[Redacted], Reita M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022001322 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2022001322 Hearing No. 541201900033X Agency No. 200303392018101929 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 21, 2021 Final Order concerning an 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., and 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 was employed by the Agency as a Veterans Service Representative (“VSR”), GS-11, at the Denver Veterans Affairs Regional Office (“VARO”) in Denver, Colorado. On April 18, 2018, Complainant filed a formal EEO complaint alleging that she was subjected to discrimination, including hostile work environment harassment, by the Agency on the basis of disability (anxiety, major depressive disorder, an auto-immune disease, shingles, as well as reprisal for prior protected EEO activity, when: 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. 2022001322 2 1. On October 23, 2017, the Assistant Service Center Manager (“Assistant Manager”) notified Complainant that she could no longer work a compressed work schedule. 2. On October 30, 2017, Assistant Director of the Denver VARO failed to respond to Complainant's request to be reassigned from the mandated training to become a Pre-Development VSR back to a Post Determination/Promulgations Senior VSR and Authorizer. 3. On November 20, 2017, the Chief of Support Services and a Support Services Supervisor denied Complainant's request for 240 hours Advance Leave. 4. From December 13, 2017, through April 11, 2018, Assistant Manager and the Assistant Local Reasonable Accommodation Coordinator/Human Resources Specialist, (“Accommodation Specialist”) failed to respond to Complainant's request for reasonable accommodations. 5. On December 15, 2017, Assistant Manager and Accommodation Specialist told Complainant that her approved accommodation of telework/flexible work schedule was going to be rescinded and that no response could be given to the request for accommodation until a better understanding of her conditions and limitations in the workplace. 6. On January 9, 2018, Assistant Manager told Complainant that she (Assistant Manager) was confused regarding the request for accommodation and that she was placing Complainant on administrative leave until January 16, 2018. 7. On January 26, 2018, Assistant Manager reassigned Complainant from the position of Veteran Service Office Post Rating Specialist to Veteran Support Personnel/Support Service Mail Clerk. 8. On January 30, 2018, Assistant Manager denied Complainant's request for official time to perform union duties full time. 9. On April 6, 2018, Accommodation Specialist notified Complainant that her telework/flexible work schedule accommodation was administratively ended. The Agency accepted the complaint and conducted an investigation into its claims. The investigation showed that from December 2013 through October 2017, Complainant worked full- time on union matters in accordance with a Local Supplemental Agreement (“LSA”) between the Denver VARO and the American Federation of Government Employees (“AFGE” or “Union”) Local 1557. 2022001322 3 Specifically, she was permitted to dedicate 50% of her official time to national duties pertaining to her role as an AFGE representative for the National VA Counsel (“NVAC”) Midterm Bargaining Committee, and 50% of her official time to her duties as Union President for Local 1557. This arrangement ended on September 25, 2017, when the Denver VARO and Local 1557 entered into a Memorandum of Understanding (“MOU”) nullifying the LSA. On September 28, 2017, the Assistant Director for the Denver VARO (Complainant’s fourth level supervisor) issued a “formal notice” to Complainant that in light of the MOU and need for “agency efficiency,” Complainant was no longer pre-approved to spend 50% of her official time working on local union matters. She could still use 50% of work time for some local union matters so long as she requested it in advance and included an explanation on how she would use the requested time. “[A]bsent truly and verifiable extraordinary circumstances,” Complainant was prohibited from using official time on local matters without her first level supervisor’s advance approval. The September 28, 2017 Memorandum also directed Complainant to resume working as a VSR when she was not working on union matters, beginning October 6, 2017. The Assistant Director reasoned that because Complainant would be placed in “training status,” the compressed work schedule of 10-hour days, 4 days per week she was previously working would be “suspended.” Complainant’s reasonable accommodation of ad hoc telework, granted in October 2014, was also rescinded due to her training status. The Assistant Director clarified that the Memorandum was an “administrative” action and did not constitute discipline. Throughout October 2017, the AFGE President on behalf of Complainant and Local 1557 challenged Assistant Director’s “unilateral” removal of official time, which it characterized as illegal. On October 23, 2017, the AFGE President relieved Complainant of her national duties in order to free up the remaining 50% official time for Complainant to resolve local union matters. Assistant Director maintained that Complainant no longer had any pre-approved time because she had no national union duties and the LSA was no longer in effect. Also, throughout October and into November 2017, Complainant communicated with Assistant Manager (her second level supervisor) in an effort to maintain her compressed schedule and telework, as she claimed both helped her manage her disabilities. Assistant Manager stated that policy required attendance 5 days per week for trainees and she would not make an exception for one employee. Complainant also questioned Assistant Manager as to why she was placed on the Pre-Development VSR team, which was “completely different” from her prior work in VSR. Complainant had seven years of experience on Post-Development or Non-Rating teams and asked to be placed in her prior VSR position. Assistant Manager claimed that there were no openings on the Non-Rating team but offered for Complainant work on Post VSR assignments under a mentor for 60 days instead of taking the training course. Complainant would still have to come in 5 days per week. Assistant Manager testified that Complainant’s “trainee” status was proper because performance standards and other aspects of the VSR position had changed since Complainant held the position. 2022001322 4 On October 24, 2017, Complainant sought medical treatment, as she was “was having a serious mental breakdown” because, based on the schedule and assignment change, “she feared that her supervisory chain of command was setting her up for failure.” Complainant made verbal and written requests to Assistant Manager and Accommodation Specialist for a reasonable accommodation, and on November 6, 2017, she requested advance sick leave through January 2018 due to her severe stress and anxiety exacerbated by her work situation. The Agency requested supporting medical documentation. On November 15, 2017, Complainant’s medical provider submitted a document explaining that Complainant was experiencing “recurring panic attacks, stress, and her chronic, permanent anxiety disorder which had been exacerbated due to the constant harassment and bullying Appellant had been subjected to by management officials.” The document recommended that Complainant go on leave for one month. The Denver VARO Director denied advance leave. Complainant states that because her “mental health began to deteriorate” she “had no choice but to take the leave anyway” and was recorded as leave without pay (“LWOP”). Also on November 15, 2017, Complainant submitted a request for FMLA and for voluntary leave donations at the Director’s suggestion. On December 13, 2017 Complainant submitted a request for the following reasonable accommodations: (1) reduced work/part time schedule not to exceed 35 hours per week; (2) flexible work schedule; (3) flexible leave/LWOP usage; (4) telework; (5) minimal disruptions; (6) quiet surroundings; (7) many breaks throughout the day; (8) approval to engage in [unspecified] stress reduction techniques through the day; (9) self-paced workload; (10) open communications; (11) assignments/agendas in writing; (12) printed training materials; and (13) a new position with less complexities and stress. According to the Agency no VSR position met these limitations. Complainant alleges that instead of locating “an adequate position within [Complainant’s] current realm of employment, the Agency focused on finding a position outside of the Service Center.” On December 15, 2017, Assistant Manager notified Complainant that the Agency’s HR Office could not find the telework agreement for her October 2014 reasonable accommodation. Assistant Manager declined to authorize telework for Complainant until the accommodation process was complete. Complainant alleges that despite submitting “ample documentation,” the Accommodation Specialist “insisted that he could not address [Complainant’s] latest reasonable accommodation requests because they needed to better understand her conditions and limitations in the workplace.” Accommodation Specialist agreed that the documentation was “ample” but claims that it was not relevant to the requested accommodations and Complainant exhibited a lot of confusion over the accommodation process, repeatedly failing to properly complete the necessary paperwork. On December 28, 2017, Complainant was provided with the following interim accommodation: she would be placed in a quieter, dimly lit location, assigned administrative tasks, work a part- time schedule with breaks as needed, and a printer would be available for Complainant to print materials when needed. 2022001322 5 In addition, as Complainant’s FMLA request had been approved and Complainant could use FMLA, sick leave, annual leave, and leave without out pay as needed for her disabilities. The Agency also committed that its Human Resources Office (“HR”) would search for suitable job openings, including positions that would be open in the next six days in the facility along with USAJOBS.gov. On January 9, 2018, according to Complainant, her interim reasonable accommodation was effectively “revoked,” and she was told she would be reassigned to work in the mailroom. Assistant Manager told Complainant that she was “confused” by her reasonable accommodation request and that she would place Complainant on administrative leave as Management attempted to find a suitable accommodation. Complainant was on paid administrative leave for a total of 3 workdays. On January 31, 2018, Assistant Manager notified Complainant that she would be reassigned to the Support Service Division (“SSD”) as a Mail Clerk through March 30, 2018. Complainant was tasked with opening, dating, and stamping mail. Complainant also received an email from Accommodation Specialist stating that Complainant would be assigned to SSD for duties consistent with her medical limitations. Although the Agency characterizes the reassignment as a “detail,” Complainant states that she was never provided a record or an SF-50 reflecting the detail and it is not reflected in her personnel file. According to Complainant, it was understood that the Agency dealt with employees that “cause problems” by reassigning them to the mailroom. Upon her arrival, a mail room employee greeted Complainant by stating, “what did you do wrong?” Assistant Director acknowledges that three years earlier he reassigned an employee to work in the mailroom after pornography was discovered on the employee’s government-issued computer. In that instance, Assistant Director’s purpose was to limit the employee’s access to the Agency’s computer system while the Agency processed their removal. Here, according to Assistant Director, there was “no viable alternative” but to assign Complainant to a mail room position because she “declined other opportunities offered to her.” Complainant was still denied telework, as it was not an option for mail room positions. Complainant does not dispute that she maintained access to her government laptop, and her grade and pay were not changed during the reassignment. On April 5, 2018, Complainant met with Director, Assistant Director, Assistant Manager and Accommodation Specialist, who informed her that the documentation she provided was not sufficient to support her requested reasonable accommodation. Complainant claims that she was threatened with termination if she did not appeal the denied request, and that she could not get a straight answer as to why her medical documents were insufficient. Complainant appealed, and ultimately, accepted an alternative VSR position with an accommodation. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a hearing. 2022001322 6 The Agency submitted a motion for a decision without a hearing and, over Complainant’s objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110”), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Failure to State a Claim - Claim 8 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim under the EEO complaint process. Claims involving violations of union grievance procedures or other union processes generally do not state a claim for purposes of EEOC regulations. See, e.g. Lambert v. Soc. Sec. Admin., EEOC Request No. 05A30330 (Feb. 6, 2003) (allegation that the agency violated, among other things, the national union agreement failed to state a claim), citing Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998) (an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding) other citations omitted. Claim 8 constitutes an impermissible attempt to lodge a collateral attack on another administrative proceeding because it alleges the improper denial of official time to conduct Union duties. 2022001322 7 It is well established that such matters are outside EEOC jurisdiction. See Ponisciak v. Soc. Sec. Admin., EEOC Request No. 05931049 (April 21, 1994). The proper forum for Complainant to raise such a claim is through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority. Disparate Treatment 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. Texas Dep’t. of Cmty. Affairs 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). Reprisal - Claims 1-7, 9 In order to establish a prima facie case of discrimination for an allegation of reprisal, a complainant must show: (1) that they engaged in protected activity, (2) that the alleged discriminating official was aware of the protected activity, (3) that they were disadvantaged by an action of the Agency contemporaneously with or subsequent to the protected activity and (4) that there is a causal connection, or nexus, between the protected activity and the adverse employment action. Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff‘d, 545 F.2d 222 (151 Cir. 1976). Under the prima facie analysis, “protected activity” refers to either participation in the EEO process or acting in a reasonable, good faith manner to oppose discriminatory practices in violation of EEO statutes. See EEOC Compliance Manual, Sec. 2 B.11 (May 12, 2000). We have long held that union activity, and/or status as a union official does not qualify as protected EEO activity where there is no evidence that the union activity involved an EEO matter. Filiberto H. v. United States Postal Serv., EEOC Appeal No. 2019001012 (Feb. 21, 2020) (Complainant failed to establish a prima facie case of reprisal where he alleged that he was being retaliated against generally for his role as the Union President, as he offered no evidence that his union activity involved an allegation of discrimination) citing Rivera v. United States Postal Serv., EEOC Appeal No. 01A33897 (Jan. 7, 2005). 2022001322 8 When asked how each of the alleged discriminatory events constituted reprisal, Complainant consistently testified throughout the ROI that Management sought to retaliate against her based on her Union activities and for her role as Union President.2 In particular, she references temporal proximity between the events alleged in this complaint and actions pertaining to the arbitration of a grievance. Complainant, recounts that on or about August 30, 2017, she provided 5 hours of testimony, and afterward, the Agency opted not to ask her any questions, indicating that “it was clear to both sides that there was not enough evidence to charge.” On January 5, 2018, immediately prior to being offered a position in the mailroom as an interim accommodation, Complainant and Management were notified that a decision on the August 2017 arbitration was issued in favor of Complainant. Assistant Director testified that the Agency appealed, and the matter was pending during the remainder of the relevant time frame. The underlying issue for Complainant’s grievance was disciplinary actions taken against Complainant by Assistant Manager in October 2016 and February 2017. Complainant also recounts that in March 2017 she notified the VA House Committee Investigator and filed a complaint with the Agency’s Office of Special Counsel (“OSC”) regarding the same disciplinary actions. There is no indication that Complainant ever sought EEO counseling for these actions, or that she attributed them to discrimination. We note that the September 28, 2017 Memorandum issued by Assistant Director accuses Complainant of causing an ongoing impasse in negotiations between the Denver VARO and Local 1557, which, along with the contemporaneous correspondence between AFGE and the Agency, tends to support Complainant’s Union activity, and not her EEO activity was at issue. As such, we conclude Complainant has failed to establish a prima facie case of retaliation made unlawful under the employment discrimination statutes. We note that the record includes a January 16, 2018 email from Complainant to Assistant Manager stating: “I wanted to let you know that I have just completed a call to EEOC as well as my doctors. EEOC did establish a claim for me, which they will be contacting you all about shortly. The doctors are making yet another statement to clarify exactly what I’ve been stating that the RA request is for periods, like today, when I’m experiencing high stress and anxiety.” Although Claims 7 and 9 concern events that occurred after Assistant Manager was on notice of Complainant’s EEO activity related to the instant complaint, Complainant still expressly attributes the Agency’s retaliatory motivation in these claims to her Union activity. Moreover, the record reflects that Complainant was notified that the decision was made to temporarily assign her to work in the mailroom (Claim 7) on January 9, 2018. Disability - Claims 2 and 3 Claims 1 and 6 will not be included in this analysis because Complainant testified in the ROI that she did not consider her disability status to be a motivating factor for the Agency’s actions in these claims. 2 While Complainant states that she filed an EEO complaint in 2014, and that in her capacity as Union President, she assisted employees with their EEO actions, she fails to provide any specifics that would connect these activities to the events alleged in this complaint. 2022001322 9 With respect to disability discrimination, we find the allegations in Claims 4, 5, 7 and 9, are more properly analyzed as alleged denials of reasonable accommodations. Assuming, without deciding, that Complainant could establish a prima facie case for disability discrimination for her remaining claims, the Agency has provided legitimate nondiscriminatory reasons for its actions. For Claim 2, the Agency’s legitimate non-discriminatory reason for the Assistant Director’s lack of response to her request to change VSR assignments is that Complainant did receive a response to her inquiry, but it was from Assistant Manager, not Assistant Director. The record reflects that the Assistant Manager promptly responded to Complainant’s emails with thorough explanations. While Complainant did not agree with the explanations, they did not reflect unreasonable business judgment and they were consistent with Assistant Manager’s authority as Complainant’s second level supervisor. Other than bald assertions, Complainant offers no evidence to create a question of fact regarding whether Assistant Manager responding instead of Assistant Director, or the response itself, indicate discrimination. For Claim 3, the Agency’s legitimate non-discriminatory reason for denying Complainant’s request for 240 hours of advance leave was that the deciding official, the Director for the Denver VARO, believed that if the request was granted, Complainant would be unable to make up the deficit. The Director suggested that Complainant apply for leave under the Family and Medical Leave Act (“FMLA”), offered for Complainant to use leave without pay (“LWOP”) and to request leave through the leave donation program instead. Complainant does not dispute the Director’s characterization of her prior leave usage but asserts that the true reason for the denied request was that she was “not liked” or “valued” by Director and Agency upper management. Again, Complainant emphasizes her Union activities as the underlying reason for Agency’s actions, and she offers no supporting evidence of discriminatory motive based on her disabilities. Denial of Reasonable Accommodation - Claims 4, 5, 7 and 9 Under the Rehabilitation Act and the Commission's regulations, an agency is required make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (“EEOC Disability Guidance”), Question 1 (Oct. 17, 2002). After receiving a request for reasonable accommodation, the Agency, as the employer, should engage in the “interactive process,” which is an informal process between the agency and the requesting individual to clarify their needs and identify the appropriate reasonable accommodation. See EEOC Disability Guidance, see also, Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Improper termination of the interactive process constitutes denial of reasonable accommodation. See Harvey G. v. Dep’t of the Interior, EEOC Appeal Nos. 0120132052 & 0120150844 (Oct. 13, 2015). 2022001322 10 We note that protected individuals are entitled to reasonable accommodations, but they are not necessarily entitled to their accommodation of choice. Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about their disability and functional limitations. Id. at Q. 6. The employer is entitled to know that the individual has a covered disability for which they need a reasonable accommodation Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and they refuse to provide the reasonable documentation requested by the employer, then they are not entitled to reasonable accommodation. Id. Here, the record supports the Agency’s assertion that specific training for the VSR position was required in order for Complainant to complete the essential functions of the job. Complainant does not dispute that when she sought accommodation in November and December 2017, she was experiencing flareups of her disabilities, which prevented her from completing the mandatory in- person training. The Agency explained that the training was 5 days per week, could not be done remotely, and was not conducive to taking additional breaks throughout the day. None of the documentation in the record states that Complainant cannot do any work unless she teleworks. Therefore, placement in the mailroom position as an interim accommodation did not constitute denial of accommodation. Complainant’s allegation in Claim 4, that the Agency failed to respond to her requests for reasonable accommodations between December 13, 2017 and April 11, 2018, is contradicted by the record. Throughout this time, the Agency continued to engage in the interactive process while awaiting Complainant’s response to its December 15, 2017 request for specific medical documentation. The Agency also provided Complainant with interim reasonable accommodations, which met all of her criteria aside from telework. Documentary evidence includes emails between Complainant, Accommodation Specialist, and HR as well as accommodation paperwork with detailed attachments summarizing actions taken by the Agency during the interactive process. Claims 5 and 9 both concern Complainant’s disagreement with the Agency’s assertion that she failed to provide sufficient documentary evidence to support her request for telework as a reasonable accommodation. Regarding Claim 5, Complainant’s original documentation supporting ad hoc telework was not sufficient to support the accommodation requests at issue in the instant complaint. The prior approval was a temporary accommodation in 2014 when Complainant was experiencing a flare up of her eye condition, whereas now Complainant requests regular/ongoing (if not fulltime) telework to accommodate her anxiety and PTSD, which exacerbate her eye condition. Complainant’s additional use of telework prior to October 2017 was permitted through an agreement with the Union, not the 2014 accommodation request. 2022001322 11 For Claim 9, the stated reason for administratively closing Complainant’s request for telework as a reasonable accommodation was that Complainant did not provide the Agency with information that the Accommodations Specialist requested in a December 15, 2017 email. The April 5, 2018 administrative closure provided Complainant with an opportunity to appeal, which she did. As a result, the Agency provided Complainant with multiple alternative accommodations to allow her to complete the VSR training in person, then granted telework as a reasonable accommodation. Regarding Claim 7, Complainant disputes the Agency’s explanation that her reassignment to the mailroom was the only viable “interim reasonable accommodation” that met her requirements. Instead, she asserts, without evidence, that the Agency used her disability as pretext for Management to prevent Complainant from teleworking. She also believed that the Agency reassigned her to the mail room because Management sought to “get [her] away from other employees and to keep [her] in the dark on union issues that may be taking place.” While the mailroom assignment did not allow for telework, it did include Complainant’s preferred compressed schedule and all of her other requested accommodations. The position was low- stress, and Complainant’s health conditions improved while she was there. We note that before Complainant received the “formal notice” of her detail to the mailroom on January 31, 2018, she was offered a detail for a position with remote work that met her accommodation requirements, but Complainant declined the opportunity. CONCLUSION Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, the Agency’s final order adopting the AJ’s decision is AFFIRMED. 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. 2022001322 12 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. 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. 2022001322 13 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 January 26, 2023 Date