[Redacted], Tasia C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022004562 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tasia C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004562 Hearing Nos. 440-2021-00167X, 440-2022-00027X, 440-2022-00170X Agency No. 1J-607-0063-18, 1J-607-0065-20; 1F-341-0197-21 DECISION On August 1, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic, P-07, at the Agency’s Busse Processing and Distribution Center facility or the Chicago Metro Surface Hub (MSH), both in Elk Grove Village, Illinois. Believing the Agency had subjected her to discrimination and harassment, Complainant filed three formal EEO complaints identified as Agency Nos. 1J-607-0063-18, 1J-607-0065-20, and 1F-341-0197-21. 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. 2022004562 2 1J-607-0063-18 (EEOC Hearing No. 440-2021-00167X) On July 7, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of color (Black), sex (female) and retaliation for prior EEO activity when: 1. On or around March 2018, she was denied overtime opportunities; 2. On on or around March 2018, she was denied a detail opportunity and career advancement; and 6. On July 17, 2018, she was sent home, told not to return to work until she had medical documentation for her recent absence, and charged AWOL while she was off work at management's instruction. Initially, the complaint included three additional allegations. However, on August 6, 2018, these allegations were dismissed for failure to state a claim, with two of the allegations lodging a collateral attack against the proceedings of another forum, namely the negotiated grievance process, and the third not alleging any actual harm. 1J-607-0065-20 (EEOC Hearing No. 440-2022-0027X) On November 3, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African- American), color (Black), sex (female), age (YOB - 1973), disability, and retaliation for prior EEO activity when: 1. On or around July 11, 2020, she was informed that her job assignment and schedule were involuntarily changed. 2. On or around July 28, 2020, she requested to be moved to another facility and management has not responded. 1F-341-0197-21 (EEOC Hearing No. 440-2022-00170X) On November 18, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of on race (African- American), color (Black), sex (female), age (YOB - 1973), disability, and retaliation for prior EEO activity when: 1. On February 17, 2021, management's conduct at her District Reasonable Accommodation Committee (DRAC) meeting was hostile, unprofessional, and inappropriate. 2. On March 11, 2021, she was denied reasonable accommodation for a hostile work environment and her March 28, 2021 request for reconsideration and a new District Reasonable Accommodation Committee meeting has been ignored by the Committee Chairperson and Human Resources. 2022004562 3 3. On April 1, April 21, August 3, September 1, October 7, 2021, and other possible dates, her requests for a second Reasonable Accommodation Committee meeting were denied. Initially, the complaint included an allegation concerning Complainant's removal, which was accepted by the agency on December 22, 2021. However, in a December 29, 2021 letter to the National EEO Investigative Services Office, Complainant withdrew that issue. The letter also requested changes to Claims 1 and 2 as originally accepted. Those changes were adopted and Claim 4 was dropped as requested by Complainant. At the conclusion of the investigations into these complaints, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing for all three complaints. On May 18, 2022, via an attorney representative, Complainant transmitted a “Notice of Denial of Electronic Service” wherein Complainant stated she did not accept electronic service and would need all correspondence, pleadings, and court notifications to be sent to her physical address. The AJ agreed to accommodate this request. On May 31, 2022, the AJ issued an Order Scheduling Initial Conference, Establishing Instructions to Prepare for Conference, and Order to File Pre-Conference Statement (“Initial Conference Order”). This Initial Conference Order set a telephonic initial conference for “Tuesday, June 14, 2022” at “2:00 PM EDT.” The Order further outlined the matters to be discussed at the Initial Conference, including discovery, settlement, and dispositive motions. The Order further provided that, “Failure to follow this Order or others of the Administrative Judge may result in sanctions pursuant to 29 C.F.R. 1614.109(f)(3).” Lastly, the Order also discussed postponement requests and how they should be made. The Order specifically stated “Postponement requests that do not comply with these requirements will be denied.” Complainant received the Initial Conference Order, as well as an Acknowledgment Order, via regular and certified mail on June 03, 2022 (USPS Tracking Number: 9114 9023 0722 4856 1063 09).2 Complainant received the Agency’s Telephonic Conference Instructions and the Agency’s timely pre-conference statement via fax on June 7, 2022, and via regular and certified mail on June 10, 2022 (USPS Tracking Number 9114 9023 0722 4876 1047 50). Despite this, on June 7, 2022, Complainant sent a fax stating that she would not be submitting a pre-conference statement because she was not aware that her cases would be consolidated for hearing, and she was therefore not prepared. On June 9, 2022, Complainant sent a fax with an 2 Complainant also appears to have received the Initial Conference Order via email to her Gmail address on May 31, 2018, because she sent a fax later that day stating she wanted to receive copies of pleadings and communications via US Mail. Complainant also provided her fax number in the signature block. She did not identify any reasons why she could not use email. Complainant later argued her identity had been stolen. 2022004562 4 explanation of “preliminary matters” but failed to outline a discovery plan, whether she would be submitting any motions, a witness list, or settlement information. Her “preliminary matters” statement consisted only of a statement of her claims. Complainant states that she attempted to request a postponement on this date by contacting the EEOC’s office by phone. However, she did not contact the Agency about a postponement or attempt to secure an agreement regarding alternative dates as required by the AJ’s Initial Conference Order. Complainant stated she called because she had questions about postponement, but she did not identify these questions despite sending two faxes on June 8 and 9, 2022. On June 14, 2022, Agency representatives timely appeared for the Initial Conference by telephone, but Complainant failed to appear at the scheduled time. The AJ and the Agency representatives waited on the call for 15 minutes, but Complainant did not appear. Complainant later sent a fax at 3:53 PM EDT requesting a new Initial Conference because she had been on the scheduled call, but no one else was there, and the Agency had provided her with the wrong contact information. She requested a new Initial Conference. However, the call log Complainant attached to her fax shows she attempted to call into the Initial Conference at 2:00 PM Central Time and not at 2:00 PM Eastern Daylight Time as scheduled in the Initial Conference Order. The AJ questioned whether Complainant had technical difficulties and therefore on June 15, 2022, she sent an email rescheduling the Initial Conference to occur on June 30, 2022, at 11:00 AM. The AJ directed the parties to confer so the Agency could provide a location at an Agency facility and equipment that would allow Complainant to participate by Zoom or Microsoft Teams, along with an individual who could assist Complainant with this. The AJ further directed Complainant to personally appear at the facility at 10:30 AM in order to get set up for the Initial Conference. The AJ required the Agency to provide a court reporter for the Initial Conference. The AJ also stated that she was “aware the Complainant asked my intern for a continuance. The request is denied because of Complainant’s failure to comply with my postponement procedures set forth in my Initial Conference Order.” The AJ then restated the requirements for postponement requests. In response to a request for clarification from the Agency, the AJ reiterated the requirements for requesting a postponement and confirmed the times were for the Eastern Time Zone. The Agency agreed to fax this information to Complainant and to mail her a courtesy copy of the email communication and the Order on the next available mailing day. The Agency determined that their only location within commuting distance of Complainant’s residence that complied with both the AJ’s instructions and the Agency’s cybersecurity policies was at Agency counsel’s office at in Chicago, Illinois (approximately 40 minutes from Complainant’s residence). On June 17, 2022, the Agency notified Complainant by fax of this location and identified her point of contact for any issues and to clear building security. Complainant received this fax because on June 20, 2022 (a Federal holiday), she sent a fax to the AJ and the Agency stating this location was too far from her home. The Agency has noted that this location involves a shorter commuting time than both Complainant’s current and previous work locations with the Agency. The Agency also states it tried to call Complainant in response to her fax, but her number provided an automated response stating it would not accept calls from 2022004562 5 that number. Therefore, on June 21, 2022, the Agency again confirmed the date, time, and location of the Initial Conference and sent this via fax and US Mail. In this communication, the Agency also noted counsel would be available that afternoon and suggested they schedule an appointment to talk. Complainant did not fax or call Agency counsel back. However, she received the mailed copy on June 25, 2022. On June 22, 2022, Agency counsel tried to call Complainant from another phone number, but again received an automated message stating that her phone would not accept a call and Agency counsel was unable to leave a message. Also on June 22, 2020, Complainant sent another fax, stating she did not trust or feel safe at the designated location, but she failed to state any specific grounds for her assertions of feeling unsafe in a secured, public, postal facility. Therefore, on June 22, 2022, the AJ issued an Order (“Second Initial Conference Order”) which ordered Complainant to attend the Initial Conference at the designated Chicago location on June 30, 2022, and to appear at 10:30 AM EDT in order to be prepared to proceed with the conference at 11:00 AM EDT. The Second Initial Conference Order also stated that “[f]ailure to follow this Order or other orders of the Administrative Judge may result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3). These sanctions include dismissal of the hearing request in these cases.” At the AJ’s direction, the Agency faxed and mailed a copy of the Second Initial Conference Order to Complainant. Complainant received a copy of the Second Initial Conference Order by fax on June 22, 2022, as evidenced by the fax confirmation the Agency received, and the fact that Complaint subsequently submitted a document entitled “Response to Order” on that same day. Also, the Track and Confirm records demonstrate that Complainant received the Second Initial Conference Order via US Mail on June 23, 2022. In her June 22, 2022 response to the Second Initial Conference Order, Complainant indicated she was not comfortable attending the Initial Conference at the scheduled location and noted she intended to seek advice on the matter. However, she did not attach documentation of inability to attend, nor did she request a postponement. On June 24, 2022, the AJ received a fax from Complainant requesting the AJ recuse herself from the matter. In the request, Complainant admitted receiving the Second Initial Conference Order. She again did not request a postponement. The AJ responded on June 27, 2020, stating that this matter would be discussed at the Initial Conference on June 30, 2022. A copy of the AJ’s response was faxed and mailed to Complainant. The AJ, the Agency representatives, and a court reporter attended the Initial Conference on June 30, 2022, at 11:00 AM EDT. Complainant did not appear. Agency counsel confirmed with the point of contact for their office that neither Complainant nor building security had called to indicate Complainant’s arrival at the building. On July 1, 2022, the AJ issued a Notice and Order to Show Cause (“Show Cause Order”) ordering Complainant (within three days of receipt of the Show Cause Order) “to show good 2022004562 6 cause to the undersigned Administrative Judge, in writing, why this case should not be dismissed for failing to file her Statement and to appear for the Conference on two separate occasions. The failure to submit in writing justification to show good cause, will result in dismissal of these cases.” The Show Cause Order was sent to Complainant via First Class U.S. Mail. Also on July 1, 2022, the Agency filed a Motion for Sanctions requesting dismissal of Complainant’s hearing requests as sanctions for Complainant’s failure to comply with the EEOC’s Orders, contumacious conduct, and failure to exercise due diligence in prosecuting her case. The Agency sent this Motion to Complainant by fax and Priority Mail. Complainant responded to the Show Cause Order and the Agency’s Motion for Sanctions on July 6, 2022 with six faxes. The Agency responded on July 12, 2022. On July 14, 2022, the AJ granted the Agency’s Motion for Sanctions and dismissed Complainant’s requests for hearing in EEOC Hearing Nos. 440-2021-00167X, 440-2022- 00027X, and 440-2022-00170X. The AJ found that Complainant had failed to show good cause why her hearing requests should not be dismissed for failure to prosecute this case and failure to follow Orders by the Administrative Judge. The AJ found that Complainant did not dispute that she was placed on notice multiple times of the potential for sanctions, including a hearing request dismissal, for non-compliance with orders, did not dispute that she did not request postponements in the manner outlined in the orders, and did not dispute that she did not appear at the Initial Conference on June 14 or the June 30, 2022 Initial Conference. In this dismissal order, the AJ directed the Agency to issue a final agency decision on the Complaints within 60 days. The Agency subsequently issued three final decisions, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during the investigations into her complaints. In Agency Case No. 1F-341-0197-21/EEOC Hearing No. 440-2022-00170X, the Agency issued a final decision finding Complainant failed to timely contact an EEO counselor and further finding that she failed to prove the Agency subjected her to discrimination and harassment as alleged. In Agency Case No. 1J-607-0063-18/EEOC Hearing No. 440-2021-00167X, the Agency issued a final decision concluding Complainant failed to prove the Agency subjected her to discrimination as alleged. In Agency Case No. 1J-607-0065-20/EEOC Hearing No. 440-2022-00027X, the Agency issued a final decision concluding Complainant failed to prove the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. The title of Complainant’s appeal is “Complainant Brief/Statements in Support of Complainant Appeal of the EEOC Administrative Judge decision to dismiss all three of Complainant EEOC Complaints Cases Hearings Request.” In her appeal, Complainant disputes the AJ’s characterization of events and asks the Commission for her three Hearing Requests to be reinstated because she did not receive fair and impartial proceedings by the EEOC Administrative Judge. Complainant did not address any of the Agency FADs in her initial brief. In her subsequent response to the Agency’s opposition to her appeal, Complainant largely reiterates her initial brief, but also states that the FADs should not be affirmed because she did not first have the opportunity to appeal the AJ’s decision to dismiss her hearing requests. 2022004562 7 In response, the Agency contends the AJ was within her discretion to dismiss Complainant’s hearing requests as sanctions. The Agency also argues the FADs correctly decided that the record did not establish Complainant experienced discriminatory or retaliatory treatment and should be upheld. The Agency also argued that Complainant has only challenged the validity of the AJ’s dismissal of her hearing requests and therefore she has waived any challenge to the merits of the Agency’s final decisions. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). AJ's Dismissal of the Hearing Requests as a Sanction The Commission's regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant's hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ's discretionary authority includes the power to impose sanctions upon a party that fails to comply with their orders. Id. When the a party fails without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances: (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) Exclude other evidence offered by the party failing to produce the requested information or witness; (iv) Issue a decision fully or partially in favor of the opposing party; or (v) Take such other actions as appropriate. 29 C.F.R. § 1614.109(f)(3). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (Jun. 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show 2022004562 8 good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. Applying the first factor, the non-compliance here consisted of Complainant’s failure to submit a pre-conference statement with the required information, failure to appear at the correct time for the Initial Conference, and failure to appear at all for the rescheduled Initial Conference. Additionally, Complainant indicates she sought a postponement, but she did not comply with the AJ’s instructions for such a request. Complainant’s justification for her pre-conference statement was first, that she was not aware her cases would be consolidated, and second, that she did comply and the AJ’s Initial Conference Order did not require information about discovery, motions to be filed, identification of witnesses, or settlement status. However, it is clear from pages 4-5 of the Initial Conference Order that the parties were ordered to provide this information. As to her failure to appear for the Initial Conference, Complainant argued first that the Agency provided her with the wrong call-in information, and next, she argued the Initial Conference Order did not mention there was a difference in time zone and no one from EEOC or the Agency made sure she understood the correct time to call. We note that the Initial Conference Order did state the time of the Initial Conference was “2:00 PM EDT.” Giving Complainant the benefit of the doubt, the AJ subsequently rescheduled the Initial Conference for Complainant to appear in person and directed the Agency to provide Complainant a location, equipment, and someone to assist her. As to Complainant’s failure to appear at this rescheduled Initial Conference, Complainant first responded to the AJ’s Second Initial Conference Order by stating the location provided by the Agency was too far away. Complainant later stated did not feel comfortable appearing at that location and she noted the Agency did not call her to discuss locations. Complainant indicated she provided documentation of misbehavior by the Agency attorney, but her explanation and the attached documentation do not clearly show any improper behavior, just vague accusations. Complainant indicated she did not follow the instructions to request a postponement because she had questions about it, but it does not appear she ever contacted the Agency about a postponement, nor did she fax her questions about the postponement to the AJ or the Agency despite sending numerous faxes about other issues. As to factors two and three, the AJ and the Agency have twice prepared for an Initial Conference, only for the Complainant not to appear at the scheduled date and time. Additionally, the Agency incurred the costs for a court reporter for a conference that never took place. Applying the fourth factor, there appear to be four instances of non-compliance (failure to 2022004562 9 provide a pre-conference statement as ordered, failure to comply with orders regarding postponement requests, and two failures to appear for the initial conference). In applying the fifth factor, we have consistently held in recent decisions that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances. One such circumstance is when the complainant engages in contumacious conduct, not merely negligence. Cassey B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019004838 (Sept. 24, 2020); Cecile T. v. Dep't of the Treasury, EEOC Appeal No. 2019002373 (Sept. 22, 2020); Carolyn M. v. U.S. Postal Serv., EEOC Request No. 2019004843 (Mar. 10, 2020). Examples of contumacious conduct warranting dismissal of hearing requests include: Charlie K. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019002293 (Sept. 22, 2020) (failure to provide investigative affidavit during agency investigation and failure to provide answers to interrogatories during discovery despite being granted multiple extensions in both phases of the proceeding, as well as failure to appear at pre-hearing conference); and Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 0120181406 (Feb. 28, 2020) (failure to participate in email communications being sought by the Agency and to produce documentation ordered by AJ in a manner demonstrating disregard for administrative process and unwillingness to comply with AJ's orders despite warning of consequences). Absent a showing of contumacious conduct, hearing requests may be dismissed where the complainant fails to pursue his or her claim with due diligence. Alice S. v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020) (failure to respond to emails from AJ that included initial conference order and order to show cause due to overlooking those emails); Robert A. v. U.S. Postal Serv., EEOC Appeal No. 0120182698 (Feb. 21, 2020) (failure to respond to order to show cause despite having received order from AJ via email, and failure to provide evidence that he was incapacitated and unable to comply with the order). In other words, there must be a showing that Complainant either willfully disobeyed the AJ's orders or unreasonably failed to respond to those orders in order to justify dismissal of the hearing request as a sanction. In the absence of either circumstance, we generally will not find that the integrity of the administrative EEO complaints process had been so compromised as to warrant the most severe sanction. When a lesser sanction would normally suffice to deter the conduct and to equitably remedy the opposing party an AJ may be abusing his discretion by dismissing the hearing. See Georgianne B. v. Dep't of Agric., EEOC Appeal Nos 0120181591 & 0120181592 (Feb. 27, 2020) (dismissal of hearing request rejected on appeal where AJ dismissed hearing request outright rather than grant Agency's motion to compel discovery or limiting the complainant's discovery when the complainant failed to appear at the initial conference and failed to respond to a discovery request despite the fact that the parties and the AJ remaining in continuous email correspondence in an effort to litigate the case); Drucilla Y. v. Dep't of the Treasury, EEOC Appeal No. 0120182728 (Feb. 27, 2020) (dismissal of hearing request rejected on appeal where the complainant made earnest but unsuccessful effort to comply with an onerous acknowledgement and scheduling order). 2022004562 10 While we do find that Complainant’s failure to attend the June 14, 2022 Initial Conference was due to negligence (and not contumacious conduct) in not correctly noting the time zone, her overall pattern of behavior in not complying with the AJ’s orders demonstrates contumacious conduct consisting of willful noncompliance with the AJ’s orders and failure to act with due diligence. We agree with the AJ that Complainant failed to provide specific information as to why she felt unsafe in attending the June 30, 2022 Initial Conference. We also agree Complainant did not dispute that she was placed on notice of possible sanctions, including dismissal of her hearing requests, did not dispute that she did not follow orders to request postponements or extensions, and did not dispute that she failed to appear at either Initial Conference. We further find Complainant has not pursued her claim with due diligence. While she has communicated in response to the majority of Orders, her communications have been largely non-responsive and do not demonstrate that she is actively trying to comply with the AJ’s orders and move forward with her hearing. Merits of the Complaints Although Complainant’s initial brief in support of her appeal mentioned only the AJ’s dismissal of her hearing request and not the merits of the Agency’s FADs, her later brief generally contends the Agency’s FADs in all three complaints should not be affirmed. Therefore, we will address the merits of these decisions here. Complaint 1: Agency No. 1J-607-0063-18 Complainant alleged that from March 24-April 14, 2018, Manager Maintenance of the Chicago MSH told maintenance supervisors to deny Complaint overtime. She stated she was denied overtime despite being on the 10 and 12-hour overtime desired lists and she was denied penalty overtime, which double her hourly wage. Complainant cited three employees who were treated differently, however, these employees are Level 10 Electronic Technicians and two of them are on a different tour than Complainant. The record reflects that Complainant was on the overtime desired list for Quarter 2 2018, and between March 24, 2018 and April 19, 2018, Complainant received 11.36 hours of overtime and 7.58 hours of penalty overtime. However, the overtime desired list contains separate overtime list for employees at each level. The National Agreement Between the United States Postal Service and the American Postal Workers Union provides, at Article 8.5.C.1.a that when the need for overtime arises, employees with the necessary skills on the overtime desired list will be selected in order of their seniority on a rotating basis. Article 38.7.8 requires overtime desired lists to be established “for each occupational group and level.” Manager Maintenance stated Complainant was never denied overtime opportunities. She indicated that as required by the National Agreement, overtime is scheduled by occupational group and tour based on the needs of the service. She stated all level 7 Maintenance Mechanics were affected equally by the decision to minimize the financial impact of the overtime that would be worked. Manager Maintenance noted there were five other Level 7 mechanics on the 2022004562 11 overtime desired list. She also stated that Complainant’s overtime opportunities were limited by Complainant’s refusal to work on nonscheduled days and due to numerous absences during this period (Complainant did not report for work on March 9, 13-16, 23, and 26, 2018). Maintenance Manager stated that other Level 7 Maintenance Mechanics (including three white males) were treated the same as Complainant. She denied that Complainant’s color, sex, or prior EEO activity were factors. Complainant asserted she was denied a detail opportunity by Manager Maintenance. Complainant stated she was denied details to the Battery room Tour 3 Group Leader in 2016, as a supervisor for mail processing equipment in 2017, and as a Tour 1 Maintenance Support (MOS) clerk in 2018. Complainant indicated this failure to give her opportunities in supervisory positions hurt her ability to apply for EAS positions outside the MSH. Complainant believed this was retaliation for filing grievances and EEO complaints. On March 24, 2017, the complainant informed Manager Maintenance via email that she was available to serve as a 204-B Acting Supervisor for any tour and desired training, so that she should apply for outside managerial and supervisory positions. She continued that she wanted to go outside the MSH because it was obvious that she was being intentionally held back from promotional opportunities at that facility. On March 27, 2017, Manager Maintenance responded to Complainant’s request for a detail as a supervisor (Maintenance Operations position) and stated that she would give Complainant’s request the utmost consideration. Furthermore, she noted that she had provided the email to others. Manager Maintenance also encouraged Complainant to take advantage of the online courses available for supervisor development, which would have to be completed off the clock as they were not within Complainant’s job description. On May 17, 2018, MSS Coordinator contacted Manager Maintenance and noted that Complainant expressed interest in filling the vacant MOS Clerk position. On June 12, 2018, MSS Coordinator notified Manager Maintenance that she had told Complainant that they were not filling the MOS Clerk position that was vacant, that no detail opportunity existed, and that the MOS department was not understaffed, even though there was a vacant position. The record reflects that although three level 7 MOS clerks were authorized for the MSH, management proposed a reduction of one of the positions as of May 23, 2018. Under the relevant provisions of the National Agreement Between the United States Postal Service and the American Postal Workers Union, the complainant was listed fourth out of five qualified applicants for a MOS clerk position. Manager Maintenance stated Complainant did not speak to her about detail opportunities in March 2018, although she had done so previously. Manager Maintenance said that when Complainant had previously spoken to her on several occasions about upward mobility and training, she informed Complainant about online opportunities and encouraged Complainant to complete the courses and let Maintenance Manager know when Complainant had done so. She 2022004562 12 indicated that to date, Complainant has not taken the courses or advised Manager Maintenance of her progress. She claimed that she arranged for Complainant to be trained for and detailed to the Battery Room, but Complainant did not appear for the training. She also indicated Complainant had cancelled career advancement training courses at least three times. Maintenance Manager indicated that several employees expressed interest in working in MOS and those employees (including Complainant) were all told the office was only authorized two MOS clerks despite there being three clerks on the rolls, so no detail opportunities were available for this. Maintenance Manager testified Complainant’s color, sex and EEO activity were not factors. Complainant stated that on July 17, 2018, Supervisor Maintenance Operations told her the manager told him to send Complainant home if she did not have documentation for her call-in request for leave and that Complainant should not return until she had documentation. Complainant states she told Supervisor Maintenance Operations she had never been asked for or needed such documentation before when she used FMLA-protected leave and that Human Resources did not require such documentation. Complainant stated that on August 1, 2018, Manager Maintenance Operations tried to get Complainant to sign off on a stack of PS Form 3971s for the time that Complainant had been sent home and placed on Absence Without Leave (AWOL), but Complainant told Manager Maintenance Operations that she should be put on administrative leave because management cannot force her to use personal leave when she was being forced to leave the building. The record reflects Complainant was absent on her scheduled days from July 5, 2018 through August 1, 2018. (ROI, Vol. 2, pp. 63-64). Her initial absences were covered by FMLA leave and she was charged with LWOP or Annual Leave. However, according to management, when Complainant returned to work on July 17, 2018, she did not have documentation for these recent absences and was asked to provide it pursuant to Agency policy. Management stated that Complainant had participated in numerous attendance reviews and was aware of the need to provide documentation. Complainant requested administrative leave, but this was denied because Complainant was aware of the attendance policies and need to provide documentation. She was sent home and charged LWOP for that day, with the assumption that she would return in the next day or two with documentation. However, Supervisor Maintenance Operations testified it became clear that Complainant was not returning to work, and she did not call the Integrated Voice Recording System or otherwise communicate her intentions to management, so she was then charged with AWOL. Manager Maintenance Operations testified Complainant was off work without a call in from July 18-31, 2018, and then she called in on August 1, 2018 to request Emergency Annual Leave (which was granted). The record reflects she was charged with AWOL on July 18, 20-21, 24-28, and 31, 2018. Supervisor Maintenance Operations testified that Complainant was returned to duty on August 2, 2018 when she provided documentation for her absence. Manager Maintenance Operations also noted that while Complainant was not in contact with management to provide her status, she was in contact with the union during this time. The record contains numerous attendance review checks on Complainant from March 10, 2016, through September 20, 2018, indicating a large number of unscheduled absences. From July 6, 2022004562 13 2018, through July 31, 2018, Complainant was on unscheduled leave without pay (LWOP) for eight days, unscheduled annual leave for three days, and unscheduled AWOL for nine days, and returned to duty on August 2, 2018. PS Forms 3971 reflect that Complainant requested LWOP for July 17, 2018, but was placed on the other leave by management without her signature. The Time Disallowance Report dated July 17, 2018, stated that Supervisor Maintenance Operations told Complainant to go home until she brought in acceptable documentation for her absence from work. On July 28, 2018, Manager Maintenance Operations issued a Five-Day Absence Notice to Complainant noting that she had been absent from work for more than 5 days and requiring Complainant to provide medical documentation for her absence within the next five days. The notice stated that the medical documentation needed to provide adequate documentation if she required an extended absence, stated that management may require the complainant to undergo a return-to-work clearance, and reminded her that she was expected to maintain her assigned schedule, make every effort to avoid any absences, and be regular in attendance. Complainant’s medical provider gave her a note dated July 30, 2018, that Complainant exhibited heightened anxiety from July 7-16, 2018, and that when Complainant returned to work on July 18,2018, she was told that she needed a note. The medical provider added that she was out of town and unable to meet with Complainant until July 30, 2018, that Complainant's symptoms had subsided as of that date, and Complainant was fit and ready to return to her regular schedule on July 31, 2018. Disparate Treatment Complainant’s claims in Agency No. 1J-607-0063018 give rise to a claim of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. 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). 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 its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 2022004562 14 Here, even assuming arguendo that Complainant had proved her prima facie cases for discrimination based on color, sex, and/or retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions. In Claim 1, all level 7 Maintenance Mechanics were affected equally by the decision to minimize the financial impact of the overtime that would be worked. Additionally, Complainant’s overtime was impacted by her decision not to work overtime on her scheduled days off and by her absences on her scheduled days. In Claim 2, Complainant did not speak with Manager Maintenance about detail opportunities in March 2018, but the MOS Clerk position in question was not actually available and Complainant was ranked fourth out of five employees on the Promotion Eligibility Roster for this position. Manager Maintenance did suggest independent training for Complainant and scheduled one training for Complainant, but Complainant did not follow through with these. In Claim 6, Complainant was charged AWOL because she did not provide documentation for her lengthy absence despite being aware of this requirement (due to monthly absence reviews) and then did not communicate with management or use the call-in system. Complainant has not shown that these articulated reasons were in fact pretext to mask discrimination based on her color, sex, or prior EEO activity. Both Manager Maintenance and Manager Maintenance Operations are female. Manager Maintenance, Supervisor Maintenance Operations, and Manager Maintenance Operations appear to all be the same or similar color as Complainant. Neither Supervisor Maintenance Operations nor Manager Maintenance Operations were aware of Complainant’s prior EEO activity. The record is devoid of any evidence of discriminatory or retaliatory animus on the part of the Agency beyond Complainant’s speculative beliefs. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). In so finding, we note that the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. We agree with the Agency that Complainant has failed to meet her burden to demonstrate she was subjected to discrimination and retaliation as alleged. Complaint 2: Agency No. 1J-607-0065-20 Complainant alleged management subjected her to discrimination and retaliation on the bases of race, color, sex, age, mental disability, and retaliation by involuntarily reassigning her to another position and not responding to her request to transfer out of the Chicago Metro Surface Hub. Complainant testified her disabilities are post-traumatic stress disorder, anxiety disorder, panic attacks, and depression, diagnosed between 2004 and 2020. She maintains that management is aware of her medical conditions through her prior EEO complaints. She does not answer the Investigator's question about any limitations imposed by her conditions, other than to say she cannot come to work when she is experiencing an attack and that her conditions worsen when she is under stress. Complainant notes that her doctors have recommended a less stressful 2022004562 15 worksite. She mentions that she only goes out to attend medical appointments and to shop for groceries and does not socialize with family members as in the past. The record contains notes from three of Complainant’s providers from the relevant time period. A July 23, 2020, report says that Complainant has a history of anxiety disorder and panic attacks and recommends that she be placed in a working environment “that is less hostile than her current working environment” so that her symptoms can be controlled. A report bearing the same date from Complainant’s psychiatrist indicates that Complainant has a low tolerance for stress and experiences depressive symptoms and anxiety when circumstances change. She refers to Complainant's problem with working in a hot environment where people are not masked after she contracted COVID-19 and recommends a transfer to a different work location. Complainant’s counselor recommends a lower stress environment, the elimination of hostile work situations, and well-regulated ambient temperatures. Complainant also stated she has filed previous EEO complaints and identified Agency Nos. 1J- 607-0045-19 and 1J-607-0025-20 as the EEO activity for which she is now being subjected to retaliation. Complainant stated that on July 11, 2020, Supervisor Maintenance Operations informed her she had been reassigned as of July 4, 2020 to a new job and schedule, Laborer Custodian, PS-04, on Tour 3, with Tuesdays and Wednesdays off. She stated this was the first that she, Supervisor Maintenance Operations, or Manager Maintenance Operations 2 had heard of the change. Complainant reported she immediately submitted four PS Forms 3971 to be off and away from this “unhealthy” work environment for the rest of July. (She later requested additional LWOP through the end of August). Complainant believes she was reassigned because she is the only African-American, Black, female, disabled Maintenance Mechanic on Tour 1, and she is the oldest Mechanic on Tour 1. She also believes her reassignment was in retaliation for filing her EEO complaints. Complainant asserts that after she was reassigned, management assigned a white male Mail Processing Equipment Mechanic from Tour 3 to Tour 1 to replace her. Maintenance Manager 1 testified she was on a detail assignment to another facility from June 2019 to July 2020, and she did not have any input on the staffing package, nor did she have any discussions with Complainant regarding her positions being eliminated. She denied that Complainant’s race, color, sex, age, medical conditions, or EEO activity were factors in Complainant’s job reassignment. She identified two other maintenance employees who were also voluntarily reassigned: a Maintenance Mechanic (Caucasian, white, male, in his early 40s with unknown medical conditions or EEO activity) and a Maintenance Operations Support Clerk (African-American, Brown, female, in her late 40s with medical conditions. EEO activity unknown). Maintenance Manager 1 testified she has never supervised Complainant or been Complainant’s direct manager. However, she has been named by Complainant in several EEO complaints since 2017. Maintenance Manager 1 testified that she had no knowledge of the white male Mail Processing Equipment Mechanic named by Complainant being detailed to Tour 1 during the period of June 2019 to July 2020. She stated that since she returned to the facility ion July 202, she had detailed various employees to Tour 1 to cover vacancies and she was currently 2022004562 16 allowing Tour 2 employees to come in 4 hours early and Tour 3 employees to stay four hours after the end of their tour. The record contains PS Form 50s showing that Complainant returned to duty as a Maintenance Mechanic, PS-07, on February 25, 2020. She was then changed to a Laborer Custodian on July 4, 2020 (although this form still has her as a PS-07, not a PS-04). On August 1, 2020, Complainant was returned to a Maintenance Mechanic, PS-07. The record reflects that on August 27, 2019, management approved the annual staffing assessment for the Chicago Metro Surface Hub in accordance with the Work Hours Estimate Program (WHEP). The new staffing called for two fewer Maintenance Mechanics, PS-07, and one less Maintenance Operations Support Clerk, PS-07, (due to the decrease in mail volume). Also in the investigative report are copies of a statement by Manager Maintenance Operations 1, who indicates that she had prepared the WHEP analysis for 2019 for the Chicago Metro Surface Hub. The record also contains a December 26, 2019 memorandum entitled “60-Day Notification: Involuntary Reassignment” from Human Resources to Complainant. It advises Complainant of a possible involuntary reassignment from her current position in accordance with Article 12 of the applicable collective bargaining agreement. On January 8, 2020, Complainant was notified that effective January 18, 2020, she would be identified as an unassigned regular in the APWU Maintenance Craft. She was asked to indicate her preference for available positions. In response, Complainant stated that no acceptable bids had been sent. On August 17, 2020, Manager Maintenance 1 advised Complainant the December 26, 2019, Notification was being rescinded. On August 18, 2020, the Northern Illinois Postal Workers Union withdrew a grievance filed on Complainant’s behalf because the reassignment had been rescinded. For 2020, the new WHEP, this time prepared by Manager Maintenance 1, added an additional Maintenance Mechanic position. Complainant states that on July 28, 2020, she sent a letter via certified mail to Manager Human Resources, Chicago District Manager, and Chicago MSH Plant Manager with her attached medical documentation. A copy of the letter is contained in the record and requests an “immediate and permanent detail” to another location until Complainant was granted an eReassignment. The letter notes that Complainant currently had six pending requests for reassignment made through eReassign. In the letter, Complainant states she suffered a “deeply distressing and disturbing experience” at work on July 11, 2020 and she therefore no longer felt safe there. Complainant stated this was due to the “continued and repeated retaliatory actions by Maintenance Manager [1]. I feel in danger at my workplace and she ([Maintenance Manager 1]) has created an extremely hostile work environment for me.” Complainant stated she had recently returned to work after an illness and 2022004562 17 she was doing everything she could to get back on track and then July 11, 2020 happened. She repeatedly mentioned not feeling safe and expressed her desire to details into “any available vacancy at another postal facility or office. She stated she could detail into any schedule or position “(maintenance mechanic, clerk, mail handler, labor custodian, etc.) it does not matter as long as I feel safe.” Chicago MSH Plant Manager (Caucasian, white, male, DOB - 1965) testified he received this letter in early August 2020 and he presented the request to Complainant’s manager, Maintenance Manager 1. He stated he believed Complainant’s request was not granted because there were no vacant positions at the time of Complainant’s request. He denied that Complainant’s race, color, sex, age, medical conditions, or EEO activity were factors in this decision. Manager Human Resources (African-American, Black, male, age 56) testified he did not receive this request from Complainant so he took no action. Chicago District Manager (Caucasian, white, male, DOB - 1963) testified he received Complainant’s transfer request on or about July 28, 2020 and she stated her manager was creating a hostile work environment and she wanted a permanent detail away from the facility. He stated that all reassigned requests are managed by the Human Resources department so he presented the document to the Human Resources Manager for investigation and action. He stated he was not aware if Complainant’s request was granted because the plants are no longer under the oversight of District Managers. The Agency did not ask Maintenance Manager 1, Supervisor Maintenance Operations, or Manager Maintenance Operations about this allegation. However, the record contains what appears to be a contemporaneous statement from Maintenance Manager 2 regarding Complainant’s hostile work environment allegations. Maintenance Manager 2 states that on July 10, 2020, Complainant presented her with several PS Form 3971s, but she told Complainant to give them to Supervisor Maintenance Operations. She stated she did not review the leave requests because she was preoccupied with another matter and Complainant did not say anything about the leave requests. However, on July 28, 2020, Supervisor Maintenance Operations informed her that the leave requests had comments claiming harassment in the workplace. Supervisor Maintenance Operations stated he met with Complainant for an initial investigation and Complainant stated that on July 11, 2020, there was an incident between her and Maintenance Manager 1. Complainant stated Maintenance Manager 1 intentionally reduced her to a Laborer Custodian, PS-04, in retaliation for ongoing EEO activities. However, Supervisor Maintenance Operations stated Maintenance Manager 1 was not in the building. Supervisor Maintenance Operations said he attempted to explain that the reduction was due to mail volume and other reasons and that Maintenance manager 1 was not responsible for the staffing, but he said Complainant was adamant that it was Maintenance Manager 1’s fault that her position was downgraded. Maintenance Manager 2 stated that Complainant did not inform her or anyone else of an incident that occurred between Complainant and Maintenance Manager 1 on July 11, 2020 or that she felt unsafe. Maintenance Manager 2 2022004562 18 wrote “it is my understanding that [Maintenance Manager 1] and [Complainant] did not have a specific incident on July 11, 2020. [Complainant’s] claim of harassment in the workplace is based solely on the 2019 WHEP Staffing Package resulting in the reduction of two Maintenance Mechanics and one Maintenance Operations Support Clerk.” Disparate Treatment As above, even assuming arguendo that Complainant proved her prima facie cases for discrimination based on race, color, sex, age, disability, and retaliation, the Agency has articulated legitimate, non-discriminatory reasons for its actions. In Claim 1, Manager Maintenance Operations performed a WHEP staffing plan in 2019. As part of this and to account for reduced mail volume, she reduced two Maintenance Mechanic positions and one Maintenance Operations Support Clerk. Complainant was notified in December 2019 and asked to bid on new positions in January 2020, which she did not do. Subsequently, Complainant was reassigned to a Laborer Custodian position. However, this was rescinded on August 17, 2020, effective August 1, 2020. When Maintenance Manager 1 performed the 2020 WHEP, she added a Maintenance Mechanic position. For Claim 2, management indicated there was no such thing as a “permanent detail” and there were no open positions at the time of Complainant’s request. It appears management did look into Complainant’s allegations of harassment, but determined no incident with Maintenance Manager 1 had occurred on July 11, 2020 and Complainant’s harassment claim stated from her reassignment. Complainant has not shown that these articulated reasons were in fact pretext to mask discrimination based on her race, color, sex, age, disability, or EEO activity. She contends that Maintenance Manager 1 is retaliating against her but Maintenance Manager 1 was not involved in the decision to reassign Complainant. Manager Maintenance Operations was the responsible party. Additionally, a white male Maintenance Mechanic who is older than Complainant was also involuntarily reassigned. In any event, the reassignment was rescinded and Complainant was returned to her old job and schedule. Similarly, she has not provided any evidence to contest management’s statement that there were no open positions to which Complainant could be reassigned. As to both claims, the record is devoid of any evidence of discriminatory or retaliatory animus on the part of the Agency beyond Complainant’s speculative beliefs. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). In so finding, we note that the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. We agree with the Agency that Complainant has failed to meet her burden to demonstrate she was subjected to discrimination and retaliation as alleged. 2022004562 19 Reasonable Accommodation To the extent Complainant is alleging the Agency failed to respond to her request for reasonable accommodation, the Commission’s precedent establishes that an agency cannot be held liable solely for a failure to engage in the interactive process. Liability for a failure to engage occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, EEOC Request No. 05A30114. The record does not indicate that a failure on the Agency’s part to engage in the interactive process caused a denial of accommodation here. Harassment/Hostile Work Environment The Agency failed to address Complainant’s claim of harassment and hostile work environment. Complainant has alleged the Agency subjected her to harassment and a hostile work environment, based on the actions of Maintenance Manager 1. To prove her claim of a hostile work environment harassment, 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 a protected basis-in this case her race, color, sex, disability, or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Here, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Moreover, routine supervision and managerial discipline or personality conflicts and general workplace disputes unrelated to a protected basis are insufficient to establish a hostile work environment claim. See Complainant v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0120131234 (2015). We agree with the Agency that Complainant has failed to meet her burden to demonstrate she was subjected to discrimination and retaliation as alleged. Complaint 3: Agency No. 1F-341-0197-21 Complainant alleged the Agency subjected her to discriminatory harassment when management’s conduct at her February 2021 DRAC meeting was hostile, unprofessional, and inappropriate; she was denied a reasonable accommodation for a hostile work environment and 2022004562 20 her request for reconsideration was ignored; and on multiple dates, her requests for a second Reasonable Accommodation Committee meeting were ignored. Timeliness of EEO Counselor Contact As an initial matter, the Agency dismissed the entire formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for failure to timely contact an EEO counselor. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not timely initiate contact with an EEO Counselor. However, Complainant alleged (and the Agency accepted for investigation) that her claim was based on discriminatory harassment. In National Passenger Corporation v. Morgan, 536 U.S. 101, 117 (2002), the Supreme Court held that a harassment claim will not be time barred if all incidents constituting the claim are part of the same unlawful practice and at least one incident falls within the filing period. The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. We also note that to calculate timeliness for an alleged denial of reasonable accommodation, it is the Commission's position that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.” Dina F. v. U.S. Postal Serv., EEOC Appeal No. 2021001488 (Mar. 5, 2021) (quoting EEOC Notice 915.003 (July 21, 2005)) (citing Harmon v. Off. of Pers. Mgmt., EEOC Request No. 05930365 (Nov. 4, 1999) (holding that the denial of a reasonable accommodation constitutes a violation each time the employee needs it)). But see Samuel C. v. U.S. Postal Serv., EEOC Appeal No. 2021002659 (Sep. 2, 2021). In any event, while Complainant did not contact an EEO counselor until September 17, 2021, months after her DRAC meeting and her denial of reasonable accommodation decision, she has alleged continuing harassment when the Agency denied her requests for another Reasonable Accommodation Committee meeting as recently as September 1, 2021 and October 7, 2021. Therefore, we find the Agency improperly dismissed Complainant’s complaint for failure to timely contact an EEO counselor. Nevertheless, because the Agency investigated these dismissed matters, we will review the merits of these allegations herein. 2022004562 21 Merits of Claims Complainant testified that during her February 17, 2021 DRAC meeting, Human Resources Manager was hostile and angrily accused Complainant of not understanding the letter of personnel practice. She stated everyone at the meeting witness this behavior. Complainant also referred to her attached letter dated March 28, 2021 in which she stated Human Resources Manager was hostile and attacked her during the meeting, and Human Resources Manager and Maintenance Manager 1 accused Complainant of hiding someone in her home during the meeting and of hiding some sort of paperwork on the floor during the meeting. Manager Occupational Health Claims and Maintenance Manager 1 testified they attended the DRAC meeting and neither they nor any other management official did or said anything inappropriate or unprofessional. They also stated Complainant did not state during the meeting that she believed management was acting in an unprofessional or inappropriate way. Human Resources Manager testified she did not recall if she did or said anything hostile or unprofessional during the meeting. Manager Occupational Health Claims testified that Complainant’s request to be moved out of the Busse facility was denied for the reasons outline in the decision letter. She testified that Complainant stated her disabilities did not make her unable to perform her current position and it did not impact her daily life outside work. She said Complainant did not present evidence that management caused a hostile work environment. She noted that Complainant was not offered any accommodation because allegations of hostile work environment were unfounded. She stated that management acknowledged that Complainant was given a notification of position change as were other employees, but due to technical reasons, all letters were rescinded. The record contains a letter dated March 11, 2021 from Manager Occupational Health Claims (also the DRAC chairperson) to Complainant stating that Complainant specifically requested to be able to relocate to another work facility as an accommodation. However, “[d]uring the interactive meeting on February 17, 2021, when asked does your disability (depression, PTSD, extreme anxiety, and panic attacks) make you unable to perform in your current position, [Complainant] answered “No, I perform my duties to the best of my abilities.” The letter also mentioned that Complainant felt retaliated against and filed a grievance, but it was determined that Complainant was not the only one affected and that the letter she received was rescinded. “With all information taking into consideration and the fact that you indicated you are able to perform the functions of you position, the DRAC committee has determined that no accommodation is needed.” The record shows that on March 28, 2021, Complainant appealed this decision. She requested reconsideration of the decision and that a new Reasonable Accommodation Committee meeting be held because she felt the February 17, 2021 meeting was unprofessional, hostile, and discriminatory. Complainant indicated she was not given union representation at the meeting, no doctor was present, management officials with a conflict of interest were allowed on the committee (she did not identify which officials or what the conflicts were), Human Resources 2022004562 22 Manager was hostile, Human Resources Manager and Maintenance Manager 1 accused Complainant of hiding someone in her home during the meeting and of hiding some sort of paperwork on the floor during the meeting, and she never received a list of names of every single Agency management official or any other individual present that was involved in the decision making. Complainant again contacted Manager Occupational Health Services on April 17, 2021 stating she was still awaiting a decision on her request for reconsideration and a new reasonable accommodation committee meeting. The record further shows that the Agency responded on May 3, 2021 to Complainant’s March 28, 2021 request. A/Human Resource Manager responded to Complainant’s contentions and ultimately concluded that she “must concur with the decision rendered by the District Reasonable Accommodation Committee.” Despite this, Complainant continued to request another meeting. On August 9, 2021 Complainant wrote a letter to Human Resources stating that Manager Occupational Health Services still had not responded to her request for a new Reasonable Accommodation Committee meeting. On December 13, 2021, Complainant wrote a letter to Human Resources Manager stating she had still not received any acknowledgement or a date and time for her new Reasonable Accommodation Committee meeting. Harassment Here, Complainant has not even established that all the events occurred as alleged. Complainant testified she was subjected to unprofessional behavior during the DRAC meeting, but this is disputed by two other attendees of the meeting. Complainant states she was denied a reasonable accommodation, but she stated during the DRAC meeting that she could perform her job duties. She contends the Agency failed to respond to her March 28, 2021 request for reconsideration and a new DRAC meeting, but the record reflects the Agency responded by letter dated May 3, 2021. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged act occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said/she said” situation). Even assuming, without so finding, that all the alleged events occurred, they describe common workplace occurrences and none of these incidents, either singly or collectively, was severe or pervasive enough to rise to the level of harassment. Accordingly, we find that Complainant was not subjected to a discriminatory hostile work environment as alleged. Failure to Accommodate To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to 2022004562 23 provide her with a reasonable accommodation. See, e.g., Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). An employer must consider each request for reasonable accommodation and determine: (1) whether the accommodation is needed, (2) if needed, whether the accommodation would be effective, and (3) if effective, whether providing the reasonable accommodation would impose an undue hardship. An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). Complainant requested an accommodation of relocation to another facility. This was largely based on the hostile work environment she contended was created when she was involuntarily reassigned. However, even assuming without so finding that Complainant is a qualified individual with a disability, she stated during the DRAC meeting that she could perform the essential functions of her position. Therefore, the Agency found an accommodation was not needed. They did not fail to accommodate Complainant under these circumstances. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency in Agency Nos. 1J- 607-0063-18 and 1J-607-0065-20. We MODIFY the final decision of the Agency in Agency No. 1F-341-0197-21 to the extent it found untimely EEO counselor contact and instead find Complainant failed to provide she was subjected to discrimination as alleged. 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 2022004562 24 (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. The 2022004562 25 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 31, 2023 Date