[Redacted], Hedy B., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2020004134 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hedy B.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020004134 Hearing Nos. 510-2018-00256X 510-2019-00458X Agency Nos. ATL-18-0018-SSA ATL-18-0571-SSA ATL-19-0025-SSA DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 11, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician (GS-8) at the Agency’s Office of Disability, Adjudication and Review Hearings Operations in Tampa, Florida. 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. 2020004134 2 Complainant averred that on June 26, 2017, she submitted a reasonable accommodation request for a change in group and supervisor due to stress. Complainant stated that the Hearing Office Director (“Director”) denied her request, claiming that even if he moved Complainant, she would still be doing the same work. Appeal Record (AR) at 74.2 Complainant noted that, from July 10, 2017, through August 24, 2017, she suffered from a medical condition that rendered her incapacitated and she required medical leave. AR at 70. On August 1, 2017, Complainant’s first-line supervisor (“Supervisor”) issued Complainant a memorandum to inform her that she was placed on absence without leave (AWOL) since July 5, 2017. The Supervisor noted that he requested medical documentation to support Complainant’s absence, and that her doctor’s note stated that Complainant should be off for the next two weeks, which covered her future absence but not her prior absence. AR at 131-2. On August 29, 2017, the Supervisor informed Complainant that her requests for Family and Medical Leave Act (FMLA) leave and leave without pay (LWOP) were granted, effective August 16, 2017; however, Complainant would be placed on an AWOL status for July 5-27, 2017, because she did not submit medical documentation for that period. AR at 141. On September 11, 2017, the Agency informed Complainant that she received an overpayment of $2,444.73 and requested repayment within 30 days. AR at 734-44. On September 26, 2017, Complainant submitted another reasonable accommodation request for a modification/restructuring of her job duties; a change in work hours; telework; and a reassignment. AR at 74, 150. Also, on September 26, 2017, the Supervisor met with Complainant to discuss her reasonable accommodation request, and he informed Complainant that she needed to submit supporting medical documentation, including the nature, severity and duration of her impairment(s), and he gave her a deadline of October 26, 2017. AR at 117. On October 19, 2017, the Supervisor met with Complainant to clarify her request for a reassignment to another organization. The Supervisor informed Complainant that they did not do intra-agency transfers and that she should apply to external positions. AR at 119. On November 9, 2017, the Supervisor again met with Complainant to discuss her request for a reasonable accommodation and possible options. Complainant requested a part-time work schedule, and possibly voice-recognition software and an ergonomic or foot-controlled mouse. Complainant informed the Supervisor that she was not interested in telework because she could not carry the equipment. AR at 142. On November 17, 2017, the Supervisor and Complainant discussed her request for a reassignment. The Supervisor asked Complainant which positions she would be capable of, and she responded that she needed a job that was not sedentary and did not require computer use. Complainant also noted that she could perform writing positions with the use of voice-recognition software. AR at 125. 2 The Agency provided a consolidated file on appeal containing the three reports of investigations and the hearing record. 2020004134 3 On December 14, 2017, the Supervisor met with Complainant to clarify her reassignment request with another organization. Complainant stated that she identified positions at another agency, but she did not apply because the process was too complicated. AR at 128. On January 11, 2018, the Supervisor met with Complainant to ask if she had any additional medical information, and she confirmed that she did not. AR at 568. On February 2, 2018, Complainant was informed that the Agency planned to deny her requests for a reassignment and assistance from a Disability Selective Placement Program Coordinator, but she was given an opportunity to provide additional information or documentation prior to a determination. AR at 160. Complainant alleged that she had been subjected to non-sexual harassment since March 2, 2018. For example, when a coworker was instructed to ask about Complainant’s medical information and the Supervisor then sent Complainant an email with information that alluded to the coworker’s identity; the Supervisor criticized Complainant for errors committed by her coworkers; and Complainant’s requests for assistance from a coworker (CW1) were met with “bizarre hostility” and the incident resulted in a reprimand for Complainant. AR at 401. On March 6, 2018, CW1 emailed the Supervisor to complain that Complainant disrespected his Puerto Rican heritage. AR at 438. On March 23, 2018, the National Reasonable Accommodation Coordinator (NRAC) issued a decision on Complainant’s September 26, 2017 request for reasonable accommodations. The Agency granted Complainant voice-recognition software; a modified work schedule with four or five hours of FMLA/LWOP leave; a part-time work schedule; and possible changes to supervisory methods. The Agency denied Complainant’s requests for a reassignment, within the Agency or with other federal agencies; assistance from the Disability Selective Placement Program Coordinator in obtaining another position; and a new group with a new supervisor. AR at 1060-3. NRAC issued decisions denying Complainant’s requests for reconsideration on May 11, 2018, and May 30, 2018. AR at 1064-5. On April 6, 2018, the Supervisor issued Complainant an Official Reprimand for conduct unbecoming a federal employee. Specifically, Complainant sent an email to CW1 and her statement included, “you just feel special now that your (self-admitted) sloppy work got you promoted, and your bad mouthing me got you favored with [the Supervisor] - which BTW is a bunch of BS…I noticed your attitude swings too. That’s the Puerto Rican shuffle isn’t it?” The Supervisor noted that he found Complainant’s accusation of “sloppy work” to be discourteous and the reference to the “Puerto Rican shuffle” to be disrespectful to CW1 and other Puerto Ricans. AR at 317-9. Complainant stated that she submitted another reasonable accommodation request on August 18, 2018, noting that the voice-recognition software was not effective, and she again requested a lateral reassignment. AR at 1011. 2020004134 4 On November 16, 2018, the Director issued a decision to suspend Complainant for seven days for conduct unbecoming a federal employee when Complainant stated to a coworker (CW2) that CW2 received preferential treatment because of her ethnicity, and for failure to follow annual personnel reminders when Complainant took photographs in violation of Agency policy. The Director averred that he considered Complainant’s responses and determined that the record supported the charges. AR at 1107. On December 7, 2018, NRAC issued a decision on Complainant’s August reasonable accommodation requests for a lateral reassignment; intermittent computer work; no paper cases weighing more than five pounds; and a part-time schedule of six hours per day. Regarding the reassignment request, NRAC stated that the Agency determined that Complainant was qualified for a GS-5 Mail Handler position, and that Complainant declined all GS-5 positions. NRAC also noted that the Agency was not obligated to assist an employee with obtaining a position at another federal agency. NRAC denied Complainant’s request for intermittent computer use because Complainant’s management officials confirmed that her position requires only intermittent computer use. NRAC also denied Complainant’s request for paper cases weighing no more than five pounds and noted that, if Complainant was assigned such cases in the future, Complainant should request assistance with lifting them from her managers. AR at 1066. Agency case no. ATL-18-0018-SSA (Complaint 1) On November 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical) and age (58), and in reprisal for prior protected EEO activity, when: 1. from July 10, 2017, through August 23, 2017, management charged Complainant with AWOL, and she incurred a $2,500 debt payable to the Agency; and 2. the Agency failed to provide Complainant a reasonable accommodation based on disability from June 26, 2017, to September 26, 2017. The Agency accepted the above claims for investigation, but it dismissed Complainant’s allegation that the Agency subjected her to disparate treatment when on June 26, 2017, management denied Complainant’s requested reassignment for untimely contact with an EEO Counselor. AR at 52-3. Agency case no. ATL-18-0571-SSA (Complaint 2) On May 12, 2018, Complainant filed another EEO complaint alleging that the Agency subjected her to discrimination based on disability (mental, physical), and in reprisal for prior EEO activity, when: 2020004134 5 1. Complainant was subjected to non-sexual harassment beginning on March 2, 2018, with respect to work assignments, setting her up for conflict with colleagues, failing to consider Complainant’s disabilities when speaking to her, and disciplinary action; and 2. Complainant was subjected to disparate treatment when on April 6, 2018, she received an Official Reprimand. Agency case no. ATL-19-0025-SSA (Complaint 3) January 24, 2019, Complainant filed another EEO complainant alleging that the Agency subjected her to discrimination based on disability when: 1. since September 26, 2017, the Agency failed to provide Complainant with a reasonable accommodation regarding her request for reassignment; and 2. Complainant was subjected to disparate treatment when she was issued a Decision to Suspend, effective November 19-25, 2018. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigations and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. On July 15, 2019, the Agency filed a Motion for Partial Dismissal for Complaint 1, Claim 1 because Complainant challenged the claim using a negotiated grievance procedure. The Agency noted that Complainant invoked arbitration through the negotiated procedure prior to the filing of her formal EEO complaint and requested that it be dismissed. On July 18, 2019, the AJ granted the Agency’s motion and dismissed this claim. Complainant subsequently withdrew her hearing requests on December 16, 2019, and consequently, the Agency issued a consolidated final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency affirmed its earlier procedural dismissal of Complainant’s allegation that the Agency subjected her to disparate treatment when on June 26, 2017, management denied Complainant’s requested reassignment. The Agency assumed a prima facie case of discrimination based on Complainant’s age and disability, and in reprisal for prior protected EEO activity, and found that the management officials articulated legitimate, nondiscriminatory reasons for their actions. The Agency then found that Complainant did not show that the reasons were pretexts for discrimination, and that she offered no specific proof that management officials acted with discriminatory animus as to the contested personnel actions. Specifically, the Agency noted that Complainant made vague statements that management officials were aware of her protected categories and targeted her for that reason, and she made conclusory and unsupported statements that management officials favored others not in Complainant’s protected group. 2020004134 6 Regarding the failure to accommodate claims, the Agency found that Complainant was a qualified individual with a disability, and that she requested accommodations and established an entitlement to accommodations. The Agency determined that management officials took reasonable actions to accommodate Complainant and/or that no reasonable accommodation was possible. For Complainant’s reassignment request, the Agency found that Complainant was offered a GS-5 Mail Clerk position, which would have accommodated her limitations, but Complainant declined all GS-5 positions. The Agency also noted that it was only obligated to seek jobs within the agency, not to conduct a job search for positions with other federal employers. The Agency found that Complainant’s request for intermittent computer use was properly denied because her position already met the recommendations from her physician. The Agency also noted that Complainant was provided with several other accommodations, such as a part-time schedule and leave, which would also alleviate the need to be on the computer all day and represent effective alternatives. The Agency stated that management officials denied the request to not assign paper cases under five pounds because they agreed that, if Complainant received assignments requiring her to work on such cases, she could inform management, and someone would help her to lift these cases. As such, the Agency determined that Complainant was provided with a reasonable alternative. The Agency found that Complainant was granted voice-recognition software, and to the extent that Complainant claimed that this was not an effective accommodation, the Agency asserted that Complainant did not inform any Agency official that it was ineffective or that she needed assistance using the software. The Agency also determined that Complainant’s requests for assistance with applying for positions with other federal agencies and a new supervisor were properly denied because they are not required under the Rehabilitation Act. The Agency found that Complainant was not subjected to non-sexual harassment because she did not provide any proof that management officials subjected her to conduct based on a protected class, and that the complained of incidents, when viewed either individually or collectively, were not sufficiently severe or pervasive to alter Complainant’s working conditions such that it constituted a hostile working environment. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal, and she submitted a statement and additional documents in support of her appeal.3 The Agency did not respond to Complainant’s appeal. 3 We note that Complainant uploaded a password protected document, and the Commission requested that Complainant upload another copy with no password protection. It is not clear if Complainant subsequently uploaded another version of this document, but to the extent that she did not do so, the Commission will not consider the password-protected document. 2020004134 7 CONTENTIONS ON APPEAL On appeal, Complainant argues that management officials withheld the proper forms to file an Office of Workers’ Compensation Programs (OWCP) claim, which the Agency failed to investigate, in violation of the collective bargaining agreement and other policies. Regarding the AWOL claim, Complainant asserts that her supervisors never fully acknowledged or followed her medical orders and restrictions. For the reasonable accommodation claims, Complainant argues that on June 26, 2017, she submitted a request to move work groups due to stress and her request was mishandled. Complainant avers that she renewed her request on September 26, 2017, and that the Agency waited four months to issue a denial of her request in January 2018.4 Complainant asserts that she was granted some accommodations on March 23, 2018, such as a part-time schedule, but that she had been forced to work for months without accommodations. Complainant states that she was not offered effective equipment, other than voice-recognition software, and that she not offered any job reassignment. Complainant asserts that there is no evidence that she refused any equipment, or a purported job offer. Complainant argues that the suspension and reprimand were issued in retaliation for her taking a photo of a front desk workstation to show her doctor, who was questioning if the workstation was ergonomic. Complainant avers that the reprimand was based on hearsay and that it was a misunderstanding. With Complainant’s appeal, she provided a copy of a proposed removal and copies of a new EEO complaint alleging discrimination when she was terminated and a failure to accommodate when on May 23, 2019, the Agency informed Complainant that it conducted a reassignment search and did not identify any positions that would accommodate her restrictions. Complainant requests sanctions against the Agency and the removal of any documentation of misconduct from her personnel file. ANALYSIS AND FINDINGS Standard of Review 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 (EEO MD-110), at Chap. 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 4 It is not clear what Complainant refers to when she states that the Agency denied her request in January 2018. The record shows that the Agency notified Complainant that it planned to deny some of her requests on February 2, 2018, and it issued the decision on March 23, 2018. AR at 160, 1060. 2020004134 8 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020004134 9 Claims As an initial matter, Complainant seems to raise a new claim alleging that management officials withheld the forms to file an OWCP claim. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, this new claim will not be included in this decision. Should she wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. With her appeal, Complainant provided a copy of her new EEO complaint alleging a failure to accommodate and discrimination when she was removed. Since Complainant properly raised these new claims with the Agency to process, they will not be included in the instant complaint. In addition, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110, at Ch. 9, § IV.A.3. On appeal, Complainant did not challenge the Agency’s procedural dismissal of her claim alleging disparate treatment when on June 26, 2017, management denied Complainant’s requested reassignment; the AJ’s dismissal of Complaint 1, Claim 1; or the Agency’s decision for Complaint 2, Claim 1 (harassment claim). As such, we will not address these claims in the instant decision. Sanctions On appeal, Complainant requests that the Commission issue sanctions against the Agency. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affs., EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). Here, Complainant provided no arguments in support of her request for sanctions, and we find that there is no justification for sanctions. Accordingly, we decline to issue any sanctions against the Agency. 2020004134 10 Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant. We note that the record shows that Complainant made three requests for a reasonable accommodation on June 26, 2017, September 26, 2017, and August 18, 2018. On June 26, 2017, Complainant requested a change in group/supervisor as a reasonable accommodation. AR at 74. After receiving a request for reasonable accommodation, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also Enforcement Guidance at Question 5. The Director responded that he engaged in an interactive discussion with Complainant and informed her that a change in supervisor would not necessarily alleviate her stress, but that they could pursue a reasonable accommodation, and he requested that Complainant provide supporting medical information. The Director averred that, despite his requests, Complainant did not submit medical documentation showing that a change in group would be an effective accommodation. AR at 91-2. Further, the Commission has held that a complainant’s request seeking a stress-free environment as an accommodation is not reasonable and places an undue burden on the agency. See Estelle H. v. Dep’t of the Navy, EEOC Appeal No. 0120152839 (Nov. 7, 2017), request for recon. denied, EEOC Request No. 0520180149 (Apr. 3, 2018); Alden v. Dep’t of Veterans Affs., EEOC Appeal No. 0120080620 (June 16, 2011) (finding that a complainant’s request seeking a stress-free environment was unreasonable). Likewise, the Commission has stated that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation See Enforcement Guidance at Question 33. As such, we find that the Agency properly denied Complainant’s request for a change in group/supervisor due to stress. 2020004134 11 On September 26, 2017, Complainant requested a modification/restructuring of her job duties; a change in work hours; telework; and a reassignment. AR at 74. On March 23, 2018, the Agency granted Complainant voice-recognition software; a modified work schedule with four or five hours of FMLA/LWOP leave; a part-time work schedule; and possible changes to supervisory methods, but denied Complainant’s requests for a reassignment, within the Agency or with other federal agencies; assistance from the Disability Selective Placement Program Coordinator in obtaining another position; and a new group with a new supervisor. AR at 1060. We note that Complainant preferred a reassignment as an accommodation. However, the Commission has long held that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of her current position, or all other reasonable accommodations would impose an undue hardship. See Enforcement Guidance. Further, the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Question 9. Here, the Agency denied Complainant’s request for a reassignment but granted various alternative accommodations because it had not yet determined that there were no effective accommodations that would enable Complainant to perform the essential functions of her current position. Complainant argues that she was not offered effective equipment, other than the voice-recognition software, in her appeal. However, there is no evidence that Complainant requested any other equipment as an accommodation. While Complainant considered an ergonomic mouse, she stated that she borrowed a trackball mouse and found that it was awkward to use and slowed her down. AR at 81. We note that Complainant did not challenge the denials of the other requested accommodations. As such, we find that the Agency’s decision to grant alternative accommodations on March 23, 2018, was reasonable. On August 18, 2018, Complainant renewed her request for a reassignment, claiming that the voice-recognition software was not effective. However, Complainant did not claim that the other granted accommodations were ineffective. AR at 1011-3. Regardless, the Agency conducted a reassignment search and determined that Complainant was qualified for a GS-5 Mail Handler position; however, NRAC noted that Complainant declined all GS-5 positions.5 AR 1060. On appeal, Complainant argues that she was not offered any job reassignment and there was no evidence that she refused any purported job offer. However, Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. 5 The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. See Enforcement Guidance. 2020004134 12 See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where a complainant requested a final decision and an Administrative Judge did not make credibility determinations). Complainant did not provide any evidence to dispute NRAC’s assertion that Complainant declined the Mail Handler position and all GS-5 positions. We find that the Agency met its obligations under the Rehabilitation Act when it denied Complainant’s request for a change in group/supervisor; granted various alternative accommodations; and when it was notified that the granted accommodations were not effective, it conducted a reassignment search. The Agency identified a possible position for Complainant, which she declined. Accordingly, we find that Complainant did not establish that the Agency failed to provide a reasonable accommodation. Complainant also argues that there was a delay in issuing the Agency’s decision for her reasonable accommodation requests. The Commission has held that failure to respond to a request for accommodation in a timely manner may result in a finding of discrimination. See Denese G. v. Dep’t of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016); Shealy v. Equal Employment Opport. Comm., EEOC Appeal No. 0120070356 (April 18, 2011); Villanueva v. Dep’t of Homeland Sec., EEOC Appeal No. 01A34968 (Aug. 10, 2006). In determining whether there was an unnecessary delay, we are to consider (1) the reasons for the delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Enforcement Guidance at Question 10, n.38. In this case, the record shows that any delay was due to the Agency’s interactions with Complainant to discuss her requests. Specifically, the Supervisor met with Complainant on October 19, 2017, November 9, 2017, November 17, 2017, and December 14, 2017, to obtain information and discuss options for accommodations. AR at 119, 142, 125, 128. The Supervisor stated that he subsequently forwarded the information to NRAC. AR at 1032. The Agency also informed Complainant that it planned to deny her requests for a reassignment and assistance with applying for external positions, and it gave her another opportunity to provide additional information to support her requests, prior to the issuance of the Agency’s decision. AR at 160. Further, the record shows that the Supervisor interacted with other Agency officials to obtain guidance on Complainant’s requests. AR at 580. We also find that Complainant’s requests were not simple due to number of accommodations discussed and considered, and the Agency ultimately addressed seven different accommodations. Under the specific circumstances of this case, we find that there was no unnecessary delay in issuing a decision on Complainant’s reasonable accommodation request. 2020004134 13 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affs., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her disability, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For the reprimand, the Supervisor stated that, after CW1 brought the incident to his attention, he conducted a fact-finding and issued a reprimand because Complainant used unbecoming language in her email exchange with CW1. The Supervisor added that he previously counseled Complainant on appropriate communication with her coworkers, after Complainant had an argument with her mentor. AR at 432-3. The Director stated that he issued the suspension because Complainant was observed taking pictures of the front desk area, where personally identifiable information was visible, which was contrary to Agency policy. The Director also found that Complainant was confrontational with CW2 and made derogatory comments based on ethnicity. The Director noted that he factored in Complainant’s past disciplinary record and progressed to the next action. AR at 1046. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argues that the suspension and reprimand were retaliatory, and that the reprimand was based on hearsay and that it was a misunderstanding. However, Complainant provided no evidence to show a retaliatory motive for the issuance of the suspension or reprimand. We also find that Complainant’s claim that the reprimand was based on “hearsay” is not supported by the record, which contains the email chain proving that Complainant emailed the quoted statements to CW1. AR at 344. 2020004134 14 Complainant’s bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation due to Complainant’s disability or protected EEO activity for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her disability, or in reprisal for prior protected EEO activity, when it issued her a reprimand and suspension. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age or disability, or in reprisal for prior protected EEO activity. 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 2020004134 15 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 (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. 2020004134 16 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, Director Office of Federal Operations December 23, 2021 Date