0120122585
10-30-2015
Hattie K.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hattie K.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal Nos. 0120122585, 0120132196
Agency Nos. DEA-2008-00515, DEA-2011-00555
DECISION
Complainant filed two appeals with this Commission from Agency final decisions. One appeal was from a final decision dated March 20, 2012. A second appeal was from an amended final decision dated June 4, 2013. The appeals addressed formal complaints of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In the interest of judicial economy, the Commission exercises its discretion to consolidate the two appeals. See 29 C.F.R. � 1614.606.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of race, sex, disability, age, and reprisal; and (2) whether Complainant established that she was subjected to a hostile work environment, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Diversion Investigator, GS-13, at the Agency's Resident Office in Roanoke, Virginia. Report of Investigation, Agency No. DEA-2008-00515 (ROI-1), at 4. The job description of Complainant's Diversion Investigator position required Complainant to conduct investigations "to prevent, identify, and take corrective action on the diversion of controlled substances and listed chemicals for public health and safety." Report of Investigation, Agency No DEA-2011-00555 (ROI-2), Ex. 15, at 2. This included "preventing the diversion of pharmaceutical drugs and disrupting the illicit production of controlled substances by preventing the diversion of chemicals used to make i1legal drugs such as cocaine, heroin, methamphetamine, MDMA (Ecstasy), etc." Id. The position required conducting investigations of manufacturers, distributors, importers and exporters, researchers, narcotics treatment programs, medical practitioners, and pharmacies. Id.
In December 2007 or before, Complainant advised the Division Group Supervisor and the Division Program Manager (DPM) that her husband had been severely ill with kidney disease, which impacted her ability to regularly attend work and perform her duties. ROI-1, at 104. Complainant further advised that she is the sole caregiver of her husband and needed to be with him to assist with his medical care, including doctor visits, testing, and other medical procedures. Id. at 182. Complainant indicated that caring for her husband required her to miss a great deal of work, and therefore she would need to use leave on regular basis. Id. at 47.
Appeal No. 0120122585, Agency No. DEA-2008-00515
On March 31, 2008, the DPM issued Complainant a memorandum expressing concern over Complainant's attendance and work performance. Id. at 111-13. Therein, the DPM wrote that she initiated a review of open and closed cases of the Roanoke Diversion component from January 16-18, 2008. Id. The DPM noted that the review found that Complainant had closed only two files in an 18-month period since her arrival at Roanoke. Id. The DPM indicated that one of the closed case files required only minimal documentation and that the second closed case file was seriously deficient. Id. The DPM did acknowledge that six months after arriving at Roanoke in July 2006, Complainant indicated that she had to take extensive leave to care for her sick spouse. Id. The DPM ended the letter advising Complainant to seek assistance through the Employee Assistance Program (EAP). Id.
On May 8, 2008, Complainant submitted a letter to the Special-Agent-in-Charge (SAC) at the time, asserting that the DPM had been subjecting her to a hostile work environment. Id. at 95-108. In the letter, Complainant specifically alleged that the DPM had been berating her over her use of leave under the Family and Medical Leave Act (FMLA). Id. Therein, Complainant explained that her husband had been extremely ill with kidney disease and that she needed to take extensive leave under the FMLA to care for him. Id. Complainant wrote that the DPM had treated her very poorly over her use of leave under the FMLA to care for her husband. Id.
On June 5, 2008, Complainant contacted an EEO Counselor, naming the DPM, among others, as responsible management officials (RMOs). Id. at 11-16. A short time later, on June 16, 2008, Complainant received a "Performance Concerns and Expectations" memorandum dated June 13, 2008, signed by the DPM. Id. at 4-9. Therein, the DPM advised Complainant of specific areas of her work performance that needed improvement for the remainder of the FY 2008 performance rating period. Id. In the memorandum, the DPM specifically noted, among other things, that during "the 2008 performance rating period, [Complainant] prepared very few (if any) written work products, appropriate in scope to support investigations." Id. at 5.
On August 22 and 29, 2008, and again on October 2, 2008, the Resident-Agent-in-Charge (RAC) and the Division Group Supervisor apparently gave Complainant instructions to complete two diversion cyclic reports. Id. at 302. At an October 2, 2008, meeting, Complainant reportedly agreed to have both cyclic reports finished and submitted to the Division Group Supervisor by close of business (COB) October 24, 2008. Id. However, due to a car accident in which Complainant and her husband were involved, the Division Group Supervisor extended the due to date for the cyclic reports to October 31, 2008, for completion. Id.
Meanwhile, the RAC approved Complainant's requested sick leave on October 27 and 28, 2008, and leave under the FMLA for October 29, 2008. Id. at 301. Complainant then requested to use annual leave for October 30 and 31, 2008, to search for a new car. However, the RAC then apparently denied Complainant's leave request because the two cyclical reports were overdue. Id. After the RAC denied the leave, Complainant reportedly indicated that she had a doctor's appointment for October 30, and 31, 2008, instead. Id. Following the RAC's request for a doctor's note, Complainant then allegedly instead requested leave under the FMLA to care for her ill spouse for October 30, 2008. Id. The RAC approved Complainant's FMLA leave, but believed that Complainant was untruthful about the October 30, 2008, doctor's appointment. Id. Complainant returned to work on October 31, 2008, so the RAC reportedly once again extended the due date for the completion of the cyclic reports to November 10, 2008. Id. After Complainant failed to complete and submit the cyclic reports as scheduled, on December 29, 2008, the Division Group Supervisor requested a status update from Complainant. Id. Complainant reportedly responded that she did not have the opportunity to work on the reports because she had been out on sick leave and on FMLA leave. Id.
On January 14 and 21, 2009, Complainant submitted the two reports, respectively. Id. at 302-303. Shortly thereafter, the Division Group Supervisor e-mailed Complainant, writing that the proper format for at least one of the reports had not been used and requesting that Complainant correct the issue. Id. According to Complainant, she submitted the reports using the Diversion Report Writing Guide. Id. at 81. Complainant averred that the initial format she used mirrored a report submitted by the Junior Diversion Investigator, who also used the Diversion Report Writing Guide, which the Division Group Supervisor accepted. Id. However, contrary to Complainant's statement, according to the Junior Diversion Investigator, he did not submit such a report. Id. at 246. The Division Group Supervisor averred that Complainant did eventually submit the reports in the correct format, but that she omitted some significant information. Id. at 232.
Months later, on June 11, 2009, management issued Complainant a notice of proposed suspension for seven calendar days. Id. at 301-304. Therein, management noted that the RAC believed that Complainant had fabricated her request for leave on October 30, 2008, to attend a doctor's appointment after he denied her original request to shop for a new car. Id. As a result, management charged Complainant with exhibiting "Poor Judgment." In the proposed suspension, management also charged Complainant with "Failure to Follow Supervisory Instructions" for failing to submit the two cyclical reports in a timely fashion and submit them in the correct format. Id.
Also on June 11, 2009, the RAC issued Complainant an unacceptable performance appraisal rating. Id. at 307-325. Therein, the appraisal noted that management became concerned when Complainant scheduled an interview of a witness at a facility that the Junior Diversion Investigator had already begun to investigate. Id. The appraisal indicated that Complainant may have jeopardized a pre-existing grand jury investigation, and noted that a review of available databases should have alerted Complainant to the open investigation. Id. The appraisal also noted that Complainant submitted only one report of investigation, an unacceptably low number, while the Junior Diversion Investigator submitted 37 investigative reports. Id.
Appeal No. 0120132196, Agency No. DEA-2011-00555
On February 22, 2011, management apparently notified Complainant by teletype that she would be reassigned to the Washington, D.C. office, effective May 22, 2011, based on her performance. ROI-2, Ex. 8, at 2. The RAC averred that Complainant exhibited several performance deficiencies, so management believed that Complainant needed supervision from an Agency Diversion Supervisor. Id. The RAC averred, however, that the closest Diversion Supervisor "that would work in this situation" was located at the Agency's Washington, D.C. office. Id. Complainant thereafter submitted a request to the Agency's Career Board to rescind her transfer because of the medical hardship of caring for her sick husband, who was dealing with kidney failure. ROI-2, Ex. 7, at 4. Complainant indicated it was extremely difficult to find a high-quality dialysis center with an opening for patients. Id. Complainant averred that no other Division Investigator had ever been involuntarily transferred to another office. Complainant also averred that she was not properly told that she was being considered for the transfer, and she was also not given a choice between any particular offices to which she could have been transferred.
On September 27, 2011, according to the RAC, Complainant was to have reported to Washington, D.C., and submitted certain leave slips to her new supervisor. ROI-2, Ex. 8, at 4. The RAC also averred that Complainant said she sent the leave slips using Federal Express delivery to her new supervisor, but then conversely said she had not sent them yet and they were in an envelope at her home. Id. Believing that Complainant's statement was false, the RAC ordered two Special Agents to escort Complainant to her home to get the leave slips. Id. The Special Agents then reportedly waited in the lobby of Complainant's apartment building for 30 to 45 minutes while she searched for the leave documentation. Id. The RAC averred that Complainant produced some leave slips, but the slips had incorrect dates on them and were not filled out correctly. Id.
Procedural History
On July 22, 2008, Complainant filed an EEO complaint (Agency No. DEA-2008-00515)2 alleging that the Agency subjected her to discrimination and harassment on the bases of race (Caucasian), sex (female), disability (perceived mental, asthma, allergies, and back injury), age (51), and reprisal for prior protected EEO when:
1. On January 17, 2008, the DPM called her into a conference room and berated and demeaned her;
2. On February 22, 2008, the DPM denied her request for leave;
3. On April 1, 2008, the DPM referred her to the EAP;
4. On June 2, 2008, the Assistant Special Agent-in-Charge disrespected her by making her wait 2.5 hours for a meeting;
5. On June 16, 2008, the DPM gave her a Performance Concerns and Expectations memorandum dated June 13, 2008;
6. On January 21, 2009, the DPM rejected her report on scheduled regulatory investigations on narcotic treatment programs, and instructed her to use another format; and
7. On June 11, 2009, she was given a proposed seven-day suspension and a negative performance evaluation.
On August 25, 2008, the Agency issued a Partial Acceptance/Dismissal of Complainant's complaint with regard to Agency No. DEA-2008-00515. As a result, the Agency accepted claims 5, 6, and 7 for investigation, but dismissed claims 1 through 4. The Agency found that Complainant failed to timely contact an EEO Counselor with regard to claims 1 through 3, and failed to establish that she was aggrieved with respect to claim 4.3
On May 13, 2011, Complainant filed a second EEO complaint (Agency No. DEA-2011-00555) alleging that the Agency subjected her to discrimination and harassment on the bases of race, sex, disability, age, and reprisal for prior protected EEO when:
1. On February 22, 2011, she was notified that she would be reassigned from the Roanoke Resident Office to Washington, D.C., effective May 22, 2011; and
2. The RAC ordered two Special Agents to escort her to her home to get leave slips, which she inadvertently had not sent via Federal Express to her new office.4
At the conclusion of the investigations with respect to Agency Nos. DEA-2008-00515 and DEA-2011-00555, the Agency provided Complainant with a copy of each report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request with regard to Agency No. DEA-2008-00515.5 The Agency thereafter issued separate final decisions pursuant to 29 C.F.R. � 1614.110(b). The decisions concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Agency's Final Decision No. DEA-2008-00515
Initially, the Agency found that Complainant did not establish that she was an individual with a disability under the Rehabilitation Act as alleged. Specifically, the Agency noted that the record contained no documentation concerning any alleged disability, and all witnesses stated that they were unaware that Complainant had a disability. The Agency also found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretext for discrimination. The Agency indicated that Complainant exhibited performance deficiencies, including completing a significantly low number of investigative reports and jeopardizing an ongoing investigation. The Agency found that, even if the unfavorable review of Complainant's performance was not justified, there was no evidence that management was motivated by discriminatory animus as alleged. The Agency further found that there was no evidence that Complainant was subjected to retaliation as alleged. The Agency noted that in her May 8, 2008, letter, Complainant alleged only that her FMLA rights were violated, and therefore did not allege discrimination on a basis that implicated Title VII. The Agency also found no connection between Complainant's protected activity and the proposed suspension or the unfavorable evaluation. In sum, the Agency found no evidence that management's proffered reasons were pretextual based on Complainant's protected classes.
Agency's Final Decision No. DEA-2011-00555
With respect to the Agency's second Final Decision issued on June 4, 2013, the Agency again found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretext for discrimination. In particular, the Agency noted that Complainant exhibited a detailed history of performance issues requiring Complainant's transfer from the Roanoke office due to its small size and lack of a Diversion Supervisor. The Agency noted that all management officials had similar assessments of Complainant's production and agreed that the lack of a Diversion Supervisor to manage and closely supervise Complainant had hindered her performance. The Agency indicated that management ordered the transfer in an attempt to raise Complainant's performance level through the close guidance of a management official with supervisory experience and expertise in Diversion investigations. With regard to claim 2, the Agency noted that Complainant did not provide an account of the incident to the Agency's EEO investigator for ROI-2. The Agency found no evidence in the record to counter the RAC's account that he ordered the special agents to escort Complainant home because he felt that Complainant was untruthful to him with respect to his instructions regarding her leave slips.
CONTENTIONS ON APPEAL
On appeal, with regard to Agency Final Decision No. DEA-2011-00555, Complainant contends that the EEO Investigator failed to appropriately contact her with regard to claim 2, and she therefore did not have a chance to refute the RAC's account of the matter in the record. Complainant specifically notes that she did not receive any messages from the EEO Investigator, and that she did not have voicemail at work for a period of time. Complainant also contends that she did not receive any correspondence from the EEO investigator requesting a statement from her.6
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based race, sex, disability, age, and reprisal, the Agency articulated legitimate, non-discriminatory reasons for its actions. With regard to claim 5, Agency No. DEA-2008-00515, the DPM explained that Complainant had been performing below the Agency's expectations by reporting no activity for the evaluation period, including no drug trend data, liaison with counterpart agencies, investigative activities, or contacts with the Agency's public. ROI-1, at 180-81. As for claim 6, management stated that they sent Complainant a copy of the requested format and asked her to correctly format the report and resend it for another review. Management further stated that Complainant failed to correct the requested format as of June 1, 2009. Id. at 303.
Regarding Claim 7, the RAC stated, in pertinent part, that he believed Complainant had fabricated her request for leave on October 30, 2008, to attend a doctor's appointment after they originally denied her request to shop for a new car. Id. at 301. Management indicated that Complainant failed to submit the two cyclical reports, as noted above, in a timely fashion and submit them in the correct format. Id. at 302-303. Management additionally specified that Complainant conducted an interview of a witness at a facility that the Junior Diversion Investigator had already begun to investigate, which may have jeopardized a pre-existing grand jury investigation. Id. at 322. Management noted that Complainant submitted only one report of investigation, an unacceptably low number, while the Junior Diversion Investigator submitted 37 investigative reports. Id. at 319-30.
With respect to claim 1 of Agency No. DEA-2011-00555, the SAC explained that she, along with other management officials, believed that Complainant would benefit by having a Diversion Group Supervisor as her first line of supervision. ROI-2, Ex. 9, at 2. The SAC explained that management wanted to provide Complainant with other options, other than placing her on a PIP, which would enable her to achieve an acceptable performance rating. Id. The Assistant Special Agent-in-Charge indicated that management felt that Complainant needed close daily supervision by a Diversion Supervisor, which was not an option at Roanoke. ROI-2, Ex. 10, at 2.
Regarding claim 2, the Division Group Supervisor explained that Complainant was supposed to have reported to Washington, D.C. and submitted certain leave slips to her new supervisor. ROI-2, Ex.8, at 4. The Division Group Supervisor also averred that Complainant said she sent the leave requests by Federal Express to her new supervisor, but then conversely said she had not sent them yet and were in an envelope at her home. Id. Believing that Complainant's statement was false, he ordered two Special Agents to escort Complainant to her home to get the leave slips. Id.7
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Notwithstanding Complainant's contentions, we note that a variety of management officials and coworkers submitted statements for the record, expressing their beliefs that Complainant's performance was unacceptable. We note that we do not have the benefit of an Administrative Judge's credibility determinations and findings after a hearing and therefore, we can only evaluate the facts based on the weight of the evidence presented to us. In any event, there is no dispute that Complainant did not timely submit the two cyclical reports, and that the Junior Diversion Investigator submitted 37 investigations, while Complainant submitted one. We can find no evidence in the record that management was motivated by discriminatory or retaliatory animus in its actions. With respect to Complainant's allegation of reprisal, we note that management first expressed their concern over Complainant's performance the March 31, 2008, memorandum. The memorandum was issued before Complainant had engaged in any recent protected EEO activity.
To the extent that Complainant is alleging that the Agency denied her reasonable accommodation to care for her ill husband when it reassigned her, and issued her the proposed suspension and the negative performance evaluation, we note the Agency was not required to accommodate Complainant. The Commission has held that individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodation. EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, at n. 5 (October 17, 2002); Brooks v. Dept. of Veterans Affairs, EEOC Appeal No. 01A32247 (Aug. 7, 2003); Complainant v. Dep't of Housing and Urban Development, EEOC Appeal No. 0120122992 (Feb. 10, 2015) (complainant not entitled to reasonable accommodation to care for his wife or daughter under the Rehabilitation Act).
Harassment
Finally, with regard to Complainant's harassment claim, the Commission notes that Complainant's claim of hostile work environment must fail because of the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). See also Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by the Commission's determination above that Complainant failed to establish that any of these actions were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). We note that, with regard to claim 2 of Agency No. DEA-2011-00555, Complainant did not respond to the investigator's repeated requests for an affidavit. ROI-2, Ex. 13. Thus, Complainant did not rebut the Division Group Supervisor's assertion he took action for reasons other than discriminatory or retaliatory animus. Lastly, to the extent that Complainant asserts that management subjected her to harassment over her use of leave pursuant to the FMLA, we note that the Commission does not have jurisdiction over such claims. The Commission can only examine whether there is any evidence of discrimination in management's decision to grant or deny a request for FMLA leave.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of race, sex, disability, age, and reprisal; and that Complainant did not establish that she was subjected to a hostile work environment as alleged. Accordingly, we AFFIRM the Agency's final decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, 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 (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
Oct. 30, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant amended her complaint on January 22, 2009, and July 22, 2009.
3 Complainant does not contest the Agency's partial dismissal of claims 1 through 4; therefore, we exercise our discretion not to review the Agency's dismissal of those claims herein. See EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � IV.A.3. (Aug. 5, 2015).
4 The investigator for ROI-2 notes that Complainant did not provide a statement for the record with regard to claim 2, despite repeated attempts to contact her.
5 The record is silent as to whether Complainant requested a hearing with regard to Agency No. DEA-2011-00555. Complainant did not contest the Agency's issuance of a final decision in that case.
6 Complainant did not file a statement or brief on appeal with respect to the Agency's Final Decision of No. DEA-2008-00515, or regarding any of the other claims in either of her complaints.
7 We are not persuaded by Complainant's contention on appeal that the EEO investigator did not properly contact her to obtain her investigative affidavit with regard to claim 2. The record reflects that Complainant received several e-mails from the EEO investigator specifically requesting that Complainant submit a supplemental affidavit. ROI-2, Ex. 13.
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