Anya V.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Jun 15, 2018

0120162288 (E.E.O.C. Jun. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Anya V.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120162288

Hearing No. 570-2014-00488X

Agency No. DIA-2013-00041

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s May 31, 2016 final order 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Intelligence
Analyst, GS-0132-11, for the Agency’s Joint-Intelligence Task Force for Combating Terrorism
(JITF-CT) in Washington, D.C. Complainant entered duty with the Agency in October 2011 on
a two-year probationary period. Complainant has the condition of chronic myofascial pain.
Complainant stated that she experiences chronic tension headaches and chronic nerve pain which
is aggravated by sitting all day and typing. Complainant asserted that she treats her condition by
regularly seeing a chiropractor, undergoing physical and massage therapy, and taking ibuprofen.

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.
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Complainant stated that she can perform the essential duties of her position, but cannot lift heavy
things in her right hand or play sports. In November 2012, Complainant was assigned to the
Europe Branch. Around this time, the Agency changed the JITF-CT name to the Defense
Combating Terrorism Center. Complainant was supervised by the Branch Chief (S1) and the
Division Chief (S2).

Prior to arriving at the branch, on September 7, 2012, Complainant emailed S1 requesting leave
for Thanksgiving and Christmas. Complainant mentioned that she needed the leave partly to
visit her ill grandmother around Christmas. S1 responded that he could not approve her leave
requests because he was not yet officially her supervisor and encouraged her to take leave sooner
if she needed to see her grandmother instead of waiting for the holidays. Additionally, S1
informed Complainant that management would address leave determinations branch-wide at the
end of September or early October to ensure adequate office coverage during the holidays.
Complainant responded that she was uncomfortable with that timeline and requested to meet
with S1 to discuss her leave requests considering her “serious family considerations” and the
“continual rise in travel prices” close to the holidays. S1 met with Complainant in October 2012,
and her leave was granted on the requested dates.

On October 20, 2012, Complainant noted to S1 that she was scheduled to attend a
Counterterrorism Analyst Course on November 19, 2012, and that she had forgotten that she had
registered for the course. Complainant asked S1 if she should delay the training because she had
just joined the branch. S1 responded that he believed it would be best if she did delay taking the
course as she had just joined the branch and the training was occurring close to the holidays.

On November 14, 2012, S1 emailed Complainant contact information for inquiring about
remedial language training. Complainant reached out to the contact to ask about training
opportunities. On December 3, 2012, S1 sent Complainant her Individual Development Plan
(IDP) indicating that language training and completing a deployment were her priorities.
Complainant began contacting other branch and division chiefs to secure a deployment to the
Middle East. On January 16, 2013, S1 informed Complainant that her request for language
training was on S2’s desk for approval. In February 2013, S1 informed Complainant that he
intended to revisit deployment opportunities in the Fall as deployment was contingent on
“branch manning requirements,” Complainant’s ability to perform her duties, and Complainant’s
ability to work with others, including management.

On December 18, 2012, Complainant submitted a request for reasonable accommodation for her
condition. Complainant requested an ergonomic work station and chair, higher screens, and a
lower keyboard. On January 17, 2013, S1 asked Complainant if she knew the status of the
requested chair and mouse and provided her the contact information for the Safety Industrial
Hygienist. Complainant contacted the Safety Industrial Hygienist and met with her.
Complainant was later instructed to submit a reasonable accommodation request to the
Reasonable Accommodation Case Manager. Complainant submitted the request on January 23,
2013. On January 28, 2013, a Certified Industrial Ergonomist submitted an Office Ergonomics
Workstation Consultation report recommending that Complainant receive an ergonomic chair;
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footrest; gel wrist rest; elevated keyboard/mouse tray with slide/pivot/swivel capabilities; and
other modifications. Agency officials began making several modifications to Complainant’s
workspace including adjusting her chair, keyboard, and mouse and ordering a new chair.

In January 2013, Complainant met with S2 to discuss her concerns with how S1 was treating her.
S2 responded, “Don’t play these Mommy-Daddy games with me. I’d like for you to get [S1]
…and let’s have a discussion about it.” On February 11, 2013, Complainant met with the
Deputy Director to discuss how she was being treated by management. The Deputy Director
suggested that Complainant meet with S1 and S2 to resolve the matter at the lowest level
possible.

On March 8, 2013, a co-worker (CW-1) forwarded an email to the Europe Branch inviting them
to a “meet and greet” National Counterterrorism Center (NCTC) meeting on March 13, 2013,
followed by a happy hour. The morning of the meeting, CW-1 sent S1 a transcript of a chat he
had with Complainant in which she stated she would not be going to the NCTC meeting and
happy hour. That morning, S1 informed all employees that they needed to attend the NCTC
meeting. Complainant sent S1 an email stating, “I do not feel that happy hours and post work
events should be mandatory for all employees. I hope you respect my professional opinions and
understand why I do not feel I can attend this event.” Complainant then used .75 credit hours to
end her duty day early without receiving prior approval. Prior to the meeting, S1 sent an email to
his employees informing them that they needed to obtain supervisory approval prior to the use of
credit hours. S1 called Complainant during the meeting to inquire about her absence. On March
14, 2013, S1 contacted the Office of Human Resources to discuss his options regarding
Complainant’s refusal to attend the mandatory meeting. On March 21, 2013, S1 and S2 met with
Complainant to discuss her missing the NCTC meeting and her use of credit hours without prior
approval. S1 and S2 subsequently changed Complainant’s time sheet to reflect absent without
leave (AWOL) instead of her use of credit hours.

On March 12, 2013, S1 and CW-1 were discussing a news story on television and related it to the
difference between apostles and disciples. Complainant and others overheard the conversation.
S1 and CW-1 stopped the conversation after a co-worker asked them to stop discussing religion.

On March 26, 2013, Complainant emailed S1 asking for help with obtaining a Pentagon badge.
S1 responded, “I’d hold off on requesting a badge at this time. From my understanding, they’re
cutting back on issuing badges...unless employees will be coming to the Pentagon more than 6
times a month.” Complainant responded that she had been told by the badge office that they
would issue her the badge and that she needed it to complete her duties. On March 27, 2013, S1
consulted with another management official who confirmed that the paperwork had been
completed, but that it was not necessary to complete her duties. Complainant ultimately was
issued the Pentagon badge.

On March 28, 2013, the Deputy Director submitted a memorandum to Human Resources
requesting Complainant’s termination. The Deputy Director noted that Complainant had
demonstrated misconduct, including insubordination; AWOL; time card fraud; and a self-
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centered attitude. Further, the Deputy Director stated that Complainant’s work performance was
average, Complainant refused to accept responsibility for her actions, and her actions set a bad
example for other analysts. The Deputy Director cited Complainant’s failure to attend the
mandatory NCTC meeting, unaccounted time on her timesheets, and her focus on a deployment
during the time she had been expected to attend language training.

On April 1, 2013, Complainant was informed that management intended to terminate her during
her probationary period and she was placed on administrative leave pending her termination or
resignation in lieu of termination. On April 4, 2013, Complainant submitted a letter of
resignation effective immediately. On April 5, 2013, the Employee Benefits and Employee
Management Relations Chief informed Complainant’s attorney that the Agency could not accept
Complainant’s resignation because it did not appear as though her resignation as written was
voluntary. The Chief informed Complainant that management would process her termination
unless she submitted a resignation letter that clearly stated her intention to voluntarily resign
before April 8, 2013. Complainant’s attorney responded by stating that Complainant exercised
her right to resign and requested that the Agency process her resignation. The Agency processed
Complainant’s resignation on April 11, 2013.

On April 27, 2013, Complainant discovered that she had been improperly charged 72 hours of
annual leave for the period she was on administrative leave and did not earn sick leave or annual
leave during this period. The matter was corrected after Complainant raised it with Agency
officials.

On April 15, 2013 (and twice amended), Complainant filed a formal complaint alleging that the
Agency discriminated against her and subjected her to a hostile work environment on the bases
of sex (female), religion (non-denominational), disability, and in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, her supervisor (S1) yelled at and
berated her; S1 forced her to cancel a training course; management failed to respond to her
request for reasonable accommodation; management failed to address her hostile work
environment claims; S1 denied her request for a Pentagon badge; S1 and her second-level
supervisor (S2) revised her timesheet and switched her time from credit hours used to absent
without leave (AWOL); S1 discussed his religious beliefs and refused to stop when she and
others complained; S1 made negative comments about her; she was constructively discharged;
and her final leave and earnings statement and SF-50 were incorrect.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case granted summary judgment in favor of the Agency, and issued a decision on April 13, 2016.

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 that the conduct at issue was based on Complainant’s protected classes. The AJ
determined that Complainant and management officials had a contentious relationship and
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numerous personality conflicts; however, there was no evidence supporting Complainant’s
claims of discriminatory or retaliatory animus. In particular, with regard to her claims that S1
yelled at and berated her, S1 denied yelling at Complainant about her leave requests; rather, S1
stated that he simply met with Complainant to discuss whether she needed to take leave earlier to
visit her ill grandmother. A female co-worker stated that S1 gave “everybody a hard time about
requesting leave.” Additionally, while Complainant claimed that S1 forced her to cancel the
Counterterrorism Analyst training course, a transcript of their chat showed that it was
Complainant who offered to cancel the course because the timing coincided with her start date,
and S1 simply agreed that it would be the best course of action. With respect to Complainant’s
allegation that she was berated for not attending the “off-hour” happy hour and taking
unapproved leave, Complainant was the only analyst who did not attend the happy hour and who
did not provide timely notice of her intent not to attend. Complainant was disciplined for failing
to attend a work meeting without advance notice, and taking leave after being told that the
meeting was mandatory.

Regarding the Pentagon badge, Complainant admitted that S1 did not have authority to deny her
a badge and the evidence showed that he, at most, questioned her need for one. As to S1’s
religious conversation, Complainant admitted that the conversation was not directed at her and
was in response to a news report on television. The AJ noted that speaking about religion in the
workplace is not unlawful, and S1 and CW-1 ceased their conversation after they were asked to.

With respect to S2’s “Mommy-Daddy” comment, S2 acknowledged that she told Complainant
that she did not want to “play Mommy-Daddy games. I’d like for you to go get your branch
chief and return to the office and let’s have a discussion…but I would like to have all three of us
in the room at the same time.” As to her deployment claim, the record indicated that because
Complainant had been scheduled for language training, deployment at that time was not an
option. Even assuming that Complainant may have preferred deployment above improving her
language training, the AJ determined that the fact that the Agency supported one in advance of
the other, does not in and of itself, support an inference of discrimination.

As to her constructive discharge claim, S1 initially contacted the Office of Human Resources on
March 14, 2013, the day after Complainant missed the mandatory happy hour meeting, to “ask
what our options were.” When S1 met with Human Resources, he was told that, because
Complainant was in her trial period, termination was an option. S1 decided to terminate
Complainant based on her failure to act accordingly after being instructed verbally by
management to “remain professional, to communicate with [her] leadership, and to continue
demonstrating she was capable of deploying.” Instead, S1 stated that Complainant
“demonstrated she was going to keep doing what she was doing.” Complainant was placed on
administrative leave pending termination pursuant to Agency policy. Complainant alleged that
negative comments were made on her SF-50. When asked what those negative comments were,
Complainant responded “the main one was they said I resigned during [sic] trial period.” The AJ
noted that no discriminatory meaning could be attributed to those comments as it was a fact that
Complainant resigned during her trial period. Further, there was no evidence that S1, S2, or the
Deputy Director were responsible for inserting that language in her SF-50. In addition, the AJ
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found that there was no evidence in the record that any of these individuals were responsible for
improperly charging her 72 hours of annual leave or accounting for earned annual or sick leave
for her last pay period. When Complainant alerted Human Resources to the error, it was
corrected.

Finally, regarding her reasonable accommodation request, the AJ assumed arguendo that
Complainant established that she is a qualified individual with a disability. The AJ found that
the undisputed facts show that the Agency evaluated Complainant’s workstation, made
recommendations, and implemented those recommendations. Some requested accommodations
were not provided because Complainant resigned before they were implemented. The AJ
determined that there was no indication that the equipment recommended in the Ergonomic
Consultation was not going to be provided to Complainant or that the Agency otherwise
unreasonably delayed the acquisition of the equipment. Accordingly, the AJ found that the
Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation
Act.

The AJ concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment, or been constructively discharged. The
Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erroneously granted summary judgment in favor of
the Agency as genuine issues of fact remain in dispute. Complainant argues that S1 held
meetings with her in which he berated her based on reprisal. Complainant claims that S2 ignored
her complaints of how S1 treated her and, rather than addressing the issue, left her in the same
position. Complainant alleges that S1 misinformed his supervisor regarding Complainant’s non-
attendance at the mandatory happy hour meeting and that she made an innocent and reasonable
mistake on her timecard with respect to the use of credit hours. Complainant contends that
management’s statements regarding her termination are pretextual and officials retaliated against
her to get her to resign. Accordingly, Complainant requests that the Commission reverse the
final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
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the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. The Commission finds that the AJ properly issued summary judgment as
the material facts are undisputed.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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).

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.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally
hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it
forbids “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). Even
assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work
environment, the Commission finds that Complainant failed to show that the Agency’s actions
were based on discriminatory or retaliatory animus.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. For example, S1 denied
berating or yelling at Complainant over her leave requests and training course plans. S1 stated
that he met with Complainant privately to discuss her leave requests related to her sick
grandmother for discretion purposes. ROI, at 567-68. S1 affirmed that he wanted to ensure that
Complainant did not need to take leave earlier and to inform Complainant that they would be
coordinating leave around the holidays together as a branch around mid-September/early-
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October. Id. at 568-69. Additionally, around the same time, S1 explained that Complainant
indicated that she was enrolled in a Counterterrorism Analyst course, but she was wondering if
she should cancel it to provide coverage during the holidays. Id. at 570. S1 stated that he did not
demand that Complainant cancel the course; rather, he agreed with her that it would probably be
better if she could postpone it to a later date. Id. With respect to her deployment wishes, S1
affirmed that Complainant initially expressed, and he agreed, that language training would be her
primary developmental goal. Id. at 571. S1 stated that he began connecting Complainant with
people and started the process for her, but she later started going around to other branches
looking to deploy. Id. at 572. S1 stressed that he advised Complainant that if she continued
circumventing leadership as she had, management would not offer her deployment opportunities
as it was not a right and she had to demonstrate she was capable of working with their partners.
Id. at 572-73. S1 stated that he informed the Deployment Manager that it was not the right time
for Complainant to deploy as she was supposed to be going through language training. Id. at
575.

With respect to Complainant’s claim that management did nothing to address her concerns about
her treatment, S2 stated that Complainant came to her office to discuss the matter. ROI, at 641.
S2 affirmed that she was aware that Complainant was telling her one thing and S1 another thing
so she said “I do not want to play Mommy-Daddy games. I’d like for you to go get [S1], return
to the office, and let’s have a discussion about it.” Id. S2 stressed that she would discuss the
matter with Complainant, but wanted to have all three in the room at the same time. Id. The
Deputy Director confirmed that Complainant approached her requesting a reassignment, but she
did not think it was appropriate to reassign her and encouraged her to focus on her duties. Id. at
201. The Deputy Director acknowledged that she provided S1 and S2 direct guidance regarding
Complainant to give her clear direction and communicate precisely where her performance is
falling short of expectations. Id. at 202-03.

Regarding the issues related to the mandatory NCTC happy hour/meeting, S1 affirmed that
Complainant did not show up to the meeting, did not inform management that she would not be
attending, and left work early without prior authorization. ROI, at 576. S1 confirmed that he
and S2 met with Complainant and informed her that she would be charged AWOL for the time
she was absent and that management intended to take an administrative action against her. Id. at
576-78. S2 denied yelling at or berating Complainant during this meeting; rather, she informed
Complainant during this meeting that they were going to take an administrative action against
her for failing to show up to the mandatory event and for completing her timecard
inappropriately. Id. at 646.

As to the Pentagon badge, S1 initially advised Complainant to hold off on requesting a badge
because he believed they were cutting back on issuing them and she did not need one for her
duties. ROI, at 183. Complainant responded that she had already requested one and the
paperwork was ready for her to pick up. Id. at 184. S1 affirmed that he did not deny
Complainant’s attempt to obtain a Pentagon badge, but she circumvented leadership to get it. Id.
at 607. With respect to the religious comments, S1 affirmed that he never discussed religion
with Complainant, but she overheard a conversation he had with CW-1 about a news story. Id. at
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139. S1 stated that another employee asked them to stop discussing religion, which they did. Id.
at 139-40. S1 stated that he did not know Complainant’s religion, and no one else ever
complained about the conversation. Id. at 140.

As to the events connected to her resignation, management informed Complainant that they
would be taking an administrative action against her following her failure to attend the
mandatory NCTC meeting and AWOL. ROI, at 604-05. S1 affirmed that management initiated
a termination action for Complainant’s failure to attend the meeting and taking leave during that
time without previous authorization and claiming it on her timecard. Id. at 609. On March 28,
2013, the Deputy Director requested Complainant’s termination during her trial period based on
misconduct, insubordination, AWOL, and time card fraud. Agency’s Motion for Summary
Judgment, Ex. W. The Deputy Director additionally cited numerous examples of Complainant
defying management, including circumventing management by pursuing deployment
opportunities after requesting language training. Id. On April 1, 2013, Complainant was placed
on administrative leave pending her termination or resignation. ROI, at 191. Complainant
submitted a letter of resignation; however, the Employee Management Relations Chief informed
Complainant that the document submitted was unacceptable because it did not appear to be
voluntary. Id. at 195. On April 5, 2013, Complainant submitted a second letter which was
accepted and processed. Id. at 196-97. Complainant’s final leave and earnings statement was
incorrect due to a substitute timekeeper; however, the matter was resolved once Complainant
brought it to the Agency’s attention. Id. at 617-18.

The Commission agrees with the AJ that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal.

Finally, to the extent that Complainant alleges that she was forced to resign because of the
Agency’s discrimination, the Commission notes that the central question in a constructive
discharge case is whether the employer, through its unlawful discriminatory 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 finds that Complainant has not
shown that the Agency’s actions were motivated by discriminatory or retaliatory animus, thus the
Commission finds that Complainant cannot establish the necessary elements to prove
constructive discharge. As a result, the Commission finds no basis to disturb the AJ’s summary
judgment decision finding that Complainant was not subjected to discrimination, reprisal, a
hostile work environment, or constructive discharge as alleged.

Denial of Reasonable Accommodation

To the extent that Complainant is alleging that she was denied reasonable accommodation, the
Commission notes that an Agency is required to make reasonable accommodation to the known
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physical and mental limitations of an otherwise qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To
establish a denial of reasonable accommodation, Complainant must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual
with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a
reasonable accommodation. The Commission will assume without deciding (for the purposes of
this decision) that Complainant is an individual with a disability.

The record indicates that Complainant provided medical documentation dated December 12,
2012, in which her chiropractor recommended that Complainant be given an ergonomic
assessment and the necessary ergonomic office equipment “to reduce forward head flexion,
rounded shoulders and also to help reduce muscle tension to the right upper extremity.” ROI, at
137. Complainant claimed that she initially requested reasonable accommodation on December
18, 2012. ROI, at 491. Complainant indicated, however, that she had no restrictions and could
perform the essential duties of her position. Id. at 492. Complainant began working with the
Safety Industrial Hygienist to assess her needs and make temporary adjustments. Complainant
submitted a written reasonable accommodation request on January 23, 2013. Id. at 138-40. On
January 23, 2013, Complainant underwent an Office Ergonomics Workstation Consultation. Id.
at 141-43. The consultation recommended that Complainant receive a new chair, footrest,
elevated mouse/keyboard tray with slide/pivot/swivel, gel wrist rest, and computer monitor
adjustments. Id. Agency officials began making adjustments to Complainant’s workspace and
providing the recommended equipment. Id. at 209, 565-66. S1 affirmed that management had
ordered the recommended chair; however, Complainant resigned prior to its arrival. Id. at 566,
591-92.

Despite Complainant’s claim, the Commission finds that Agency officials engaged in the
interactive process and attempted to ascertain what accommodations Complainant needed.
Complainant acknowledged that officials initiated all of the recommendations, but that she did
not receive the chair prior to her resignation. Agency’s Motion for Summary Judgment,
Complainant’s Dep., at 44-45. Agency officials confirmed that the chair was ordered, but did
not arrive prior to Complainant’s resignation. Complainant has presented no evidence that the
Agency was unwilling to reasonably accommodate her or otherwise denied her reasonable
accommodation. Accordingly, the Commission finds that the Agency did not deny Complainant
reasonable accommodation in violation of the Rehabilitation Act.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of a decision without a hearing was appropriate and a preponderance of the
record evidence does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 15, 2018
Date