[Redacted], Natalie F., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Dec 21, 2022

Appeal No. 2021005240 (E.E.O.C. Dec. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie F.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Appeal No. 2021005240 Hearing No. 570-2020-01333X Agency No. GSA-19-CO-Q-0177 DECISION On September 28, 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 30, 2021, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0301-15 Program Management Officer in the Agency’s Workforce Transformation Branch, Federal Acquisition Service (FAS), Central Office in Washington, D.C. Complainant’s first-line supervisor was the FAS Chief of Staff (Chief of Staff). Complainant stated that her physician diagnosed her with high blood pressure, migraines, and anxiety for the first time on July 11, 2019. Report of Investigation (ROI) at 52. 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. 2021005240 2 Complainant averred that, when suffering from migraines, she is completely incapacitated and cannot think, work on a computer, or deal with light or loud noises, and she added that sometimes she cannot walk. ROI at 53. According to Complainant, her migraines are more frequent when dealing with stress and anxiety. ROI at 53. Complainant alleged that the significant acute stress caused by her interactions with the Chief of Staff caused temporary hypertension, more frequent migraines, more severe migraines, and symptoms of acute anxiety. ROI at 53. The Chief of Staff stated that she first learned of Complainant’s medical conditions when she submitted a Family and Medical Leave Act (FMLA) leave request on August 1, 2019. ROI at 72. On April 16, 2019, Complainant requested six weeks of combined annual leave and leave without pay (LWOP) for the period from August 1, 2019, through September 20, 2019. Complainant stated in an April 16, 2019, email that she was requesting the leave because she had an event in Bali, Indonesia and that she planned to telework two to three hours per weekday during the six-week period. ROI at 125. On April 29, 2019, the Chief of Staff denied Complainant’s request for six weeks of leave but offered to approve two weeks of annual leave to balance Complainant’s needs with the business needs of the organization. ROI at 125. The Chief of Staff noted that, under the Agency’s telework policy, she was not authorized to approve telework from an international location for Complainant. ROI at 125. Complainant alleged that other employees have taken extended leaves of absence without issue. ROI at 55. The Chief of Staff stated that, between August 2017 and August 2019, the longest period of leave she approved for an employee was 12 days of annual leave, which she did not consider an extended leave of absence. ROI at 82. On July 22, 2019, Complainant sent an email to the Chief of Staff stating that she planned to take annual leave from August 2, 2019, through August 16, 2019. ROI at 128. In the email, Complainant accused the Chief of Staff of rescinding Complainant’s approved sabbatical leave and threatened to resign if the Chief of Staff refused to approve the additional annual leave. ROI at 128-29, 259. Complainant copied 11 email addresses on the July 22, 2019, email to the Chief of Staff. ROI at 259. On July 23, 2019, the Chief of Staff responded that any decision to resign was solely Complainant’s choice and stated that, contrary to Complainant’s statement, she had not rescinded approval of Complainant’s request for leave as she had never approved Complainant taking more than two weeks of leave. ROI at 128. On August 1, 2019, Complainant submitted a request for FMLA leave from August 1, 2019, through September 20, 2019, by email to the Chief of Staff, with attached paperwork signed by her primary care physician on August 1, 2019. ROI at 85-104, 257. A Human Resources Specialist (HR Specialist-1) stated that, on August 1, 2019, she provided guidance to the Chief of Staff that Complainant’s request for FMLA leave should be provisionally approved pending further review of the medical documentation. ROI at 134. According to the Chief of Staff, the Office of Human Resource Management (OHRM) subsequently determined that the medical documentation provided was insufficient to support Complainant’s FMLA leave request. ROI at 72. 2021005240 3 In the FMLA paperwork, the physician described Complainant’s medical condition as high blood pressure, headache due to anxiety, fatigue, depressed mood, severe anxiety, and stress, and stated the condition commenced on July 11, 2019, and was estimated to last three to four months. ROI at 89. The doctor stated that Complainant would be incapacitated from August 1, 2019, through September 20, 2019, and indicated that Complainant would be reevaluated after September 20, 2019. ROI at 90. The physician stated that she was referring Complainant to a neurologist and to a licensed clinical social worker for therapy, estimating that Complainant would need two to four hours of therapy per week. ROI at 89-90. When asked if Complainant was unable to perform any of her job functions due to her medical condition, the doctor responded, “High level executive function.” ROI at 89. On August 8, 2019, the Chief of Staff issued Complainant a memorandum explaining that OHRM needed additional medical documentation to support her request for FMLA leave and requesting that Complainant provide the updated documentation within seven calendar days. ROI at 106-07, 254-55. Although she stated she was not responsible for determining the adequacy of the documentation, HR Specialist-1 noted that Complainant’s physician stated that Complainant was unable to perform “high level executive function” without further explanation. ROI at 132. Complainant did not submit additional medical documentation in support of her FMLA leave request. Complainant contacted HR Specialist-1 on August 9, 2019. ROI at 133. On August 9, 2019, HR Specialist-1 sent Complainant an email summarizing their phone conversation regarding Complainant’s FMLA request and supporting medical documentation. ROI at 110. HR Specialist-1 stated that Complainant indicated she did not know if FMLA leave was necessary because she did not “need disability or ‘ongoing things.’” ROI at 110. HR Specialist-1 stated that Complainant indicated that the need for leave was not foreseeable and that she was experiencing symptoms brought on by stressed and needed to be away from the office to focus on self-care for six weeks. ROI at 110. HR Specialist-1 stated that, based on Complainant’s inquiry as to what documentation was required for using accrued sick leave instead of FMLA leave, another Human Resources Specialist (HR Specialist-2) would review the medical documentation to see if it was sufficient to grant non-FMLA accrued sick leave. ROI at 110. Complainant responded the same day, “All of that seems accurate. Thanks again for your time. I’ll wait to hear back regarding the accrued sick leave.” ROI at 109-10. The Agency’s Time and Leave Administration policy states that “Sick leave is leave which is granted for use when an employee is physically incapacitated to do his or her job, or for related reasons.” ROI at 313-14. The policy specifies that use of sick leave is subject to supervisory approval and that absences of more than three workdays normally must be supported by a medical certificate. ROI at 315-17. On August 12, 2019, the HR Specialist-2 emailed Complainant, notifying her that her FMLA medical documentation was insufficient for sick leave because it did not specify the effects of her condition, the frequency and duration of her symptoms, or why she was unable to perform her job functions. ROI at 118-19, 246. 2021005240 4 On August 13, 2019, Complainant emailed HR Specialist-2, asking her to elaborate on what was missing from the medical documentation and describing in her own words the effects of her condition, the frequency and duration of symptoms, and why she could not perform her job function temporarily. ROI at 244. On August 15, 2019, Complainant rescinded her FMLA leave request and requested to use accrued sick leave from August 2, 2019, through September 20, 2019. ROI at 113-14, 242. On August 15, 2019, the HR Specialist-2 emailed Complainant, reiterating that the medical documentation was not sufficient for her supervisor to approve sick leave for this time period. ROI at 116-17. Complainant alleged that the medical documentation she provided was sufficient to cover her request. ROI at 54. On Friday, August 16, 2019, the Chief of Staff emailed Complainant and stated that she was denying her request for sick leave, noting that HR Specialist-2 had informed Complainant that her medical documentation was insufficient to support her sick leave request. ROI at 113. The Chief of Staff stated that, because Complainant would not be in an approved leave status starting the following Monday, she would be charged absent without leave (AWOL) in her timesheet. ROI at 113. Complainant did not submit additional medical documentation to substantiate her request for sick leave. According to the record, Complainant was charged AWOL August 19-23, August 26-30, September 3-6, September 9-13, and September 16-20, 2019. ROI at 171, 209-10. On August 20- 23, August 26-30, September 3-6, September 9-13, and September 16-20, 2019, Complainant sent the Chief of Staff a daily email stating, “Based on my doctor’s recommendation, I am out sick today.” ROI at 181-203. On August 20-23, August 26-30, September 3-6, September 9-13, and September 16-20, 2019, the Chief of Staff responded that Complainant was not in an approved leave status and that she was charging her eight hours AWOL for that day. ROI at 181- 203. The record contains screenshots of various social media postings. On March 27, 2019, an entity called Evolve Yourself U posted: Do you want the opportunity to really work on your #business, #launch, or #career? How about working in small groups of 10 like-minded women, with highly personalized input from myself and other industry #experts? Our Women in Business #Bali #Retreat is the most dynamic ‘RESET’ button you can experience, combining working on your business, working on yourself, and gaining a well-deserved, healthy break in #paradise without the guilt! Check it out! ROI at 218. In LinkedIn posts for an entity called Evolve Your Performance, Complainant is identified as “the head and heart of Evolve Experiences and the upcoming Women in Business Bali Retreat,” and the retreat is described as “a full mind-body-spirit-soul experience” that will “enable women to focus on themselves.” ROI at 219-20. 2021005240 5 The website describes the retreat as all-inclusive, taking place at a luxury private resort in Bali with daily yoga, massages, and pristine pools, “providing everything you need to leave the week feeling refreshed and energized.” ROI at 222-38. The website introduces Complainant as the host of the Evolve Experiences Women in Business in Bali Retreat and states that she designed the retreat to combine “the relaxation and luxury of a retreat, the coaching and learning of a Master Mind, and the support only a community of amazing women can provide.” ROI at 233-35. On July 28, 2019, Evolve Yourself U posted: This time next week, I’ll be on a plane on my way to #bali to coach amazing #womeninbusiness and work on #leadership and #culture. We still have some spots left for the final week: 31Aug-7Sep. Join us by clicking on the #linkinbio. Treat yourself to the time you need to focus on your own goals, refresh, revive, and reimagine. Want a free consultation about your goals? DM me and we can set up some time to chat. #womenempowerment #womenhelpingwomen #leadership #leaders #organizationalculture #change #transformation #goals #entrepreneur #entrepreneurgoals #businessretreat #coaching #evolve #refresh #revive #reimagine ROI at 217. On July 31, 2019, Complainant posted a photo of a group of people seated at a conference table decorated with balloons and wearing brightly colored floral leis from a personal social media account under her first and last name with the following caption: “I have the best team…sending me off to Bali in style. Even brought me vegan cupcakes.” ROI at 216. On August 7, 2019, Evolve Yourself U posted: I have arrived in #Bali and settled into a #routine that nourishes me. I’ve found the perfect spot to #work, in the shade, with a great view, and a lovely sea breeze. Lots of prep work to do before the #retreat begins. And, I’m always working on a couple of #newideas as well… If you can’t #workinparadise, find something else to #inspire and #nourish you. I feel so much more #focused and #balanced here. We still have a few more spots in the last week (31 August-7 September), if you want an amazing week in paradise focusing on you and your goals, click the #linkinbio and book your spot! #baliresort #baliretreats #womeninbusiness #wishyouwerehere ROI at 215. On August 7, 2019, Complainant reposted the Evolve Yourself U posting from her personal account, adding a photo showing the top of a laptop screen and a lush landscape in the background with the following caption: “First pic from Bali. This place has already washed away the trauma of a long trip, that included strikes and canceled connections in Hong Kong.” ROI at 214. 2021005240 6 On August 30, 2019, Complainant posted on her personal account, “Today [name] and I got groomed and groped by cheeky monkeys at the Monkey Forest Sanctuary. We also enjoyed views of the rice terraces and did some shopping. All in all, a good mental health day.” ROI at 213. Some of the accompanying color photos show Complainant wearing sunglasses while a monkey sits on her shoulder and touches her hair. ROI at 213. On September 11, 2019, Complainant posted on her personal account, “Since I’m 12 hours ahead, I’ve already had a wonderful day. Thanks to everyone for the great birthday wishes. Here’s some videos of the traditional Balinese dancing and music we enjoyed from my special day.” ROI at 212. The color images show Complainant and more than 10 people at a long table with a blue tablecloth and food and drink. ROI at 212. The Chief of Staff stated that, to her knowledge, Complainant did not request a reasonable accommodation through the OHRM. ROI at 74-77. The record contains an October 2, 2019, email from the Washington Area Operating Center Reasonable Accommodation Coordinator stating that Complainant had not submitted a reasonable accommodation request to OHRM. ROI at 123. On December 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (mental and physical) when, on August 15, 2019, her request for reasonable accommodation was denied. 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 timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). For the purposes of the decision, the Agency assumed without so finding that Complainant had a record of a disability. The Agency’s final decision analyzed Complainant’s claim using both disparate treatment and denial of reasonable accommodation analysis. The Agency found that, although Complainant’s request for leave may have constituted a request for reasonable accommodation, the record established that Complainant failed to provide adequate medical documentation in support of her request and failed to engage in the interactive process. The Agency determined that the medical documentation provided with her August 1, 2019, FMLA request did not explain the frequency and duration of Complainant’s symptoms, how she was impacted by her symptoms, why she was not able to perform the essential functions of her job, or how six weeks of leave would help her perform her job. Although the Agency requested medical documentation with this information, Complainant did not provide additional medical documentation. The Agency therefore concluded that Complainant did not establish that the Agency denied her a reasonable accommodation. 2021005240 7 The Agency found that management provided legitimate, nondiscriminatory reasons for its actions. The Chief of Staff denied Complainant’s request for six weeks of annual leave based on the business needs of the organization because Complainant was a branch chief. The Chief of Staff charged Complainant AWOL because, after two weeks of annual leave from August 2-16, 2019, Complainant was not in an approved leave status. The Agency noted that the dates of Complainant’s sick leave request coincided with the dates of her original request for annual leave and that photographs showed that Complainant traveled to Bali to host her private business’s retreat on dates she stated she was ill. The Agency found that Complainant failed to establish by preponderant evidence that these legitimate, nondiscriminatory reasons were pretextual. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she was denied leave she needed to follow her physician’s directives for alleviating her serious and worsening medical conditions, including high blood pressure, migraine headaches due to anxiety, severe fatigue, depressed mood, severe anxiety, and stress. Complainant states that her health began to decline in 2015 and continued to deteriorate. According to Complainant, she planned a trip to Bali in or around April 2019, hoping the trip would revive her mental and physical health. Complainant argues that approving the requested leave would not have constituted an undue burden. Complainant notes that, if a pending Agency reorganization had taken place before August 2019, her new supervisor would have been willing to approve the requested leave. As additional evidence, Complainant provides a copy of the transcript from an October 27, 2020, Merit Systems Protection Board (MSPB) hearing2 and an October 10, 2019, declaration from Complainant.3 Complainant cites to the MSPB hearing transcript and the declaration as evidence that she believed that her leave request had been approved because the Chief of Staff stated she would “go by whatever [Complainant’s post-reorganization supervisor] says.” Complainant asserts that, in mid-July 2019, the Chief of Staff told her that her leave was not approved. Complainant continued to seek approval of her leave request, noting she would face significant financial losses if her leave were not approved. According to Complainant, in mid-July 2019 while she was seeking approval of her leave request, she experienced increased stress, migraines with vertigo, panic attacks, inability to focus, and other manifestations of acute stress. 2 On February 4, 2021, an MSPB AJ issued an initial decision affirming Complainant’s November 25, 2019, removal from federal service. On February 11, 2022, the United States Court of Appeals for the Federal Circuit issued a judgment on Complainant’s petition for review of the MSPB AJ’s decision, affirming the decision of the MSPB AJ. 3 Complainant’s October 10, 2019, declaration is signed but unsworn. 2021005240 8 Complainant states that she saw her doctor on August 1, 2019, to address these issues, that her doctor diagnosed her with high blood pressure, depression, and anxiety, and provided Complainant with a medical certification to that effect. Complainant argues that her doctor recommended she take leave “starting immediately” and continuing through September 20, 2019. Complainant contends that she did not provide additional medical documentation as requested because she was being asked about her mental health history and “feared this could be used against her upon her return to work.” Complainant states that her doctor’s certification should have been sufficient for the Agency to reasonably accommodate her by approving her leave request. Complainant notes that she also provided a self-certification of her medical conditions to the Agency. Complainant states that the major purpose of her trip to Bali was to alleviate her medical conditions. According to Complainant, the fact that her need for medical leave entailed travel did not undermine the legitimacy of the need. Complainant requests that the Commission reverse the Agency’s final decision and award all attendant remedies. The Agency did not submit a statement or brief in response to Complainant’s appeal. 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 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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 (RA Enforcement Guidance), No. 915.002 (Oct. 17, 2002). 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. 29 C.F.R. §§ 1630.2(o) and (p). “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). 2021005240 9 When making an accommodation request, an employee is not required to use the magic words “reasonable accommodation.” See RA Enforcement Guidance at Q. 1. Instead, the employee need only inform the Agency that she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 0120044720 (Feb. 24, 2006). However, an Agency is permitted to seek documentation where it is necessary to determine that the individual has a covered disability for which the requested accommodation is necessary. See 29 C.F.R. § 1630.14; Karen P. v. Dep’t of Vet. Aff., EEOC Appeal No. 0120181875 (Sept. 20, 2019). When an employee’s disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Question 7 (July 27, 2000). Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See RA Enforcement Guidance at Q. 6. For the purposes of this decision, we will assume that Complainant is an individual with disability for the purposes of the Rehabilitation Act and consider her requests for FMLA leave and sick leave as requests for reasonable accommodation. On August 1, 2019, Complainant provided medical documentation with her request for FMLA leave. Upon review, although Complainant’s medical documentation came from her physician, it was reasonable for the Agency to request additional medical documentation. The FMLA certification signed by Complainant’s physician does not explain Complainant’s disability, limitations, or need for accommodation. Although she stated that Complainant would be totally incapacitated through September 20, 2019, the doctor estimated Complainant would require two to four hours of treatment per week identified the job function Complainant was unable to perform as “High level executive function.” “High level executive function” is not an essential function listed on the position description Complainant provided to her physician, and it is also too general to understand Complainant’s limitations or need for accommodation. Moreover, the physician did not explain how Complainant was unable to perform the essential functions of her Program Management Officer position with the Agency because of her medical condition, yet she was able to lead a retreat for businesswomen in Bali during the same time period. Finally, Complainant’s argument that she did not provide additional medical documentation because she was worried about management having information about her mental health is unavailing, as it is Complainant’s burden to establish her need for accommodation. If she was concerned about providing such information to management, she could have provided the medical documentation directly to HR for review. Complainant has not established that the Agency denied her a reasonable accommodation. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2021005240 10 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 Vet. Aff., 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. Aff. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). We find that the Agency provided legitimate, nondiscriminatory reasons for its actions. The Chief of Staff denied Complainant’s request for six weeks of annual leave based on business needs and denied her requests for sick leave because she refused to provide the requested medical documentation. The Chief of Staff charged Complainant AWOL because she did not report to work and was not in an approved leave status. As evidence of pretext, Complainant contends that the Chief of Staff treated other employees more favorably in terms of extended leave. The record reflects that the Chief of Staff approved 12 days of annual leave for another employee, which is more than the two weeks (10 days) of annual leave she offered to Complainant in April 2019. However, the Chief of Staff was unaware of Complainant’s medical conditions until she received Complainant’s August 1, 2019, FMLA leave request, so the preponderance of the evidence in the record does not establish that the Chief of Staff approved less than 12 days of annual leave for Complainant in April 2019 based on her medical conditions, as she was not yet aware of these conditions. To the extent that Complainant attempts to show pretext because her future supervisor would have approved six weeks of annual leave, the record establishes that, at all relevant times, the Chief of Staff was Complainant’s supervisor of record with sole authority to approve her leave, and the Chief of Staff approved two weeks of annual leave based on the business needs of FAS, Complainant’s current assignment. Moreover, although Complainant challenges the legitimacy of the business needs because she would have a new supervisor after the pending reorganization, the delayed reorganization tends to support the Chief of Staff’s case of business exigency. Although Complainant contends that she had already provided sufficient documentation to support her requests for FMLA and sick leave on August 1, 2019, as discussed above, the Agency was entitled to request additional medical documentation. Moreover, the dates of Complainant’s requests for sick leave overlapped with her previously denied request for annual leave. Documentary evidence also showed that Complainant had traveled to Bali and was sightseeing, celebrating her birthday, and leading a retreat for her private business on the dates for which she had requested sick leave. Complainant has not established by the preponderance of the evidence that she was subjected to discrimination based on disability. 2021005240 11 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 decision finding no discrimination. 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 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. 2021005240 12 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. 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 December 21, 2022 Date