[Redacted], Beryl B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020003377 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beryl B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020003377 Hearing No. 570-2019-00961X Agency No. 4K-200-0083-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 7, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected her to discrimination or harassment, based on disability or in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales and Services Associate/Distribution Clerk at the Agency’s Greenbelt Post Office in Greenbelt, Maryland. 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. 2020003377 2 On September 4, 2017, Complainant requested a detail assignment to a Retail Analyst position as a reasonable accommodation. Report of Investigation (ROI) at 425-6. Complainant was approved for a light duty assignment from December 11, 2017, through March 10, 2018, and her duties included two hours at the window and back-office work, such as emptying collection boxes and scanning parcels. ROI at 431. Complainant stated that on November 20, 2017, the Postmaster (PM) instructed Complainant’s first-line supervisor (S1) to give her a leave slip disapproving Complainant’s leave request for Thanksgiving, which had previously been approved. ROI at 121. Complainant stated that on December 7, 2017, she met with the acting Manager Post Office Operations (MPOO) to discuss her allegations that PM was subjecting her to a hostile work environment. According to Complainant, MPOO responded that Complainant should not have filed an EEO as it would backfire. Further, MDO purportedly stated that he was not rewarding Complainant for bad behavior and she should stop using her health condition as a crutch. ROI at 125-6. Complainant stated that PM changed her work schedule from 9:30 a.m.-6:30 p.m. to 12:00 p.m.- 9:00 p.m., and explained that she did not need Complainant in the morning. ROI at 130-1. Complainant stated that on January 22-24, 2018, S1 sent her home prior to the end of her tour. ROI at 138. On January 16, 2018, S1 issued Complainant a letter of warning (LOW) for unscheduled lateness. S1 noted that Complainant took unscheduled leave on November 7, 27, and 28, 2017, and December 4, 2017. ROI at 436-7. On January 18, 2018, S1 issued Complainant a LOW for unsatisfactory performance/failure to follow instructions/failure to work in a safe manner. S1 stated that on January 4, 2018, Complainant tripped on a rug and declined to file an accident report, thereby depriving management of the opportunity to investigate the matter until four days later. ROI at 447-8. Complainant stated that, on or about February 5, 2018, PM issued her a LOW for insubordination. ROI at 155. Further, on February 10, 2018, she learned that PM discussed her disability-related attendance issues with a custodian. ROI at 161-2. According to Complainant, on February 20, 2018, MPOO sent her home and instructed her to get a “second opinion.” ROI at 166. On March 27, 2018, stated Complainant, PM instructed her to return to customer service, despite her two-hour restriction at the customer service window. ROI at 174. On June 29, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment since November 3, 2017, based on disability (migraines, anxiety, and depression), and in reprisal for prior protected EEO activity (Agency Case No. 4K-200- 0128-17 filed in September 2017, and requesting reasonable accommodation since 2016), when: 1. in November 2017, PM revoked Complainant’s prior approved leave for Thanksgiving; 2020003377 3 2. on or about December 7, 2017, MPOO stated, “you should not have filed an EEO as it backfired. I’m not rewarding you for bad behavior; stop using your health condition as a crutch,” and other demeaning comments; 3. in December 2017, or January 2018, Complainant’s schedule was changed from 9:30 a.m.-6:30 p.m. to 12:00 p.m.-9:00 p.m.; 4. in December 2017,2 PM stated that if Complainant could not work the full duties of her position that she would be sent home; 5. in January 2018, Complainant was sent home prior to the end of her tour; 6. on or about January 16, 2018, Complainant was issued a LOW for unsatisfactory attendance; 7. on or about January 18, 2018, Complainant was issued a LOW for unsatisfactory performance and failure to follow instructions; 8. on or about February 5, 2018, Complainant was issued a LOW for insubordination; 9. on February 10, 2018, PM discussed Complainant’s disability-related attendance issue with a custodian; 10. on February 20, 2018, Complainant was sent home and instructed to provide a “second opinion” and updated medical restrictions, and subjected to demeaning comments; and 11. on March 27, 2018, and other dates, PM provided Complainant with duties which she believed exceeded her medical restrictions. The Agency accepted the above claims for investigation. The Agency noted that Complainant’s prior EEO complaint “closed” on November 3, 2017, and that Complainant did not file a formal EEO complaint. The Agency stated that in her prior complaint, Complainant raised an issue of a hostile work environment.3 As such, the Agency determined that Complainant’s hostile work environment claim in the instant complaint would start from November 3, 2017. ROI at 60. Complainant contacted the Agency and requested that it correct the accepted issues. Specifically, Complainant contended that her hostile work environment claim began in December 2016, not November 3, 2017. 2 Complainant stated that this incident occurred in December 2016, not December 2017. ROI at 134. 3 The record does not contain any documents related to Complainant’s prior complaint. 2020003377 4 Complainant also stated that the Agency incorrectly framed her claim as only a claim of a hostile work environment. Complainant requested that the Agency accept her allegations of discrimination and a hostile work environment since December 2016, including a failure to accommodate claim from December 2016, to the present. ROI at 54-8. The Agency responded that the claims were properly framed and declined to make Complainant’s requested modifications. ROI at 53. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. 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). The Agency assumed, for the sake of argument, that Complainant established a prima facie case of discrimination based on disability, and in reprisal for prior protected EEO activity, and found that management officials articulated legitimate, nondiscriminatory reasons for claims 8 and 10.4 The Agency then found that Complainant did not show that the management officials’ reasons were pretext for discrimination. For claim 9, the Agency noted that PM denied discussing Complainant’s attendance with any other employee, and that even if she had, there was no evidence that Complainant’s confidential medical information was disclosed. Regarding Complainant’s harassment claim, the Agency found that Complainant did not prove that the incidents occurred as alleged, or that they were related to a discriminatory motive. The Agency also found that the vast majority of the matters were within the scope and course of daily interactions between a manager and employee, and that they were not severe or pervasive by a reasonable person’s standard. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that the Agency improperly “curtailed” her claims. Specifically, Complainant asserts that the Agency excluded her claim alleging a failure to accommodate. Complainant states that she repeatedly sought a reasonable accommodation from December 2016, through March 2018. For example, Complainant states that requested a detail assignment as a reasonable accommodation from MPOO in February 2018 and relief from window duty in March 2018. 4 Although the claim of harassment also encompassed additional discrete acts (claims 1, 3, 6 and 7), that would independently state a claim, the Agency determined that only claims 8 and 10 were timely raised discrete acts. 2020003377 5 Complainant also states that there were five vacancies, available from April 2017 through January 2018, that Complainant could have been reassigned to as a reasonable accommodation. Complainant states that the “only effective accommodation” was to perform back-office duties for eight hours a day. Complainant acknowledges that she is barred from raising identical claims from prior complaints, but states that her instant claim, regarding the Agency’s ongoing failure to accommodate since December 2016, was not identical to a claim from her earlier complaint. Complainant also argues that the Agency truncated her hostile work environment claim, which she alleged began in December 2016. Complainant states that although the Agency only accepted her harassment claim from November 3, 2017, it has not shown that her allegations of harassment from December 2016, through November 3, 2017, were identical to any claims raised in complaint number 4K-200-0128-17. Complainant asserts that the Agency subjected her to retaliatory harassment. Complainant states that MPOO did not dispute her allegations and stated that he did not recall the meetings or conversations. Complainant states that once she engaged in protected EEO activity, PM engaged in a “barrage” of retaliatory actions, such as changing her work schedule and issuing LOWs.5 Complainant also states that PM’s reasons were pretext for discrimination, as shown by the falsity of the stated reasons; shifting explanations; and comparators treated more advantageously. Complainant requests that the Commission reverse the Agency’s final decision and find discrimination. Agency’s Contentions The Agency asserts that it properly excluded Complainant’s failure to accommodate claim because, at the time, the Agency was accommodating Complainant. The Agency states that Complainant was granted light duty from December 11, 2017, through March 10, 2018, and that Complainant did not provide evidence showing that the Agency failed to accommodate her disability at the time, or within 45 days prior to her initial EEO contact. The Agency also argues that it properly excluded all events prior to November 7, 2017, based on Complainant’s prior EEO complaint. The Agency states that, while Complainant did not raise “harassment” in her prior EEO complaint, she alleged disability discrimination beginning in December 2016 when PM did not provide Complainant with a release date to begin a detail assignment; and allegedly made comments that Complainant “had a temper tantrum” and was “soft.” The Agency asserts that it can be reasonably construed that Complainant was bringing a claim of hostile work environment/harassment in her informal EEO complaint. The Agency states that Complainant did not show that she was subjected to discrimination or harassment, and it requests that the Commission affirm its final decision. 5 Complainant notes that the LOWs were disputed through the union and expunged. 2020003377 6 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Claims On appeal, Complainant argues that the Agency erred when it did not accept her claim alleging a failure to accommodate. A review of Complainant’s formal EEO complaint shows that she alleged a failure to accommodate, and we find that the Agency erred when it did not accept the claim for investigation. While the Agency did not investigate Complainant’s allegation of a failure to accommodate, we find that Complainant provided testimony regarding a failure to accommodate, and that there is sufficient information in the record to make a fair and reasoned determination on this claim. As such, we will address Complainant’s failure to accommodate claim below. However, we note that a portion of Complainant’s allegation that she was denied a reasonable accommodation since December 2016 is untimely. Complainant stated that she submitted documentation for a reasonable accommodation request on September 4, 2017, and engaged in the interactive process. EEOC regulation requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). Accordingly, we find that any requests for a reasonable accommodation prior to September 4, 2017, are untimely because they are beyond the 45-day deadline from Complainant’s EEO contact on March 15, 2018. Regarding Complainant’s harassment claim, a review of Complainant’s formal EEO complaint shows that she included two additional examples of harassment: (1) in early-to-mid 2017, S1 stated that Complainant looked good on paper, but that no one would “accept” her due to her disability-related absences; and (2) since June 2017, S1 exhibited passive-aggressive hostile behavior, such as smirking, watching Complainant, and calling Complainant “babe.” ROI at 9. Although the record does not contain evidence regarding these incidents, for the purpose of analysis, we will assume Complainant’s allegations occurred as alleged in considering her broader claims of harassment. 2020003377 7 Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant. The record shows that on September 4, 2017, Complainant requested a reasonable accommodation of a detail assignment to a Retail Analyst position. ROI at 425-6. Complainant met with the District Reasonable Accommodation Committee (DRAC) on September 28, 2017, to discuss her request. During the meeting, the DRAC noted that Complainant could be accommodated with a light duty assignment. ROI at 194, 189. Complainant acknowledged that she was granted light duty work on September 28, 2017, but maintained that she still struggled. ROI at 130. Complainant was subsequently approved for a light duty assignment from December 11, 2017, through March 10, 2018, which included only two hours at the window. ROI at 431. While Complainant argues that the Agency failed to accommodate when it did not reassign her to any of the five available vacancies she identified on appeal, the Commission has long held that reassignment is the reasonable accommodation of last resort. Reassignment is only required after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of her current position, or all other reasonable accommodations would impose an undue hardship. See Enforcement Guidance. On appeal, Complainant asserts that the “only effective accommodation” was to perform back-office duties for eight hours a day. However, we note that, while Complainant stated that she struggled with the initial light duty assignment provided on September 28, 2017, she did not provide any testimony that the light duty assignment provided from December 2017, through March 2018, was ineffective. ROI at 130-1. On appeal, Complainant states that requested a detail assignment as a reasonable accommodation from MPOO in February 2018 and relief from window duty in March 2018. However, we note that Complainant did not testify that she requested a reasonable accommodation from MPOO in February 2018; rather, Complainant stated that she sought relief from a “hostile, retaliatory work environment.” ROI at 168. We also find that there is no evidence that Complainant requested a continuation of her light duty assignment, or other reasonable accommodation, in March 2018. 2020003377 8 As such, we find that Complainant did not establish that the Agency failed to provide a reasonable accommodation. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, PM stated that Complainant’s leave request was not revoked, but denied because she did not have an annual leave balance. PM stated that she later approved Complainant’s leave request and granted leave without pay because Complainant had already purchased airline tickets. ROI at 239-41. Regarding claims 2 and 10, MPOO responded “unknown” and “unknown to me” to questions regarding the claims. ROI at 324, 334. For claim 3, PM stated that Complainant’s hours were changed as part of her light duty assignment. PM stated that, since Complainant could not work at the window, she was given afternoon hours in the back office based on the needs of the service. ROI at 244-5. Regarding claim 4, PM denied making the statement.6 However, PM stated that the application for light duty noted that 40 hours of work may not always be available and that they could not create work. ROI at 247-8. For claim 5, S1 stated that she never sent anyone home, but a few times Complainant finished her duties and requested leave, which S1 approved. ROI at 357. Regarding claim 6, S1 stated that she issued Complainant a LOW due to her attendance issues. S1 stated that typically when an employee has 3 to 4 “call-ins”, the employee is disciplined. 6 We note that the EEO Investigator asked PM if she made this statement in December 2017, instead of December 2016. 2020003377 9 S1 stated that Complainant had absences on November 2, 2017; November 27-28, 2017; and December 4, 2017. ROI at 360-1. S1 also stated that she issued Complainant the January 4, 2018 LOW, claim 7, due to her accident. S1 explained that anytime there is an accident, an employee is issued a pre-disciplinary interview (PDI) to investigate the incident. S1 stated that Complainant’s accident occurred on January 4, 2018, but she did not report the incident until January 8, 2018. ROI at 360-1, 363-4. PM stated that Complainant did not give management an opportunity to investigate the accident at the time, and that management believed that Complainant was not wearing proper shoes. ROI 259. For claim 8, PM stated that she was the management official that Complainant was insubordinate to. When PM conducted the PDI, Complainant explained that she was not trying to be insubordinate but was confused and not feeling well. According to PM, Complainant stated that she understood that following orders was part of her job and that she had been given many warnings and discussions regarding her conduct. ROI at 261-2. Regarding claim 9, PM denied the incident occurred and stated that she had not discussed anyone’s attendance or disciplinary issues with other employees. ROI at 264. For claim 11, PM stated that Complainant’s light duty ended on March 9, 2018, and that Complainant did not request another light duty assignment or provide any additional medical restrictions. As such, PM returned Complainant to her bid assignment. ROI at 267. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that PM’s reasons were pretexts for discrimination, as shown by the falsity of the stated reasons; shifting explanations; and comparators treated more advantageously. For example, Complainant asserted that PM’s statement that Complainant did not report her accident, which deprived management of the opportunity to investigate, is false because the Agency investigated the accident and Complainant provided a statement. However, we note that when Complainant informed a supervisor of the accident on January 4, 2018, she stated that she did not want to file an accident report. ROI at 453-5. Complainant then reported an injury from the accident on January 8, 2018, and the Agency conducted an On-the-Job Safety Analysis. ROI at 400-3, 451. We find that PM’s statement is not false because Complainant initially declined to file the accident report, which deprived the Agency of conducting an immediate investigation. Complainant filed an injury claim days later and the Agency had to investigate the matter without the benefit of verifying the shoes Complainant wore on the day of her accident. 2020003377 10 Complainant also argued that MPOO did not deny her allegations; however, we find that a fair reading of MPOO’s responses of “unknown” to Complainant’s allegations is a denial of her claims.7 To the extent that Complainant alleges that the management officials were not truthful, we note that Complainant withdrew her hearing request and we do not have the benefit of any credibility determinations by an Administrative Judge. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Here, Complainant did not provide any other evidence to support her allegations. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. While Complainant noted that the disciplinary actions were challenged and expunged, she only made bare assertions that they were issued due to her protected categories, which are insufficient to prove pretext or that the actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on disability, or in reprisal for prior protected EEO activity. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases for claims 1-10. Therefore, a case of harassment is precluded based on our finding that Complainant did not establish that any of these actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an 7 During the EEO counseling, MPOO informed the EEO Counselor that he does not have any interaction with employees. ROI at 16, 47. 2020003377 11 intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Regarding the additional examples of harassment, even if they occurred as described by Complainant and were based on her disability, these isolated events do not rise to the level of unlawful discriminatory harassment. S1’s actions did not unreasonably interfere with Complainant’s work performance and/or create an intimidating, hostile, or offensive work environment. We note that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). We do not find that S1’s conduct was so objectively offensive that they would alter the conditions of Complainant’s employment. In addition, we find that S1’s actions do not constitute retaliatory harassment. To prevail in a retaliatory harassment claim, a complainant must show that a reasonable person would have found the challenged action materially adverse, i.e., an action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination in the future. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). We find that S1’s comments, smirks, and looks directed at Complainant would not reasonably discourage participation in the EEO process. Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on disability, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability, or in reprisal for prior protected EEO activity. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020003377 12 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2020003377 13 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, Director Office of Federal Operations September 21, 2021 Date