[Redacted], Petronila B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2021005013 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Petronila B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005013 Agency No. 2003-0502-2020101448 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 September 24, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse/Staff Nurse, Grade II at the Agency’s Home-Based Primary Care facility in Pineville, Louisiana. Complainant asserted that she has disabilities that include urticaria with angioedema, sciatica, stress, Attention Deficit Disorder (ADD), depression, anxiety and post-traumatic stress disorder (PTSD). Report of Investigation (ROI) at 601. According to Complainant, she satisfies the requisite skill, experience, education and other job-related requirements of her employment position. ROI at 122-23. Complainant stated that she engaged in prior EEO activity, having filed several complaints and a pending lawsuit. ROI at 124. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021005013 Complainant’s immediate supervisor (Supervisor 1) was the Program Director, Home Based Primary Care. Complainant’s most senior manager was the Director (Supervisor 2). Both Supervisors 1 and 2 (collectively hereinafter referred to as management) were aware of Complainant’s protected bases. ROI at 121-22, 157-58, and 206. According to management, Complainant was on extended leave for almost two years between September 2018 and June 2020. They stated that during her absence, Complainant reported back to work only a few times for short periods. Management asserted that Complainant’s ongoing absence from work included months of unauthorized absences without leave (AWOL). They stated that between April 1, 2019 through July 4, 2019, Complainant accumulated some 560 hours of AWOL. They asserted that Complainant accumulated an additional 600 hours of AWOL between October 9, 2019 and January 23, 2020. According to management, between January 4, 2020 and May 8, 2020, Complainant accumulated over 550 more hours of AWOL. ROI at 160, 207, 212-13, and 226-42. Record evidence reflected that Complainant also was approved to use 480 hours of leave under the Family & Medical Leave Act (FMLA) for her absences on March 4 - 28, 2019, and August 14 through October 7, 2019. The record also reflected that Complainant failed to submit a proper request for leave to cover her absences during the period between April 1, 2019 through July 4, 2019. Therefore, management charged Complainant with 560 hours of AWOL for her unauthorized absences during that period. ROI at 181-82. According to management, as of October 7, 2019, Complainant exhausted her FMLA entitlement and had no other remaining leave. They asserted that although Complainant later requested advanced leave, her request was incomplete. Management added that Complainant was authorized to seek leave donations from her coworkers. However, none of Complainant’s coworkers wished to support her ongoing absence from work. Therefore, Complainant had no remaining leave to use and was required to return to duty. ROI at 160, 162 and 174. Management asserted that Complainant remained absent from work. According to Supervisor 1, she repeatedly notified Complainant in writing that Complainant was AWOL, including a written notice dated February 14, 2020. However, even after such notification, Complainant still failed to return to work as required. Management asserted that Complainant requested and was granted a reasonable accommodation during the period. However, the accommodation did not abate Complainant’s pattern of AWOL. On December 23, 2019, Complainant submitted a request for various accommodations, including: light duty; no lifting greater than 20 pounds; no prolonged sitting/standing for over 45 minutes; freedom to change positions as needed; no operating of heavy machinery; frequent rest periods; no driving duties exceeding 45 minutes twice per week; authorization to telework four days per week; and 80 hours of sick leave and/or advance sick leave. ROI at 163, 202, 347, 388, and 417. Management stated that several of the requested accommodations eliminated the essential functions of Complainant’s staff nurse position. According to management, Complainant’s medical documentation indicated that she was unable to perform the essential functions of her position with or without accommodation. 3 2021005013 Therefore, the Agency conducted a search for a permanent reassignment to a vacant funded position as an alternative accommodation of last resort. Management stated that while the search was ongoing, Complainant was offered and accepted an interim accommodation of temporary light duty at a different facility with no loss of pay or benefits. ROI at 135, 165, 342, 386, 393, and 396. According to management, Complainant failed to report to her new light duty position for some three weeks. When Complainant finally did report to her assignment on April 13, 2020, she only worked approximately 1.5 hours and then left work again, never to return. Management asserted that the Agency continued its search for a vacant funded position for Complainant within her restrictions but found none. According to management, despite lacking any authorization, Complainant remained AWOL continuously. ROI at 129-31, 173-80, 260, and 310. On May 20, 2020, Supervisor 1 issued Complainant a Notice of Proposed Removal with 124 separate specifications of AWOL between October 9, 2019 and May 8, 2020, totaling over 1,000 hours of AWOL during that period. Complainant submitted a written reply to the Notice of Proposed Removal on June 2, 2020. Complainant claimed, among other things, that she had been denied a medically necessary accommodation for her impairments. On June 11, 2020, Supervisor 2 issued Complainant a Notice of Removal sustaining over 80 separate charges of AWOL, totaling several hundreds of hours of unauthorized absence. The removal notice stated that the significant, ongoing misconduct constituted proper grounds for Complainant’s removal which would be effectuated on June 17, 2020. Complainant was terminated from employment on June 17, 2020. ROI at 212-42. Complainant initiated EEO contact on December 23, 2019. On March 20, 2020, Complainant filed an EEO complaint (with subsequent amendment on June 25, 2020) alleging that the Agency discriminated against her on the bases of disability (physical/multiple) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On December 20, 2019 through March 20, 2020, Supervisor 1 denied Complainant’s request for advanced leave through the leave donor program and marked her AWOL. 2. On December 20, 2019 through March 20, 2020, Supervisor 1 denied Complainant a reasonable accommodation, including light duty. 3. From December 23, 2019 through March 20, 2020, Supervisor 1 failed to acknowledge or respond to Complainant’s request for accommodation; denied Complainant information regarding her leave request/attendance; encouraged/required Complainant to request leave until the accommodation process was completed; created additional barriers to Complainant’s work environment; discredited Complainant and made her appear incompetent by using an outdated functional statement to address Complainant’s accommodation request; failed to engage in the interactive process and falsely reported Complainant’s medical restrictions; refused to provide Complainant with past functional statements; 4 2021005013 demonstrated offensive behavior when stating, “My phone number is listed in the signature block of each email sent to you;” failed to consult with Agency officials prior to denying Complainant’s request for reasonable accommodation; and delayed reassigning Complainant to a different position. 4. From December 23 through 26, 2019, Supervisor 1 and a Human Resource Specialist denied Complainant equal access to the reasonable accommodation process, entitlement information, and Agency forms; failed to take appropriate action to accommodation requests; failed to acknowledge Complainant’s disability status and documentation on file; failed to timely process Complainant’s requests; and made additional requests for medical information that had already been submitted. 5. On February 14, 2020, Supervisor 1 placed Complainant in an unapproved leave status and sent Complainant an AWOL notification. 6. On April 30, 2020, Supervisor 1 denied Complainant access to “fair and equal benefits,” training, and the reasonable accommodation process. 7. On May 26, 2020, Supervisor 1 issued Complainant a proposed removal. 8. Effective June 17, 2020, Complainant was removed from her Title 38 Registered Nurse position.2 The Agency conducted an investigation into the complaint. 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). In accordance with Complainant’s request, on September 24, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In her appeal statements, among other things, Complainant contests the Agency’s FAD. She generally reiterates her allegations, asserting that the Agency violated several of its own policies. Complainant also contests her removal, asserting that she is a nurse with excepted service status and is exempt from the expedited process of adverse actions under applicable Agency regulations. 2 The Agency noted that pursuant to 29 C.F.R. § 1614.107(a)(1), it dismissed Complainant’s allegation regarding denial of Family & Medical Leave Act (FMLA). See ROI, Tab 3-1. According to the Agency, the allegation constituted an impermissible collateral attack on another administrative process. We affirm the procedural dismissal of Complainant’s claim because, as the Agency aptly stated, the proper forum to challenge an eligibility determination for FMLA is through the Department of Labor's FMLA enforcement procedures. 5 2021005013 Complainant states that the Agency should be sanctioned for failure to timely issue a FAD. According to Complainant, Complainant requested a FAD on December 20, 2020, but it was not issued until September 24, 2021. She requests the Commission find that the investigation findings are conclusively admitted by the Agency regarding claims 1, 2, and 5; and an adverse inference that claims 3-8 are true, in addition to an exclusion of any and all evidence, witnesses, documents, affidavits presented by the Agency for the failure to timely issue a FAD (default judgment), or any other sanctions as the Commission deems appropriate. See Appellant’s Statement-Brief in Support of Appeal at 2. Complainant also asserts that the Agency refused to participate in Alternative Dispute Resolution (ADR) after Complainant agreed to engage in that process on January 2, 2020. Appellant Statement-Brief in Support of Appeal at 2. Complainant states that she should prevail on all claims and the Agency should reinstate her with back pay, compensatory and punitive damages, cost, attorney fees or front pay in lieu of reinstatement. In response, among other things, the Agency reiterates its stated reasons for taking the challenged actions. The Agency also asserts that sanctions are unwarranted even though it did not issue the FAD within the requisite 60-day period. According to the Agency, the delay was due to a high loss of attorney staff and backlog of cases that significantly increased case processing times since the pandemic. The Agency also asserts that Complainant has not made any showing of prejudice in the Agency’s delay in issuing the FAD in her appeal. The Agency cites to record evidence, ROI at 15, 18 and 58, showing that the parties engaged in counseling and ADR without successful resolution of the complaint. 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, 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”). 6 2021005013 ANALYSIS AND FINDINGS Complainant’s Request for Default Judgment We note that our regulations require agency action in a timely manner at many points in the EEO complaint process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional. As the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must ensure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. Here, we find that the Agency failed to comply with the Commission’s regulations. The record reveals that Complainant sent her request for a FAD to the Agency on December 20, 2020, but did not issue the FAD to Complainant until September 24, 2021, approximately seven month beyond the 60-day deadline. The Agency did not dispute this fact but asserts that the delay was due to a high loss of attorney staff and backlog of cases that significantly increased case processing times since the pandemic. The Agency also asserts that Complainant did not show how the delay in issuance of the FAD prejudiced her or otherwise resulted in an unconscionable delay in justice. Upon review, we find insufficient evidence that the Agency's delay in this case was attributed to contumacious conduct or bad faith. See, Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days); Anthony M. v. Dep’t of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020). Further, we find that Complainant failed to show that she was prejudiced by the Agency's delay. Thus, under the specific circumstances presented, we do not find the Agency's delay warrant the sanction of granting default judgement. While we will not impose a sanction in the present case, we do find the Agency's failure to abide by the regulatory timeframes reflects negatively on the Agency's support for the integrity of the EEO complaint process. As a result, we will notify EEOC’s Federal Sector Programs (FSP) which monitors the federal agencies' EEO programs of this failure to comply with the regulations regarding the timely processing of complaints. See Foster B. v. Department of Homeland Security, EEOC Appeal No. 2021000598 (Feb. 7, 2022). 7 2021005013 We also find no evidence that the Agency failed to participate in the ADR process as Complainant asserted. Disability Accommodation - Claim 2 Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (2012) (as amended) requires that an Agency make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the Agency can demonstrate that doing so would impose an undue hardship. 29 C.F.R. § 1630.9(a) (2017); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance) (revised Oct. 17, 2002). Once an employer becomes aware of the need for an accommodation of an employee’s disability, the employer may engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. See 29 C.F.R. § 1630.2(o)(3) (2019). An Agency may choose among reasonable accommodations as long as the chosen accommodation is effective, and while the preference of the individual with a disability should be given primary consideration, an Agency has the ultimate discretion to choose between effective accommodations. See Enforcement Guidance, supra, at Q. 9. To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). For purposes of analysis, we assume, without finding, that Complainant established that she is an individual with a disability. The record shows that Complainant presented a doctor’s note with medical restrictions, including that she may not return to work. See ROI at 418 and 619. Complainant also requested reasonable accommodation in the form of job restructuring or modified. ROI at 355 and 547-48. However, there is no evidence that the Agency failed to accommodate Complainant. See ROI at 358-63 and 549-50 for documentation of accommodation offer(s) made by management. According to Complainant herself, the Agency cleared her to perform the essential functions of her position on two separate occasions. See ROI at 122-23, 339, and 342. Complainant did not dispute Management’s statements that they provided her with an interim accommodation when Complainant’s medical restrictions would remove the essential functions of her position as a Nurse. Management had temporarily reassigned Complainant to a different facility while a permanent reassignment was being sought. Complainant did not dispute that she accepted the temporary light duty assignment or that she only reported to that facility for less than two hours. ROI at 140-41, 151, 179, 202, and 579-80. 8 2021005013 Even though Complainant requested job restructuring and modification as reasonable accommodation, the Commission’s position is that employees are not entitled to the accommodation of their choice so long as an effective accommodation is provided. Latricia P. v. Dep’t of the Army, EEOC Appeal No. 2019000803 (Aug. 19, 2020); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002), at Question 9. There is no evidence that the interim accommodation that was provided to Complainant was ineffective. Therefore, Complainant has not shown that the Agency engaged in any action that constituted a violation of the Rehabilitation Act. Disparate Treatment - Claims 1, 5, 7, and 8 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Supervisor 1 stated that Complainant’s request was denied because it was incomplete. Supervisor 1 also noted that Complainant was granted authorization to request advanced leave through the Agency’s leave donation program. Complainant did not dispute management’s assertion that no employees wished to support Complainant’s ongoing absence from work through the leave donation program. ROI at 129 and 160. Supervisor 1 also stated that despite not having any available leave or authorization for an absence, Complainant continued to fail to report to work. Therefore, Supervisor 1 considered Complainant AWOL. ROI at 160-62. 9 2021005013 Regarding claim 5, Supervisor 1 stated that she decided to send Complainant notification on February 14, 2020, that her absences were unauthorized because Complainant’s ongoing absence from work was unauthorized, as Complainant was already well aware. ROI at 173-75. See ROI at 317-21 for documentation of decision denying request for leave. Regarding claim 8, the record includes the Notice of Proposed Removal and the Notice of Removal. Both documents reflect that Complainant was removed from her position due to her unaddressed misconduct involving hundreds of hours of accumulated AWOL. ROI at 151, 177- 79, 207, 212-13, 226-241, and 512-13. See also ROI at 299-315 for leave request and attendance records, emails regarding leave and AWOL. The record also includes a letter regarding Proposed Removal under Authority of 38.USC Ch. 74 that cites 124 times when Complainant did not report for duty. See ROI at 481-95. We next turn to Complainant to show pretext. Complainant argued that the challenged agency actions were discriminatory and retaliatory, asserting that because the Agency failed to grant her request to remove the essential functions of her position as a form of accommodation (in claim 5 for example), her unauthorized absence from work should have been excused. ROI at 131-35 Complainant also argued that her removal should not have been expedited based on applicable Agency regulations. Complainant did not identify any other employee outside her protected classes who engaged in the same behavior as she did yet received more favorable treatment. Complainant has not met her burden as she did not present any evidence of pretext. Proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015). Complainant presented no such proof here. Therefore, Complainant’s claims fail. Harassment We initially note that we are precluded from finding harassment with respect to the incidents in claims 1, 2, 5, 7, and 8 based on the findings above. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). To establish a claim of harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 10 2021005013 To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Here, Complainant has not established that the incidents alleged in claims 3, 4, and 6 occurred because of any purported protected EEO activity. Moreover, taken together, the alleged actions as described by Complainant lack the requisite severe or pervasive verbal or physical management conduct to create a hostile work environment. For example, Complainant cited to communication in which she expressed her feelings of being harassed and retaliated against to Supervisor 2. ROI at 141 and 504-06. Complainant however does not describe how Supervisor 1 created additional barriers to Complainant’s work environment; discredited Complainant and made her appear incompetent by using an outdated functional statement to address Complainant’s accommodation request; failed to engage in the interactive process and falsely reported Complainant’s medical restrictions; refused to provide Complainant with past functional statements; demonstrated offensive behavior when stating, “My phone number is listed in the signature block of each email sent to you;” failed to consult with Agency officials prior to denying Complainant’s request for reasonable accommodation; and delayed reassigning Complainant to a different position (claim 4). For allegations 4 and 6, Complainant referred to documents but failed to describe any management action from those documents that would constitute harassment. See ROI at 143-44 and 148-49. Nor does Complainant explain how being placed in an unapproved leave status and being sent an AWOL notification (allegation 7) constituted harassment. Rather, Complainant failed to refute management’s explanations that the challenged actions stemmed from hundreds of hours of her being AWOL and otherwise being unavailable for work. See ROI at 207-08 and 226-42. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (Jun. 16, 2017). We find that many of the allegations stated in Complainant’s complaint fall within these types of management prerogatives, and Complainant has not shown how she was treated differently than others who were similarly situated and outside of her protected classes. The Commission has also held that an employer is not barred from imposing discipline or terminating an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and is consistent with business necessity. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002). 11 2021005013 Therefore, upon review, we find that Complainant’s harassment claim fails, and she does not prevail. Nor is Complainant entitled to relief. 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. 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. 12 2021005013 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 March 6, 2023 Date