Ollie N,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jul 31, 2019

2019003351 (E.E.O.C. Jul. 31, 2019)

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

Ollie N,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Request No. 2019003351

Appeal No. 0120172259

Hearing No. 570-2015-001138X

Agency No. GSA-14-CO-Z-0118

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172259 (March 14, 2019). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

The record reflects the following chronology of events.

During the period at issue, Complainant worked as a Marketing Specialist, GS-13, at the Agency’s
Office of Communication and Marketing in Washington, D.C. On October 10, 2014, Complainant
filed a formal EEO complaint alleging that the Agency discriminated against him based on
disability, genetic information and in reprisal for prior protected EEO activity when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. Complainant learned that the Agency did not find an alternative method of notifying
him of the GS-1001-14 Supervisory Public Affairs and Communication Specialist
position, Vacancy Announcement 14001184CJMP, while he was on leave pursuant to
the Family and Medical Act (FMLA).

2. Complainant was subject to disparate treatment as follows:
a. Complainant’s request for reasonable accommodation was denied; specifically: (i)
his request for reassignment to a Diversity Program Office position (ii) his request
for a job coach;
b. Complainant learned that his request for reasonable accommodation for full-time
telework was denied;2
c. Complainant was not provided information on the Voluntary Leave Transfer
Program;
d. Complainant was denied advanced sick leave;
e. Complainant was placed on Leave without Pay (LWOP);
f. Complainant received a level 3 performance evaluation for Fiscal Year 2014.

3. Complainant was subjected to a hostile work environment as follows:
a. Complainant’s July 16, 2014, request for counseling as a person with a targeted
disability was ignored;
b. The Reasonable Accommodation Coordinator made a derogatory comment during
a conversation regarding Complainant’s reasonable accommodation request;
c. Complainant’s request for reassignment to a Diversity Program Office position was
denied;
d. Complainant’s request for a job coach was denied;
e. Complainant’s supervisor misspelled his surname on a final decision;
f. Complainant’s privacy was violated;
g. The Agency summoned the Howard County Police to Complainant’s residence;
h. Complainant was denied the opportunity to return to work;
i. Complainant was not provided information for the Voluntary Leave Transfer
Program;
j. Complainant was denied advanced sick leave;
k. Complainant’s request for official time to work on an affidavit relating to his
pending EEO investigation was denied;
l. Complainant was placed on LWOP;
m. Complainant received a Level 3 rating duty performance evaluation for Fiscal Year
2014.

After an investigation, Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ). The AJ held a hearing on March 1-2, 2017, and issued a decision on May 17, 2017.
The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination.

2 This claim was withdrawn at the hearing. Hearing Transcript Vol. II at 206.
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In the Commission’s initial detailed decision, the Commission affirmed the Agency’s final order
implementing the AJ’s decision finding no discrimination. Regarding Complainant’s GINA claim,
the Commission found that to the extent that any management official had any knowledge or
awareness of Complainant’s genetic information, Complainant had not met his burden of proof to
show that such information played a role in any of the incidents at issue. Regarding his disparate
treatment claim, in the initial decision, the Commission found that there was substantial evidence
in the record to support the AJ’s decision that the Agency articulated legitimate, nondiscriminatory
reasons for its actions and that Complainant failed to establish that the Agency’s reasons were
pretext for discrimination. The initial decision found that Complainant did not establish that he
was not provided with an effective accommodation. Finally, the initial decision found that there
was substantial evidence in the record to support the AJ’s finding that Complainant did not
establish that he was subjected to a hostile work environment.

Complainant filed the instant request for reconsideration. Complainant reiterates that the Agency
failed to provide him with a reasonable accommodation in the form of a job coach. In addition,
Complainant reasserts that he established that the Agency’s articulated reasons for its actions were
pretext for discrimination.

Complainant, in his request for reconsideration, reiterates many of the arguments raised below.
We remind complainant that a "request for reconsideration is not a second appeal to the
Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part
1614 (Aug. 5, 2015), Chapter 9.

Complainant, in his request, focuses heavily on his claim that the Agency did not provide him with
a job coach to come to his home as a reasonable accommodation. However, our initial decision
properly addressed this matter. Specifically, our initial decision found:

Complainant has not shown that the accommodations offered to him as a substitute
for the requested job coach services were ‘reasonable.’…The online resources
offered by the Agency appear to be well suited to assist Complainant in the
performance of his duties…While Complainant may not have been offered the
exact reasonable accommodation of his preference, an employer is not required to
provide the precise accommodations the employee or applicant wants, so long as
the accommodation offered is an effective one under the circumstances of the
situation. Here, Complainant has presented no evidence that the provided
alternative accommodations were ineffective. (citations omitted). EEOC Appeal
No. 0120172259 (March 14, 2019).

The record further reflects that the Agency granted him full-time telework as a reasonable
accommodation.

After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the request.
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The decision in EEOC Appeal No. 0120172259 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. You have the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that you receive this decision.
If you file a civil action, you must name as the defendant in the complaint the person who is the
official Agency head or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work.

RIGHT TO REQUEST COUNSEL (Z0815)

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

FOR THE COMMISSION:

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

July 31, 2019
Date