[Redacted], Sonia B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 25, 2022

Appeal No. 2021003919 (E.E.O.C. Oct. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sonia B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003919 Hearing No. 470-2020-00140X Agency No. 200J-0610-2019105981 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 25, 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Primary Care Mental Health Integration Social Worker GS-0185-11, at the Agency’s Northern Indiana VA Health Care System in Marion, Indiana. On November 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African American) and color (black) when, since November 2017, management and coworkers: (a) interrupt her lunches; (b) solely blame her for clinic failures; (c) give her more challenging patients; (d) do not help when she asks; (e) do not include her in “warm handoffs;” (f) do not refer to her relaxation group; (g) do not introduce her to new providers; (h) exclude her from social activities; (i) ignore her; (j) provide false information; (k) are openly hostile; and (l) ask her to consider moving positions. 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. 2021003919 2 After its investigation into the 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 timely requested a hearing. The AJ granted the Agency's motion for a directed verdict after the presentation of Complainant's case in chief and issued a decision in favor of the Agency. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence demonstrating that the conduct at issue was based on discriminatory animus. The record established that Complainant never stated in her complaints to management about her co- workers’ treatment of her that she believed it was based on her protected classes. The AJ found that the record evidence and testimony showed that the conduct was more likely based on personality conflicts. Complainant believed that she got along with co-workers and officials until she started complaining about a Registered Nurse (CW1) not taking her share of the workload. Complainant believed that CW1 coerced co-workers to disassociate themselves from her. The AJ noted that Complainant testified that CW1 treated other African-American co- workers well, but not her. The AJ determined that the evidence demonstrated that the only reason CW1 treated Complainant as alleged was because Complainant reported CW1 and she and her friends perhaps decided to go after Complainant. The AJ found that while Complainant and her co-workers and officials may not have gotten along, based on the totality of the evidence, Complainant failed to show that the conduct was based on her protected classes. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). As an initial note, despite Complainant’s contentions on appeal, we find no error in the AJ's granting of a motion for a directed verdict. 2021003919 3 We have considered the issue of a directed verdict in other cases. While we have noted that that there is no mechanism for a directed verdict in the EEOC hearing process, we have noted that under 29 C.F.R. § 1614.109(e), the AJ has the power to regulate the conduct of the hearing, limit the number of witnesses where the testimony would be repetitious, and exclude irrelevant evidence. Complainant v Dep't of Housing & Urban Dev., EEOC Appeal No. 0120132225 ((Oct. 31, 2013) (directed verdict allowed); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 0120100570 (Aug. 10, 2012) (directed verdict allowed); Harris v. U.S. Postal Serv., EEOC Appeal No. 0120071623 (June 16, 2009) (motion for directed verdict considered as a decision after a hearing); Olson v. Dep't of Homeland Sec., EEOC Appeal No. 01200613189 (Nov. 2, 2006) (directed verdict allowed). The Commission has reviewed all documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. Hostile Work Environment 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 classes; (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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant asserted that based on her protected classes, officials and co-workers subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be discriminatory harassment. The Commission finds that substantial record evidence supports the AJ's determination that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. 2021003919 4 After reviewing the record and considering the arguments on appeal, the Commission finds that the AJ made reasonable credibility determinations, which are not contradicted by objective evidence, and his factual findings are supported by substantial evidence. As a result, the Commission finds that substantial record evidence supports the AJ's finding that Complainant has not shown that she was subjected to a discriminatory hostile work environment. Furthermore, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that she has not shown that the Agency's reasons for its actions were a pretext for unlawful discrimination. Accordingly, the Commission finds that Complainant has not established that she was subjected to discrimination or a hostile work environment as to all claims alleged. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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). 2021003919 5 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. 2021003919 6 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 October 25, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clarine L.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2021004060 Agency No. NPS-20-0253 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated August 13, 2021, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-11, Contract Specialist, for the Major Acquisitions and Buying Office, Alaska Regional Office, National Park Service (NPS), in Anchorage, Alaska. On February 28, 2020, Complainant filed her complaint alleging that she was subjected to discrimination and/or harassment on the bases of disability and in reprisal for prior 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. 2021004060 2 1. On January 8, 2020, her then first level supervisor, who later became her second level supervisor (S2), Regional Chief of Contracting and Team Leader, issued her a Leave Restriction Notice. 2. On January 2, 2020, January 28, 2020, and February 4, 2020, her third level supervisor (S3), Associate Regional Director, denied her requests to use Leave Without Pay (LWOP) as a reasonable accommodation for her medical conditions, that resulted in her being placed on Absent Without Leave (AWOL) status. 3. On January 27, 2020, S3 issued her a Written Reprimand for being AWOL and failure to follow leave procedures. 4. On January 30, 2020, her new first level supervisor (S1), Supervisory Contract Specialist, denied her request to apply for voluntary leave donation under the Voluntary Leave Transfer Program (VLTP). 5. On April 25, 2020, she was constructively discharged from her position as a Contract Specialist, with the MABO, Alaska Regional Office, NPS.2 At the conclusion of the investigation, Complainant requested a final Agency decision. The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that she had medical conditions, including polycystic ovary syndrome, menorrhagia, Ehlers Danlos syndrome, gastroesophageal reflux disease, chronic fatigue syndrome, anxiety disorder, pos-traumatic stress disorder, and major depressive disorder. Complainant stated that she notified the Agency of her conditions and she received a reasonable accommodation for some conditions and approval for Family Medical Leave Act (FMLA) leave. Specifically, Complainant indicated that she was accommodated with an office with a door, dampening shades on the lights to minimize her migraines, an ergonomic chair, keyboard, keyboard tray, mouse, and a height adjustable desk. Regarding claim 1, S1 indicated that he issued Complainant a Leave Restriction Notice on January 8, 2020, due to her excessive unpredictable absenteeism and tardiness. S1 stated that he decided to issue the notice after he counseled Complainant on several occasions regarding the proper leave procedures, but she continuously failed to comply. In the notice, Complainant was notified to request in advance (with set times) for annual leave and non-emergency sick leave. Therein, Complainant was also informed that her maxi-flex schedule was rescinded, and she was required to work a standard 5/8 schedule, 9 am - 6 pm with an hour lunch sometime between 11 am - 2 pm. 2 Complainant raised claim 5 for the first time during the investigation and the Agency sua sponte added this claim as a part of the instant complaint in its final decision. 2021004060 3 Complainant was further notified that failure to comply with the foregoing restrictions would place her in AWOL, and the restrictions would remain in effect for six months, at which time it would be reevaluated. The record reveals that on January 2, 7, and 8, 2020, Complainant reported to work late without a prior approval by S1. Complainant later notified S1, via a text message, of her coming to work late in that: for January 2nd, she had an allergic reaction a night before; for January 7th, her car would not start; and for January 8th, she did not hear her alarm. Regarding claim 2, S3 indicated that she was an approval official for LWOP in excess of ten days of non-FMLA LWOP, as at issue here. Based on the Agency’s leave policy, S3 denied Complainant’s LWOP requests at issue because her cumulative absences, beyond the provided leave entitlements, did not promote the efficiency and customer service needs of the Agency. Regarding claim 3, S2 indicated that while temporarily acting as Complainant’s first level supervisor, she, and not S3, issued Complainant a Written Reprimand for failure to follow leave procedures and being AWOL. S2 noted that she had multiple conversations with Complainant regarding Complainant’s timekeeping and use of leave since February 2018. Specifically, S2, in her affidavit, listed more than 50 incidents of her interactions, including her counseling, with Complainant concerning Complainant’s leave from February 26, 2018, to January 27, 2020. S2 further noted that Complainant was allowed to use all 480 hours of her approved FMLA LWOP as well as annual and sick leave and she failed to follow leave procedures (i.e., obtaining prior approval from her supervisor for her absences). In the reprimand, S2 indicated that on December 23, 2019, Complainant arrived to work late and left work early without prior approval by S2; and on December 26, 2019, she did not come to work without notifying S2. Regarding claim 4, S1 indicated that he denied Complainant’s VLTP request because it did not meet the parameters of the VLTP program. S1 stated that Employee Relations advised him that VLTP must be based on either approved LWOP or FMLA entitled LWOP and neither of these applied to Complainant. S1 indicated that Complainant was requesting VLTP to cover unexcused absences (AWOL). Regarding claim 5, Complainant indicated that she resigned from her position on April 25, 2020, because she did not want the stress from the Agency to induce a miscarriage or otherwise harm the development of her child. Regarding Complainant’s reasonable accommodation claim, the record indicates that on December 31, 2019, S2 initially instructed Complainant to discuss with S1 about how the Agency could help her to perform her job-related duties if her medical conditions were impacting her ability to perform her position duties. On January 8, 2020, S1 issued a letter to Complainant indicating that she mentioned on January 2, 2020, that she had a medical condition that may affect her job performance, but she did not make it clear if she was in fact requesting a reasonable accommodation based on her medical or health conditions. 2021004060 4 Therein, S1 requested Complainant respond with her clarification, enclosing the Agency’s policy and procedures on reasonable accommodation request. From January 10 to 31, 2020, Complainant provided S1 with her reasonable accommodation request form, including a detailed summary of her medical conditions, asking for, in part: reduced attendance at work; maxi-flex work schedule; flexible work schedule between 9 am to 9 pm; telework on an as needed basis; LWOP; she be allowed to make up the time other days; the Leave Restriction be removed; and she be provided with internet for telework. Complainant did not provide medical documentations from a medical provider. On February 5, 2020, Complainant sent an email to S1 withdrawing the foregoing accommodation requests but made a new request to change her duty hours to 1 - 5 pm, Monday through Friday, part-time work, indicating that she had been actually “working part-time for the past year.” In response, on February 6, 2020, S1 requested Complainant provide medical documentation indicating the nature of her impairment, her limitations in connection with her ability to perform the essential functions of her job, the need for an accommodation, and how the requested accommodation would assist her to perform the essential functions of her job. On February 19, 2020, S1 asked Complainant about the status of the requested documentation. On February 24, 2020, Complainant responded indicating that she was still working on obtaining documentation. Complainant did not provide the requested medical documentation. After consulting with Human Resources Office, S1 issued Complainant a memorandum dated April 13, 2020, denying her reasonable accommodation request because she failed to submit the requested supporting medical documentation. Therein, Complainant was informed that she may request reconsideration of this decision, including additional information, within 10 days of her receipt of this letter. Complainant resigned from her position on April 25, 2020, without providing any additional information or medical documentation regarding her reasonable accommodation request. Complainant appeals from the Agency’s decision finding no discrimination and submits many statements contesting the Agency’s decision. Complainant also raises and submits documentation regarding unrelated prior incidents which occurred in 2017 - 2019, concerning her leave and performance. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). 2021004060 5 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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 Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, 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). To establish a claim of harassment, Complainant must establish 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). 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). 2021004060 6 The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that a complainant was denied a reasonable accommodation, the 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 a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002) (Enforcement Guidance). Under the Commission’s regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.2(o), (p). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant failed to follow the Agency’s leave procedures and she was on AWOL on numerous occasions. Regarding claim 1, S1 issued Complainant a Leave Restriction Notice due to her excessive unapproved leave/absences and not following the Agency’s leave procedures. Regarding claim 2, S3 denied Complainant’s LWOP requests at issue due to her cumulative absences, beyond the provided leave entitlements, which did not promote the efficiency and customer service needs of the Agency. Regarding claim 3, S2 issued Complainant a Written Reprimand on January 27, 2020, because she continued to fail to follow Agency leave procedures and was placed on AWOL despite prior numerous discussions concerning her timekeeping and leave usage. Regarding claim 4, S1 denied Complainant’s VLTP request because her request did not meet VLTP criteria. Regarding Complainant’s reasonable accommodation request for part-time work, we find that she did not provide medical documentation that the Agency requested. Specifically, S1 requested, but Complainant failed to provide, medical documentation regarding her request indicating her limitations in connection with her ability to perform the essential functions of her job, the need for an accommodation, and how the requested accommodation would assist her in performing the essential functions of her job. Complainant did not produce any evidence or medical justification to show that part-time work would effectively accommodate her disabilities. 29 C.F.R. § 1630.9; see Enforcement Guidance; Latricia P. v. Dep’t of the Army, EEOC Appeal No. 2019000803 (Aug. 19, 2020). After a review of the record, we find that Complainant failed to show that she was denied a reasonable accommodation or that any Agency actions were motivated by discrimination. Upon review, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. 2021004060 7 Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory or retaliatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, the Commission found that Complainant had not demonstrated that the Agency's actions were motivated by discriminatory animus. Thus, Complainant cannot establish the necessary elements to prove constructive discharge. Accordingly, we find that Complainant has not shown that she was subjected to a constructive discharge when she resigned on April 25, 2020, as raised in claim 5. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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. 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. 2021004060 8 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. 2021004060 9 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 12, 2022 Date