Complainant had
a disability within the meaning of the Rehabilitation Act or the Americans with Disabilities
Amendments Act (ADAAA) of 2008. The AJ noted Complainant had a leg injury that
required two surgeries and her recuperation periods were no more than two to four weeks.

Moreover, the AJ found that even if the Agency “perceived” Complainant to be disabled, the
ADAAA expressly provides that an Agency need not provide a reasonable accommodation to
an individual who meets the definition of disability solely under the “regarded as” prong.

With regard to her claim of reprisal, the AJ found Complainant did not show that she engaged
in any protected EEO activity before the adverse action began. Also, the AJ found that being
an ADR Advisor, by itself, was not a protected activity.

The Agency subsequently issued a final order on May 4, 2012. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

On appeal, Complainant states she was injured while performing her assigned duties. She
claims she was denied the opportunity to have her injuries and medical expenses covered by
Workers’ Compensation in a timely manner. She states her supervisor denied her reasonable
accommodation to “medical telework” that would have allowed her to continue her duties. She
also states she was terminated from her position as ADR Advisor by her supervisor in
retaliation.

Complainant claims that Employee X reported to Person A and was permitted “medical
telework” on two occasions: to care for his father in Tennessee and later to undergo cancer
surgery. Complainant alleges that Employee X was permitted to “medical telework” without
going through the formal process of submitting an application for approval, providing weekly
reports, or working with the Human Resources Director or the Telework Coordinator.

Complainant notes that every month she provided medical documentation to Person A from
Doctor 1 via facsimile and electronic mail. She argues that there was sufficient and adequate
medical documentation to support her absence and continued medical telework as a reasonable
accommodation. Complainant argues that her impairment met the definition of a disability.

In addition, Complainant states she filed a complaint against her attorney who she states is
under investigation by the Mississippi Bar Association. Complainant states that her attorney
told her that she had a personal relationship with the AJ handling Complainant’s case while
they were both employed at the EEOC. Complainant states that her attorney told her not to
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inform the EEOC or the Agency that she agreed to continue to represent Complainant, but to
continue to proceed as if she was acting pro se while the attorney continued as her
representative. Complainant states that her complaint against her attorney was filed in January
2012. Complainant requests that the AJ be disqualified from participating in a decision on her
complaint on the grounds of prejudice and personal involvement.

In response to Complainant’s appeal, the Agency argues that Complainant’s temporary injury
is not disability. The Agency also notes that even though Complainant did not meet the
definition of a disability, it accommodated her injuries. The Agency states that when
Complainant first returned to work after her injury, it provided her with a wheelchair to use
when she was on the premises and modified her work duties so she was not required to travel
or walk long distances. The Agency states Complainant continued to work with the wheelchair
and modified duties until her surgery on August 19, 2009. The Agency states that after her
surgery, Complainant reasserted her request to telework and was compensated for telework
starting on August 24, 2009. The Agency notes Complainant’s telework accommodation
continued until October 21, 2009, when she was terminated because she failed to provide
sufficient medical documentation or to document her work activities.

In addition, the Agency notes that Complainant alleges that she was retaliated against because
of her activity as an ADR Advisor; particularly for her inquiry into the way the Agency
requests and handles employee medical records. The Agency states that during her inquiry,
Complainant collected information on Agency policies permitting the collection of medical
records and gathered information from the Employee Relations Office, the Equal Rights
Office, and the Office of Chief Counsel. The Agency notes that at the end of her report on
the inquiry, Complainant recommended “review of policy(s) as it pertains to Medical
Documentation and Confidentiality.” The Agency argues that Complainant’s recommendation
does not constitute an opposition to a practice and does not complain that the policies are
discriminatory. Moreover, the Agency states that assuming arguendo that Complainant’s
inquiry into the handling of employee medical records constituted protected activity,
Complainant failed to show a nexus between the protected activity and the adverse treatment.

The Agency notes that Complainant alleged that the following activities contributed to the
hostile work environment: October 8, 2009, she was accused of going outside of her chain of
command; October 16, 2009, she was accused of uncooperative behavior, unprofessionalism,
and misconduct; October 14, 2009, her workers’ compensation application was challenged;
October 29, 2009, she was not allowed to return to work; and November 23, 2009, her
management official would not release copies of her medical records.

With regard to her hostile work environment claim, the Agency notes the first alleged incident
occurred on October 8, 2009, when Complainant was accused of going outside of her chain of
command in an electronic mail message. The Agency notes the message in question was
written by Person C, a Management and Program Analyst for the Employee Relations Section
at the MSRO, and stated Complainant appeared to be an advocate for an employee instead of
trying to resolve the matter amicably per her ADR job description. The message also noted
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Complainant was “openly fighting it in open meetings” and going outside her chain of
command. Complainant was informed that if she does not get answers needed from inside the
MSRO management, she should address it first with her supervisor and was told it is not
appropriate for her to go to others in the chain of command. The Agency states the
communication was not hostile or abusive, but was written after Complainant had taken an
issue directly to the Chief of the Employee Relations group instead of coming to Person C.

With regard to the second incident, the Agency notes that on October 16, 2009, Complainant
stated she was accused of uncooperative behavior, unprofessionalism, and misconduct.
However, the Agency states the letter lists Complainant's misconduct and her manager's future
expectations. The Agency notes the memorandum stated Complainant had not provided
medical documentation with any expectation of returning to work. The memorandum also
noted that Complainant had not verified any work product which she attested had been
completed during the past seven weeks she had been on telework status. The memorandum
stated that based on Complainant’s refusal to cooperate with verbal and written instructions
regarding eligibility for authorization of telework, her telework was terminated effective close
of business on October 21, 2009. The Agency notes the memorandum also stated
Complainant’s conduct was such that she needed direct supervision at the time. Specifically,
the memorandum stated that over the past few weeks: Complainant has gone outside the chain
of command on several occasions; she has reported inaccurate information to the highest of
Federal Emergency Management Agency (FEMA) authorities on at least two separate
occasions; she has been argumentative on a conference call in front of her peers; and she
discussed an employee's medical information openly on that conference call where others in
the room could identify and/or speculate about the employee’s identity.

The Agency notes Complainant also alleged she was subjected to a hostile work environment
when her supervisor challenged her workers' compensation application. The Agency notes
that Complainant claims that her supervisor said that she was not performing ADR duties at the
time of the injury and had not taken the shortest or safest route between the two FEMA
facilities. The Agency states these statements were not hostile or abusive. The Agency also
notes that on October 29, 2009, Complainant was not allowed to return to work because her
supervisor did not have documentation that she was medically cleared to return to work. The
Agency states there was no hostility or abuse in the supervisor’s memorandum.

Finally, the Agency notes Complainant alleges that she was subjected to a hostile work
environment on November 23, 2009, when her supervisor refused to provide her with copies
of her medical records. However, the Agency states that when Complainant asked for copies
of her medical records, her supervisor told her that since the documents were part of her
official record, her request must comply with the provisions of the Privacy Act. The Agency
notes that Complainant stated in a deposition that she did not fill out the Privacy Act release
form that she was provided in order to obtain copies of her medical records because “[she
didn’t] believe it was necessary.” The Agency states there was no harassment with regard to
this incident. Moreover, the Agency claims Complainant cannot establish that the alleged
hostile work environment was based on a protected class.
0120122572

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Additionally, with regard to her disparate treatment claims, the Agency notes Complainant
alleged that the Agency discriminated against her when her “medical telework” agreement was
terminated on October 21, 2009, for failing to follow Agency policies, when on October 29,
2009, she was not allowed to return to full duty work without a medical release, and when she
was terminated on November 25, 2009, for being absent without leave and failing to follow
Agency policies. The Agency notes that Employee X is the only comparative employee that
Complainant was able to offer. However, the Agency notes that Employee X is not in the
same chain of command or work unit as Complainant and cannot be considered a similarly
situated employee. The Agency notes that Employee X was employed in the Long Term
Community Recovery work unit and reported directly to the Mississippi Recovery Director.
The Agency notes it provided legitimate, nondiscriminatory reasons for its actions which
Complainant failed to show were a pretext for discrimination.

ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29
C.F.R.§ 1614.405(a). See EEOC Management Directive for 29 C.F.R. Part 1614

, Chap. 9,
§ VI.A. (Nov. 9, 1999) (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”).
At the outset, we note that Complainant does not challenge the Agency's dismissal of issue (9).
The Commission has the discretion to review only those issues specifically raised in an appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10
(November 9, 1999). Accordingly, we will not address the dismissal of issue (9) in this
decision.

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact. Additionally, we find no impropriety in the instant AJ’s issuance
of the decision. There is no persuasive evidence of any conflict by the AJ. Although
Complainant states that the AJ and her attorney had a personal relationship while working at
the EEOC, Complainant did not elaborate on that relationship. Furthermore, Complainant has
not shown that the AJ knew of the “secret” representation of Complainant by her attorney at
the time of the issuance of the summary judgment.

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Disparate treatment

We note Complainant alleged she was subjected to disparate treatment with regard to several
Agency actions. In the present case, the Agency articulated legitimate, nondiscriminatory
reasons for its actions.

With regard to Complainant’s claim surrounding the October 8, 2009 electronic mail message,
the Agency states that Person C sent the electronic mail message based on Complainant’s
actions in going outside her chain of command.

With regard to Complainant’s claim surrounding the two memorandums received on October
16, 2009, the Agency notes Complainant was sent the two memorandums in question for
violating the Agency’s “medical telework” policy by providing inadequate medical information
from her doctor and by failing to verify any work product during the telework period.

With regard to her claim that the Agency removed her from telework on October 21, 2009, the
Agency stated Complainant violated the Agency's “medical telework” policy by providing
inadequate medical documentation and failing to verify her work product during the time she
was teleworking.

With regard to her claim that on October 29, 2009, management prohibited her from returning
to work, the Agency noted that her request to return to work was denied because her request
was not supported with sufficient medical documentation. The Agency stated it did not have
sufficient information from Complainant’s medical providers to determine what
accommodations Complainant needed to return to work without worsening her condition.

Next we address Complainant’s claim that on November 23, 2009, the Agency refused to
provide her with copies of her medical records. The Agency noted that in response to
Complainant’s request for copies of her medical records, her supervisor informed her that
since these documents were part of her official record, she had to comply with the provisions
of the Privacy Act. The Agency stated that Section 44 CFR 6.31 sets forth special rules
limiting the release of medical information contained in a system of records. In her deposition,
Complainant stated she did not fill out the Privacy Act release form that she was provided in
order to obtain copies of her medical records because she did not believe it was necessary.

With regard to her claim that on November 25, 2009, she was terminated from her position,
the record reveals that Complainant was terminated for: (1) failure to follow written policies
and directives; and (2) being absent without approved leave. The Agency noted that
Complainant failed to comply with numerous policies and directives by failing to provide
acceptable medical documentation certifying her extended absences and telework activities.
Moreover, the Agency noted that Complainant was AWOL from November 9, 2009, through
November 25, 2009.

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Upon review, we find Complainant failed to show that the Agency’s articulated reasons were a
pretext for prohibited discrimination or retaliation.

Denial of Reasonable Accommodation

For purposes of this decision, we assume without deciding that Complainant was a qualified
individual with a disability. Upon review of the record, we find that Complainant has not
shown that the Agency denied her a reasonable accommodation on October 21, 2009, when it
terminated her telework arrangement. In particular, we find that Complainant failed to provide
the Agency with the requested medical documentation so that the Agency could properly
consider her request and provide her with an effective accommodation. We find the Agency
sought to accommodate Complainant when it tried to engage her in the interactive process
designed to identify the nature of the disability and the actions necessary to accommodate the
disability. Specifically, beginning on September 14, 2009, the Agency sought to obtain the
status of Complainant’s medical condition, her incapacitation to work, or the impact her
medical condition had on her ability to return to work. In response, Complainant supplied
documentation from a medical provider which stated that she could return to work on
September 30, 2009, with no negative impact on her ability to work and additional
documentation stating that she was “unable to work.” The record reveals that the Agency, in
its October 16, 2009 memorandum, noted that the information submitted was contradictory and
incomplete and requested that Complainant provide additional medical documentation to
indicate the severity and expected duration of her impairment, the activities that her
impairment limited, and the required accommodations. Complainant failed to provide the
Agency with the additional medical documentation requested. Rather, in an October 18, 2009
response, Complainant noted she signed a Medical Release previously and stated if any
additional information was needed, the Agency could contact her physician. Thus, we find
the Agency’s removal of telework on October 21, 2009, was not a denial of reasonable
accommodation.

Harassment

Moreover, with regard to her claim of harassment, we find Complainant failed to prove by a
preponderance of evidence that she was subjected to harassment. Specifically, we find that
Complainant failed to establish that any of the Agency’s actions were motivated by
discrimination based on her race, disability, or in retaliation for protected activity.

CONCLUSION
Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
December 4, 2014