[Redacted], Shameka M., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2021003736 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shameka M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003736 Agency No. DON-19-62285-02497 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 May 14, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Supervisory Astronomer (Division Chief), GS-1330-14, at the Agency’s U.S. Naval Observatory, N3 Astrometry Department in Washington, D.C. On May 17, 2019, Complainant filed a formal EEO complaint, subsequently amended, claiming that his supervisors subjected him to disparate treatment based on disability and in reprisal for prior protected EEO activity under (request for reasonable accommodations and the instant complaint) when: 1. on March 4, 2019, Complainant was suspended without pay for three days; 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. 2021003736 2 2. on March 6, 2019, after informing his first level supervisor that the Agency’s proposal to accommodate his disability would not be effective, the Agency failed to engage in the interactive process with him to determine accommodations or grant his requests for reasonable accommodations; 3. on April 1, 2019, Complainant was rated a “3” on his performance appraisal; 4. on April 22, 2019, Complainant was issued a Notice of Proposed Suspension for ten days without pay; 5. on April 25, 2019, Complainant was issued a letter informing him that he would be offered another position at a lower General Schedule (GS) level as an accommodation; 6. on May 16, 2019, Complainant was offered a GS-13 position as a result of his reasonable accommodation request; and 7. on June 27, 2019, Complainant was suspended without pay for two days. After its investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant initially requested a hearing but subsequently withdrew his request. On May 14, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation - (Claims 2, 5, and 6) To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. As further discussed below, we find that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. 2021003736 3 Complainant was diagnosed with “stage three” nasopharyngeal cancer, speech impairment, and an endocrine disorder. Complainant explained that he was first diagnosed with head and neck cancer in December 2011, and he received radiation and chemotherapy treatment from February 2012 through April 2012. As a result of the cancer, Complainant indicated that he developed a speech impairment from 2012 through 2018, and this impairment became “quite noticeable” by August 2018. Specifically, Complainant explained that the impairment makes it difficult for him to speak due to permanent damage to his tongue muscle and his hypoglossal nerve. Complainant indicated that the longer he speaks, the more difficult it is for people to understand him. Complainant acknowledged that his impairment prevents him from completing functions of his position - specifically, his ability to participate, lead, and organize face-to-face meetings and his ability to make oral presentations and reports. However, Complainant clarified that he could perform the essential functions of his position with reasonable accommodations. Complainant testified that he notified the Supervisory Astronomer, his first level supervisor, and the Scientific Director, his second level supervisor, via email of the speech impairment and requested two accommodations. Complainant stated that the Supervisory Astronomer was aware of his medical condition as early as June 2018, and Complainant believed that the Scientific Director became aware of his condition shortly after he had submitted his reasonable accommodation request. Complainant stated that he submitted a reasonable accommodation request in June 2018, to the Supervisory Astronomer regarding his speech impairment and he submitted another reasonable accommodation request on August 21, 2018, to the Human Resources Specialist (Human Resources Specialist 1). Complainant explained that he requested to be relieved of long-duration meetings where intense verbal communication is expected. Complainant also requested to avoid leading teleconferences or making long oral presentations. Complainant explained that Human Resources Specialist 1 informed him in September 2018, that an investigation had been initiated into his requests, and she requested that he submit medical documentation in support of his requests. Complainant indicated that on December 6, 2018, Human Resources Specialist 1 informed him that the Supervisory Astronomer was conferring with the Information Technology department about the implementation of his request. However, Complainant argued that none of his requests required Information Technology consultation. Complainant indicated that the Supervisory Astronomer asked him on January 7, 2019, seven months after he had submitted his reasonable accommodation requests, to review assistive technology and supplemental websites. Complainant, however, informed the Supervisory Astronomer that none of these programs could adequately accommodate him. Consequently, Complainant reiterated his original reasonable accommodations requests (limited long-duration meetings requiring verbal communication and not leading teleconferences or make oral presentations). 2021003736 4 Instead of granting his original accommodation requests, Complainant stated that on April 25, 2019, he received a letter from the Scientific Director informing him that the Reasonable Accommodation Advisory Team determined that there were no effective accommodations that would allow him to perform the essential functions of his position, and ultimately offered him, on May 16, 2019, placement in an Astronomer, GS-13, position in the same department with the Supervisory Astronomer still serving as his first level supervisor. However, Complainant asserted that this demoted position was ineffective because he was still assigned to organizing face-to-face meetings and conduct meetings and teleconferences. Therefore, Complainant asserted that the Agency failed to accommodate him or effectively engage in the interactive process. However, our review of the record, as further explained below, reflects that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act when it offered him the Astronomer, GS 13 position as an alternative accommodation. A copy of Complainant’s Astronomer, GS-14, position description indicates that Complainant was responsible for providing “written or oral reports,” and Complainant also had the “responsibility to represent the Naval Observatory and its interests at appropriate scientific briefings, colloquia, and symposia.” The position description further notes that “writing skills and general communicative ability are essential to develop scientific publications and to present the results at international meetings.” Similarly, the Supervisory Astronomer explained, in the Documentation of Essential Functions of Position, that the essential functions of Complainant’s position placed a heavy emphasis on both written and oral communication. Specifically, the Supervisory Astronomer noted that the essential functions included, in pertinent part, holding regular meetings to discuss ongoing work; developing performance plans and conducting oversight of employees’ ongoing performance; providing direction to employees and interacting with other members of the Observatory in order to resolve problems and address ongoing issues; written an oral communication including conducting and participating in meetings, discussions on resolving specific issues, and communicating ideas and concepts; reporting of work regularly via both written (journal publication) and oral (presentations) means; and interact “heavily” with the users of the data and the local providers of the data both in writing an orally. A copy of Complainant’s August 9, 2018 reasonable accommodation request reflects that Complainant sought to eliminate the oral communication functions of his position. Specifically, Complainant requested to avoid duty assignments that require holding/leading long-duration meetings with extended periods of verbal communication; and oral presentations extending longer than twenty minutes. Complainant further requested permission to leave some telephone calls unanswered; to telework from home on a situational basis when his condition worsened; and limited participation in common discussions and workshops that required intensive verbal communication. These requests would not have allowed Complainant to perform the essential functions of his position. We note that reasonable accommodation is mainly designed to enable an employee to perform the essential functions of the position of record. 2021003736 5 However, the record reflects that the Agency offered Complainant several alternative accommodations (i.e., use of Voice-to-Text Software/Victor Reader Stream New Generation or assistive technology that may be provided via District of Columbia Assistance Technology Program) to his original requests for accommodation (limited long-duration meetings requiring verbal communication and not leading teleconferences or make oral presentations). Nevertheless, Complainant rejected these alternative accommodations. Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (“Guidance”), Question 9. However, alternative proposed accommodations must be “effective.” See U.S. Airways v. Barnett, 535 U.S. 391, 400(2002). “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual's limitations.” Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. In this case, the Reasonable Accommodation Advisory Team determined that there were no effective accommodations the Agency could provide that would allow Complainant to perform the essential functions of his position. Consequently, Complainant’s last resort for a reasonable accommodation was a reassignment to a vacant, funded position. Here, the Reasonable Accommodation Advisory Team recommend on March 11, 2019, a vacant, funded position (Astronomer, GS 13) that did not have the requirement to conduct training sessions/presentations. Complainant asserted that his new position was not effective because it still required that he communicate orally. However, the Supervisory Astronomer noted that the GS 13 position did not require a significant amount of verbal communication, and the position allowed Complainant to work from home, not answer the phone, and correspond primarily via email when needed. Consequently, the criteria of Complainant’s original accommodations requests did not prohibit him from performing the essential functions of the GS 13 position. Despite the downgrade, the Supervisory Astronomer clarified that Complainant accepted the reassignment with no loss in pay. The record indicates that Complainant accepted this position, which was effective on June 9, 2019. Therefore, contrary to Complainant’s assertion, the Agency did provide him an accommodation which he ultimately accepted. Complainant’s allegation that the Agency failed to timely respond to Complainant’s reasonable accommodation request is unpersuasive. Specifically, Complainant asserted that the Supervisory Astronomer unreasonably delayed processing his request when he waited until January 7, 2019, seven months after Complainant had submitted his reasonable accommodation requests, to ask Complainant to review assistive technology and supplemental websites which Complainant ultimately determined were not effective. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. 2021003736 6 Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Our review of the record indicates that the Agency promptly responded to Complainant’s requests and the delays encountered during this process were attributed to time need for both Complainant and Agency officials to submit and review necessary documentation. The record reflects that Complainant submitted his first request, both verbally and in writing in June 2018. The Supervisory Astronomer testified that he informed Complainant, in writing on June 18, 2018, that he would attempt to accommodate Complainant’s request while the processing of his formal request was pending. Thereafter, Complainant submitted another reasonable accommodation request on August 9, 2018. The Supervisory Astronomer explained that he requested the necessary documents for Complainant to complete from Human Resources, and Complainant submitted the completed paperwork during the last week of October 2018. The Supervisory Astronomer further explained that the Reasonable Accommodation Advisory Team2, determined on October 30, 2018 several alternative options for Complainant to consider which included - technical solutions (i.e. assistive devices), programs provided in the Washington, D.C. area, and assistance to Complainant. The Supervisory Astronomer noted that one of the technical options potentially required connection to the Agency’s Information Technology network. Consequently, the Reasonable Accommodation Advisory Team informed Complainant that he would need to get Agency approval to use these technological/assistive devices before offering the devices as an option to Complainant. On November 2, 2018, the Supervisory Astronomer testified that he submitted the request for approval, but he felt that the process was taking too long after not receiving a response. Therefore, the Supervisory Astronomer stated that on December 11, 2018, he passed on the information for the specific device to Complainant for Complainant’s evaluation while the approval process was still pending. The Supervisory Astronomer noted that Complainant did not provide a clear evaluation until January 2, 2019, which the Supervisory Astronomer submitted to the Reasonable Accommodation Advisory Team.3 2 The Reasonable Accommodations Advisory Team was comprised of the Supervisory Astronomer and two Human Resources Officers (Human Resource Officer 1 and 2). 3 Ultimately, the Supervisory Astronomer noted that he received an email on January 23, 219 that the specific device “was about to be” approved, but he never received any further confirmation that it was approved. 2021003736 7 On January 7, 2019, the Supervisory Astronomer asked Complainant to evaluate the cap.mil website for possible assistive technology, and asked him to consider, for a second time, the District of Columbia’s assistive technology program. The Supervisory Astronomer explained that Complainant notified him on February 4, 2019, that he had looked into the cap.mil options and did not find anything that would meet his request for accommodation. Complainant further informed the Supervisory Astronomer that he was still looking into the District of Columbia’s assistive technology program. Consequently, the Supervisory Astronomer testified that it was not until March 6, 2019, when Complainant indicated that he had completed his evaluation of all the reasonable accommodation options provided by the Reasonable Accommodation Advisory and determined that none of the options, including the District of Columbia’s assistive technology program, would meet his reasonable accommodation request. Thereafter, the Reasonable Accommodation Advisory met on March 11, 2019, and determined that there were no effective accommodations available that would allow Complainant to perform the essential functions of his position, and consequently, recommended Complainant’s reassignment to an Astronomer GS 13 position. Human Resources Specialist 1 explained that the Reasonable Accommodation Advisory requested that Complainant submit transcripts to support his qualifications and extension of a job offer, and Complainant provided that documentation to the Supervisory Astronomer on April 4, 2019. On April 23, 2019, the Scientific Director notified Complainant, via letter, that the Reasonable Accommodation Advisory Team had identified a vacant funded position, Astronomer GS 13, position which the Agency planned to offer as an accommodation. On May 16, 2019, the Agency notified Complainant that he was qualified for an Astronomer, GS 13 vacant position and offered him this position. The Agency further notified Complainant that he was entitled to retention of his GS-14 salary given that his placement into this position was medical placement. The record includes a SF-50 personnel notification that Complainant’s reassignment to the GS 13 position at the same payrate of his prior GS 14 position was effective June 9, 2019. Based on this evidence, the record reflects that the Agency’s ability to process Complainant’s reasonable accommodation request was primarily delayed by Complainant’s responses. Specifically, the process could not begin until after Complainant submitted the necessary paperwork at the end of October 2018. Additionally, Complainant took approximately one month to provide feedback on the proposed assistive device, Complainant waited another month to inform the Supervisory Astronomer that none of the cap.mil website options would work, and Complainant again waited yet another month to inform the Supervisory Astronomer that he had reviewed all options and determined that none of the offered accommodations would be effective. Once Complainant ruled out these options, the Agency quickly began a search for a vacant position and provided Complainant the GS 13 position, which Complainant accepted. 2021003736 8 Even with the delays from the accommodation process, the Supervisor Astronomer testified that he informed Complainant that he would work to accommodate Complainant while Complainant’s formal request was pending. Specifically, the Supervisory Astronomer explained that before and during the processing of his reasonable accommodation requests, Complainant had full control over his meetings, the duration, and agenda. Additionally, the Supervisory Astronomer denied that during the relevant period Complainant complained to him that he was forced to participate and hold “extended” or “long” meetings. Consequently, the record does not indicate what harm, if any, Complainant experienced by the delays resulting from completing his reasonable accommodation requests. Given the facts and circumstances of this case, we find that Complainant failed to demonstrate that the Agency unreasonably delayed processing Complainant’s reasonable accommodation request or that violated the Rehabilitation Act when the Agency offered Complainant an Astronomer GS 13 position as an alternative accommodation. Disparate Treatment - (Claims 1, 3, 4, and 7) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for its actions. 2021003736 9 Suspensions Claim 1: March 4, 2019 Suspension Complainant indicated that he received a proposed five-day suspension without pay on January 17, 2019, by the Supervisory Astronomer that was subsequently reduced to a three-day suspension on March 4, 2019. However, Complainant denied that he committed the conduct indicated in the suspension letter. Complainant asserted that he conducted and led face-to-face organizational meetings despite his medical condition and impaired speech. Complainant further asserted that he chose to communicate with the Information Technology Department head via email instead of orally because of his speech impairment, and he denied intentionally delaying his assigned tasks. Complainant noted that before the relevant period, he had not received any disciplinary action. Complainant further asserted that he was disciplined based on his speech impairment which management was aware, given his prior 2018 reasonable accommodations request regarding this condition. However, the Supervisory Astronomer testified that he issued the proposed suspension because Complainant failed to follow instructions. Specifically, the Supervisory Astronomer explained that he provided Complainant “step-by-step instructions” on how to execute a contracting action assigned to him in December 2017. However, he had to remove the assignment away from Complainant in January 2019, after Complainant failed to execute the contract and displayed a repeated patter of failing to follow instructions, take initiative, or follow-up on his tasks. The Supervisory Astronomer noted that because of Complainant’s actions, the Supervisory Astronomer and another Division Chief ended up performing the work that Complainant failed to complete. Regarding Complainant’s allegation that the proposed notice was based on his disability, Supervisory Astronomer acknowledged that there was some overlap between Complainant’s initial December 2017 assignment and Complainant’s June/August 2018 requests for accommodation, as well as the Supervisory Astronomer’s decision to remove the assignment from Complainant in January 2019. However, the Supervisory Astronomer clarified that he informal indicated to Complainant that he would “make every attempt to accommodate his [reasonable accommodation] request while it was formally processing.” Although Complainant’s position required verbal interaction, the Supervisory Astronomer denied that Complainant was required to participate in “extended conversations/long meetings” and the Supervisory Astronomer noted that Complainant never requested that he be excused from any of the Supervisory Astronomer’s meetings, nor did Complainant indicate that the Supervisory Astronomer’s meetings were “extended” or “long.” The Supervisory Astronomer acknowledged that he did require Complainant to set up one meeting in September 2018, because the contract was about to lapse on October 1, 2018, and the contractors and subcontractors needed to develop a plan to execute the contract. The Supervisory Astronomer noted that all other meetings including the duration and agenda were within Complainant’s control because Complainant was in charge of this contract. 2021003736 10 The Supervisory Astronomer further noted that during this period, Complainant was “expected to execute [the] specific contraction action through whatever means necessary, typically involving email exchanges but also require attendance at and participation in some meetings.” Additionally, the Supervisory Astronomer clarified that the proposed suspension was based primarily on email evidence of Complainant’s failure to follow explicit directions and failure to execute the contracting action. A copy of the January 17, 2019 proposed five-day notice of suspension reflects that Supervisory Astronomer charged Complainant with two instances of repeated failure or delay in following directions. The notice explained that Complainant’s position required that he develop, deploy, and operate the Department of Defenses’ Celestial Database. The notice explained that there were underlying issues with the Celestial Database which resulted in the Agency entering into a contract with a professional database entity to help resolve this issue. The notice further explained that the Supervisory Astronomer assigned the contract to Complainant on December 10, 2017, and he directed Complainant to create a Task Order for the executing the contract which was set to expire on October 1, 2018. However, the notice indicated that ultimately the Supervisory Astronomer had to extend the contract due to several issues with Complainant not completing tasks by deadline, not following directions, or not notifying the Supervisory Astronomer of issues ahead of time. Even with the extended contract, the notice explained that the Supervisory Astronomer noted that it was doubtful that the contracting action could be fully executed within the time remaining on the contact. The notice further described another instance where Complainant failed follow instructions or delayed implementing instructions regarding executing an outstanding information technology procurement request. The notice explained that Complainant had informed the Supervisory Astronomer that he had not received a required status update. The notice further explained that the Supervisory Astronomer provided Complainant step-by-step guidance as to how to address and escalate the matter, however, the notice indicated that Complainant did not follow those instructions. A copy of the February 21, 2019 decision on notice of the proposed suspension, reflects that the Scientific Director determined that, while Complainant had provided a statement which mitigated some of the seriousness of him charge of misconduct, the two incidents at issue could have been avoided if Complainant had communicated more frequently and in a more direct manner with the Supervisory Astronomer. The Scientific Director considered the following mitigating factors in reducing the proposed five-day suspension to a three-day suspension without pay: Complainant’s clean disciplinary record, Complainant’s record of acceptable performance and receipt of several awards; and information in Complainant’s statement indicating that communication issues were an underlying cause of Complainant’s misconduct. The record indicates the Scientific Director sought advice from Human Resources Specialist 2 who testified that appropriate actions were taken by both the Supervisory Astronomer and the Scientific Director. 2021003736 11 Claims 4 and 7: April 2019 Proposed Suspension and June 2019 Suspension A copy of the notice of proposed suspension indicates that Complainant was charged by the Supervisory Astronomer with failure to follow an established policy. The notice explained that in accordance with Agency policy, work presentations at national and interaction scientific conferences were required to undergo a formal security review before the work was presented. This security review was established to ensure that potentially sensitive information was not released without proper authorization. Specifically, junior employees (GS 12 or below) were required to receive this approval at least seven days before the presentation. The notice explained that Complainant’s subordinate employee, Astronomer - GS 12, was selected to attend and present at a 2019 winter meeting. The notice further explained that Complainant forwarded an abstract of the Subordinate Employee’s poster that he planned to present at the meeting. Although the abstract went through a security review, there had been no security or content review of the poster itself as required by Agency policy. The Supervisory Astronomer noted that Complainant was responsible for both security and content reviews. The Supervisory Astronomer noted that Complainant was aware of the Agency’s policy regarding this matter and Complainant was aware that the Subordinate Employee had planned to attend and present at the winter meeting, but Complainant still failed to perform the required reviews. Therefore, the Supervisory Astronomer proposed to suspend Complainant for ten days without pay. A copy of June 27, 2019 Decision on Notice of Proposed Suspension reflects that Complainant’s initial ten-day suspension was reduced to a two-day suspension. In the decision, the Scientific Director considered Complainant’s arguments that he had proposed to the Supervisory Astronomer to change the Subordinate Employee from “junior” status to “senior” status, which would have exempt him from the screening requirement, and when the Supervisory Astronomer did not deny this request, Complainant did not believe that the requirement applied. The Scientific Director also considered Complainant’s argument that the review period for the Subordinate Employee’s poster occurred during a busy time (Christmas holiday season) and Complainant was on leave during that time. Finally, the Scientific Director considered Complainant’s argument that the review must be done by the Division Chief or Department Head, and that consequently, Complainant was not the sole person responsible because he was the Subordinate’s Division Chief, but the Supervisory Astronomer was the Subordinate Employee’s Department Head. Nevertheless, the Scientific Director ultimately determined that Complainant had failed to follow an established policy. However, the Scientific Director reduced Complainant’s suspension to three days after considering mitigating factors which included Complainant’s record of acceptable performance, his receipt of performance awards, his partial acceptable of responsibility for his conduct, and his actions after the conduct occurred. The Scientific Director also addressed Complainant’s concern that there was a conflict of interest with the Scientific Director serving as the Deciding Official, because Complainant had identified the Scientific Director as a responsible management official in his EEO complaint. 2021003736 12 However, the Scientific Director explained in his decision that he was not otherwise aware of Complainant’s prior EEO complaint until Complainant mentioned it in his response to the Supervisory Astronomer’s notice of proposed ten-day suspension. Ultimately, the Scientific Director found that Complainant had violated an Agency policy. As mitigating factors, the Scientific Director considered Complainant’s acceptable performance, receipt of several awards, partial acceptance and responsibility for his misconduct, and his display of correct actions after the occurrence of misconduct. The record indicates the Scientific Director sought advice from Human Resources Specialist 2 who testified that appropriate actions were taken by both the Supervisory Astronomer and the Scientific Director. Performance Evaluations (claim 3) The record indicates that Complainant received an overall summary rating of 3.0 and a rating of record of 3 - “Fully Successful” as Complainant received a 3 in all five performance elements and standards. Complainant stated that the Supervisory Astronomer noted that Complainant’s work performance was “marginally successful.” Complainant argued that he believed that the Supervisory Astronomer gave him this rating because his speech impairment as reflected by Supervisory Astronomer’s annotation of Complainant’s “difficult interaction” in meetings with co-workers. However, the Supervisory Astronomer denied that his determination that his evaluation of Complainant’s performance was based on Complainant’s disability. The Supervisory Astronomer clarified that his mention of “difficult interaction” referred to examples where three persons attending Complainant’s meeting “stormed out” because of Complainant’s “obstinacy and truculence.” Consequently, the Supervisory Astronomer clarified that the difficult interactions resulted from Complainant’s attitude in meetings and towards co-workers. The Supervisory Astronomer indicated that he had received several complaints from staff members that Complainant was actively undermining their ability to do their work and the Supervisory Astronomer mentioned that these complaints increased during the summer of 2018. The Supervisory Astronomer explained that Complainant, at one point, stated via email that “there are no requirements for accuracy for his products” in response to a report that found several errors in his product. The Supervisory Astronomer also noted other instances where Complainant refused, via email, to provide what the contractors needed. The Supervisory Astronomer noted that he did not want to “double penalize” Complainant for conduct he had already been sanctioned for. The Supervisory Astronomer therefore decided, pursuant to advice from the Human Resources Office, to rate Complainant “Fully Successful” but included the term “marginally” to more accurately describe Complainant’s work performance since he was limited to only three options for performance ratings: “Unsuccessful” - 1, “Fully Successful” - 3, or “Outstanding” - 5. The Supervisory Astronomer further indicated that he explanations in the performance evaluation to justify Complainant’s rating. 2021003736 13 The Scientific Director disagreed that the mention of “difficult interactions” language referred to Complainant’s speech impairment. Rather, the Scientific Director explained that the “difficult interactions” language referred to what was said rather than issues with the clarity with which the communication was provided. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on his disability or reprisal for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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). 2021003736 14 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. The court has the sole discretion to grant or deny these types of requests. 2021003736 15 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 13, 2022 Date