[Redacted], Buffy L., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2021005090 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Buffy L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021005090 Hearing No. 460-2019-00193X Agency No. HS-ICE-000961-2018 DECISION On September 20, 2021, 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 August 20, 2021, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision in part, and VACATES and REMANDS the Agency’s final decision in part. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Chief Counsel (ACC), GS-0905-13, at the Agency’s Office of the Principal Legal Advisor (OPLA), Office of Chief Counsel (OCC), in Houston, Texas. Complainant started at the Agency on September 6, 2016, and she was subjected to a two-year probationary period. During the relevant time, Complainant’s first level supervisor was the Deputy Chief Counsel (DCC-1). 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. 2021005090 2 Complainant’s second level supervisor was the Chief Counsel (CC). Complainant was terminated from her position on October 6, 2017. On October 13, 2017, Complainant initiated contact with an EEO Counselor. Thereafter, on January 3, 2018, Complainant filed a formal EEO complaint, which was subsequently amended, alleging that the Agency subjected her to a hostile work environment on the bases of race (African-American/Native American), religion (Christian), color (black), disability (Attention Deficit Hyperactivity Disorder (ADHD), severe anxiety, irregular heartbeat with palpitations, and obesity), age (40), sex (female), and in reprisal for prior protected EEO activity when: 1. On dates to be specified in 2016 and 2017, the Deputy Chief Counsel (DCC-1) yelled at Complainant and made statements intending to demean, ridicule, and/or intimidate her. 2. On dates to be specified in 2016 and 2017, the Chief Counsel (CC) made statements intending to demean, ridicule, and/or intimidate Complainant. 3. On October 31, 2016,2 DCC-1 required Complainant and other attorneys similarly situated to her to attend a “Red Pen Party.” 4. In 2017, management repeatedly and intentionally assigned special projects to Complainant to “set her up for failure.” 5. In 2017, management subjected Complainant to different terms and conditions of employment related to the assignment of duties when she was given “more burdensome work” than her similarly situated coworkers. 6. In April of 2017, management did not approve Complainant for a promotional opportunity program. 7. On May 5, 2017, management provided Complainant with a midyear review that contained false information, and on or about June 13, 2017, management informed her that her court performance numbers would not be included in a revised midyear review. 8. On May 17, 2017, after Complainant requested a reasonable accommodation, the CC and DCC-1 did not provide her with information regarding the reasonable accommodation process, and the Agency did not reimburse her for incurred expenses. 9. On May 17, 2017, Complainant became aware that her private document submitted to the CC regarding her midyear review had been left on the copier in the mailroom. 10. Since September 6, 2016, until October 6, 2017, management forced Complainant to work in a cubicle instead of an office. 11. On September 8, 2017, DCC-1 did not respond to Complainant until September 21, 2017, regarding a sensitive court matter. 12. On October 4, 2017, management instructed Complainant to complete a Memorandum of Law (MOL). 13. On October 6, 2017, Complainant received a letter of termination. 2 It appears the correct date might have been October 21, 2016. 2021005090 3 14. On November 29, 2017, DCC-1 contacted Complainant by sending text messages to her personal cell phone, even after Complainant had informed DCC-1 to stop doing so. 15. Prior to Complainant being terminated on October 6, 2017, the CC failed to provide Complainant with an Annual Performance Review that should have accompanied her promotion to a higher grade. 16. Beginning in July or August of 2017, after Complainant requested a reasonable accommodation for her mental conditions and submitted the necessary documentation to the Office for Civil Rights and Diversity (OCRD) the Agency, including the CC and DCC-1, failed to provide Complainant with a reasonable accommodation for her mental conditions. 17. On dates to be specified, Complainant was paid less than similarly situated White coworkers, while doing the same level of work as a GS-14 attorney. 18. On October 6, 2017, the CC and DCC-1 did not provide Complainant with sufficient time to clear out her personal belongings from her workspace on the day of her termination and DCC-1 stood over Complainant in order to rush her in collecting her possessions. 19. At some point after October 6, 2017, DCC-1 went through some of the personal paperwork and journal information that remained in Complainant’s former workspace and failed to provide these items to Complainant. 20. From October 6, 2017, until well into March of 2018, the CC and DCC- 1 left Complainant’s former work environment/cubicle in disarray for employees to see and observe. 21. On November 7, 2017, the CC and DCC-1 sent Agents to Complainant’s home because the CC and DCC-1 falsely reported to the Office of Personnel Management that they had contacted Complainant instructing her to return her Agency credentials On July 31, 2018, the Agency accepted claims 1, 2, 4, 5, and 8 - 21. The Agency dismissed claims 3, 6, and 7. The Agency found claims 3, 6, and 7 were discrete acts that occurred more than 45 days before Complainant’s initial EEO Counselor contact on October 13, 2017. The Agency noted that although Complainant claimed that she was not aware of the time limits, her training records disputed that assertion. Specifically, the Agency noted that Complainant took and passed the Agency’s No Fear Act Training on September 12, 2016, and September 18, 2017, where she would have been made aware of the deadline to contact an EEO Counselor to complain of discrimination. The Agency found that since Complainant failed to timely contact an EEO Counselor on claims 3, 6, and 7, those claims were dismissed. However, the Agency noted that claims 3, 6, and 7 would be investigated as background evidence in support of Complainant’s hostile work environment claim. At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. 2021005090 4 The matter was remanded to the Agency for issuance of a final decision. The Agency determined a supplemental investigation was required. Following a supplemental investigation, 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. In its final decision, the Agency found that Complainant failed to timely contact an EEO Counselor regarding claims 3, 6, 7, and 8. The Agency stated that since claims 3 and 6 - 8 were discrete acts that occurred more than 45 days prior to her October 13, 2017 EEO contact, they would be dismissed as discrete acts. However, the Agency noted that claims 3 and 6 - 8 comprised part of Complainant’s hostile work environment claim and would be analyzed under that theory. The Agency analyzed claims 4, 5, 12, 13, and 15 under a disparate treatment analysis and found Complainant failed to show that the Agency’s actions were motivated by discriminatory animus. The Agency determined that Complainant established that she is a qualified individual with a disability. Regarding claim 16, Complainant alleged that between July 12 - 20, 2017, she informed management of her medical conditions and provided medical documentation to OCRD when she submitted her reasonable accommodation request. The Agency noted that although Complainant stated she requested an office as a reasonable accommodation for her ADHD and generalized anxiety conditions, there was no evidence in the record to show she requested any specific accommodation during this period other than the request for an extra baggage fee when she travelled for her medically prescribed diet. The Agency noted that CC and DCC-1 stated they were unaware of Complainant requesting a reasonable accommodation based on her mental conditions. Thus, the Agency found Complainant was not denied a reasonable accommodation based on her mental conditions. Regarding claim 17, Complainant claimed that CC and DCC-1 were responsible for her being paid less than similarly situated White coworkers doing the same level of work as GS-14s. DCC-1 stated she was not involved in determining Complainant’s paygrade when Complainant began on September 6, 2016. DCC-1 explained that Complainant was assigned work consistent with her job description. DCC-1 noted that higher pay grades are often a reflection of more time in service. CC stated that the position Complainant was hired for was advertised as starting at a GS-11 with promotion potential to a GS-14. Complainant was hired as a GS-12. CC explained that each new hire’s prior experience was reviewed, and each were offered the position at the grade level commensurate with their level of legal experience. CC noted that she, OPLA’s Mission Support Division in Dallas, and Field Legal Operations in Headquarters were involved in setting Complainant’s entry level. CC stated that Complainant was not paid less than similarly situated White coworkers, as Complainant’s entry level was commensurate with her level of legal experience, and she could advance to higher grades by promotion. DCC-1 also stated that Complainant’s race, color, religion, age, disability, or prior EEO activity were not considered when Complainant was hired at a GS-12 pay level. 2021005090 5 The Agency examined the remaining claims under a hostile work environment analysis. The Agency found Complainant failed to prove that the Agency subjected her to a discriminatory hostile work environment. The Agency noted the record did not contain evidence demonstrating that management’s actions were motivated by discriminatory intent, or that Complainant was subjected to unwelcome conduct based on her membership in a protected class. CONTENTIONS ON APPEAL On appeal, Complainant claims the Agency erred in dismissing some of her claims as discrete acts. Complainant notes that claim 6 involves a promotion denial, which she concedes is a discrete act. However, she contends the remaining claims dismissed were improperly dismissed as discrete incidents. Regarding claim 3, she argues that the “Red Pen Party,” which Complainant and her mostly minority colleagues attended, was not a discrete act since it was not a termination, refusal to hire or promote, or a denial. Regarding claim 7, Complainant argues that providing false information in her mid-year review was not a discrete act. Further, she argues that claim 8, regarding her request for a reasonable accommodation, was also not a discrete act. Specifically, Complainant notes that on May 17, 2017, she requested a reasonable accommodation, and the CC and DCC-1 did not provide her information regarding the reasonable accommodation process and did not reimburse her for incurred expenses. She notes that subsequently on June 12, 2017, she notified OCRD and submitted a reasonable accommodation request form because the CC told her that was the process. Complainant claims the May 17 request for a reasonable accommodation was not a denial that day and thus, was not a discrete act. Further, Complainant states claims 3, 7, and 8 should be considered as ongoing acts of harassment. Complainant claims that the Agency subjected her to a hostile work environment based on her disability. She states that on June 3, 2017, when she requested reasonable accommodation and reimbursement for her personally incurred luggage expense, the CC replied, “What is wrong with you? It must be something wrong with you.” Complainant states in response she made clear the comments were unwelcome. Complainant states there was a nexus between the harassment suffered and her disability. She notes the statement was in direct response to her request for reasonable accommodation and reimbursement for the requested accommodation. Complainant contends because of the demeaning effect on Complainant, the Agency’s harassment had the effect of interfering with her performance and creating a hostile work environment. Complainant also notes that on May 17, 2017, the CC left her confidential information, which she states was a request for a reasonable accommodation, on the public printer when the CC had her own private printer. ACC-7, Complainant’s coworker, stated he saw Complainant’s file on the printer and read the name associated with it. ACC-7 informed the Legal Administrative Assistant (LAA) and stated, “I know that you will probably talk to [Complainant] before I do, and I know that you will put [the file] in safekeeping.” Complainant notes the LAA then walked the document down to the CC to inquire whether the CC left the document in the public printer. 2021005090 6 Complainant states the LAA told her that the CC admitted, “Yeah, I left it out there, it was not that long.” Complainant argues the action of leaving the document on a private printer is likely to rise to the level of unlawful harassment. With regard to her claim of denial of reasonable accommodation, Complainant claims the lengthy delay in providing her with a reasonable accommodation was tantamount to a denial of accommodation. Complainant notes on June 20, 2017, she submitted her reasonable accommodation request for the cost of additional baggage for medically restrictive food. She stated between July 12 and July 20, 2017, she reached out again to the OCRD to request reasonable accommodation for her ADHD, severe anxiety, irregular heartbeat, and obesity. Complainant notes the record contains letters dated October 13, 2017, November 28, 2017, and December 5, 2017, purporting to grant her requested extra baggage. She contends the three different dates the Agency cites as approving her request (October, November, December) are inconsistent. She argues the Agency’s unreasonable delay constituted a denial of reasonable accommodation. Further, she notes the amended July 12 - 20, 2017 request for reasonable accommodation for her ADHD, severe anxiety, irregular heartbeat, and obesity was not even addressed. In response, the Agency reiterates its position that claims 3, 6, 7, and 8 were discrete acts and thus, time barred. However, the Agency states regardless of whether those incidents were viewed as discrete acts, they were still analyzed by the Agency as part of Complainant’s hostile work environment claim. The Agency notes claims 1 - 2, 9 - 11, 14, and 18 - 21 were properly analyzed as part of a hostile work environment claim. The Agency noted the incidents comprising her hostile work environment claim were routine, work-related matters, not severe or pervasive enough to rise to the level of unlawful harassment. The Agency states it properly addressed claims 4, 5, 12, 13, and 15 under a disparate treatment analysis. The Agency noted management articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to provide evidence that those reasons were pretext for discrimination. Regarding the denial of reasonable accommodation (claims 8 and 16), the Agency claims that when Complainant advised she needed to check a second bag to pack food for her special diet, the request was approved. The Agency states management then immediately took steps to figure out how to reimburse Complainant for her expense. The Agency argues Complainant received the accommodation needed (authority to check a second bag) at the time it was needed and was later reimbursed for it. The Agency argues Complainant has not shown that she was harmed by the delay in reimbursement. Regarding the second requested accommodation for ADHD and anxiety in July 2017, the Agency states Complainant never advised DCC-1 or the CC that she needed an accommodation for a mental condition. Thus, the Agency argues that she failed to show the Agency discriminated against her on the basis of disability. 2021005090 7 Regarding Complainant’s termination, the Agency addresses her argument that receiving a good performance review and promotion in September 2017, and then terminating her in October 2017, demonstrates pretext. The Agency states Complainant fails to note that DCC-1’s recommendation for her career ladder promotion was submitted to CC on June 26, 2017, in order to give staffing personnel time to process the request. The promotion was effective on September 3, 2017, and Complainant’s employment was terminated on October 6, 2017. The Agency cites to the performance deficiencies as legitimate, nondiscriminatory reasons for Complainant’s termination, which Complainant failed to show were pretext for discrimination. Finally, the Agency notes that Complainant misidentifies the document left on the printer. Specifically, the Agency notes Complainant alleges that on May 17, 2017, the CC left her confidential information, which was her request for reasonable accommodation, on the public printer when the CC had her own private computer. The Agency states Complainant is incorrect. The Agency notes in her affidavit, Complainant states that the document allegedly intentionally left on the printer was the document she had prepared to dispute her mid-year performance review, along with several attachments and supporting evidence. Complainant claims that the documents also included her written grievance and reporting of the harassment and bullying she had been subjected to by DCC-1. The Agency notes the document had nothing to do with her request for reasonable accommodation, which did not happen until after that date. Therefore, the Agency contends Complainant’s arguments that this incident constitutes disability discrimination is without merit. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Regarding the dismissed claims we find that to the extent that claims 3, 6, and 7 can be considered discrete incidents, we find that these claims were properly dismissed as untimely raised. However, we will consider these incidents as background evidence in support of Complainant’s hostile work environment claim. Regarding claim 8, we find that this incident was improperly dismissed for untimely EEO Counselor contact. We note Complainant is alleging that on May 17, 2017, she requested the reasonable accommodation of having the Agency pay for an extra baggage while she was on government travel, which she claims the Agency failed to provide. 2021005090 8 The record reveals that at the time Complainant initiated her EEO Counselor contact on October 13, 2017, the Agency had not yet issued a decision regarding her request. Thus, we find her claim that the Agency had not provided her the reasonable accommodation requested on May 17, 2017, was timely raised. Disparate Treatment Regarding claim 4, Complainant claimed that DCC-1 and the CC repeatedly assigned her special projects to “set her up for failure.” Complainant noted that DCC-1, DCC-2, and DCC-3 assigned her tasks. She stated that DCC-2 and DCC-3 provided templates and assistance when they assigned her tasks. She also noted that DCC-2 and DCC-3 did not assign her tasks on her scheduled Duty Attorney (DA) or Visiting Immigration Judge (VIJ) days. However, she stated that the CC and DCC-1 randomly assigned her “special projects” without a template or written specific guidance and assigned her tasks while she was in court. DCC-1 stated she made specific assignments to Complainant based on office policy, her skill level, and to provide her with experience. DCC-1 explained that she routinely asked Complainant how she was coping with the workload and encouraged her to advise DCC-1 if she required any assistance with the work. DCC-1 noted that Complainant did not inform her that she lacked the resources to adequately address the assignments. Upon review, we find Complainant failed to provide evidence that the Agency’s actions were motivated by discriminatory animus. Regarding claim 5, Complainant alleged that management gave her “more burdensome work” than her similarly situated coworkers. Complainant stated she was placed in court multiple days during the week and was required to handle both non-detained and detained dockets. She said she was consistently placed on more advanced dockets that were normally designed for more advanced/higher grade attorneys. Complainant also stated that DCC-1 and the CC ensured her court schedule was filled with days in court and that she was not afforded hardly any time in the office. DCC-1 noted the DCCs shared the duty of creating the schedule for attorneys with the duty rotating among them; however, all Deputies are involved in amending a schedule as necessary to ensure mission coverage. DCC-1 stated that all Deputies strive to achieve a balance of assignments among attorneys with regard to number of days in court, distribution of detained and non-detained dockets, and additional assignments such as Duty Attorney and Backup Attorney assignments. DCC-1 stated there was no particular docket that is considered to be an “advanced” docket and noted that any given docket could include a special interest or complex case, and when such cases are identified, they are assigned to attorneys with the appropriate experience. The CC noted that their office generally attempts to make work assignments fair and use the ACCs’ numbers to assign cases when a case attorney for a case is unknown or when the case attorney is unavailable for more than three days. The CC noted that all attorneys in the office are assigned non-detained and detained cases. Further, the CC noted each first-line supervisor would create court assignments, where they would make the schedules for a six-week period and attempt to evenly distributed the number of court days for the ACCs. 2021005090 9 Complainant failed to show that DCC-1’s or the CC’s actions in assigning her work were based on any of her protected bases. Regarding claim 12, Complainant alleged that on October 4, 2017, DCC-1 instructed her to complete a Memorandum of Law (MOL) that DCC-1 was aware should have been assigned to another direct report. Complainant claimed attorneys scheduled in court could not be scheduled to handle Duty Attorney or VIJ Attorney activities. Complainant stated this day she was detained in court so she could not handle the MOL. Complainant stated when asked to do the MOL she responded, “Yes ma’am.” DCC-1 noted during this time, immigration judges from New York were hearing cases via tele- video from Houston detention centers. Attorneys from the New York OCC appeared in court with the New York judges to litigate these cases. However, the files relating to the cases remained in Houston. For this reason, OCC Houston assigned a Houston attorney to support the New York/Houston dockets every day, and the support role was designated as “VIJ” to indicate support to the visiting immigration judges. DCC-1 noted as VIJ, the Houston attorney assumed the role as case attorney which included being responsible for reviewing the citizenship claim that emanated from the New York/Houston dockets. DCC-1 stated the case attorney was identified using hearing dates. DCC-1 stated on October 4, 2017, Complainant forwarded an email from a New York ACC who had sent a prepared citizenship memorandum to Complainant that related to a case scheduled for hearing on the VIJ docket on October 6, 2017, for OCC Houston review. DCC-1 noted that because Complainant was assigned as the VIJ attorney for October 6, 2017, she was the Houston case attorney and, as such, was responsible for the citizenship review on the October 6, 2017, New York/Houston dockets. In her rebuttal affidavit, Complainant noted that someone from Houston management responded to the New York Attorney and asked him to contact Complainant. Complainant believed the New York Attorney should have been instructed to contact the VIJ attorney from October 2, the date Complainant stated the citizenship memo was assigned by the court or the VIJ attorney scheduled on October 4. Complainant also stated that the citizenship memo had not been completed when she was contacted by the New York Attorney and stated she had to work on her day off, October 5, to complete the assignment. Upon review, even assuming Complainant’s version of events is true, we do not find she established that management’s actions were motivated by discriminatory animus. Regarding claim 13, Complainant challenged the October 6, 2017 letter of termination. The CC stated she was responsible for removing Complainant during her probationary period for performance deficiencies. The CC explained in the letter of termination that although Complainant was provided with training and written guidance, she failed to complete briefs and other filings in sufficient time to have them properly reviewed. Further, she failed to incorporate comments and instructions from management. 2021005090 10 In an attempt to prove pretext, Complainant claimed that ACC-1 (Black, male) had significant performance issues, ACC-2 (White, male) violated the Agency’s OPLA disclosure policy, and ACC-3 (Asian, female, over the age of 40) stipulated to a grant of Withholding of Removal in an immigration court proceeding, which is prohibited, were treated differently than she was when they were not terminated for the above-stated reasons. The CC stated she was unaware of ACC-1 having significant performance issues. She stated she was unaware that ACC-3 stipulated to a grant of withholding of removal in an immigration court proceeding. The CC noted that ACC-2 who had been with the office since 1998 and who did not have significant performance issues, did disclose information in violation of Agency policy; however, the CC and DCC-3 (ACC-2’s supervisor) reported him to the Office of Professional Responsibility (OPR). After an investigation, OPR found ACC-2 did not intentionally disclose the information but rather lacked understanding of the policy. The CC issued ACC-2 a letter of counseling and provided him with training. Upon review, we find the record does not support Complainant’s claims that she was treated differently than ACC-1, ACC-2, or ACC-3. We find that Complainant’s continual performance problems were much more troublesome than ACC-2’s one improper disclosure. Further, we note in an attempt to prove pretext, Complainant cites ACC-7’s statement that he thought Complainant was an excellent attorney, that he saw no valid reason for her dismissal, and that he believed if she had a supervisor other than DCC-1, she would still be employed. However, we note that ACC-7 was not a decision maker in Complainant’s termination. Further, we note ACC-7 did not claim that any of Complainant’s protected bases motivated DCC-1. Upon review, we find that Complainant failed to provide evidence that the Agency’s actions surrounding her termination were based on her alleged protected bases. Regarding claim 15, Complainant claimed that prior to being terminated, the CC failed to provide her with an Annual Performance Review that should have accompanied her promotion to a higher grade. DCC-1 stated that Complainant was terminated on October 6, 2017, during her probationary period. She noted the performance rating period ended at the end of September; with the reviews being issued on October 26 and 30, 2017. As Complainant was no longer working for the Agency, she was not issued a year-end performance evaluation. The CC confirmed that the fiscal year 2017 performance year ended on September 30, 2017, and that performance reviews were completed over the next 30 days. Complainant failed to establish that the Agency’s articulated reason was a pretext for discrimination. Pay claim (Claim 17) Regarding claim 17, Complainant claimed that the CC and DCC-1 were responsible for her being paid less than similarly situated White coworkers doing the same level of work as GS-14s. In her affidavit, Complainant failed to name any specific comparatives. DCC-1 stated she was not involved in determining Complainant’s paygrade when Complainant began on September 6, 2016. 2021005090 11 CC stated that Complainant was hired as a GS-12 which was the level commensurate with her level of legal experience. Upon review, we find Complainant failed to show that she was treated differently than any identified comparatives. Reasonable Accommodations Claim 8 On May 18, 20173, in connection to travel for work, Complainant notified DCC-1 that she needed to travel with a second suitcase to transport her medically restricted diet. In a reply email, DCC-1 noted that if there were justifications for the additional expense, it should not be a problem. On June 6, 2017, Complainant was informed by the CC that regulations only allowed one checked bag unless travel was for more than 30 days or there was a documented special need. In response, Complainant informed the CC that, as she had indicated to DCC-1 on May 18, 2017, she incurred an additional baggage fee due to “medically necessity” to transport “medically prescribed food that is part of a diet” that she was on for health reasons. Complainant cited the Americans with Disabilities Act which she noted provided for accommodations. Complainant offered to have her doctor provide a written document, if necessary. In a June 7, 2017 email, the Section Chief in Finance stated she understood from their last conversation that Complainant needed an extra bag for food items, that Complainant could not take the bag as a carry on, and that Complainant would pay for the additional bag herself. The Section Chief suggested Complainant provide written documentation from her physician listing her “medically restrictive diet” requirements and explaining why she had to travel with specific dietary foods which could not be obtained at the temporary duty location. Complainant responded the same day stating if she had known she needed to obtain a letter from her physician previously, she would have done so. Complainant stated she would get the letter as soon as possible. On June 9, 2017, the CC noted there was confusion about how to process Complainant’s request to be reimbursed for travel expenses related to a second baggage for her special dietary needs. The CC noted the Agency was “trying to determine the appropriate process to have [her] request considered, and if appropriate, reimbursed.” Complainant was advised, in the meantime, to submit her request without the extra baggage fee to receive reimbursement for the other expenses immediately. The CC noted that if guidance was sent, an amendment could always be processed. Complainant replied that that sounded like a workable plan and that she would submit the other information right away. 3 Although the claim is framed as occurring around May 17, 2017, the record reveals Complainant first notified Agency of her request in a May 18, 2017 email. 2021005090 12 The record contains a June 15, 2017 email Complainant sent to, among others, the CC and the Section Chief in Finance, in which she stated she was providing a letter from her physician, Doctor 1, verifying that she is on a medically prescribed diet. She stated the medically restrictive diet required her to travel with an additional bag. Complainant stated she was out of the office but would bring a hardcopy of the letter on June 21, 2017. The record contains a letter from Doctor 1 dated June 14, 2017, in which her doctor stated Complainant was on a “medically restricted diet as prescribed. The diet requires her to travel with food. Please make the appropriate accommodations for the patient.” The record contains a Reasonable Accommodation Request Form signed by Complainant on June 20, 2017. The form noted Complainant requested accommodation orally on May 18, 2017. The form noted that Complainant was on a medically restrictive diet that was prescribed by her internal medical doctor. She noted the diet required her to eat particular pre-packaged food at least three times per day. She stated if travel was required, she would need to travel with a separate bag to transport the food. Complainant requested the Agency pay the separate baggage fee so she could transport the pre-packaged food required. On July 19, 2017, an EEO Specialist, ODCR, emailed the CC and DCC-1 noting the ODCR received Complainant’s request for reasonable accommodation. The EEO Specialist requested management provide Complainant’s position description and information on her essential duty functions no later than July 24, 2017. The same day, the CC stated it was their understanding Complainant’s request concerned the payment of extra baggage. The CC stated if that was the same request, attending mandatory training was an essential function of the ACC position, and the baggage fees were incurred as part of her attendance at mandatory training. The CC noted she was attaching the relevant position description. The EEO Specialist replied that the request was for payment for extra baggage and asked whether the CC was stating that their office was okay with paying for her extra bags. The CC replied that she was not stating the office was okay with paying for the extra bags. Rather, she was just answering the questions asked and clarifying that Complainant was required to go to training. The CC stated she deferred to ODCR on whether she can justify the extra baggage fee and whether it was okay to pay the fee. Further, the CC noted that she had not reviewed her medical documentation and was not aware of what her condition was that would justify the need for extra baggage. The record contains a July 31, 2017 letter from Doctor 1 stating Complainant was currently on the “ideal Protein diet due to patient’s current conditions which include hyperlipidemia, obesity, pre-diabetes, palpitations, and anxiety.” The doctor explained the ideal protein diet was a structed program that required Complainant to eat three forms of specific carbohydrates which is lower than 56g per day. The patient was required to eat 4 cups of cooked vegetables and must omit regular sweeteners, consume ¼ teaspoon of the ideal salt, and at least two tablespoons of olive oil. It was noted that Complainant may need to pack this type of food until she reached a healthy weight. 2021005090 13 In an August 7, 2017 email to the CC, the EEO Specialist stated Complainant’s medical documents were reviewed by the Agency’s Medical Director and Disability Program Manager. The EEO Specialist noted that they were recommending approving the request for six months and would reevaluate thereafter if needed. The same day, the CC sent an email to the EEO Specialist agreeing with the recommendation. The record contains an email from the EEO Specialist to DCC-1 containing a draft management decision memorandum dated October 13, 2017, for DCC-1’s review. It was noted if DCC-1 chose to prepare a different memorandum or had any edits to make, they should be vetted through the EEO Office prior to issuing to Complainant. The email noted Complainant should be provided with the management decision memorandum no later than five business days from receipt of the email, or by October 20, 2017. The October 13, 2017 memorandum stated Complainant’s request for reasonable accommodation was received by ODCR on July 14, 2017, in which she requested, that when she was required to travel for work, the Agency pay a separate baggage fee to transport the pre- packaged food required as part of her medically prescribed diet. The memorandum noted Complainant submitted June and July 2017 letters from her doctor, who described her medical conditions and explained her prescribed restrictive diet required her to travel with food as a temporary measure until she reached “a healthy weight range.” The memorandum noted that the temporary accommodation would be granted for six months, through April 30, 2018. Complainant was advised if she required an extension of the temporary accommodation, she could submit a new request. In her affidavit, DCC-1 stated that since she received the response from ODCR after Complainant had been terminated, she requested revisions to the memorandum regarding the length of time the temporary accommodation would be in place and a possible extension to the temporary accommodation. On December 5, 2017, DCC-1 emailed Complainant a November 28, 2017 memorandum of approval for her reasonable accommodation request. Complainant was informed that she should sign the memorandum and return it to DCC-1 along with her receipt for the additional checked bag by December 14, 2017. DCC-1 stated that after receipt, she would initiate the reimbursement process. The November 28, 2017 memorandum stated Complainant’s request for reasonable accommodation was received by ODCR on July 14, 2017, in which she requested, that when she was required to travel for work, the Agency pay a separate baggage fee to transport the pre- packaged food required as part of her medically prescribed diet. The memorandum noted Complainant submitted June and July 2017 letters from her doctor, who described her medical conditions and explained her prescribed restrictive diet required her to travel with food as a temporary measure until she reached “a healthy weight range.” 2021005090 14 The memorandum noted that when on travel required for her job, she could submit, and the Agency would pay, fees incurred for an additional bag in order to enable her to transport the pre- packaged food required by her medically prescribed diet. The Agency is not arguing that Complainant is not entitled to the reasonable accommodation of payment for the separate baggage fee. Upon review, however, we are unable to determine whether the Agency provided Complainant with the requested reasonable accommodation. The record reveals Complainant’s request for reimbursement for a second baggage fee was ultimately approved by the Agency. While the Agency claims Complainant has been reimbursed for a second travel bag, we note the record does not contain documentation that the requested baggage fee was paid. Thus, we remand this claim to the Agency for supplemental investigation to determine whether such payment has been made. Claim 16 Complainant claims that beginning in July or August 2017, she requested reasonable accommodations for her mental conditions, which were not provided. The Agency argues that Complainant did not show that she requested any specific accommodation during this period other than the request for an extra baggage fee when she travelled for her medically prescribed diet (claim 8). The Agency states Complainant never advised DCC-1 or the CC that she needed an accommodation for a mental condition. In her affidavit, when questioned regarding claim 16, Complainant stated that between July 12 - July 20, 2017, she notified ODCR of her ADHD, severe anxiety, irregular heartbeat, and obesity and gave medical documentation to ODCR and was working with the EEO Specialist regarding her request. Complainant stated that she could perform the duties of her position but the following restrictions should be adopted in order for her to be proficient: must receive court dockets and trial materials in a timely manner; be allowed to handwrite case notes after court versus doing them contemporaneously during court; not be assigned multiple projects at the last minute, unless she is provided specific out of court time to complete the assignments; must be provided a clear roadmap with a listing of expectations to complete casework; a private quiet work space with adequate shelving and drawer space; and direction from supervisor or management must be nonthreatening. Complainant noted that she dealt with the EEO Specialist, the Reasonable Accommodation ODCR. She stated that the EEO Specialist provided her the medical questionnaires for the ADHD/General Anxiety Disorder, and the medically restrictive diet. She stated she emailed both the EEO Specialist and the ICEReasonableAccommodation@ice.dhs.gov email box. Complainant stated that she received messages from ODCR indicating they received her requests and instructions to provide medical documentation. Complainant noted she complied with their request and provided medical documentation to the ODCR for all of her listed medical conditions. 2021005090 15 She stated she emailed the medical documentation from her work email address and explained that since she was terminated, she no longer had access to the emails she sent to ODCR. However, she stated she still had the documentation and medical records that she provided and attached the relevant documentation to her affidavit. We note that as attachments to her affidavit, Complainant provided three Reasonable Accommodation Request forms: one signed by Complainant on June 20, 2017, relating to her request for extra baggage; a second signed by Complainant on July 12, 2017, relating to her ADHD and anxiety disorder; and a third signed by Complainant on July 20, 2017, relating to her ADHD and severe anxiety. The two request forms for her ADHD and anxiety describe her conditions and request the following accommodations: (1) an administrative day before a court day and after each court day assigned to allow for docket prep and case follow up; (2) larger workspace that is quieter than her current conditions, specifically her own office; (3) a digital recorder to allow her to record all meeting; (4) a calendar and written journal for note taking and to track court dates and meetings; (5) a dry erase board with makers in her own workspace so she can visually track ongoing projects; (6) additional time in the office to work on briefs, respond to duty motions, and other written assignments; (7) not to be subjected to a hostile work environment; and (8) when assigned projects or case related tasks that are new, if the decision maker has a particular format that should be followed, Complainant requested to be provided a template when the assignment is given. Complainant also attached three doctors’ notes to her affidavit: one dated June 14, 2017, from Doctor 1 regarding her restricted diet; a second dated July 31, 2017, from Doctor 1 regarding her restricted diet; and a third from Doctor 2 dated July 29, 2017. In the July 29, 2017 letter Doctor 2 noted Complainant’s diagnoses of ADHD and severe anxiety, which were listed as chronic and manageable. Doctor 2 noted Complainant’s conditions make it harder for her to focus and complete tasks and work in a high-pressure environment. Doctor 2 recommended the following accommodations: (a) an administrative day after each court day and additional time as needed to complete tasks; (b) a private office to conduct administrative work; (c) use of a digital recording device to use in meetings; (d) basic tools to optimize her organization in the office (calendar, journal, and dry erase board/marker); and (e) work environment that is nutritive and nonhostile. Upon review, we are unable to determine whether the Agency denied Complainant’s requests for reasonable accommodation relating to her ADHD and anxiety. Despite the Agency’s contention that Complainant did not show that she requested any specific accommodation during this period other than the request for an extra baggage fee, we note the Agency did not address the specific argument she made in her affidavit and the documentation she provided with her affidavit. Specifically, she stated that between July 12 - July 20, 2017, she notified ODCR of her ADHD, severe anxiety, irregular heartbeat, and obesity and gave medical documentation to ODCR and was working with the EEO Specialist regarding her request for reasonable accommodation for her ADHD and anxiety. She provides the July 12 and July 20, 2017 Reasonable Accommodation Request forms in support of her condition and medical documentation from Doctor 2. 2021005090 16 With regard to the Agency’s contention that the CC and DCC-1 stated they were unaware of Complainant requesting a reasonable accommodation based on her mental conditions, we note that Complainant herself acknowledges that she did not tell the CC and DCC-1 about her ADHD and anxiety. Rather, she states that she notified ODCR and worked directly with the EEO Specialist regarding her request. We note that the timing of this second request for reasonable accommodation would have been around the time her first reasonable accommodation request (for reimbursement for a second baggage fee) was referred to ODCR for processing. Thus, we remand this claim to the Agency for supplemental investigation. Hostile Work Environment The Agency examined the remaining claims under a hostile work environment analysis. Regarding claim 1, the Agency noted Complainant cited several examples where she claimed DCC-1 yelled at her and made statements intending to demean, ridicule, and/or intimidate her. Among the incidents, Complainant stated that on January 25, 2017, DCC-1 stated Complainant did not have her security clearance and that DCC-1 did not know how they are letting Complainant work here. DCC-1 responded that Complainant had been working there for several months, when she brought a security form to DCC-1’s office requesting a signature to complete her security clearance. DCC-1 noted she made a comment, in a teasing or joking manner, about background checks not being completed and questioned how Complainant could be working in the office. DCC-1 noted Complainant had a surprised look on her face and that DCC-1 assured her she was joking, and they both laughed. In her rebuttal, Complainant denied laughing and stated she thought by her tone, that DCC-1 was serious. Further, Complainant stated that this was not a matter that should be joked about in the first place. Complainant also claimed that on February 13, 2017, while discussing her weekend with DCC-1, DCC-1 shifted the conversation to a very invasive, personal discussion regarding Complainant’s romantic relationship and DCC-1 mentioned the sanctity of marriage. DCC-1 explained that during a conversation, Complainant stated she was happy because her boyfriend/fiancé was joining her in Houston. DCC-1 stated that when she inquired about marriage on the horizon, Complainant indicated that she was not sure given a previously bad relationship. At this point, DCC-1 shared that she had a previous bad marriage; however, she subsequently found a partner with whom she had been happily married to for over 30 years. DCC-1 told Complainant that she hoped she would not let a past bad experience affect her future. Complainant alleged that on April 25, 2017, DCC-1 screamed at her over the telephone, while critiquing her work without having read the entire draft. Complainant stated that ACC-4 and ACC-5 heard the conversation since it was on speaker phone. DCC-1 stated that Complainant had submitted a notice of appeal (NOA) for management review, for which DCC-1 requested a correction; however, Complainant disagreed and claimed that she followed the instructions and did not understand why she needed to make the change. After DCC-1 reiterated her reasoning, Complainant continued to question DCC-1’s guidance. 2021005090 17 DCC-1 informed Complainant that she still wanted the correction added, at which point DCC-1 assertively stated that she did not wish to discuss it further and asked Complainant to make the change as requested. DCC-1 denied that she screamed at Complainant. ACC-4 stated that she overheard the conversation in question and noted that DCC-1 did not scream at Complainant; however, she believed DCC-1’s tone was condescending. Complainant claimed that on May 30, 2017, despite Complainant’s work dealing directly with DCC-2, DCC-1 responded to an email indicating she would now be reviewing Complainant’s work instead of DCC-2. Complainant noted that DCC-1 stated, her legal recommendation to re- calendar a specific case was “very premature.” DCC-1 explained that on May 30, 2017, Complainant was assigned two administratively closed cases for review by DCC-2 to determine whether the OCC should move to re-calendar the proceedings. DCC-1 explained that, although the CC, DCC-2, and DCC-3 all engage in the assignment of work to attorneys, it is her responsibility as Complainant’s first-level supervisor to review the work. Specifically, for the two cases, she concurred with Complainant's recommendation for one case and assessed that it would be premature to file a motion to re-calendar the second case because the respondent had not returned to their custody. DCC-1 argued that her review and feedback were not harassment but rather the normal course of her duties as Complainant's first-level supervisor. The CC agreed that filing the motion to re-calendar would have been premature because the case was on the detained docket and the respondent was not returned to their custody. DCC-2 explained that she managed the litigation team, and that it is office practice for the first level supervisor to review the work of their subordinates. DCC-2 noted that DCC-1’s involvement was an assessment of Complainant’s recommendation and advised Complainant on how to proceed. Complainant alleged that on August 8, 2017, during a meeting, DCC-1 used a harsh and intimidating tone when threatening that she would send Complainant home during her lunch break to obtain the original signed version of Complainant’s midyear evaluation. DCC-1 explained that Complainant had objected to language in her midyear review and that changes were subsequently made to the review. Complainant had been advised that she needed to return the signature page from the original review so that it could be attached to the revised document. DCC-1 stated that on August 14, 2017, after being asked by the CC to follow up with Complainant, she emailed Complainant asking her to return the signature page. In response, Complainant came to her office and presented a copy of the signature page. Complainant informed DCC-1 that the original was at her home. DCC-1 stated she knew that Complainant lived about 15 minutes away and she asked if Complainant could retrieve the document during her lunch hour. Complainant replied she did not know exactly where the document was in the house and would not be able to locate it quickly. DCC-1 stated she then asked Complainant to look for it and return it by August 23, 2017. DCC-1 stated she did not threaten to send Complainant home, but rather, asked if she could go home during her lunch hour to retrieve the document as she believed Complainant lived close to the office. 2021005090 18 Complainant claimed that on September 22, 2017, during a face-to-face interaction with DCC-1, she was seeking assistance, but DCC-1 degraded, belittled, and intimidated her while not allowing her to explain. Specifically, DCC-1 stated, “Well, [Complainant] you weren't paying attention, and if you would have been watching what you were doing you would have known that the case had been deemed legally insufficient for administrative final order.” Complainant stated DCC-1 followed up her hostile conduct with a respectful toned email. DCC-1 explained that after several email exchanges with Complainant, she believed that Complainant did not understand administrative removal; therefore, she suggested that they get together to discuss administrative removals at a future date. She noted that later that day, Complainant stopped by her office indicating that she understood administrative removal. DCC-1 claimed that she interacted professionally with Complainant via email and briefly in person by providing guidance on the case in question. DCC-1 stated that the interactions were instructive and not degrading, belittling, intimidating, or harassing in nature. Regarding claim 2, Complainant alleged that the CC made numerous statements intending to demean, ridicule, and/or intimidate her. Among the incidents cited, Complainant alleged that on March 14, 2017, the CC looked at her and made statements directed toward her during a staff meeting with the OCC staff in attendance. Complainant stated that the CC addressed the excessive costs of a GS-12 attorney and reinforced the need to overstate their actual time to perform activities in PLAnet (the OPLA’s case management system) as PLAnet allowed the CC to justify the headcount in the OCC’s Houston, Texas office. Complainant claimed that the CC continued that if PLAnet numbers did not pick up, she “may have to cut a couple of attorneys.” Complainant claimed these comments were directed toward her as she was the second to the last hire in the OCC office. The CC denied that the above-noted comments were directed toward Complainant. She explained that she was informing the staff that headquarters was advocating for additional staff for the OPLA which depended on their office accurately capturing the work they were doing in PLAnet. Additionally, the CC denied that she instructed attorneys to overstate their actual time they took to perform their activities; however, she did instruct them not to underreport their time. The CC stated that she explained PLAnet could be used to advocate for more staff, but she did not say it would be used to cut staff. Complainant claimed that on May 8, 2017, CC sent her an email stating, “[Complainant], you and [DCC-1] need to meet with me in my office when you are back in the office, so we can fix these cases.” The CC noted the event happened on May 22, 2017. The CC explained that Complainant sent her recommendations on May 22, 2017. On May 26, 2017, when no motions had been filed, the CC sent Complainant and her first line supervisor a message to “stop by on Tuesday to resolve these two.” The CC stated this was done in an attempt to discuss the cases and make a final determination as to the next step in the case because they had deadlines to meet. Complainant claimed that on or around June 6, 2017, during a conversation regarding her request for reimbursement for a second baggage, the CC accused Complainant of not making the request in advance and in response Complainant explained that she had notified DCC-1. Additionally, Complainant claimed the CC shouted, “What is wrong with you?! It must be something seriously wrong with you.” 2021005090 19 Complainant stated that after a pause, the CC continued that, “What I mean is this is new for us. We have never had someone that was on a special diet, so this process is new to us.” Finally, Complainant noted that with a tone that was suddenly growing softer, the CC stated, “Well, [Complainant] we will work to get this resolved.” The CC stated that on June 9, 2017, she spoke with Complainant about submitting her authorization without the extra baggage fee. She denied that she shouted at Complainant, and she did not recall asking Complainant what was wrong with her or stating that there must be something seriously wrong with her. Complainant claimed that on June 22, 2017, during a meeting with the CC, DCC-2, DCC-3, and ACC-6, the CC appointed ACC-6 to handle the case and she instructed ACC-6 not to assist Complainant in writing an alert email notification. The CC stated the case at issue was identified through the Victims of Immigration Crime Enforcement (VOICE) office and that this was an important case since it was the first case in the OCC by this newly created office. The CC stated to ensure the case was handled appropriately at the merit stage, it was assigned to ACC-6 as first chair with Complainant as second chair. Additionally, the CC assigned Complainant to create an alert, which is a summary of the case and what has transpired, so Complainant could obtain experience creating a case alert on a sensitive case. The CC did not recall instructing ACC-6 not to assist Complainant with the alert. DCC-1 noted that the CC assigned ACC-6, who was a more senior attorney and familiar with the VOICE program, as the lead attorney and Complainant was assigned second chair. DCC-1 stated the CC assigned Complainant to draft a case synopsis for the alert notification that would be elevated to Agency headquarters; therefore, the CC informed ACC-6 that she need not worry about the alert notification. Further, DCC-1 noted Complainant had only been working with the OCC for nine months at that time and remained involved with the case as second chair to gain experience. DCC-2 confirmed that ACC-6 was assigned first chair because she had seven years of experience practicing immigration law; she had built a rapport with the victim’s mother; and the victim’s mother wanted to testify at the hearing. DCC-1 stated she did not recall any statements being made that demeaned, ridiculed, or intimidated Complainant. DCC-3 stated the case was assigned to ACC-6 because she was familiar with the program. DCC-3 noted the case was reassigned to an attorney more familiar with the program. ACC-6 stated she attended the meeting to discuss the upcoming case but did not remember a lot of details surrounding the meeting. ACC-6 stated she thought it was DCC-1 who asked her to write the alert notification and also thought it was DCC-1 that asked her not to help Complainant with the alert notification. Further, Complainant stated that on July 6, 2017, during a meeting, the CC stated, “Some HSI (Homeland Security Investigations) people have mentioned to her that an attorney was wearing pink house shoes or some type of shoes (slides) on their side of the building, so we needed to be mindful of this.” Complainant claimed that this was directed at her because the CC was aware that she wore pink flat shoes, which were a dress sandal, when she transported carts to her side of the building because the CC had complimented Complainant on the shoes one day in the hallway. The CC explained that she had received some general complaints that their attorneys were not dressed appropriately and that there were several attorneys wearing house slippers in the office. The CC stated that she did not direct her comment to anyone specifically. 2021005090 20 DCC-1 stated that during the July 6, 2017 meeting, which was a regular staff meeting, the CC had addressed a variety of issues including a reminder of the need for staff to dress professionally and/or appropriately in the office as it had been previously raised to the CC. DCC-1 explained that this was a general reminder given to all staff members because several staff members were not dressing appropriately with clothing and/or footwear in the office and in court. Additionally, she noted that the CC did not reference any staff members by name. Furthermore, DCC-1 stated that Complainant was not present at this meeting. Regarding claim 3, Complainant claimed that in October 2016, DCC-1 sent an email requiring Complainant and other attorneys similarly situated to attend a “Red Pen Party.” During this time DCC-1 required Complainant and other new ACCs to make corrections to the more senior attorneys’ Notices to Appear (NTA) and none of the more senior attorneys were invited to attend the “Red Pen Party.” DCC-1 stated that on October 21, 2016, she discussed with CC the need to address manual corrections for a large volume of charging documents, NTAs, that had been rejected by the Immigration Court. DCC-1 stated that the rejected documents had not been coded, which resulted in the Immigration Court rejecting the NTA and the case not being docketed. The volume was so large that a single attorney, who would be the duty attorney, would have to spend a significant amount of time making the necessary corrections which required researching databases to determine who had initially filed them. DCC-1 decided a team effort could accomplish the task quickly. Thus, new attorneys, who were available on October 21, 2016, and entered on duty in the summer/fall of 2016, were assigned to the task as a way to gain experience. DCC-1 noted that she (DCC-1) and nine available attorneys, including two that were not minorities, completed the task. DCC-1 also noted the characterization that it was to correct White senior attorneys’ work was incorrect, as the NTAs requiring correction were filed by both new and experienced attorneys who were minorities and non-minorities. DCC-1 stated that she referred to the task light-heartedly as a “Red Pen Party” because the required annotation had to be in red ink. She noted the task took about 15 - 20 minutes to complete. Regarding claim 6, Complainant stated on January 10, 2017, she submitted her application for the Accelerated Promotion Program to DCC-1. She stated she met the eligibility requirements of: being an Agency employee; being a GS-12; having worked for the Agency for six months; and being in good standing given her favorable 90-day review. Complainant noted on May 8, 2017, DCC-1 informed her that she was not approved for the program. Complainant stated that she was treated differently from similarly situated employees. DCC-1 stated that she met with DCC-2, DCC-3, and the CC and provided oral recommendations for the candidates under her supervision to the CC, and the CC conveyed the decisions to the candidates. DCC-1 noted that on January 10, 2017, Complainant was advised she did not qualify since she had not yet worked for the Agency for six months. After Complainant was employed for six months, DCC-1 stated that her request for accelerated promotion was considered and denied since Complainant had not demonstrated the ability to perform at the GS-13 level. 2021005090 21 DCC-1 noted she explained to Complainant that although she was doing good work at the GS-12 level, she had not yet demonstrated the ability to perform more complex work of a GS-13 level attorney such as an Agency appeal, a U.S. citizenship analysis and memoranda, high-profile case synopses and alert notifications, high-profile and/or complex immigration court litigation, and federal district litigation support. DCC-1 noted that contrary to her claim that she was treated differently from similarly situated employees, Coworker 1 (GS-12, under DCC-1’s supervision) and Coworker 2 (GS-12, under DCC 3’s supervision) also failed to demonstrate their ability to perform at the GS-13 level and were not recommended for accelerated promotions. Accelerated promotions were recommended for Coworker 3 (GS-11, under DCC 3’s supervision) and Coworker 4 (GS-11, under DCC-2’s supervision); however, they were not similarly situated to Complainant as they were both GS-11s and had demonstrated the ability to perform at the GS-12 level. Further, we note that Complainant claimed that Coworker 3 was a niece of a Deportation Officer and Coworker 4’s mother-in-law was a long-standing federal employee with the Agency; thus, suggesting that nepotism was the reason for their acceptance into the accelerated promotion program. We find this tends to undermine her claim that race, religion, color, disability, age, and reprisal were factors in connection with claim 6. Regarding claim 7, Complainant claimed that on May 5, 2017, she was provided a midyear review that contained false information. Specifically, Complainant claimed the midyear review did not accurately reflect her production numbers. Complainant provided her own production number to the CC. Complainant stated on June 13, 2017, CC informed that her court performance numbers would be removed completely from a revised mid-year review. Complainant also disagreed with the language stating that she had on occasion, requested scheduling consideration to allow her the time a new attorney required for case preparation. Complainant stated she had never had a conversation with DCC-1 about scheduling considerations to handle her docket because she was a new attorney. Further, Complainant objected to language referring to her writing style as “verbose.” DCC-1 issued the midyear review, which was reviewed by CC. DCC-1 noted that Complainant submitted her objection to the mid-year review, which resulted in a meeting with Complainant, the CC, and DCC-1. DCC-1 noted that the statistics cited were merely acknowledging the number of court appearances and not a basis for evaluating performance since the numbers were affected by circumstances outside an attorney’s control. Also, DCC-1 explained that she used the same database and search criteria for other attorneys. However, DCC-1 stated that because the number of court appearances and case completions was not a rating criterion, the statistical information was removed from the midyear review, and the CC removed the statement regarding scheduling and the word “verbose.” DCC-1 noted after the revisions, Complainant thanked her for the amendments and indicated she was ready to sign the review. Complainant failed to show that the Agency’s actions were based on discriminatory animus. Regarding claim 9, in her affidavit Complainant claimed that on May 17, 2017, the CC left a document she had sent disputing her midyear performance review on a printer along with several attachments and supporting evidence. Complainant stated her written grievance and reporting of harassment and bullying by DCC-1 was also contained with this document. 2021005090 22 Complainant also stated that other items included with the packet included a copy of her 90-day performance review and a copy of her midyear performance review and other supporting documentation. Complainant noted she became aware of the disclosure on May 17, 2017, when ACC-7 and the Legal Administrative Assistant (LAA) informed her. Complainant explained that the LAA told her that ACC-7 brought the document to her office stating, “I have seen this document on the mailroom copier overnight, and it has a great deal of personal information within it. I believe a manager must have left this document out.” Complainant stated that ACC- 7 told the LAA, “I know that you will probably talk to [Complainant] before I do, and I know that you will put it in safekeeping.” Complainant stated she asked the LAA to walk the document into the Chief Counsel’s office and that the LAA told her the CC admitted to the LAA, “Yeah, I left it out here, it was not that long.” The CC noted that she has a small printer in her office and often needs to print larger documents from her computer to the mailroom. The CC noted the mailroom is located directly across from her office and when she prints from her office, she generally attempts to retrieve the documents immediately. The CC did not recall leaving a document submitted by Complainant on the copier in the mailroom. ACC-7 stated he found the document in the community printer in the mail room. He stated he did not read the document, except for the name on it. We note that on appeal, Complainant alleges that the confidential information left at the printer on May 17, 2017, included her request for reasonable accommodation. We find, as did the Agency, that a claim that the document contained her reasonable accommodation request could not be true since she had not yet requested a reasonable accommodation on May 17, 2017. Moreover, we find no evidence to support Complainant’s contention that the handling of the information left on the printer was related to any of her protected bases. Regarding claim 10, Complainant claimed that despite there being various open offices on the first floor, the CC and DCC-1 had minority employees remain in their cubicles because they did not want to do the work required to make those offices available. Complainant states she was told by DCC-1 that she was “next to the bottom of the totem pole in the office so it would be quite some time” before Complainant received an office. Complainant states the CC’s and DCC- 1’s assignment of offices was based purely on seniority, which is discriminatory because even though seniority is seemingly a neutral practice, it has a disproportionate impact on employees within the Houston office that are a racial minority and/or are female. Complainant states including herself, there were eight employees that did not have an office during the relevant time, including one White, male. Further, Complainant herself stated that of the eight individuals she claimed did not have an office, five of them were males and only three were females, which contradicts her claim that the Agency’s policy had a disproportionate impact on females. DCC-1 stated that the office had unprecedented growth in hiring 12 ACCs in the summer/fall of 2016, which resulted in an insufficient amount of available office space. DCC-1 explained that offices were assigned on a first-come, first-serve basis as a new ACC entered on duty. 2021005090 23 DCC-1 also noted that when the more senior attorneys transferred or returned from detail assignments, offices were also not available. DCC-1 stated there was no space on the first floor resulting in them borrowing space from the Security Investigations office which had many available cubicles on the same floor as the OCC. DCC-1 noted that when an oversized office in the OCC suite became available for two ACCs to share, Complainant declined the offer. The CC corroborated DCC-1’s explanation of the shortage of office space due to the large amount of ACC hires at the time. The CC also confirmed that OCC had to borrow cubicle space from Security Investigations. We find that Complainant failed to show the Agency’s actions in assigning office space were motivated by discriminatory animus. Regarding claim 11, Complainant alleged that on September 8, 2017, DCC-1 did not respond to her until September 21, 2017, regarding a sensitive court matter. Complainant stated that in mid- September 2017, DCC-1 asked a Contractor if Complainant had asked her to do work that the Contractor was not supposed to be doing. Complainant noted the Contractor responded that Complainant was not doing so, at which point, DCC-1 informed the Contractor to let her know if that occurred. DCC-1 stated that, in September 2017, she would (as was her usual practice) periodically discuss the workload of the contractors and inquire if attorneys were burdening them with additional work. Regarding claim 14, Complainant claimed that on November 29, 2017, DCC-1 contacted her via text messages on her personal cell phone, even after Complainant informed her to stop doing so. The record reveals Complainant’s employment was terminated on October 6, 2017. DCC-1 notes after her termination, ODCR completed the processing of her request for reasonable accommodation with regard to the additional checked bag at Agency expense for travel to a work-related conference. DCC-1 explained before funds could be dispersed for the expense of the additional bag, Complainant had to sign the letter of accommodation. DCC-1 stated she did not have a current address for Complainant and wanted to ensure that the letter, which included personal information about Complainant, did not go astray. Thus, DCC-s stated she reached out to Complainant via text message to obtain a correct address. DCC-1 stated she initially texted Complainant to confirm that the cell number she was using was still Complainant’s number. DCC-1 noted Complainant responded not to contact her again. DCC-1 stated she texted again explaining why she was reaching out to her. DCC-1 noted Complainant responded again telling DCC-1 not to contact her. DCC-1 stated she did not attempt to contact Complainant again. Regarding claim 18, Complainant claimed that when she was terminated an Officer escorted her to collect her personal belongings and DCC-1 accompanied them. Complainant explained that as she was collecting her belongings, DCC-1 would check what she was taking; periodically removing documents such as contact lists and directories stating that she would not need the document. Complainant stated it was inappropriate for DCC-1 to accompany her to her office to collect her things since she had reported that DCC-1 had harassed her. Complainant claimed that if there was an officer present, having DCC-1 there was not necessary and argued this was an intimidation tactic. DCC-1 stated that after she informed Complainant that she was being terminated immediately, Complainant returned to her workspace to collect her personal property, accompanied by the Union Steward and DCC-1. 2021005090 24 DCC-1 stated that she stood outside Complainant’s workspace to inventory Agency property returned by Complainant and to ensure Complainant did not remove any Agency property. DCC-1 stated she placed no limitations on the time Complainant had to gather her personal belongings and noted she did not rush Complainant. DCC-1 noted she asked Complainant whether she had everything, and Complainant responded affirmatively. DCC-1 stated that she then escorted Complainant and the Union Steward through the building and to the parking lot. Upon review, we find Complainant failed to show that the Agency’s actions in having DCC-1 accompany Complainant and inventory Agency property while Complainant was being escorted in the building following her termination was based on discriminatory animus. We note that incidents 19 and 20 relate to Complainant’s workspace following her termination. Regarding claim 19, Complainant claimed that at some point after October 6, 2017, DCC-1 went through some of the personal paperwork and journals that remained in Complainant’s former workspace and failed to provide these items to Complainant. DCC-1 stated that several weeks (possibly even months) after Complainant’s employment was terminated, she began clearing out her workspace. DCC-1 explained she deemed case files as the highest priority and cleared numerous files first from her workspace, thereby relocating them to DCC-1’s office where she reviewed the status of each case and then processed the file accordingly. Secondly, DCC-1 stated she cleared loose documentation from Complainant’s workspace which appeared to be case related. As with the files, DCC-1 noted she transported five bins of documentation to her office where she sorted it, took any necessary actions, and then routed it to the related case files. DCC-1 stated that documentation that appeared to be reference materials and case-related notations on legal pads has yet to be sorted. DCC-1 noted that when Complainant was terminated, she was allowed to collect her personal belonging and responded that she had everything. DCC-1 stated Complainant has not contacted her regarding any personal paperwork or journal information she may have left in the workspace. Regarding claim 20, Complainant claimed that from October 6, 2017, until March 2018, the CC and DCC-1 left her former work environment/cubicle in disarray for employees to see and observe. DCC-1 stated that Complainant’s workspace was initially left in the condition it was in when she left the Agency. DCC-1 stated several weeks after Complainant’s termination, she began clearing her workspace as time allowed and in order of priority. DCC-1 noted the task of clearing Complainant’s workspace was handled directly by DCC-1. DCC-1 stated she addressed material in Complainant’s workspace in order of priority by retrieving case files first, then case- related filings and orders. DCC-1 stated that she was still sorting through stacks of loose papers that do not appear to be case related such as email printouts, printed caselaw and other resource materials, and random notes. There is no indication of discrimination in claim 20 and, furthermore, Complainant was no longer an employee, and the status of her former office space did not render her aggrieved. Regarding claim 21, Complainant claimed that on November 7, 2017, Agency Security Officers came to her home to collect her credentials based on a complaint filed by the Houston management stating that she was instructed to return her Agency credentials by October 13, 2017, but refused to comply. 2021005090 25 Complainant claimed that neither the CC nor DCC-1 informed her that she needed to return the credentials by October 13, 2017. Complainant further noted that her termination letter did not mention anything about her credentials. DCC-1 stated that, as part of the out-processing, she advised Complainant of the need to return the Agency credentials, badge, and case, which Complainant claimed were at her home. DCC-1 explained that after Complainant gathered her personal belongings, she again reminded Complainant about returning the items by October 13, 2017, by dropping them off with security or mailing them. DCC-1 noted that because Complainant did not return the items, she informed the Program Property Manager (PPM) on October 24, 2017. DCC-1 stated the PPM informed her that an email would be sent to Complainant informing her of the steps the Agency would be taking to retrieve its property. DCC-1 stated that on November 1, 2017, she received an email from the Senior Special Agent (SSA) with the Office of Professional Responsibility, indicating that the items had been recovered and would be delivered on November 9, 2017. The CC stated that because Complainant did not have her credentials with her on the day of termination, Complainant was instructed to return them by a certain date. The CC explained that after Complainant did not return the credentials, DCC-1 contacted the PPM for guidance, and the PPM referred the matter to the SSA. The CC noted that Agency policy required that they collect all government property, including government identifications, before an employee departs. At the outset, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with respect to Claims 4, 5, 12, 13, 15, and 17. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Harris Guidance). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). As for claims 1 - 3, 6 - 7, 9 - 11, 14, 18 - 21, we find that Complainant failed to show the Agency subjected her to a hostile work environment. We find the evidence of record does not establish that the incidents occurred as alleged by Complainant or that her alleged protected bases played any role in the events at issue. Rather, we find these incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Even assuming, as alleged by Complainant that in connection with her request for reimbursement for a second checked bag, the CC made the statement, “What is wrong with you?” we find Complainant has failed to show that this single statement constitutes unlawful harassment or contributed to an alleged hostile work environment. CONCLUSION Accordingly, the Agency’s decision finding no discrimination regarding claims 1 - 7, 9 - 15, and 17 - 21 is AFFIRMED. The Agency’s decision finding no discrimination regarding claims 8 and 16 is VACATED and those claims are REMANDED to the Agency for further processing in accordance with the Order herein. 2021005090 26 ORDER TO SUPPLEMENT RECORD (B0617) Within 120 days of the date this decision is issued, 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, whether and to what extent the Agency provided Complainant with a reasonable accommodation regarding her request for reimbursement for a second baggage and her request for reasonable accommodation for her conditions of ADHD and anxiety. This investigation shall encompass the following elements: evidence indicating whether Complainant was reimbursed for a second baggage, including the date and amount of any such payments made to Complainant; whether the Agency processed Complainant’s July 12 and July 20, 2017 Reasonable Accommodation Request forms; whether Complainant’s medical conditions (ADHD and anxiety) could have been accommodated in July 2017; and any other pertinent information the investigation reveals. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings. The Complainant may, within 15 days of receipt of the supplemental record, submit a statement concerning the supplemental record. Thereafter, the Agency shall issue a new final decision regarding claims 8 and 16. In that final decision the Agency shall: (1) determine whether or not Complainant has been reimbursed for extra baggage fees per her reasonable accommodation request in claim 8; and (2) determine whether the Agency denied Complainant’s requests for reasonable accommodation relating to her ADHD and anxiety which is at issue in claim 16. A copy of the additional evidence obtained pursuant to this Order and a copy of the new final decision shall be sent to the Compliance Officer as referenced herein. 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 in order to comply with the time frames contained in this Order. 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. 2021005090 27 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 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. 2021005090 28 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, a 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2021005090 29 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 9, 2023 Date