[Redacted], Bill A., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal No. 2020004027 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bill A.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2020004027 Agency No. USM201900877 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a June 2, 2020 Final Agency Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Project Manager (“PM”) and Physical Security Specialist, GS-13, with the Office of Construction Management (“OCM”) in the Agency’s Management Support Division (“MSD”) at Agency Headquarters in Arlington, Virginia. On July 29, 2019, Complainant filed an EEO complaint alleging that he was subjected to discrimination, including a hostile work environment by the Agency on the bases of disability (osteoarthritis in hip, hip replacement), age (61), and reprisal for prior protected activity2 when:3 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. 2020004027 2 1. He was advised that Management would not assist him with his transfer request, 2. His assignments were reassigned to his coworkers, 3. Management sent him an email outlining the Agency's leave procedures, 4. His telework agreement was suspended, and Management threatened to place him on a Performance Improvement Plan (“PIP”) and to remove his Alternative Work Schedule (“AWS”), 5. He was berated during a meeting and issued a Notice of Leave Procedures letter, 6. In April 2019, his request to telework from Oklahoma was denied, and, 7. In April 2019, he was questioned about his reasonable accommodation after he underwent hip replacement surgery in February 2019. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The ROI, along with the Parties’ submissions, provide the following information: In 2015, Complainant began working within OCM’s Eastern Construction Team (“East Team”). His first level supervisor was the Assistant Chief (“AC”) for the Headquarters Building, his second level supervisor was the OCS Chief, and his third level supervisor was the MSD Deputy Assistant Director (“DAD”). OCS fell within the Office of Program Services, one of five offices reporting to the DAD. The DAD reported to the MSD Assistant Director. 2 Although not specified in the FAD, the Commission finds the record, including Complainant’s formal complaint and appellate submissions, establishes that he also alleged reprisal for prior protected EEO activity (requesting and using a reasonable accommodation) as a basis for discrimination. Complainants are given liberal latitude to clarify the bases of discrimination in their charges, and to add bases of discrimination after filing their charges. Logan v. United States Postal Serv., EEOC Appeal No. 01980770 (Oct. 23, 1998) citing Castillo v. United States Postal Serv., EEOC Appeal No. 01956860 (Mar. 22, 1996) (basis of discrimination not made clear until appeal) other citations omitted. 3 The claims are not in chronological order, we have maintained the numbering for consistency. 2020004027 3 Throughout the relevant time frame, Complainant reported to the same second and third level supervisors (“S2”) (age 60) and (“S3”) (age 57). His first level supervisor (“AC-1”) (age 48) accepted a lateral transfer in June 2018, and afterward, three of Complainant’s colleagues (“C1,” “C2,” and “C3”) filled the AC position in an “acting” capacity on a rotating basis. As a PM, Complainant typically traveled 12 to 14 days per month, making site visits to courthouse construction projects. His Areas of Responsibility (“AORs”) were located in the Southeastern Region, requiring travel to North Carolina, South Carolina, Tennessee and Georgia. By Complainant’s account, he had exceptional work relationships with all levels of personnel and contractors at his AORs, and until April 2019, his annual performance evaluations were “at a minimum ‘Successful,’ but usually with two or three ‘Excellent’ ratings.” Reasonable Accommodation In August 2015, Complainant provided Management with a letter from his physician, a Hip and Knee Reconstruction Specialist, explaining that Complainant was diagnosed with osteoarthritis in his right hip. Because Complainant’s disability made it painful and difficult to sit for prolonged periods or move in tight spaces, his physician provided the following recommendations: [Allow Complainant to] use an aisle seat when flying in order to facilitate his being able to stand up and walk as necessary… When [Complainant] is seated, please allow him the opportunity to stand and move about as necessary. When he is driving, he needs to be able to stop, stand, and walk around as needed. The letter was filed with the EEO Office, and the Chief for Disability Programs (“DCP”) approved the letter as sufficient to support providing Complainant with a reasonable accommodation. Based on the letter, Management granted Complainant his preferred accommodation by allowing him to drive his personally owned vehicle (“POV”) to his AORs. As they did not complete any additional documentation, the arrangement was considered as an “informal accommodation.” Despite the additional travel time, Complainant was able to maintain his workload and performance ratings, with no complaints from personnel at his AORs. Beginning in 2017, on days when he was not traveling, Complainant teleworked three days a week, and every day he was in the office (Tuesday and Thursday) he would use annual leave to shorten his work day in order to beat traffic and expensive tolls on the commute home. Complainant testifies that his use of leave in this manner was “common knowledge” among Management and his coworkers. Also, on approximately two occasions prior to 2018 Complainant was granted telework for several hours a day while he was on leave to care for his mother in Oklahoma. 2020004027 4 Change in Senior Management In 2017, the Agency hired a new MSD Assistant Director (“AD”) (age 57) and in March 2017, a new DAD (“S3”) (age 57) arrived on a detail that became permanent in June 2017. Complainant testifies that the hostile work environment started with the change in Management, specifically, when S3 started “scrutinizing” his travel vouchers because of his reasonable accommodation. The Agency characterized the matter as “newer senior management officials had different work expectations and a different understanding of accountability than their predecessors.” It is undisputed that Complainant’s accommodation was a point of concern for both S3 and AD. In October and November 2017, S3 emailed Complainant several times to obtain more information about a travel voucher, Complainant submitted, as it did not provide complete information to justify his use of his POV to travel to his AORs. S3 became aware, from AC-1 that Complainant had been granted use of his POV for travel as a reasonable accommodation, and that he had sufficient documentation of his disability filed with the EEO office. However, S3 required formal documentation of the accommodation before he would allow reimbursement for the voucher. Complainant received but did not acknowledge S3’s first few inquiries. On November 20, 2017, S3 emailed Complainant a third time. As his previous email, which reminded Complainant that if he failed to provide supporting documentation, he would be liable for the charges related to his POV, failed to elicit a response, S3 notified Complainant that a continued failure to respond could result in disciplinary action. Complainant responded, and apologized for the delay, explaining that he was “not accustomed to receiving direction from upper management without the chain of command being utilized.” AC-1 completed formal paperwork reflecting that Complainant’s use of his POV was permitted as a reasonable accommodation. Complainant described the paperwork as a “sham document” as he had never been asked for it before, but later submitted it to S3, who responded by asking Complainant why he “made this so difficult.” On November 21, 2017, Complainant set aside any lingering concerns about communicating outside his chain of command and emailed AD, explaining that S3 made him fear for his job. Complainant offered AD an “opportunity to rectify the situation” and informed her that although he had planned to work for the next five years, he could “retire tomorrow if [he] so desire[d].” AD promptly responded that S3 was required to comply with government travel regulations, and that he was merely trying to obtain information to provide a reimbursement. She clarified, “while we cannot prohibit employees from using a POV for official travel, we must limit reimbursement to the constructive cost of the authorized method of travel.” According to AD, Complainant’s accommodation revealed “a lack of understanding and compliance with travel regulations” within MSD and she emphasized that “travel should be cost- effective and in the best interest of the government.” According to S3, Complainant’s travel was “over five times longer and twice as expensive as air travel.” 2020004027 5 AD set up a mandatory travel training session for MSD, while S3 instituted a new policy prohibiting staff from driving to projects over 400 miles away from the office. Complainant felt “targeted” and alleges that S3 and AD’s actions were motivated by retaliation for his reasonable accommodation. AC-1 recounts that upon learning of Complainant’s informal reasonable accommodation, S3 initially instructed her and S2 to deny Complainant’s request to use his POV to travel to his AORs because S3 questioned the sufficiency of the medical documentation he provided. We note that when asked about Complainant’s reasonable accommodation for a disability, S3 testified for the record, “[Complainant’s] reasonable accommodation was based on his doctor's representation that he suffered from hip pain.” AC-1 also recalls that in March 2018, S3 instructed her and S2 not to grant Complainant’s request to telework while he cared for his mother in Oklahoma, a request she previously granted without issue. “For the life of me, I just really could not understand why [S3] and [S2] were making it so difficult [for Complainant].” While she was not aware of what was said, AC-1 testified that Complainant was the topic of “quite a few” conversations between S2 and S3. AC- 1 does not assert, or even theorize that Complainant was subjected to discrimination on the bases of age, disability, and/or retaliation, clarifying, “just from outside looking in, he was certainly treated differently.” Another AC (“AC-2”) testified that he was aware of Complainant’s reasonable accommodation since 2015, which involved driving to projects in North and South Carolina. He recounted that S2 “did not have a problem” with Complainant’s reasonable accommodation until the change in senior management. “As our upper management changed, it was decided that no one should be driving more than 4 hours to any location.” Once the new restriction on travel distance by car was instituted, S2 reassigned Complainant’s districts. April through June 2018: Assignments Removed (Claim 2) In April 2018, S3, with AD’s support, determined that the PMs districts should be reassigned. According to S3, the change in AORs was “at [Complainant’s] request for an accommodation for a disability.” The change in districts would “allow him to manage projects that were within a reasonable driving distance.” While a shorter driving distance would be consistent with Complainant’s limitations in his accommodation request, driving distance was never raised as part of a reasonable accommodation. The record reflects that Complainant, AC-1, and at least two of his District Chiefs notified S3 that it would be better for the Agency if Complainant maintained his assigned districts. On April 25, 2018, the Agency’s Chief Deputy for South Carolina (“Chief SC”) emailed S3 and AD requesting that Complainant continue overseeing projects in South Carolina because it would be the fourth change in PM within two years, and “continually changing the PM negatively impacts overall communication,” prevents consistency, and “aids in an increase of important matters falling through the cracks,” referring to a prior incident where this occurred. 2020004027 6 The Chief SC identifies a long term project on a new courthouse, and “many” smaller projects, including new task force spaces throughout the district. S3 responded “[a]s much as we try to avoid the reassignment of PMs, workload and other personnel exigencies sometimes dictate change.” On May 2, 2018, Complainant emailed S3, asking why his AORs were being changed, expressing that he wanted to maintain his current assigned districts. Complainant asked, “has there been any indication that my districts have been underserved or that my quality of work has been anything less than acceptable?” He also contacted the Ombudsman with the same questions, and asking what were the exigencies S3 referred to in his response to the Chief NC. Complainant asked the Ombudsman and the CDP to speak with S3 on his behalf. Neither was able to stall the change until a meeting could be held to discuss his reasonable accommodation further. In an email AC-1 told Complainant that she raised the matter with S3 but “his mind was made up.” On May 3, 2018, the Ombudsman emailed Complainant, explaining that she met with S3, who told her that the change in districts was “not due to any performance issues on your part. However, if you indeed cannot fly, it sounds like you unfortunately are not going to keep the Carolinas.” (emphasis original). The Ombudsman also explained that the reason S3 gave her was that “the workload in OCM is too great right now to lose a PM for almost a full day of travel on either end of a trip.” She also recounted that S3 explained that “potentially shuffling your districts based on your reasonable accommodation and your new doctor’s note is being determined by [the CDP, the OVM Chief, and AC-1] “Concurrently the office is doing an analysis of all the projects going on and is considering revising workloads among some of the PMs, and this will also be factored into the decision.” On June 18, 2018, Complainant was formally granted a reasonable accommodation, he was assigned AORs in different districts, and as a result, all four of his high profile projects, were reassigned to younger PMs. S2, S3, and AD all testify that Complainant’s AORs were reassigned because of his reasonable accommodation. The new districts, Pennsylvania, West Virginia, Delaware, Maryland, and Virginia were located much closer to Agency headquarters in Arlington, Virginia, resulting in reduced driving time for Complainant. The accommodation also provided Complainant the option of traveling by train or government owned vehicle (“GOV”) which were typically more cost effective than his POV. On June 29, 2018, Complainant contacted the Agency’s Reasonable Accommodation Coordinator (“RAC”) disputing the change in his AORs. A July 10, 2018 email to Complainant from the Agency’s CDP, explained that Complainant had been “approved for accommodations restricting air travel,” and, “based on [Complainant’s] medical documentation.” Accommodations could include traveling to worksites by common carrier (train), government owned vehicle (“GOV”) or POV. The Agency could also authorize a reasonable amount of additional time to get to and from the worksite. The email specified that if Complainant drove his POV, as he had been doing, he would only be reimbursed the amount of the common carrier or reduced miles rate. Alternately, the Agency could change Complainant’s duty locations to minimize travel time as a reasonable accommodation. 2020004027 7 In other words, the Agency’s act of changing Complainant’s AORs was consistent with its obligation to provide him with a reasonable accommodation. April 2019 and ongoing: Post-Surgery Requests for Medical Documentation (Claim 7) In February 2019, Complainant underwent hip replacement surgery. He asked S2 if he could telework while he recovered, and she told him that he would have to request telework as a reasonable accommodation. Rather than contact the DPC, Complainant came in to work four days after surgery, against his doctor’s recommendation. S2 remarked that she was glad to see him back at work. Complainant repeatedly notes that S2 failed to ask if he had been cleared to return to work. In April 2019, during their meeting about his mid-year review, S2 asked Complainant how his February 2019 hip replacement would affect his reasonable accommodation. S2 testified that several months had passed and she wanted “to determine whether or not [Complainant’s] medical condition had been alleviated through corrective surgery in order to in order to reinstate work areas that had previously been reassigned based on his request for a reasonable accommodation.” (emphasis added) When Complainant indicated that his hip replacement surgery did not impact his need for an accommodation, S2 allegedly told him that they would revisit the matter in a month. S2 and S3 testify that she subsequently made multiple additional attempts to obtain updated documentation. Complainant contends that the medical documentation requests constituted harassment, because his need for the accommodation was obvious and arthritis is a permanent condition. S3 testified that there were “business reasons” for asking Complainant for updated medical information, and an update on his limitations for a reasonable accommodation. Specifically, “[Complainant’s] accommodation limits the number and location of projects on which he can work, creating the possibility of workload issues for his coworkers and responsiveness to our stakeholders.” Complainant ultimately provided a new doctor’s note to S3 in September 2019. During the April 2019 mid-year review, S2 also informed Complainant that he received a rating of “successful” for each of his performance elements. Complainant felt blindsided, as he never received this type of feedback since he started working at OCM. This was also the only time he received all “successful” ratings, without a single “exceptional.” S2 explained that the “successful” ratings were because Complainant was not proactive, and he “wasn’t doing anything extra.” This was the first time S2 was Complainant’s rating official, who previously was AC-1. 2020004027 8 April 2019: Denied Telework While in Oklahoma (Claim 6) On April 16, 2019, Complainant notified C3, the acting AC, about leave he scheduled the following week to care for his mother in Oklahoma: “[in] conjunction with my leave I have requested 3 hours of telework for Monday, Wednesday and Friday.” Complainant already confirmed with a Human Resources Specialist that it was permissible (per supervisor discretion) to telework remotely. On April 18, 2019, S2 denied Complainant’s request and instructed him to contact her directly with any further leave or telework requests. She initially claimed that the denial was based on “policy” but when an applicable policy could not be identified, S2 cited supervisor discretion as the reason. Complainant sent a response email that he describes as “direct” but “not disrespectful,” copying S3, AD, and the MSD Director. The email primarily consisted of accusations that neither S2, nor the Agency cared about him or his family. However, it also disclosed S2’s personal health information (a diagnosis of Lyme Disease), and accused her of “not caring” about keeping up with projects, telling her, “[t]hink about it. I am volunteering to work while I'm on leave which can only be viewed as positive for the Agency.” The email concludes that the denial “is troubling and feels punitive.” S2 later informed Complainant that the email “really upset” her. Complainant identifies C1, C2, and C3 as witnesses who were “present while unreasonable attention has been directed towards” him and a coworker who was also older and had a disability requiring a reasonable accommodation. While they did not recall Management berating Complainant, they all confirmed that beginning in April 2019, Complainant was treated differently than the other PMs in that Complainant was required by S3 to report directly to S2 for leave and travel requests. When S2 went on detail in July 2019, Complainant was instructed to report directly to S3. April through June 2019: Notice of Leave Policy, Telework Suspended (Claims 3, 4 and 5) Management, including S2, who worked in Complainant’s division for the past 7 years, alleges that they were unaware of Complainant’s use of leave until early 2019. However, upon learning of his use of leave, AD instructed S2 to deny Complainant’s Tuesday and Thursday leave requests. AD testified that Complainant’s early departures were “unacceptable” as he essentially was not working full time. She also alleges that Complainant left a meeting during his scheduled hours early “to avoid traffic” In late April 2019, S2, via AC-2 sent an email to the East Team staff that Agency policy required employees to request annual leave a minimum of 5 days in advance. Complainant interpreted this as an act of reprisal against him personally based on his practice of taking leave every Tuesday and Thursday for 30 minutes to an hour. Complainant determined that the Agency did not have a stated policy of 5 days advance notice, the policy stated “as soon as possible.” 2020004027 9 On June 4, 2019, Complainant requested 45 minutes of annual leave to leave early, acknowledging that it was less than 5 days advance notice. S2 inquired about Complainant’s projects, at first he provided a brief description, describing her questions as “non issues.” S2 responded with more detailed questions and reminders of tasks related to budget assistance and the design phase that he was expected to do as a GS-13 PM. She also asked if Complainant was aware that the chief of a project Complainant was managing in Clarksburg, Pennsylvania called her. Complainant simply responded “[S2] Are you denying my request for leave? Thanks.” S2 approved his request. On June 6, 2019, Complainant met with S3 and S2. Complainant alleges that S2 informed him that he needed to improve his performance, “berated” him and demanded he sign a document entitled “[Complainant’s Last Name] Notice of Leave Procedures.” He further alleges that neither S3 nor S2 would give him specific examples of incidents where his performance declined, or he failed to follow Agency leave policies. He noted that S2 had rated him “satisfactory” on all elements of his mid-year review just two months prior. S3 and S2, who were the only other individuals in the room aside from Complainant deny berating him during the meeting. On June 7, 2019, Complainant followed up with S2, requesting “specific instances” of his performance shortfalls and for clarification on how taking 30 to 60 minutes of annual leave on days when he is in the office has “been an issue to operations.” S2 responded, summarizing the leave, conduct, and performance issues discussed during the June 6, 2019 meeting and reminding Complainant to read the Agency’s Policy Directives 3.24 and 1.7, which addressed Agency leave policy and employee conduct respectively. Citing a need to “maintain efficiency and continuous operation” S2 reiterated that Management would no longer approve his “recurring requests for leave to effectively alter [his] work schedule.” Regarding conduct, S2 instructed Complainant not to raise his voice during discussions with Management, and that “the disrespectful tone of [his] emails must stop,” along with his practice of unnecessarily copying individuals who are not involved. Regarding his performance, S2 instructs Complainant to, among other things, “respond to phone calls and emails within 24 hours” and if unable to do so, refer them to his supervisor, provide timely updates and notify his supervisor ahead of time if he knows he won’t meet a deadline. Even where S2’s examples in the June 7, 2019 response email hint at specific incidents, such as: “as a GS-13, you should be able to work autonomously, with far less involvement than has been required of your supervisor…if you make a mistake, you are to admit it and help us with a remedy… [and] you are to attend and participate in meetings with external and internal stakeholders, and be intimately involved in all phases of your projects, including the design phase,” S2 does not offer an example of when Complainant exhibited this type of poor performance. Complainant’s mid-year review, where S2 is the rating official, also offers no feedback other than the “satisfactory” ratings. S3’s handwritten notes from the June 6, 2019 meeting are consistent with the June 7, 2019 email, with no further detail. In her testimony, S2 makes general references to Complainant’s “declining” or “poor” performance without offering any specific details. 2020004027 10 However, S2’s June 4, 2019 email exchange with Complainant references ongoing issues with several of Complainant’s projects, and an example of Complainant failing to participate in the design phase of a project despite her prior instructions to do so. These emails, (as well as other emails in the record) also provide an example in support of S2’s June 7, 2019 conduct-related assertions about Complainant’s emails. In addition, AD testified that Complainant was assigned to the Carolina Regional Fugitive Task Force, a high priority project, but “his performance from the onset was sub-par to the point I had to assign it to others to ensure it was successful.” Although Complainant testifies that he was unaware of any performance issues, AD asserts: “I told [Complainant] I could not risk having it fail because it was mission critical and had Congressional attention. I told him we were getting feedback from his customers that he was unresponsive and not keeping them informed. We wanted him to meet with one of his assigned districts and they declined because they felt the meetings were unproductive.” Complainant’s rebuttal asserts that he received “no complaints” but acknowledges that requests for him to stay on as PM for his region were related to maintaining “consistency.” Complainant cites a conference call two years earlier, where he made a comment she did not like, as the only knowledge the AD had of his performance, and notes that C2 who was assigned to the project was 10 years younger than him. On June 13, 2019, S2 and S3 met with Complainant again after he violated the leave policy requiring 5 days advance notice again. AC-2, who was present as a witness, testified that S2 informed Complainant that she was suspending his telework agreement because of his performance and for his failure to follow the leave letter that was issued to him during the previous meeting. S2 confirmed that S2 told Complainant “if things didn’t change she would remove his alternative work schedule and place him on a PIP if necessary.” Testimony from S3, AC-2, and C3 all confirm that this is the next logical step to take if Complainant’s performance does not improve. AC-2 recalled that Complainant did not comment during the meeting, but “he was respectful by answering yes ma’am and no ma’am.” June 2019: Denied Assistance with Transfer Request (Claim 1) Following the suspension of his telework agreement, Complainant went over the heads of S3 and AD, to the MSD Director (age not specified) informing her that his telework had been suspended, he was denied leave, and he sought a transfer. On June 19, 2019, the MSD Director responded that she asked AD to review Complainant’s scheduling concern and encouraged him to speak with AD directly about his transfer request, The MSD Director also explained that the AD was “willing to discuss” changing Complainant’s schedule to an earlier arrival time, but was “concerned about ensuring sufficient coverage.” The MSD Director confirmed her support of AD and S3’s position regarding Complainant’s practice of taking leave on Tuesdays and Thursdays, stating, “as we discussed, it is not appropriate tor you to use an hour of leave every time you are in the office to alter your schedule.” The MSD Director also assured Complainant that AD “agrees that you should receive specific guidance on the performance issues raised by [S2] and will prepare a written record to assist you in understanding your performance expectations.” There is no evidence that AD did this. 2020004027 11 Complainant met with AD, and while he vehemently denies AD’s testimony that during the meeting she offered to discuss improving his performance, Complainant’s and AD’s accounts of the meeting appear to be otherwise consistent. When Complainant informed AD that S3 and S2 had been “targeting” him by subjecting him to a hostile work environment, denying leave, and canceling his telework agreement, AD responded that she fully supported S3 and S2’s actions regarding telework and leave. She further responded that telework was a “privilege,” and “performance-based.” She revealed that it had been her decision to remove Complainant from the North Carolina Task Force out of performance concerns. Complainant explained that he had no performance issues, as he received a “satisfactory” rating and no complaints. When Complainant asked for a transfer to a soon-to-be-vacated Financial Management position. AD explained that Complainant would have to apply to that particular position, as it was against her policy to grant a noncompetitive transfer request. S3 testifies that AD told him that she declined to assist Complainant with the requested transfer because “his qualifications for such a position were not evident,” which is also consistent with her testimony. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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, (“EEO MD-110”) at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Dissatisfaction with EEO Investigation The regulation under 29 C.F.R. § 1614.108(b) requires the Agency to create an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An “appropriate factual record” is “one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” § 1614.108(b). However, the complainant, upon receipt of the ROI, is provided an opportunity to cure defects in the record by either notifying the agency (in writing) of any perceived deficiencies in the investigation or requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By requesting a FAD, Complainant chose not to take advantage of the above-mentioned opportunities any defects in the instant investigation. However, on appeal, Complainant requests that the Agency submit additional evidence regarding his performance. 2020004027 12 He also dedicates a significant portion of his appellate argument to questioning the credibility of Management’s testimony. Upon review, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination on the basis of age, disability, and retaliation occurred. We exercise our discretion to accept the performance reviews Complainant submitted on appeal, which were already available to the Agency, as part of the record. If Complainant wanted an opportunity to further develop the record through discovery and cross examination of witnesses, he should have requested a hearing before an AJ. Tommy O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). Disability-Related Inquiries After Hip Replacement Surgery Under the Rehabilitation Act, employers may make disability-related inquires or require medical examinations of employees only if they are job-related and consistent with business necessity. 29 C.F.R. §§ 1630.13(b), 1630.14(c). “Generally, a disability-related inquiry or medical examination of an employee may be ‘job related and consistent with business necessity’ when an employer ‘has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.’” Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000) (“Enforcement Guidance on Employee Inquiries and Examinations”). Employers may also make limited disability-related inquiries in response to an employee’s request for a reasonable accommodation, as it is well established that “an employer is entitled to know that the individual has a covered disability for which they need a reasonable accommodation.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, (“Enforcement Guidance on Reasonable Accommodation”), EEOC Notice No. 915.002 (Oct. 17, 2002). A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015), citing Enforcement Guidance on Reasonable Accommodation. The employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and they refuse to provide the reasonable documentation requested by the employer, then they are not entitled to reasonable accommodation. Id. Where, as here, a complainant was previously determined to have a disability and was provided with a reasonable accommodation, an agency may periodically ask for information about the disability, the activities it limits, and the need for accommodation -- but only if the disability and/or need for accommodation is not obvious, or if information already submitted by the individual is insufficient for the agency to make these determinations. See, e.g. Dixie B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170175 (Mar. 26, 2019). 2020004027 13 Following Complainant’s February 2019 hip replacement, the Agency acted within the scope of its authority when Management requested updated medical documentation in support of his reasonable accommodation. While it is undisputed that osteoarthritis is a permanent condition, Complainant’s need for his specific reasonable accommodation was no longer obvious, given that the nature of hip replacement surgery allows for an assumption that the symptoms of his permanent condition may be mitigated. Moreover, following his surgery, the reasonable documentation on file with the Agency’s EEO Office, which described Complainant’s right hip as “deteriorating” was no longer accurate, given that the hip was replaced. The Agency’s medical inquiries were also appropriate, as they were based on business necessity. Management testified that personnel issues in Spring 2019 made it necessary to change district assignments among the PMs. Whether or not Complainant’s disability still prevented him from flying to AORs over 400 miles away would determine his assignments, and have an impact on the distribution of AORs among East Team PMs generally. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on 2020004027 14 any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013). For Claim 1, the Agency’s legitimate nondiscriminatory reason for AD declining to assist Complainant with his transfer request, was that Complainant was advised to compete for the position for which he wanted the transfer since it was policy to announce all vacancies, and that Complainant did not demonstrate that he had the skill set required for the position he requested. The record reflects that Complainant was aware that the offer of assistance with a transfer was contingent on whether the position he requested aligned with his skill set. In her June 19, 2019 response to Complainant’s transfer request, the MSD stated: “I am not familiar with your skill set, but [AD] is prepared to assist you in seeking an alternative assignment if you have a proposal that aligns with your capabilities.” We note that elsewhere in the record, Complainant asserts that AD was generally unfamiliar with his work, and the meeting requesting a transfer was their first face to face interaction. Yet, there is no indication that he offered AD evidence of his qualifications to support his request to be transferred from his position as a PM on the East Team to a budget analyst position in Financial Management, part of the Office of Program Services. AD testified that the position Complainant sought “requires that one have a background and experience in financial management and execution” and she states that she was “not sure if [Complainant] experience to be successful in that role.” She emphasized that he could apply for the position and she would select the best qualified candidate. On appeal, Complainant does not address the Agency’s legitimate nondiscriminatory reasons, but appears to argue, without evidence, that he was entitled to a transfer to a position of his choosing. He asserts that AD “did not care” if he retired, recounting how, when he threatened to retire if AD did not assist him with the transfer, rather than acquiesce to his demand, AD acknowledged that he worked for a long time and deserved to retire if that was what he wanted to do. We note that this was not the first time Complainant threatened to retire if AD, his fourth level supervisor, did not take the action he requested, and we fail to see how this establishes that the Agency’s stated explanations related to management’s policy and qualifications was pretext for discrimination. Claim 2: Projects Reassigned For Claim 2, the Agency’s legitimate nondiscriminatory reason for reassigning Complainant’s projects, were business necessity and that it was consistent with Complainant’s reasonable accommodation. To save time and expenses, S3 instituted a policy that employees could not drive to site visits beyond 400 miles from Headquarters (or 4 hours, testimony varied in the record). As a reasonable accommodation, Complainant was only able to travel by car. 2020004027 15 Complainant’s four high profile projects were all beyond driving radius, so they were reassigned. After he was reassigned districts closer to Headquarters, Complainant was once again assigned AORs and projects. On appeal, Complainant argues that the change in AORs as a reasonable accommodation was unnecessary since he already had an effective accommodation of driving his POV to his previous AORs. However, it is well established that while protected individuals are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb.17, 1994). Complainant has not shown that the Agency’s legitimate nondiscriminatory reasons of saving costs and travel time while providing his reasonable accommodation were pretext for discriminatory or retaliatory motivation. Claim 4 - Telework Suspended For Claim 4, the Agency’s legitimate nondiscriminatory reason for suspending Complainant’s telework was abuse of leave and performance issues, which is consistent with Agency Policy. Specifically, Agency Policy Directive 3.23 Part (D)(1)(a), provides that in order to participate in the telework program, “employees must have a current performance rating of at least successful…. [and] factors such as …substantiated leave abuse, and/or substantiated performance issues may prohibit participation in the program.” Part (F)(2) provides that the “supervisor has the right to terminate or suspend any telework agreement at any given notice if the telework employee's performance declines.” It is undisputed that Complainant met the performance requirement, however, by the standards of senior management, he had both substantiated leave abuse and substantiated performance issues. Substantiated Leave Abuse Complainant correctly points out that Agency Policy Directive 3.24 “Leave Administration,” does not specify that leave must be requested 5 days in advance. However, Part F(2)(a) of the directive states that employees shall “request leave in accordance with the provisions of this directive and any procedures established by their supervisors and managers.” (emphasis added). Complainant violated the 5 day policy on multiple occasions between June 4 and 13, 2019. The violations include his insistence on using his annual leave to depart work early twice a week. While there is no official policy against this practice, which amounts to less than 2 hours of Complainant’s personal earned leave per week, and it was accepted by prior management, all leave is subject to management approval. As these particular senior managers deemed leave that is used in a manner to essentially modify an assigned schedule, even if, as Complainant testifies, there is minimal to no impact on Agency operations, to be “abuse of leave,” the record supports the Agency’s legitimate nondiscriminatory reason of “abuse of leave.” Moreover, matters such as scheduling, and leave policies fall within the scope of the Agency’s business judgment. 2020004027 16 Substantiated Performance Issues While the record tends to support Complainant’s assertion that he had not received complaints from his AORs, and that S2 did not provide him with direct feedback indicating a performance issue existed until the June 6, 2019 meeting, the record contains sufficient evidence of “performance issues” as a legitimate nondiscriminatory reason for suspending his telework. On appeal, Complainant asserts that of the management officials that testified for the record, only AC-1 had supervised him for more than a year, and had the most firsthand knowledge of his performance. However, AC-1 testifies that many of incidents at issue occurred after she transferred in June 2018. Her testimony does not offer insight into Complainant’s performance, such as relationships with the personnel for his AORs, timeliness, or responsiveness. Complainant’s projects and AORs were reassigned a year after AC-1 left, in the wake of hip replacement surgery and caring for his aging mother, while her caregiver, Complainant’s sister, was also experiencing health issues, as was Complainant’s wife. Complainant identifies C1, C2, and C3 as witnesses who could “verify that [he] performed his duties as required, and, when asked, completed tasks assigned with one exception when [he] was one day late.” C2 (age 49) testified that as a PM, two of Complainant’s projects were reassigned to her, and the reason given was that Complainant “had too much in his area and simply needed some help covering his areas.” She also recalled that when she served as an Acting AC, there were concerns about Complainant’s performance. While she did not have direct knowledge, it was her understanding from what she heard contemporaneously, that “there were questions about whether he was really completing his work during telework. He was difficult to get ahold of. He wouldn’t answer his link. Things were not getting done.” C1 (age 45) provided more sympathetic testimony, recalling a meeting where S2 asked Complainant about some of his new projects, and attributing Complainant’s inability to provide a detailed response to the fact that the projects “were still new.” C1, C2, and C3 do not offer examples of Complainant’s performance that would refute S2 and AD’s testimony. Claim 6 - Denied Telework in Oklahoma For Claim 6, the Agency’s legitimate nondiscriminatory reason for denying Complainant’s request to telework while he was caring for his mother in Oklahoma was supervisor’s discretion, which is consistent with Part (E) of the Agency Policy Directive 3.23, Telework (“the granting of telework is at Management’s discretion”). S2 testified that she forwarded Complainant’s request to S3 “for review and consideration,” and after discussing it with S3, she denied Complainant’s request “due to his poor performance and his position requiring extensive travel, which due to his reasonable accommodation could not be performed from Oklahoma.” S2 did not provide either explanation when Complainant asked why she denied his request, instead, she stated that her decision was based on “policy.” 2020004027 17 Complainant references the discrepancy in S2’s explanations, emphasizing that S2 was unable to identify a relevant policy, and she conceded that his request was denied due to “management discretion.” These discrepancies indicate that S2 was less than forthcoming, but fail to connect her decision to his age, disability, or prior EEO activity. Complainant further argues that other (unspecified) employees “in a different division” with essentially the same job function are permitted to telework full time. He also notes that AC-1 initially granted his request in March 2018, and prior to the change in senior management similar requests were also granted. Such arguments concern scenarios where S3 and AD did not comprise senior management, so they are not indicators of pretext. Moreover, S3 acknowledges that Complainant’s March 2018 request was initially granted, but testifies that it was granted in error, and the approving supervisor, AC-1, “was corrected for doing so.” S3 explained that S2, to whom he attributed the decision to deny Complainant’s request, “was a different supervisor who applied better judgment” based on the interests of the Agency. Complainant also accuses the Agency of violating its own policy, he fails to show how, given that ultimately, both leave and telework are matters of management discretion, with the exception of FMLA. (Agency Policy Directives 3.23 and 3.24). Contrary to S2’s testimony, S3 fully attributes the decision to deny Complainant’s telework request to S2, testifying that both he and AD “supported” S2’s decision. We note that AC-1 attributed the March 2018 denial to S3. Also, S3 reasoned that 50% of Complainant’s position entailed travel, and given Complainant’s reasonable accommodation, telework from Oklahoma was “not possible.” S3 also stated, that “[i]t also my understanding that [Complainant] wished to substitute telework for elder care, which is not an appropriate use of telework,” possibly referencing Agency Policy Directive 3.23 Part (D) (D)(1)(d), which states “[t]elework is not a substitute for dependent care… family responsibilities and personal business must not interfere with the performance of official duties at the alternative worksite” Neither of S3’s explanations for the denial are supported in the record. Complainant demonstrates that S3’s reasoning deliberately misinterprets his telework request because he sought, at most to “log maybe 8 to 16 hours of telework from Oklahoma depending on [his] workload.” This is consistent with Complainant’s email request and prior requests to telework while caring for his mother in Oklahoma. After his return, in an email to S2, referencing the delay caused by his backlog of emails, Complainant reminds her that he could have managed his emails had he been permitted to telework while in Oklahoma, further indicating his intent when making the request. Nothing in the record indicates S3’s insinuation about Complainant’s integrity in making the comment that Complainant intended to “substitute telework for elder care,” as well as his clearly disingenuous explanation that telework “was not possible” in part due to Complainant’s reasonable accommodation, supports Complainant’s and AC-1’s impression that S3 did not like Complainant and sought to make things difficult for him. 2020004027 18 While the Commission looks askance at S3’s explanations for denying Complainant’s request to telework while in Oklahoma, Complainant has not shown them to be pretext for a discriminatory motivation, rather than the policies of new senior management, which were well within their discretion to make. Harassment/Hostile Work Environment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. As this is a reprisal allegation, Complainant must also prove that the conduct was taken because of his prior EEO activity (reasonable accommodation). Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). The Commission has repeatedly found that “common workplace occurrences,” including instructions, and admonishments, typically do not rise to the level of severity to constitute harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. Even considering evidence that Complainant was singled out and scrutinized by Management, we have previously found similar claims to be “common workplace occurrences.” See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (complainant’s allegation that her supervisor monitored her work duties and time in and out of the office more closely than her coworkers amounted to a common workplace occurrence) see also Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000) (a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence). Complainant’s harassment allegation in Claim 7, does not constitute harassment, as determined that the Agency acted within the scope of its authority when it made medical inquiries following Complainant’s hip surgery. Likewise, we will not consider the Agency’s actions in Claims 1, 2, 4, and 6, as harassment allegations, because Complainant was unable to establish discriminatory or retaliatory motivation. The remaining harassment allegations, even when considered together, and assumed to have occurred exactly as Complainant describes, involve common workplace occurrences that while unpleasant, are insufficient to establish a hostile work environment. 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 finding that Complainant has not established discrimination as alleged. 2020004027 19 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (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). 2020004027 20 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The 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 December 7, 2021 Date