0120123071
05-28-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123071
Hearing No. 510-2011-00267X
Agency No. 200I-0317-2010100673
DECISION
On July 23, 2012, Complainant filed an appeal from the Agency's June 25, 2012, final decision 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. For the following reasons, the Commission MODIFIES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rating Veterans Service Representative (RSVR) at the Agency's Regional Office in St. Petersburg, Florida.
On January 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her. Complainant claimed she was subjected to a hostile work environment on the bases of race (Black), sex (female), and disability as evidenced by the following events:
1. In October 2002, Complainant was not one of the volunteers selected for a special project that resulted in "awards and special recognition" for those who were chosen.
2. In October 2002, Complainant's supervisor (Person A) "insulted" her by stating he "was shocked [Complainant] made an error in the effective date."
3. In November 2002, Complainant received a memo placing her on a "written assistance plan."
4. In November 2002, after being invited by a coworker to "fix a plate" at a Thanksgiving pot luck luncheon, the co-worker's team manager (Person B) told Complainant to "never take anything from her team without her permission."
5. On December 1, 2002, Complainant received a within-grade increase from GS-10/1 to GS-10/2 rather than a promotion to GS-11.
6. In December 2002, Complainant overheard a team leader (Person A) state on the phone, "Affirmative action with a negative connotation," which she took to be a comment about her.
7. In December 2002, Person A accused Complainant of being on break for more than 15 minutes and told her that she needed to "learn [Complainant's] job before running around the building."
8. On December 17, 2002, Person A "humiliated" Complainant by peeping around a credenza to see if she was at her desk.
9. In April 2003, Person A notified Complainant that she was "being demoted to [Complainant's] former position as a Veterans Service Representative."
10. On April 24, 2003, Person A issued Complainant an "unsuccessful" performance evaluation for the period of October 1, 2002 - April 30, 2003.
11. In March 2004, management did not respond to Complainant's request to be reassigned to other departments so she could gain more experience and proficiency.
12. On multiple occasions between 2004 and 2006, Complainant applied but was not referred for an interview for the position of Rating Veterans Service Representative (RVSR).
13. Between approximately February 2008 and August 29, 2008, Complainant did not receive her promotion to GS-12.
14. On March 1, 2008, Complainant's team leader (Person B) sent her an electronic mail message commenting that she has many visitors at her desk and if Complainant "didn't correct" that issue, she would correct the issue.
15. On April 2, 2008, Complainant's request for a reassignment to another team was denied.
16. Between March and May 2009, Complainant's new coach (Person C) did not respond to Complainant's request for the criteria required for working a "Flexi-place" schedule.
17. On April 28, 2009, Person C "removed" Complainant from a "special project assignment."
18. In May 2009, Person C scheduled a team meeting during Complainant's lunch period and when Complainant told her she needed to run an errand she had planned to take care of during her lunch break, Person C stated she should take annual leave.
19. In May 2009, Person C "confronted" Complainant in front of other team members with "condescending behavior and remarks."
20. In June 2009, Complainant's request to be reassigned to another team was denied.
21. On July 15, 2009, Complainant was placed on a Performance Improvement Plan (PIP).
22. On July 15, 2009, after repeated requests, Complainant was told she could not work a "Flexi-place" schedule because she was on a PIP.
23. On July 20, 2009, even though she provided a subpoena, Complainant was initially told she also needed to provide a letter from the clerk of the court showing the exact time she left her court appearance.
24. In August 2009, Person D "raised her voice" and "basically called [Complainant] a liar" in front of other employees.
25. On August 27, 2009, Complainant's request to "work at home" was denied.
26. On August 30, 2009, Complainant's new within-grade step increase was removed because she was on a PIP.
27. By letter dated September 11, 2009, Complainant was notified that the charges in a proposed suspension were sustained and, as a result, the decision was made to suspend her for one calendar day, effective October 21, 2009.
28. On October 7, 2009, Person C told Complainant that she was not to call any other supervisor other than Person C or Person E when she is requesting sick leave.
29. On November 17, 2009, Complainant was assigned to work on a different team from the one she requested.
30. On December 1, 2009, Complainant learned that other employees still had space heaters at their desk after she was "instructed to remove [Complainant's space heater] over a year ago."
31. On January 22, 2010, Complainant was forced to take annual leave (AL) in order to go to the EEO office.
In a March 31, 2010 Notice of Partial Acceptance, the Agency noted Complainant's initial contact with an EEO Counselor was on November 18, 2009. Therefore, the Agency determined anything occurring before October 4, 2009, was beyond the 45-day time limit for initiating timely contact with an EEO Counselor. As a result, the Agency dismissed claims (1), (3), (5), (9), (10), (12), (13), (15), (17), (20) - (22), (25), and (26) as independently actionable claims in accordance with 29 C.F.R. � 1614.107(a)(2) for failure to comply with the regulatory time limits. Additionally, the Agency dismissed claims (21), (26), and (27) pursuant to 29 C.F.R. � 1614.107(a)(4), for raising matters that were previously pursued under a negotiated grievance procedure. The Agency determined claims (29) and (31) were timely raised discrete incidents. These claims were renamed Claim A and Claim B. The Agency accepted 28 incidents (excluding claims (21), (26), and (27)) as part of Complainant's harassment claim.
Thereafter, Complainant amended her complaint on April 16, 2010. Complainant alleged she was subjected to a discriminatory hostile work environment in reprisal for current EEO activity when:
By letter dated April 15, 2010, Complainant was informed that her request to use a space heater as a reasonable accommodation was denied.
The Agency considered this to be a timely raised discrete event and accepted it for investigation. The claim was renamed as Claim C.
Thereafter, Complainant amended her complaint a second time. Complainant alleged that she was subjected to a discriminatory hostile work environment on the bases of race (Black) and in reprisal for current EEO activity when:
By electronic mail message dated March 22, 2010, Complainant was informed that she was not selected for the position of Decision Review Officer, GS-930-13.
The Agency accepted this amendment. The claim was renamed as Claim D.
Complainant then amended her complaint a third time. Complainant alleged that she was subjected to a discriminatory hostile work environment on the bases of race (Black) and in reprisal for current EEO activity when:
On August 10, 2010, Complainant was handed a memorandum and given less than 24 hours to decide whether she elected or declined the opportunity to take the "JRVSR Skills Certification test" scheduled for August 11, 2010.
The Agency accepted this amendment. The claim was considered as part of Complainant's hostile work environment claim.
Thus, the Agency forwarded four discrete incidents for investigation. Additionally, the Agency forwarded Complainant's complaint of harassment consisting of 31 incidents. At the conclusion of the investigation, 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed the following claims as untimely raised discrete events: Complainant's non-selection for a special project in October 2002, Complainant's placement on a written assistance plan in November 2002, Complainant's receipt of a within grade increase (WGI) rather than a promotion in December 2002, Complainant's demotion in April 2003, Complainant's rating of unsuccessful for the evaluation period ending on April 30, 2003, Complainant's non-selection for the position of RSVR, Complainant's failure to receive a promotion between February and August 2008, the denial of Complainant's request for reassignment in April 2006 and June 2009, Complainant's removal from a special project assignment, the denial of Complainant's request to work a "Flexi-place schedule" in July 2009, and the denial of Complainant's request to work at home in August 2009.
The Agency also dismissed the following claims for being raised in a negotiated grievance procedure: Complainant's placement on a Performance Improvement Plan (PIP), the removal of Complainant's WGI because Complainant was on a PIP, Complainant's one-day suspension, the denial of Complainant's request to be reassigned to a different team, and Person D raising her voice to Complainant.
Additionally, with regard to Complainant's claim that she was forced to take annual leave in order to go to the EEO Office, the Agency dismissed this event as part of Complainant's disparate treatment and harassment claims. However, the Agency analyzed the claim separately as an alleged violation of the Commission's regulations.
The Agency renumbered the claims. The claims addressed in the Agency's decision on the merits are described as:
Claim A: The Department violated the Commission's regulations when Complainant was forced to take annual leave to go to the EEO Office.
Claim B: Complainant was subjected to disparate treatment on the bases of race (Black), sex (female), and disability when on November 17, 2009, she was assigned to work on a different team from the one she had requested.
Claim C: Complainant was subjected to disparate treatment on the basis of reprisal when on April 15, 2010, she was informed that her request to use a space heater as a reasonable accommodation was denied.
Claim D: Complainant was subjected to disparate treatment on the basis of disability when the Agency denied Complainant's request for reasonable accommodation.
Claim E: Complainant was subjected to disparate treatment on the bases of race (Black) and in reprisal for EEO activity when she was not selected for the position of Decision Review Officer (DRO), GS-930-13.
Claim F: Complainant was subjected to a hostile work environment on the bases of race (Black), sex (female), disability, and in reprisal for EEO activity as evidenced by 28 events which occurred between November 2002 and August 2010.
1. In October 2002, Complainant was not one of the volunteers selected for a special project that resulted in "awards and special recognition" for those who were chosen.
2. In October 2002, Complainant's supervisor (Person A) "insulted" her by stating he "was shocked [Complainant] made an error in the effective date."
3. In November 2002, Complainant received a memo placing her on a "written assistance plan."
4. In November 2002, after being invited by a coworker to "fix a plate" at a Thanksgiving pot luck luncheon, the coworker's team manager (Person B) told Complainant to "never take anything from her team without her permission."
5. On December 1, 2002, Complainant received a within-grade increase from GS-10/1 to GS-10/2 rather than a promotion to GS-11.
6. In December 2002, Complainant overheard a team leader (Person A) state on the phone, "Affirmative action with a negative connotation," which she took to be a comment about her.
7. In December 2002, Person A accused Complainant of being on break for more than 15 minutes and told her that she needed to "learn [Complainant's] job before running around the building."
8. On December 17, 2002, Person A "humiliated" Complainant by peeping around a credenza to see if she was at her desk.
9. In April 2003, Person A notified Complainant that she was "being demoted to [Complainant's] former position as a Veterans Service Representative."
10. On April 24, 2003, Person A issued Complainant an "unsuccessful" performance evaluation for the period of October 1, 2002 - April 30, 2003.
11. In March 2004, management did not respond to Complainant's request to be reassigned to other departments so she could gain more experience and proficiency.
12. On multiple occasions between 2004 and 2006, Complainant applied but was not referred for an interview for the position of RVSR.
13. Between approximately February 2008 and August 29, 2008, Complainant did not receive her promotion to GS-12.
14. On March 1, 2008, Complainant's team leader (Person B) sent her an electronic mail message commenting that she has many visitors at her desk and if Complainant "didn't correct" that issue, she would correct the issue.
15. On April 2, 2008, Complainant's request for a reassignment to another team was denied.
16. Between March and May 2009, Complainant's new coach (Person C) did not respond to Complainant's request for the criteria required for working a "Flexi-place" schedule.
17. On April 28, 2009, Person C "removed" Complainant from a "special project assignment."
18. In May 2009, Person C scheduled a team meeting during Complainant's lunch period and when Complainant told her she needed to run an errand she had planned to take care of during her lunch break, Person C stated she should take annual leave.
19. In May 2009, Person C "confronted" Complainant in front of other team members with "condescending behavior and remarks."
20. On July 15, 2009, after repeated requests, Complainant was told she could not work a "Flexi-place" schedule because she was on a PIP.
21. On July 20, 2009, even though she provided a subpoena, Complainant was initially told she also needed to provide a letter from the clerk of the court showing the exact time she left her court appearance.
22. On August 27, 2009, Complainant's request to "work at home" was denied.
23. On October 7, 2009, Person C told Complainant that she was not to call any other supervisor other than Person C or Person E when she is requesting sick leave.
24. On November 17, 2009, Complainant was assigned to work on a different team from the one she requested.
25. On December 1, 2009, Complainant learned that other employees still had space heaters at their desk after she was "instructed to remove [Complainant's space heater] over a year ago."
Whether, on the basis of reprisal for current EEO activity, Complainant was subjected to a hostile work environment as evidenced by the following event:
26. By letter dated April 15, 2010, Complainant was informed that her request to
use a space heater as a reasonable accommodation was denied.
Whether, on the bases of race (Black) and in reprisal for current EEO activity, Complainant was subjected to a hostile work environment as evidenced by the following event:
27. By electronic mail dated March 22, 2010, Complainant was informed that she was not selected for the position of Decision Review Officer, GS-930-13.
28. On August 10, 2010, Complainant was handed a memorandum and given less than 24 hours to decide whether she elected or declined the opportunity to take the "JRVSR (Journey-Level Rating Veterans Service Representative) Skills Certification test" scheduled for August 11, 2010.
In its final decision, the Agency determined regarding Claim A that Complainant failed to show that the Agency violated EEOC regulations pertaining to the denial of official time. The Agency found Complainant failed to prove discrimination with regard to Claim B, Claim C, Claim E, or Claim F. The Agency determined Complainant was a qualified individual with a disability at the time of the events forming the basis of her complaint. Regarding Claim D, the Agency found management was liable for its failure to respond to Complainant's requests for reasonable accommodation and failure to accommodate Complainant's disability from May 7, 2008, to March 2, 2010.
On appeal, with regard to Claim A, Complainant disputes the Agency's statement that she did not comply with published Agency procedures regarding requesting and obtaining permission prior to taking official time to go to the EEO Office. Complainant states she requested permission from her supervisor at the time (Person F) to go to the EEO Office to submit additional documents to her EEO Counselor. Complainant claims that after Person F gave her permission to go to the EEO Office, she told Complainant that she may have to take annual leave for the time Complainant was gone and she would have to get back with Complainant as to how the absence would be coded. Complainant states she took annual leave at that point to make sure she was covered for her absence until the issue was resolved. Complainant denies walking out of the building without permission from her supervisor.
With regard to Claim B, Complainant notes that the Agency stated that she did not make out a prima facie claim of reprisal because she did not contact the EEO Counselor at the time of the Memorandum reassigning her to Person F's team. Complainant states the Agency never addressed the fact that the same claim was also identified as a continual pattern of harassment and disparate treatment. Complainant claims that multiple White employees were given the opportunity to go to the team of their choice. Complainant also complains that out of the over 15 teams in the building, she was assigned to go to the team to which she requested not to go.
With regard to Claim C and Claim D, Complainant notes that the Agency determined that she had proven that management did not engage in good faith efforts to accommodate Complainant's disability and was liable for its failure to accommodate between May 7, 2008, and March 2, 2010. Complainant argues that the Agency should be liable for its failure to accommodate from May 7, 2008, to August 31, 2011, when she actually received her space heater. Complainant states that there was communication between herself, Office of Resolution Management (ORM), Regional Counsel, and the St. Petersburg Regional Office pertaining to her medical evidence, as they were trying to mediate the complaint. Complainant contends the Regional Office was aware of all the evidence in the file in June 2010. Complainant states that any delay in the processing of her reasonable accommodation requests was not her fault.
With regard to the granting of Complainant's reasonable accommodation on August 31, 2011, Complainant states there were strong fumes emitting from the oil-based space heater she was provided. Complainant notes that other employees complained. Complainant states she reported the incident to the Human Resources (HR) Manager who confirmed the heater was safe. Complainant states a few weeks after reporting the incident, a coworker (Coworker 1) fainted due to the alleged fumes from Complainant's oil-based heater. Complainant states a week after Coworker 1 fainted, the space heater was gone from her desk. Complainant states she was told her heater was taken away because she was complaining about it. Complainant states a few months later, in October 2011, she received a proposed termination.
With regard to Claim E, Complainant claims that the Agency did not fully address her retaliation claim surrounding her non-selection for the DRO position. Complainant notes she was not selected for the DRO position after she filed her EEO Complaint in January 2010. Complainant states that after filing her EEO Complaint, the management officials named in her EEO Complaint were the same ones who interviewed her for the DRO position. Complainant states that in support of its contention that Complainant scored the lowest of all the applicants, the Agency only provided "generic spreadsheets" with numbers only and no documentation to indicate how the numbers were calculated. Complainant notes that one manager, Person G, stated that Complainant did not answer any of the questions correctly in her interview. Complainant states that Person E states that Complainant did not respond entirely correctly on some of the questions during the interview. Complainant notes that some of those hired for the DRO position were employed with the Agency for only a couple of years and had "significantly less experience" than Complainant. Complainant also states that some of those who were fast-tracked to DRO had family members that were management officials in St. Petersburg at that time or at some point in their career.
With regard to Claim F, Complainant states the Agency did not give much weight to the multiple witness sworn affidavits and statements who had testified in support of the events Complainant reported. Complainant states that testimony and evidence were not mentioned in the Agency's decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
At the outset we note that the Agency dismissed a number of claims (as described above). Because Complainant does not contest the Agency's dismissal of these claims on appeal, we AFFIRM their dismissal and will not address them further in this decision.
Claim A
Complainant and management agreed to mediation which was scheduled for 9:00 am on January 22, 2010. The EEO Manager/ADR Coordinator notified the parties that they should allot between five to six hours for the mediation session. After the mediation ended without a resolution, Complainant stated the EEO Counselor asked to speak with her.
In her affidavit, Complainant stated that she was initially granted five to six hours of administrative leave for the mediation. Complainant noted that the mediation ended early and "[s]eeing that I was already on administrative leave, I went to my coach [Person F];" however, Person F was not at her desk. Complainant stated that she then sent an electronic mail message to Person F. Complainant claimed Person F responded that she was not sure about administrative leave, and Complainant stated she told Person F that she just wanted to go to the EEO Office. Complainant stated by the time she returned, Person F should have talked to management to determine if she was approved for official time. Complainant stated that at no time did Person F tell Complainant she could not go to the EEO Office. Complainant stated that when she returned, Person F, who generally leaves around 3:00 - 3:30 pm, had already left for the day.
The record contains an electronic mail message from Complainant to Person F dated January 22, 2010, at 2:20 pm, explaining that she needed to bring some documents to the EEO Office at Bay Pines and stating this should not take more than 45 minutes. Complainant informed Person F that she had been granted between five to six hours of administrative leave and implied that she had sufficient time remaining to go to the EEO Office. Complainant ended the message "Thanks in advance!!!!"
Person F stated that after she received Complainant's electronic mail message she went to Complainant's desk to ask a few questions for clarification; however Complainant was already gone. Person F states she then responded to Complainant via electronic mail.
The record contains an electronic mail message sent by Person F on January 22, 2010, at 2:25 pm. Person F inquired whether the EEO Manager could handle the matter for Complainant and advised Complainant she may have to take leave.
On January 25, 2010, at 12:51 pm, Complainant requested one hour of annual leave for the EEO meeting from 2:30 to 4:30 pm.
On January 25, 2010, at 1:43 pm Complainant was advised she had to submit a leave request for two hours of annual leave instead of one hour.
The Agency cited Chapter 7 of VA Handbook 5977 , stating that "VA employees are not entitled to simply take official time without first asking for it and having it approved by their supervisor." The Agency noted that although Complainant requested approval for additional official time from her supervisor, she did not receive prior approval before going to the EEO office. The Agency found this violated the Agency's policy regarding official time.
On appeal, Complainant claims that after Person F gave her permission to go to the EEO Office, she told Complainant that she may have to take annual leave for the time gone and stated she would have to get back with Complainant as to how the absence would be coded. Complainant states she took annual leave at that point to make sure she was covered for her absence until the issue was resolved.
The record reveals Complainant was given official time for the entire mediation session on January 22, 2015. In the present case, a preponderance of evidence reveals that Complainant left to go to the EEO Office later in the day on January 22, 2010, after mediation concluded, without receiving approval for official time from Person F. Even if Complainant was correct that Person A said she was unsure if Complainant could use annual leave for her visit to the EEO Office, we note that this does not constitute approval of official time. Moreover, we note Complainant does not contend there was an emergency which required her to report to the EEO Office without receiving approval. Upon review, we find Complainant failed to show that she was improperly denied official time to pursue her EEO complaint.
Claim B
Complainant stated that she had been having problems with Person C who had a close relationship with Person E. Complainant noted she had been on a PIP, had been suspended without pay, and had her WIG increase held up by management. Complainant stated that after she finished the PIP, she requested reassignment. Complainant stated she told Person E she did not want to be assigned to Person F because Person F had direct knowledge of her PIP. Complainant stated she had requested to go to the Resource Center or Decision 5; however, the Agency assigned her to Person F's team in Decision 2.
In her affidavit, Complainant stated that the reassignment was not based on disability. Complainant claimed the Agency's actions were based on her race and she identified other White employees and one Hispanic employee and males and females who she claimed received their requested reassignments. Complainant also claimed that the Agency's action was retaliation for her EEO activity. Complainant claimed the Agency's actions were harassment and stated once she got comfortable on a team, the Agency would send her to another team.
In his affidavit, Person E stated Complainant could not be placed on the team of her choice as there were no openings on the teams that Complainant requested. Person E stated the openings for the Resource Center Team occurred in January, February, and March of 2010, and Complainant did not apply for any of those openings. Person E stated he "traded" Complainant for another rater on Person F's team that had a "business reason" to move.
In his supplemental affidavit, Person E noted that Decision 5 was a team full of trainees at the time. Person E stated the Resource Center was an organization that had its own cost code, and that management requested volunteers for the Resource Center through mass solicitations when needed. Person E stated that there was no current vacancy in November 2009. Person E stated that management looked to see if there was a business need to move anyone from another team and the only team identified was Decision 2. Person E noted that Decision 2 had an inordinate number of employees participating in flexiplace which posed logistical problems with seating and days in the office. Thus, Person E stated that management determined they would take some from Decision 2 and move Complainant to that team so that it balanced out the flexiplace participants.
Person D concurred there were no openings in the Resource Center at the time of Complainant's request. Person D explained that she moves employees when there is a business need; however, she will consider requests for reassignment. Regarding the employees identified by Complainant as comparatives, Person D claimed that those employees applied when she solicited volunteers for the Resource Center, whereas Complainant did not volunteer.
Upon review, assuming Complainant established a prima facie case on all alleged bases, we find the Agency articulated a legitimate, nondiscriminatory reason for assigning Complainant to Person F's team. Complainant failed to show that the Agency's reasons for reassigning her were a pretext for discrimination. Moreover, we note Complainant admits that she received an electronic mail message requesting volunteers for the Resource Center subsequent to her November 2009 request; however, she did not apply for those subsequent openings.
Claim C
We find that Claim C is also alleged race (Black) discrimination. Complainant stated that in 2001, she asked for and was approved to use a space heater. Complainant states that in 2008, after requesting reassignment from one of her coach's teams, she was made to take the space heater out of the building. Complainant claimed she was treated differently than other employees. In her affidavit, Complainant stated that other employees had space heaters in the building; however, she stated she was not sure if the other employees were allowed to use them. Complainant stated that Coworker 2 and Coworker 3 were two White employees who had space heaters.
The record contains an electronic mail message from Person D to the EEO Investigator dated July 29, 2010, noting that Person D examined the workspaces of Coworker 2 and Coworker 3 and discovered no space heaters. Person D stated that she spoke to both employees' current coaches and each supervisor was unaware that either employee had ever had a space heater. Person D noted that Coworker 2 was on leave; however, Coworker 3 was in the office. Person D stated that Coworker 2 "was adamant that she does not have and has never had a space heater."
The record contains an electronic mail message from Coworker 2 to Complainant dated April 9, 2010. Coworker 2 was responding to Complainant's question about the space heater Complainant stated she saw at Coworker 2's desk. Coworker 2 stated she "brought it from home, and haven't used it in years. I'm not even sure if we're allowed to have them."
The record contains an affidavit from the HR Manager detailing the events that occurred after Complainant requested reasonable accommodation in January 2010. The HR Manager stated that Complainant's disability was not obvious and no medical documentation was found after an "exhaustive search." Thus, Complainant was asked to submit medical documentation because there was not enough information for the Agency to determine whether she was a qualified individual with a disability. The HR Manager stated that Complainant was treated the same as all employees for whom there was no medical documentation on file to support a reasonable accommodation request.
The HR Manager recalled a situation where a White female employee was very upset she had to turn in documentation she claimed she had already submitted a long time ago. The HR Manager stated that the employee promptly turned in the needed information and a new permanent electronic record was created to document her thoracic ergonomic chair. The HR Manager noted that in the past two and a half years, 105 reasonable accommodation requests have been processed and that all of the requesters were required to provide sufficient medical documentation, including a few that claimed approval had previously been granted but no record could be found.
The HR Manager noted that Complainant also mentioned comparatives who did not have to resubmit medical documentation for certain office equipment. The HR Manager stated that employees can ask for ergonomic equipment outside of the reasonable accommodation process through the office's administrative division. The HR Manager noted that under these circumstances, medical proof is not required.
Upon review, we find the Agency articulated legitimate nondiscriminatory reasons for its actions. Complainant failed to prove by a preponderance of evidence that the Agency's actions were a pretext for discrimination based on race or reprisal. Complainant's denial of reasonable accommodation claim will be addressed separately.
Claim D
Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known 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. It is undisputed that Complainant is a qualified individual with a disability under the Rehabilitation Act. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance).
The record reveals that in 2001, Complainant was diagnosed with idiopathic motor and sensory neuropathy with poor circulation in her lower extremities. Complainant was allowed to use a space heater at work to provide warmth to her legs and feet.
The record contains evidence showing that Complainant's prior coach1 (Person H) received documentation from Complainant's doctor supporting Complainant's need to issue a floor heater for her disability in 2005. Person H stated the note was given to the front office and placed in Complainant's extended file.
On October 24, 2006, and April 5, 2007, management sent directives to Regional Office employees to remove their space heaters. Complainant used her space heater from 2001 until May 7, 2008. In May 2008, Complainant's coach, Person B, noticed that Complainant had a space heater at her desk and notified Person D and the Chief of Support Services. Complainant informed Person B that she had a doctor's note to support the use of a space heater. At the request of the Chief of Support Services, on May 7, 2008, Person D directed Complainant to remove her space heater from her cubicle.
On May 7, 2008, Complainant responded via electronic mail that she would take the heater home that day. Complainant apologized for any inconvenience and asked if there was a way that they could talk to the Safety Inspector to see if there is some sort of accommodation that may be arranged. Complainant raised the possibility of a heater that "meets the safety guidelines as well as the Veterans/Employees Disability Act."
The record reveals that Person D forwarded Complainant's electronic mail message about the space heater to the Chief of Support Services with the notation "More from [Complainant]." Person D stated she did not believe Complainant was requesting to use a heater for a medical disability. Person D stated that she mentioned "it" to Human Resources (HR). The record reveals and the Agency acknowledges that more likely than not Person D did not make any meaningful contact with HR regarding Complainant's request for reasonable accommodation.
The HR Manager acknowledged a subsequent reasonable accommodation request by Complainant in July 2009. The Agency concluded nothing was done concerning this request.
The record reveals that on January 22, 2010, after a mediation session with Complainant, Person E sent an electronic mail message to HR Specialist 1 asking her to meet with Complainant regarding her request for reasonable accommodation. HR Specialist 1 never responded to Complainant.
The HR Manager notes that after Complainant came forward stating that she been given a reasonable accommodation in the past, HR began the process of checking Complainant's records. The HR Manager stated that after a search, HR found no documentation to support her claim of a prior approved reasonable accommodation. The HR Manager stated that the time between January 22, 2010, and March 1, 2010, was used to conduct an "exhaustive search" of Agency records to determine if Complainant had submitted prior medical documentation to support her request for reasonable accommodation.
On March 2, 2010, Complainant was instructed to pick up a letter from HR regarding her request for a reasonable accommodation. Complainant signed for receipt of the letter on March 3, 2010. The letter requested Complainant submit the following information from her health care provider within 15 days: (1) her precise medical diagnosis; (2) the severity of her condition and prognosis for recovery; (3) whether any life activities are affected by her disability and to what extent; (4) a comparison between Complainant's medical restrictions and current job functions and which functions Complainant cannot perform; (5) for each job function that Complainant cannot perform, explain how the job function can be modified to allow complainant to perform the job function; and (6) for each requested accommodation, the medical professional must indicate why Complainant's medical condition requires such an accommodation and how the accommodation will assist her in meeting the production requirements of her position.
The record contains a March 31, 2010 prescription from Complainant's doctor noting that Complainant had peripheral neuropathy and needed a space heater while working.
The record contains an April 7, 2010 electronic mail message Complainant sent to the HR Manager stating "My Doctor did not see a need to go into great details about my disability due to the HIPPA law. I submitted what he gave to me to the HR department. I hope this will suffice for my reasonable accommodation once again."
The record contains an April 14, 2010 electronic mail message from Complainant to the HR Manager and HR Specialist 2 in which she inquires if the last updated medical letter from her doctor was sufficient. The HR Manager sent a response the same day stating that the Agency was in the process of reviewing Complainant's submission.
On April 15, 2010, the HR Manager sent Complainant a letter denying her reasonable accommodation request. The letter noted that even though Complainant's March 31, 2010 doctor's note indicated Complainant has a specific condition, it does not provide a link between her medical condition and the essential functions of her position as a RVSR. The letter noted Complainant had not provided adequate documentation to support that she is a qualified individual with a disability and entitled to reasonable accommodation. The letter noted that if Complainant and her physician can provide additional information that would identify what essential function(s) of her position she is unable to perform due to her medical condition, and what she needs to do the essential functions of her job with or without accommodation, her request will be reconsidered. The letter also offered Complainant workplace modification of bringing in her own heating pad or similar item such as a small electronic blanket to provide heat for her lower extremities. The letter noted that either item must have an automatic shut off system to ensure the heat will not stay on in Complainant's absence.
In an April 16, 2010 electronic mail message to ORM, Complainant noted that the space heater she was using had an automatic shut off switch.
The record contains an April 20, 2010 electronic mail message to the HR Manager and HR Specialist 2 in which Complainant stated she brought in an electric heating blanket on April 19, 2010. Complainant stated she was "not sure that this accommodation will work, as [her] job requires constant getting up to go to the printer, the triage team for mail or to the POA bins to place completed rating decisions." Complainant stated that she constantly had to wrap and unwrap her legs which on several occasions ended up almost causing a fall. Complainant stated that wrapping herself up with an electric blanket is unpractical, very cumbersome and uncomfortable. She stated for the time being, she would continue to bring in her long sweater and wrap it around her legs, although she noted that this did not do a whole lot for warmth, it was the best she can do to help herself.
The record contains a May 6, 2010 electronic mail message from Complainant to the HR Manager and HR Specialist 1 stating Complainant is not sure what HR wants her doctor to write concerning her disability. Complainant noted that there was no problem with her previous medical letter which allowed her to use a heater for years. Complainant notes the condition and symptoms she had in 2001, are the same ones she has in 2010. Complainant inquires if her doctor really has to write on paper "a remedy for having cold lower extremity."
The record contains a June 2, 2010 letter from Complainant's doctor noting Complainant has a history with anemia with severe problems with circulation of the lower extremities since November 1999. The doctor stated that over the years, the symptoms of the condition have become progressively worse with neurological testing confirming muscle weakness, decreased sensation, and decreased strength to Complainant's lower extremity. The doctor noted that Complainant was diagnosed in the latter part of 2001, with having idiopathic motor and sensory peripheral neuropathy with poor circulation of the lower extremity. The doctor noted this condition was chronic in nature and noted there was no cure for it. The doctor noted that as a result of this condition, Complainant was substantially limited in walking and concentrating when not under control. The doctor stated Complainant was prescribed the medication of Lyrica to manager her condition and to reduce the numbing and pain associated with the condition. However, the doctor noted that Complainant has continuously reported that her legs and feet remain cold especially during work when she is idle, and as a result Complainant was written a prescription for a portable space heater as "an additional form of therapy to help manage this condition."
On June 23, 2011, Complainant submitted a written request for the reasonable accommodation of a space heater.
On June 23, 2011, Complainant sent an electronic mail message to the Senior Attorney, Office of General Counsel (OGC)/Office of Regional Counsel, with a copy to the HR Manager, HR Specialist 2, and the Director of the St. Petersburg Regional Office requesting the medical evidence in her investigative file be transferred to HR so that they could consider her request again. Complainant stated that she thought that HR and OGC were the same Agency and stated the letter from her Neurologist answered all the questions in the HR application for reasonable accommodation.
As part of the supplemental investigation, the HR Manager stated that she learned from the Senior Attorney on June 14, 2011, that there were documents in Complainant's EEO ROI that had never been submitted previously to HR. Specifically, the HR Manager stated that there were 13 medical documents that HR received from the Senior Attorney, Regional Counsel, on June 29, 2011, including the June 2, 2010 letter from Complainant's doctor.
The record contains a June 29, 2011 Memorandum from HR Specialist 3 stating that on June 29, 2011, she received a package of documents from the Senior Attorney via electronic mail. HR Specialist 3 stated she learned from the Senior Attorney that the Report of Investigation, contained documents that had never been previously submitted to HR.
The record contains a July 1, 2011 electronic mail message from Person I with the Veterans Benefits Administration (VBA) Central Office, Office of Facilities and Administration, to the Emergency Preparedness Officer, VBA, asking if there is an Agency policy on the use of space heaters in the office. Specifically, the message asked if space heaters were allowed.
In a response dated the same day, the Emergency Preparedness Officer stated that space heaters were not allowed due to safety issues.
In a subsequent electronic mail message on July 1, 2011, the Emergency Preparedness Officer noted the National Fire Protection Association (NFPA) fire codes now allow portable electrical space heaters in non-sleeping staff and employee areas where the heating elements of such devices are limited to not more than 212 degrees Fahrenheit.
In a July 6, 2011 electronic mail message from the Assistant Chief, Support Services, to Person I, the Assistant Chief noted the HR department has been getting requests for reasonable accommodations including the use of space heaters. The Assistant Chief requested further clarification on the issue.
In a July 6, 2011 electronic mail message, sent from the Emergency Preparedness Officer to the Assistant Chief and Person I, he noted that under Title 41: Public Contracts and Property Management, federal agencies are prohibited from operating portable heaters, fans, and other such devices in Government-controlled facilities unless authorized by the Federal Agency building's manager. Additionally, he noted that providing an employee with a space heater under Section 501 of the Rehabilitation Act would be authorized.
Thereafter, on July 7, 2011, HR Specialist 3 sent an electronic mail message to the Senior Attorney asking her to review the response from the Emergency Preparedness Officer who stated that an exception could be made via the reasonable accommodation process to allow a space heater. HR Specialist 3 stated that locally, they still believe it was a safety issue because of the enormous amount of paper on the floor.
In a July 15, 2011 electronic mail message, the HR Manager told Complainant that with the medical documentation submitted on June 29, 2011, the Agency was able to determine that Complainant was a qualified individual with disability. The HR Manager noted the Agency was trying to find workable solutions. She noted that most heaters do not meet safety requirements needed for use in federal facilities. The HR Manager stated that she was working with Safety to find approved heat sources. The HR Manager stated that in the meantime, the Agency purchased some battery operated socks for Complainant's use, which she noted had already been approved by Safety. The HR Manager asked Complainant to obtain her physician's approval before using the socks.
On July 26, 2011, Complainant responded that her doctor's office called and stated he does not feel comfortable approving the use of a heating source which will be placed directly on Complainant's skin. Complainant noted her doctor also "had some reservations about the weight of the D batteries to be worn with the socks."
In an electronic mail message dated August 2, 2011, HR Specialist 4 informed Complainant that her space heater cannot be used while the Agency was working on finding another solution apart from the battery operated socks. However, HR Specialist 4 stated that the Agency may be able to cut down on the time Complainant spends in the building in the meantime. HR Specialist 4 asked Complainant how long her doctor stated she can go without heat to her legs.
In an August 2, 2011 response Complainant stated that her doctor did not give her instructions on how long she can go without heat to her legs. Complainant stated sometimes she can go for hours and other times her feet and legs begin to get blotchy and painful.
The record contains an Approval of Accommodation Request signed August 10, 2011, showing that Complainant's request for reasonable accommodation was approved. The Agency stated a space heater had been ordered; however, due to the amount of electricity that the heater requires, she will be moved to a desk that can provide enough electricity without causing her computer or other employees' computers to shut down. The Agency stated Complainant's accommodation will be provided by August 31, 2011.
The record reveals that Complainant received a space heater by August 31, 2011.
The record contains a February 3, 2012 Memorandum from HR Specialist 4 stating she discovered a doctor's note dated March 22, 2004, in a folder labeled "Accommodation Requests FY08." HR Specialist 4 stated she discovered the folder during the first week of January 2012, and noted that it was mixed in with military status files. According to HR Specialist 4, the doctor's note stated, "Pt has symptoms of feeling cold related to her anemia, please allow her to have heater or extra heat."
Upon review, we find the Agency knew or reasonably should have known of Complainant's disability in May 2008. In response to Complainant's May 7, 2008, and July 2009, requests for reasonable accommodation, we find that the Agency took no meaningful action regarding these requests. Even if we assume Person D and Person B contacted HR regarding Complainant's requests, there is no indication that HR took any action on these requests. Additionally, we note that following the mediation session on January 22, 2010, Person E sent an electronic mail message to HR Specialist 1 on January 22, 2010, asking her to meet with Complainant regarding her request for reasonable accommodation. The record indicates that HR Specialist 1 never responded to Complainant. We find there is insufficient justification in the record for the Agency's failure to respond to Complainant's request for reasonable accommodation.
With regard to HR's search for medical documentation to support Complainant's prior approved reasonable accommodation, we note the EEOC's Reasonable Accommodation Guidance requires an expeditious response to a request for reasonable accommodation. The Agency found, and we agree, that a six-week delay in starting the interactive process after the mediation session was unreasonable. The Agency noted that the HR Manager was aware of Complainant's claims as early as November 2009, and she could have begun looking for the documentation at that time. Moreover, we note that despite the Agency's statements that it could not locate Complainant's previously submitted medical documentation, such documentation was eventually found in January 2012. Complainant does not dispute the HR Specialist 4's representation of the information contained in her March 22, 2004 doctor's note. We find that even if the March 2004 documentation had been discovered by the Agency in a timely manner, it would not have precluded the Agency from asking for updated medical documentation in the 2008 - 2010 timeframe.
We note that the Agency finally informed Complainant in March 2, 2010, of the need for her to submit specific information regarding her disability and functional limitations. We find the Agency's request for Complainant to submit updated medical information concerning her condition to be reasonable. We find the March 31, 2010 prescription from Complainant's doctor noting that Complainant had peripheral neuropathy and needed a space heater while working to be insufficient to support her request for reasonable accommodation.
However, we find the June 2, 2010 letter from Complainant's doctor was sufficient to establish that she was entitled to reasonable accommodation. While Complainant did not provide the June 2, 2010 documentation to HR, we note she did give the information to Office of Resolution Management (ORM) as part of her EEO complaint investigation. Complainant stated that the Agency's Senior Attorney saw the June 2, 2010 doctor's note in June 2010, again in April 2011, as part of the discovery process for her EEOC hearing, and again in June 2011, prior to a scheduled settlement hearing. Complainant explained she did not submit the doctor's note to HR because she was dealing with the attorney in the Regional Counsel's Office.
The Agency concedes that the June 2, 2010 doctor's statement was sufficient to satisfy HR's requirements. However, the Agency claims that pursuant to Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provisions of Reasonable Accommodation, agencies are allowed to designate a particular office for processing a reasonable accommodation request. The Agency notes that Complainant elected to submit her medical documentation to ORM instead of to HR or an appropriate individual or office at the St. Petersburg Regional Office, should not make it liable for its failure to accommodate Complainant after it denied her request in April 2010. The Agency notes HR did not receive Complainant's medical documentation until June 29, 2011. The Agency states that around the same time Complainant submitted a Written Confirmation of Request for Accommodation.
The Agency notes that in response to Complainant's request, HR purchased some battery operating socks which were not an effective accommodation due to the weight of the batteries on Complainant's feet and the heating source directly touching Complainant's skin. The Agency stated that after over three years, management finally decided that it could modify the workplace policy prohibiting the use of space heaters if used as an accommodation.
We find that the record is devoid of any Agency policies or procedures for processing requests for reasonable accommodation for most of the time that Complainant's request was pending. The HR Manager stated that the St. Petersburg Regional Office did not have a facility policy regarding reasonable accommodation. The HR Manager stated that she thought that a policy had been drafted prior to her arrival at the St. Petersburg Regional Office in 2009, but that "the local union objected and it was cancelled." The HR Manager further cited the Regional Office uses VA Handbook 18 5975.1, Processing Requests for Reasonable Accommodations dated September 7, 2010; however, we note this was not in effect when Complainant made her 2008, 2009, or 2010 requests for reasonable accommodation. We find the lack of a reasonable accommodation policy or procedures being utilized by the St. Petersburg Regional Office likely accounted for the lack of immediate attention to Complainant's requests for reasonable accommodation. We note that the record indicates that subsequent to the events in this complaint, the Agency did implement a reasonable accommodation policy.
The Agency correctly notes that EEOC Notice No. 915.003 Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provisions of Reasonable Accommodation, (October 20, 2000) states that an Agency may choose to establish or designate an office to oversee the Agency's reasonable accommodation process. However, we note the record indicates that the Agency did not clearly establish or designate such an office during most of the time that Complainant's reasonable accommodation requests were pending.
Additionally, we note that the Agency's April 15, 2010 decision denying Complainant's reasonable accommodation request stated that if Complainant and her physician can provide additional information that would identify what essential function(s) of her position she is unable to perform due to her medical condition, and what she needs to do the essential functions of her job with or without accommodation, her request will be reconsidered. We note the letter did not specify where Complainant should submit this additional information. Moreover, we find it reasonable that Complainant provided additional medical documentation to the Office of Resolution Management (ORM) as part of the investigation into her complaint. Additionally, Complainant stated that the Senior Attorney saw the June 2, 2010 doctor's note in June 2010, again in April 2011, as part of the discovery process for her EEOC hearing, and again in June 2011, prior to a scheduled settlement hearing. Complainant explained she did not submit the doctor's note to HR because she was dealing with an attorney in the Regional Counsel's Office. The Agency does not dispute Complainant's assertion that the Regional Counsel's Office saw the June 2, 2010 doctor's note as early as June 2010. We find the Agency liable for its failure to respond to Complainant's requests for reasonable accommodation and its failure to accommodate Complainant's disability from May 7, 2008 - August 10, 2011 (which is beyond the March 2, 2010 date for which the Agency found liability), the date Complainant's reasonable accommodation was approved. We note the request for reasonable accommodation was approved on August 10, 2011, and Complainant received her requested accommodation on August 31, 2011. The record reveals during this three-week time frame the Agency was working to find a space heater that met its safety requirements. We do not find the three-week time frame to constitute an undue delay.
Claim E
On February 1, 2010, Complainant applied for the position of Decision Review Officer (DRO), GS-13. HR found Complainant qualified and referred her application for consideration. Person E and Person G interviewed the applicants. Person D was the Selecting Official. Complainant was notified on March 22, 2010, and April 29, 2010, that she was not selected for the position. The Agency selected six individuals for the DRO position and all of the Selectees were White.
Complainant stated she was better qualified since some of the people selected who if they had a conflict in a case would come to Complainant to get her input. Complainant noted that she was there years prior to some of the selectees getting a job. Complainant stated that her qualifications were superior since she: (1) was a rater since 2001; (2) was a health care major; (3) was taught different projects, including pensions; and (4) she is more personable and people felt comfortable approaching her to ask questions or get answers. Complainant stated that race was a factor in the non-selection because of the 16 DRO positions only two Black people held the position. Complainant stated that her EEO activity was a factor in the non-selection because management felt "like the nerve of [Complainant] to ask for a promotion or reassignment after [she] filed an EEO complaint."
Person G noted that during the interview they were targeting technical questions because the DRO was considered a subject matter expert. Person G noted that Complainant did not have the technical knowledge to answer the questions correctly. Person G noted there were two portions to the selection: (1) the application package which included the applicants' written knowledge, skills, and abilities (KSAs); and (2) the interviews. Person G noted that the KSAs were scored by two people and that she and the Assistant Service Center Manager conducted and scored the interviews. Person G explained that the interview score was added to the KSA score for a total combined score. Person G explained that the applicants with the highest scores were selected. Person G stated that Complainant scored at the bottom of the list.
Person E stated that the DRO position was a Senior Technician. He noted that management was looking mainly for someone who possessed the skills and abilities that demonstrated a high level of technical expertise. Person E noted the DRO was responsible for training and mentoring new employees as well as performing the "NOVO reviews," which gave them the ability to overturn decisions rendered by Rating Specialists. Person E noted that in order to perform as a DRO the selectee must have a very high level of knowledge regarding the laws, the regulation at issue, and the ability to review the documentation and evidence in the file and apply facts to the law.
Person E stated that during the interview, Complainant did not demonstrate the level of technical expertise that would have allowed her to be successful in the position. Person E noted that the two panel members assigned scores to the interviewees. Person E stated that based on responses to the interview questions, the selectees scored higher than others.
Person E explained that Complainant was not recommended since she did not score well in response to the interview questions. Specifically, Person E stated that in technical questions Complainant was unable to respond or was missing substantial elements. He noted that three of the five questions were specifically geared to technical elements. Person E stated that Complainant's responses were lacking in significant elements. Person E stated that Complainant did not demonstrate a superior attainment of technical skills and ability. Person E noted that for the other two questions the interviewees were provided information at the onset and then were asked to identify specific situations from the past to illustrate how they would handle matters to explain the tasking that was assigned to resolve the situation and the specific action and the result the applicant would achieve. Person E stated that on those two questions, Complainant received fair scores; however, she did not hit on all of the elements.
The Selecting Official stated that Complainant was not selected because she scored the lowest of all the candidates based on the written KSAs and the interviews. The Selecting Official stated that she based her decision on the matrix scoring sheet provided by the two assessment panels.
Upon review, we find the Agency articulated legitimate nondiscriminatory reasons for not selecting Complainant for the DRO position. Specifically, the Agency noted that Complainant did not perform well during the interview portion and scored the lowest of all candidates on the matrix scoring sheet. After a review of the record, we find that Complainant failed to show that the Agency's articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to the selectees' qualifications or that the Agency's action was motivated by discrimination.
Claim F
Next we address Complainant's claim that she was subjected to harassment. Complainant identified 28 incidents as comprising her harassment claim.
With regard to claim (1), Complainant stated that in October 2002, she was a rater trainee assigned to Person A's team. She stated that during her tenure on his team, he came to the rating trainees looking for volunteers for the AMENA Project. Complainant stated she applied; however, Person A selected an all White team. In her affidavit, Complainant stated that disability was not a factor in this event, but her race and sex were factors because she is a Black female and Person A is a White male. Person A stated he had no knowledge of this incident.
With regard to claim (2), Complainant stated that in October 2002 Person A "insulted" her by stating "he was shocked [Complainant] made an error." In her affidavit, Complainant stated that disability was not a factor in this event, but her race and sex were factors because she is Black female and Person A is a White male. Person A stated that he had no knowledge of this incident.
With regard to claim (3), Complainant stated that in November 2002, she received a memo placing her on a "written assistance plan."
Person A stated that he was not sure of the date, but he does know that when he was supervising Complainant she was first placed on a Performance Assistance Plan (PAP) and then a PIP. Person A recalled that this was done due to inaccuracy in her decisions. Person A did not recall whether production was an issue.
The record contains a memorandum dated October 17, 2002, from Person A notifying Complainant that her performance as an RVSR GS-10 has not progressed sufficiently for Person A to recommend Complainant for promotion to a GS-11. The memorandum noted that Complainant's production and accuracy rate were not at the required level. The memorandum noted that in order to be promoted to the GS-11 grade, Complainant's production must be 2.5 weights per day with an accuracy rate of 70% prior to her promotion. Complainant was informed that if her production and accuracy do not meet the required standard in October and November 2002, her career ladder promotion will be withheld.
The record contains a memorandum dated November 8, 2002, from Person A identifying problems with Complainant's performance of her RVSR duties. The memorandum noted less than a successful level of production for a RVSR GS-10; less than a successful level of accuracy for a RVSR GS-10; a deliberate failure or unreasonable delay in carrying out instructions; careless or negligent workmanship resulting in waste or delay; and a lack of initiative.
Specifically, the memorandum stated Complainant was assigned to the rating board and began training on July 9, 2001; thus, her production and quality as a GS-10 was to be equivalent to an accuracy rating of 65% with a production of 2.0 weighted cases per day. The memorandum noted Complainant's actual performance was an accuracy rate of 36.36% for the month of October. With regard to production, Complainant's actual performance for October was 1.89 weighted cases per day, and as of November 8, 2002, Complainant's production for November was 0.0 weighted cases per day.
Complainant was advised that her monthly production for the month of November 2002, should meet or exceed 1.5 weighted cases per day and her monthly accuracy rate for the month of November 2002, should meet or exceed 60% which were the levels necessary for a RVSR GS-9 successful evaluation.
Additionally, Complainant was advised that in order to be "Successful" as a RVSR GS-10 her cumulative production needed to increase to 2.0 weighted cases per day prior to December 1, 2002, and her monthly accuracy rate for December 2002, should meet or exceed 65%. It was noted that unless Complainant was "Successful," she will not be eligible for her scheduled wage in grade step increase scheduled for December 1, 2002.
Finally, Complainant was advised that prior to receiving her GS-11 Career ladder promotion, her cumulative production needed to increase to 2.5 weighed cases per day and her monthly accuracy rate needed to meet or exceed 70%.
With regard to claim (4), Complainant stated that in November 2002, Coworker 4 invited her to "fix a plate" at a Thanksgiving pot luck luncheon. Complainant alleged that, Coworker 4's team manger (Person B) told Complainant to "never take anything from her team without permission." Complainant stated that when she told Person B that Coworker 4 invited her to take some food, Person B told her Coworker 4 did not have that authority. In her affidavit, Complainant stated she did not believe sex and disability were factors, but believed her race was a factor because she is Black and Person B is White. Person B does not remember making the statement alleged.
With regard to claim (5), Complainant stated that on December 1, 2002, she received a within-grade increase from GS-10/1 to GS-10/2 instead of a promotion to a GS-11. Complainant stated she was assigned to Person A's team two months prior to the time she was supposed to receive a GS-11. Complainant stated that since she had been doing her job successfully prior to being reassigned to Person A's team, she assumed she would get the GS-11 in December 2002. However, Complainant stated she was rated at the successful performance level and moved to a GS-10, Step 2. Complainant claimed that every other RVSR who worked at the acceptable level of performance went from a GS-10 to a GS-11. In her affidavit, Complainant stated her sex and disability did not play a role; however, she stated that race did play a role.
The record contains a Memorandum dated January 10, 2003, in which Person A discusses Complainant's unacceptable performance. Person A noted that in November 2002, Complainant was informed that her duties as a RVSR GS-10, in the critical element(s) Ratings Actions Quality and Production was unacceptable and Complainant was placed on a 90-day Assistance Plan. Person A noted that Complainant was notified that failure to achieve the established incremental goals for any two consecutive months would result in the termination of the written assistance plan and that Complainant would be immediately placed on a formal PIP. Person A stated that Complainant's performance did not improve significantly during November or December 2002. Person A noted Complainant's accuracy for the month of November was 33.33% and her accuracy for December was 14.20%. In addition, Person A noted that Complainant's production for the month of November 2002, was 1.53 weighted cases per day and her production for the month of December 2002, was 1.94 weighted cases per day. Person A advised Complainant she had until May 1, 2003, to demonstrate acceptable performance.
With regard to claim (6), Complainant claimed that in December 2002, she overheard Person A state on the phone, "Affirmative action with a negative connotation." Complainant stated she took the comment to be about her. Complainant stated she did not believe her sex or disability played a role as much as her race. Person A stated that he did not recall this incident.
With regard to claim (7), Complainant claimed that in December 2002, Person A accused her of being on break for more than 15 minutes and told her she needed to "learn (her) job before running around the building." Complainant stated she went on a break and when she got back there was a note on her monitor that she should go and seek Person A once she got back to her desk. Complainant stated she went to see Person A and he made the statement. Complainant stated that if she was gone over 15 minutes, it could not have been more than a minute longer. Person A did not recall this incident.
With regard to claim (8), Complainant stated that on December 17, 2002, Person A "humiliated" her by peeping around a credenza to see if she was at her desk. Person A stated he did not recall the incident. Person A also stated that as a supervisor he was responsible for observing whether or not employees were at their work station. He stated that he did this "quite blatantly" at least twice a day.
With regard to claim (9), Complainant stated that in April 2003, Person A notified her that she was being demoted to her former position as a Veterans Service Representative. Complainant stated her disability was not a factor with regard to this claim; however, she stated her race was a factor. Person A did not remember informing Complainant she was being demoted to her former position. Person A stated he assumed this was done because the PIP was unsuccessful and the decision was made to remove her from her RSVR position and reinstate her as a VSR.
The record contains an April 24, 2003 memorandum in which Person K, Veterans Service Center Manager, discussed the reasons for Complainant's reassignment. The memorandum noted that on July 1, 2001, Complainant was reassigned from VSR, GS-9, to RVSR, GS-9 (Target 12). The memorandum noted that on December 2, 2001, Complainant was promoted to a GS-10. The memorandum stated that on October 17, 2002, Complainant's supervisor advised her that her performance had not progressed sufficiently for recommendation for promotion to GS-11. In subsequent months, Complainant was apprised of both her current production and accuracy rates and the rates required for promotion. The memorandum noted that as of March 31, 2003, Complainant's cumulative production was 1.49 weighted cases per day and her accuracy rate was 27.03%. Those rates fell below the required rates for a GS-11 which were 2.5 weighted cases per day with 70% accuracy. The memorandum stated that Complainant's current rates fell below the required rates for a GS-10 which were 2.0 weighted cases per day with 65% accuracy. The memorandum noted that since October 2002, Complainant was provided a comprehensive training plan and assigned a mentor to provide assistance and guidance. The memorandum stated that since Complainant was still not meeting the performance standards for her current grade, effective May 1, 2002, she would be reassigned to her former position of VSR, GS-10.
With regard to claim (10), Complainant states that Person A issued her an "unsuccessful" performance evaluation for the period of October 1, 2002 - April 30, 2003. Person A stated that he probably gave Complainant an unsuccessful rating because he was closing out her period as a Rating Specialist because she failed to meet the PIP successfully and was being returned to a VSR.
With regard to claim (11), Complainant claimed that in March 2004, management did not respond to her request to be reassigned to other departments. Complainant stated that in 2004, she requested relocation to appeals or triage, but she did not get it. Complainant stated that when they reassigned her in 2005, she had not asked for that reassignment. Person A did not have any knowledge of this claim.
With regard to claim (12), Complainant claims that on multiple occasions between 2004 and 2006, she applied but was not referred for the position of RVSR. Complainant stated this did not have as much to do with her sex or disability as her race. We note Complainant failed to identify any specific vacancies for which she applied.
With regard to claim (13), Complainant stated she did not receive her promotion to a GS-12 between February 2008 and August 29, 2008. Complainant stated that in February 2008, Person B signed off on her appraisals, which were fully successful, but she did not give Complainant a promotion saying that she needed to see more of Complainant's work, and extended her promotion until May 2008. Complainant stated that when May 2008 came, she was still not promoted because Person B found an error in March 2008. Complainant stated the error was a doctor's fault, but Person B still counted the error against Complainant. Complainant stated that in April another error was found, but only two qualities had been reviewed. Complainant claimed the error resulted from advice from her mentor, but was counted against Complainant. Complainant stated she was assigned to another mentor in June 2008, and her production error rate was 100 percent, but she still did not get her promotion. Complainant stated on July 1, 2008, she was reassigned to Person J's team. Complainant noted that Person D told her she would not get promoted until another 90 days to see how she performed under a new supervisor. Complainant stated she did not believe sex or disability played a role in this; however, she stated race played a role.
Person J was a Division 4 team coach at the time. He noted that Complainant was assigned to his team in July 2008, because Person B and Complainant were having a personality conflict. Person J noted that Person D spoke highly of Complainant at the time and said it was best for both parties if they were separated. Person J noted that at the time Complainant arrived, she was not on a single signature. Person J explained that it was a rule at the time that a person could not be a GS-12 without having a single signature (where a RSVR is given authority to sign their own work). Person J explained the first thing he did when Complainant came to his team was to assign her to his team expert who mentored Complainant. Person J noted the mentor stated that Complainant had a few issues that involved more writing style and personal bias, but the mentor noted that Complainant's ratings were essentially fine. Person J decided to personally review Complainant's ratings over the month. He stated that he never found anything wrong with them and she received her single signature.
Person D verified that Complainant and her previous coach were bickering and she decided to move Complainant to another team. Person D stated that she spoke with Complainant and told her that although she wrote very well, she seemed not to take her time and made careless errors. Thus, Person D wanted Complainant's work reviewed when she went to the new team. Person D stated that when Person J informed her that Complainant was ready, she had him look at some of her cases and Person D looked at some of her cases. Person D stated she agreed with Person J and signed off on Complainant's promotion.
With regard to claim (14), Complainant stated that on March 1, 2008, her team leader (Person B) sent her an electronic mail message commenting that she has lots of visitors at her desk and that if Complainant did not correct that issue, Person B would. Complainant claimed she had no more visitors than other employees. Complainant stated that some of the visitors were helping her with her work.
Person B stated that she noticed a lot of visitors at Complainant's desk, and Complainant was in the training process at the time. Person B stated that when an employee is at work that employee should be working and not having people at their desk. Person B stated she told Complainant that she needed to be focusing on her work. Person B told Complainant that if she felt uncomfortable telling people not to stop by her desk, then Person B could do it for her. Person B stated that Complainant said she would do it herself.
With regard to claim (15), Complainant stated that on April 2, 2008, her request for a reassignment to another team was denied. Complainant stated she did not care at the time where she was reassigned, she just wanted off the team. Complainant stated that Person K told her he could not reassign her due to personality conflicts and stated that he thought Person B had Complainant's best interest at heart. Complainant said there were other employees who asked to be reassigned to another team, and their requests were approved.
The record reveals that Person K had retired from the Agency. When the investigator contacted Person K, he stated that he did not want to participate.
Person D indicated that Complainant had sent her request through Person D, and at the time Person D's boss the Service Center Manager (Person K) declined to move Complainant. Person D stated that Person K told her he was reluctant to move people at their request because it was disruptive and stated he would not do it unless he had a business reason. Person D stated that Person K did not think there was a business reason for Complainant to move. Person D noted that later she said that she spoke to Person K, and he allowed her to make the decision to move her. Person D stated that it would be better for Complainant to have a different coach because there was a personality conflict between Complainant and Person B.
We note that claims (16), (20), and (22) all relate to Complainant's request to work flexi-place.
With regard to claim (16), Complainant stated that between March and May 2009, Complainant's new coach (Person C) did not respond to her request for the criteria required for working a flexi-place schedule.
Complainant noted that she previously applied for the flexi-place program, but she did not reach the journeyman status until March 4, 2009. Complainant stated that on March 3, 2009, the day before she reached journeyman status, she asked Person C for the criteria for resubmitting her application. Complainant stated that Person C sent her the information. Complainant stated she filled out the application and submitted it to Person C. Complainant stated that two months later Coworker 5 asked Complainant if she was approved to work at home because he just received an electronic mail message saying he was approved to work at home. Complainant stated that this prompted her to go and ask Person C. Complainant stated that Person C told her that because Complainant did not meet her numbers for that month, she did not submit Complainant's application. Complainant stated her overall performance for April was successful and that she met her numbers; however, Person C did not submit her application. Complainant stated that in May, Person C found an error which dropped her down to 87.5% accuracy, which Complainant argued should have been rounded up to 88% accuracy. Complainant acknowledged the overall performance must meet the national standards of 88% accuracy.
Person C stated that she did not receive a request for the criteria for flexi-place. Rather, Person C stated that she received an application from Complainant for a flexi-place schedule. Person C stated she approved the flexi-place application and then passed it onto her supervisor (Person E).
Complainant also stated that on July 15, 2009, after repeated requests, Complainant was told that she could not work a flexi-place schedule because she was on a PIP (claim (20)). Complainant stated she was not on a PIP when she applied for the flexi-place program. Complainant stated her race played a role in this claim; however, she stated her sex and disability were not factors.
Person E stated that Complainant would not have met the standards for participation in flexi-place under the National Flexi-Place Memorandum of Understanding. He noted that in order to participate in flexi-place an employee: must have clearly defined performance standards; must be at journeyman status; must have overall performance evaluations equivalent to fully successful or higher; must not be on a Performance Improvement Plan; and must not have any disciplinary action taken against him/her within the last 12 months and/or adverse actions taken against him/her within the last 18 months. Person E stated that Complainant's PIP was initiated in June 2009. Complainant was formally placed on a PIP on July 29, 2009. Person E also noted there was no disciplinary action against Coworker 5.
The record contains an August 27, 2009 memorandum (claim 22) disapproving Complainant's request to participate in flexi-place. The memorandum noted that although Complainant was not on a PIP at the time of her application, a PIP was initiated during the pendency of her application.
With regard to claim (17), Complainant stated that on April 17, 2009, Person C "removed" her from a "special project assignment." Specifically, Complainant stated she was taken off the "Sensitive 7" project.
Person C stated she was involved in an incident in June 2009. Person C explained the Decision Team she was responsible for performed two tasks: (1) ratings; and (2) developing and requesting exams. Person C stated that in June 2009, the decision was made to move part of the workload that involved exams and development to another team and to move several raters from the Decision Team to the Pre Team on a rotational basis. Thus, three raters from the Decision Team would leave for three months to go to the Pre Team and then rotate back to the Decision Team. Person C noted that the Sensitive 7 allows certain employees to be able to access sensitive types of files for other Agency employees. Person C only had two availabilities for the Sensitive 7 access. Person C stated that at the time when three raters were moved to the Pre Team, she needed to get one of those raters a Sensitive 7 access so that one of them could access those files in order to complete development and the exam work. Thus, Person C had one of her Sensitive 7 access slots from the Decision Team given to one of the raters being assigned to the Pre Team. Person C noted that the two people that had Sensitive 7 access were Complainant and Coworker 6. Person C stated that Coworker 6 also was responsible for working a special type of case called personal trauma cases, many of which required the sensitive level access. Person C felt it best to leave Coworker 6 with the sensitive access so he could continue to work those personal trauma claims and to take Complainant's access to give it to another RVSR on the Pre Team.
With regard to claim (18), Complainant claimed that in May 2009, Person C scheduled a team meeting during Complainant's lunch period and, when Complainant told her she needed to run an errand she had planned to take care of during her lunch break, Person C stated she should take annual leave.
Person C explained that her usual time for having team meetings was either 10:00 a.m. or 1:00 p.m. to work around people who come in late or who leave early. Person C states that on the day in question she had scheduled a routine team meeting at 1:00 in the afternoon. Complainant asked Person C if she could take a late lunch after 2:00 to run an errand. Person C told her that per VA Circular 00-08-03, she could take a lunch break any time between the hours of 11:15 a.m. and 1:45 p.m. Person C told Complainant that if she wanted to take a break to run an errand after 1:45 p.m. she would need to use annual leave.
Person E also confirmed that the policy was that lunches had to be taken between 11:15 a.m. and 1:45 p.m. He stated that if an employee wants to be gone outside those hours then they have to ask to take annual leave or credit hours if they have them.
With regard to claim (19), Complainant stated that in May 2009, Person C "confronted" Complainant in front of other team members with "condescending behavior and remarks."
Person C noted Complainant had a quality error called on one of her cases and she had come to Person C to dispute it. Person C said Complainant had told her she discussed the case with one of the DROs, and that he had advised her to make that decision. Person C told Complainant she would review the error and consult with the DRO to see what was said and what assistance was provided. Person C told Complainant she would get back to her after she spoke to the DRO. Person C stated she later walked by the DRO's desk and Complainant was at his desk arguing about the error. Person C stated she told Complainant that she would discuss the case with the DRO and get back to her, and that she preferred for Complainant to go back to her desk and continue with her work. Person C stated she did not realize she offended Complainant until they had a meeting on June 29, and Complainant mentioned that she felt that she had been attacked when Person C confronted her. Person C stated at that point she apologized to Complainant and acknowledged that she would try to be more tactful in the future and not confront her in that manner.
With regard to issue (21), Complainant stated that on July 20, 2009, even though she provided a subpoena, she was initially told she also needed to provide a letter from the clerk of the court showing the exact time she left her court appearance. Complainant stated the normal policy is a subpoena to show that you have or had jury duty, and you were given administrative leave for that time. Complainant claimed that Person C required her to get something in writing saying what time she left the court. Complainant indicated other employees only had to show the subpoena.
Person C stated she does not have knowledge of an incident on July 20, 2009, but she does have knowledge of an event on July 1, 2009. Person C noted the policy was that prior to going to court an employee had to provide the notice that they had been called for jury duty, and after they returned they had to have a form showing that they did report for jury duty. Person C indicated that the employee should be able to get that form from the court. Person C believed that it was standard for the court to issue a form stating that the person did appear for court.
With regard to issue (23), Complainant stated that on October 7, 2009, Person C told Complainant that she was not to call any other supervisor other than Person C or Person E when she is requesting sick leave. Complainant noted that in the past, Person C had notified employees that if she was out, then they could contact Person L or Person M. Complainant stated on the day in question she called in to Person C; however Person C did not answer. Complainant stated she then contacted Person L who also did not answer. Complainant stated that she then contacted Person N who was Person L's assistant. Complainant stated she told Person N that she was not feeling well and that she was calling in sick. Complainant noted that Person N said that was fine, and he would walk the information over to Person C.
Complainant stated when she got back, Person C said Complainant did not follow the guidelines for leave. Complainant claimed the problem was that Person N was a Black manager. Person C told Complainant that with regard to the leave process, Complainant had to contact Person C or Person E.
Person C stated that Complainant failed to follow the proper leave procedures in requesting leave. Person C stated she sat down with Complainant and gave her a copy of the Leave Administration Circular and went over the information with her. Person C noted that if an employee was calling in to request sick leave and had a sufficient balance to cover the sick leave, that person may leave a voice mail for the first-line supervisor if they are unable to reach the supervisor. However, Person C noted that if an employee was calling in to request unscheduled annual leave or any type of annual leave in lieu of sick leave, then they are required to speak to their direct supervisor or designee. Person C explained that if the employee is unable to reach the direct supervisor, then they are to contact the second line supervisor. Person C stated Complainant was requesting annual leave in lieu of sick leave and thus, was required to talk to her supervisor or the next in line supervisor.
Claim (24) was discussed previously as Claim B. Claims (25) and (26) were discussed previously as Claim C. Claim (27) was discussed previously as Claim E.
With regard to claim (28), Complainant claimed that on August 10, 2010, she was handed a memorandum and given less than 24 hours to decide whether she elected or declined the opportunity to take the JRVSR Skills Certification test scheduled for August 11, 2010. Complainant stated that she and Coworker 7 (Black, male) were both informed the day prior to the testing date. Complainant stated that raters and other team members were informed weeks prior to the test.
Coworker 7 stated that did not know of any "normal" time for notification, but it seemed reasonable to him that an individual would be provided ample time for preparation. Coworker 7 believed 24 hours prior to the test would not be sufficient time.
The HR Manager stated she was not aware of any specific guidance governing the amount of advance notice required to take the Journey-Level Certification test. The HR Manager stated that HR notifies the Veterans Service Center (VSC) about upcoming tests as soon as HR becomes aware of them. The HR Manager stated that an electronic mail message is sent to the Veterans Service Center Manager (VSCM) and Assistant Service Center Manager (AVSCM). The HR Manager noted that the managers forward the electronic mail message and attached documentation to the subordinate supervisors, and the supervisors in turn meet with each eligible employee to determine if he/she will take the test. Additionally, the HR Manager indicated that test dates are not a surprise. The HR Manager noted that each employee has access to the C&P Homepage, which provides testing information and test dates for each fiscal year. The HR Manager claimed that Complainant knew she was eligible to test for the August 2010 exam six months earlier in February 2010. The HR Manager noted that Complainant participated in the JRVSR skills Certification on February 24, 2010; therefore, she was personally aware and empowered with the information needed to start preparing and planning for the next exam. The HR Manager indicated guidance was sent to the facility on July 21, 2010, regarding the August 11, 2010 JRVSR test date, and a notification was sent to VSCM and AVSCM on July 29, 2010.
The HR Manager said HR provided approximately three weeks advance notice for the VSR test on August 4, 2010, which is standard for this test given the training requirements. The HR Manager explained that VSRs are notified earlier than JRVSRs because they must complete 20 hours of training prior to taking the test. The HR Manager clarified that the basic RVSR or Journey-level RVSR test does not have preliminary training requirements.
Upon review, we find Complainant failed to prove by a preponderance of evidence that the Agency subjected her to a hostile work environment as alleged. We find the Agency provided legitimate, nondiscriminatory reasons for a number of the incidents alleged. Complainant failed to show that the articulated reasons were a pretext for discrimination or retaliation. Even assuming claims (1), (2), (4), (6), (7), and (11) occurred, we find Complainant failed to show that she was subjected to harassment based on her race, sex, disability, or in retaliation for her protected EEO activity.
CONCLUSION
Accordingly, the Agency's finding of no discrimination with regard to claims (A), (B), (C), (E), and (F) is AFFIRMED. The Agency's finding of discrimination with regard to the Agency's failure to provide a reasonable accommodation (claim (D)) is MODIFIED. The matter is REMANDED for compliance with the Order herein.
ORDER
To the extent it has not already done so, the Agency shall take the following actions:
1. Within one 120 calendar days from the date this decision becomes final, the Agency will conduct a supplemental investigation into Complainant's entitlement to compensatory damages for the Agency's failure to respond to Complainant's requests for reasonable accommodation and failure to accommodate Complainant's disability from May 7, 2008, to August 10, 2011. Complainant shall cooperate in the Agency's efforts to compute the compensatory damages and shall provide all relevant information requested by the Agency. Within 60 calendar days of the Agency's receipt of Complainant's compensatory damages evidence, the Agency shall issue a final decision addressing the issues of compensatory damages. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer.
2. Complainant was terminated from the Agency on February 7, 2012. Complainant appealed her termination to the Merit Systems Protection Board (MSPB), which reversed her removal and reinstated Complainant with the Agency. As Complainant has been reinstated, the Agency shall afford her a reasonable accommodation.
3. Within 180 days of the date this decision becomes final, provide training to Person B, Person D, Person E, HR Specialist 1, the HR Manager, and all other responsible Agency officials with regard to the prohibitions against discrimination under the Rehabilitation Act.
4. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Person B, Person D, Person E, HR Specialist 1, the HR Manager, and all other responsible Agency officials for discriminating against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its St. Petersburg Regional Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 28, 2015
__________________
Date
1 Each team had a coach to review the staff's work and answer questions. Coaches were considered Managers.
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2
0120123071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123071