[Redacted], Darlene F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 22, 2021

Appeal No. 2020004268 (E.E.O.C. Dec. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlene F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004268 Hearing No. 440-2020-00073X Agency No. 200J-0328-2019101451 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 29, 2020, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative at the Agency’s Regional Office in Chicago, Illinois. Complainant transferred to the Chicago location from the Agency’s Milwaukee Regional Office in June 2018. Report of Investigation (ROI) at 142. Complainant stated that she submitted paperwork to request a reasonable accommodation as early as September 2018, and that she resubmitted her request with supporting medical documentation in late October or early November 2018. Complainant averred that she requested the ability to telework four days per week; a desk relocation; and that overtime be optional. 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. 2020004268 2 ROI at 146. On December 3, 2018, the acting Veterans Service Center Manager (“Manager”) denied Complainant’s requested accommodation to telework four days per week. However, the Manager granted Complainant the ability to telework two days per week for a 60-day temporary basis, and he noted that all employees, including Complainant, have the ad hoc flexibility to change their day working in the office. ROI at 105-6. Complainant accepted the offer, pending higher review. ROI at 43. On December 6, 2018, the Director informed Complainant that he would put in a request for a laptop, but it would depend on how quickly the equipment would become available and issued. ROI at 24. On December 10, 2018, Complainant submitted a request for a reconsideration of the Manager’s reasonable accommodation decision. ROI at 40. On December 6, 2018, Complainant requested that the Manager approve her overtime request for December 4, 2018. Complainant stated that she stayed an extra 30 minutes to meet with her supervisor, who directed Complainant’s overtime request to the Manager. When the Manager denied Complainant’s request, Complainant elevated her request. On December 21, 2018, the Assistant Director upheld the denial of Complainant’s overtime request, noting that neither the Manager nor her supervisor required Complainant to stay past her tour of duty. ROI at 23-4. On December 23, 2018, the Assistant Director issued a decision regarding Complainant’s request for a reasonable accommodation. Specifically, the Assistant Director granted Complainant: (1) a non-competitive reassignment to the Milwaukee Office; (2) telework of 4 days per week, with one day in the office, for 30 days pending Complainant’s reassignment; (3) relocation of Complainant’s workstation to a more isolated area; (4) ad hoc flexibility to change in-office days, with proper approval; and (5) no mandatory overtime. Regarding the reassignment to Milwaukee, the Assistant Director noted that Complainant acknowledged a desire to return, and that the telework accommodation may be extended if the reassignment took longer than expected. ROI at 26-7. On December 28, 2018, Complainant responded that she would only consider a transfer if there was nothing the Chicago Office could do to accommodate her. ROI at 20. On March 26, 2019, a Human Resources Specialist informed Complainant that her approved Family and Medical Leave Act (FMLA) had expired, and Complainant had exceeded the allowed 480 hours of FMLA in one year. ROI at 151, 84. On March 27, 2019, Complainant responded that she had only used 461 hours of FMLA leave, and that her FMLA was currently approved through April 5, 2019. ROI at 92. Complainant stated that the Human Resources Specialist told Complainant’s supervisor to deny her FMLA leave and charge her with absence without leave (AWOL). ROI at 155. Complainant averred that she immediately requested a meeting with the Director, who responded that he would not meet with her until she could find a union representative. Complainant stated that the Director revoked the AWOL and charged the time as leave without pay (LWOP) until Complainant provided updated medical information to support FMLA leave. ROI at 152. On March 28, 2019, Complainant received a message from the Agency’s reasonable accommodation portal confirming her request to work at home for a new reasonable accommodation request, initiated on or about March 1, 2019. ROI at 120, 109-10. On April 11, 2020004268 3 2019, Complainant requested a status update on her current reasonable accommodation request and her prior reasonable accommodation decision granting telework. Complainant noted that the original reasonable accommodation decision stated that it would be reviewed in 60 days, and she inquired about a new decision. ROI at 107. On April 25, 2019, the Assistant Director notified Complainant that her requested accommodation was “[a]pproved, as is,” effective April 17, 2019. ROI at 103-4. On March 29, 2019, the Human Resources Specialist sent an email to Complainant, copying various Agency officials, informing her that an audit of Complainant’s FMLA leave contained duplicate entries, which caused reports showing that she had exceeded her maximum FMLA hours. The Human Resources Specialist also stated that Complainant’s FMLA leave for “Physical Therapy appointments” was approved through April 14, 2019. ROI at 90. EEO Complaint On March 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (Physical/Mental) when: 1. on December 3, 2018, Complainant was denied a reasonable accommodation to telework four days a week and to have overtime be optional; and 2. on December 4, 2018, Complainant was denied 30 minutes of overtime. Complainant also alleged that she was discriminated against and/or subjected to a hostile work environment based on reprisal for filing the instant EEO complaint when: 3. on March 26, 2019, Complainant’s timecard was “randomly” audited; on March 27, 2019, prior to Complainant meeting with the Director, she was told he would not meet with her unless she had a union representative; and on March 29, 2019, the Human Resources Specialist sent an email to individuals regarding Complainant’s FMLA that included Complainant’s private medical information; 4. on March 26, 2019, the Human Resources Specialist revoked Complainant’s FMLA due to her exceeding 480 hours; and 5. on April 3, 2019, Complainant was denied LWOP. The Agency accepted the complaint for investigation and noted that claims 1, 2, 4, and 5 were accepted as discrete acts.2 ROI at 67. 2 The Commission has found that a discrete action states a claim outside of the framework of a harassment analysis and can also be reviewed within the disparate treatment context. See Moylett v. U.S. Postal Serv., EEOC Appeal No. 0120091735 (Jul. 17, 2012); Sedlacek v. Dep’t of Army, EEOC Appeal No. 0120083361 (May 11, 2010). We find that Complainant also alleged an 2020004268 4 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 (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 7, 2020, motion for a decision without a hearing and issued a decision without a hearing on May 26, 2020. The AJ found that Complainant did not establish a prima facie case of discrimination, but even if she had, the Agency articulated legitimate nondiscriminatory reasons for its actions. The AJ then found that Complainant did not present any evidence in support of her claims and failed to refute the record, and an independent review of evidence revealed no indication that the Agency’s articulated reasons were false or a pretext for discrimination. Regarding Complainant’s harassment claim, the AJ determined that the record did not support any adverse employment actions or conduct that unreasonably interfered with Complainant’s work environment, nor deterred her from engaging in protected activity. In addition, the AJ noted that Complainant could not point to any causal link between the identified incidents and her prior EEO activity. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant disputes many of the Agency’s material facts. For example, Complainant disputes that she was in a training status; that she discussed work-related matters with her supervisor, which justified the grant of her overtime request; and that the Manager did not engage in the interactive process prior to the issuance of his decision on December 3, 2018. Complainant argues that the Agency’s primary argument was that it was not required to provide more than two days of telework because she was allegedly a trainee, but that an employee’s training status cannot be a factor in determining a reasonable accommodation; and that she was not a trainee. Complainant also asserts that non-Black employees were treated differently in the reasonable accommodation process, and that non-disabled employees were treated more favorably in their ability to telework. Complainant argues that the Agency delayed, for an unreasonable length of time, in providing an accommodation. improper medical disclosure as a part of claim 3, which independently states a claim outside of the harassment framework. Accordingly, we will also analyze this incident as an independent claim of an improper disclosure of medical information. 2020004268 5 Complainant asserts that the delay dragged on for months, and that courts agree that a delay of several months is unreasonable. Complainant states that, on or about November 5, 2018, she provided her medical information to the Agency, and it did not render a decision until December 2018, and that she was not allowed to telework until mid-January 2019. Regarding the relocation of her desk, Complainant avers that she agreed to the Agency’s suggestion in December 2018, but that it did not move her until April 2019. Complainant states that she rejected the offered transfer and the Assistant Director rescinded her decision, and Complainant was only given two days of telework. Complainant asserts that she informed the Agency that the granted accommodation was ineffective, as proven by an attached medical documentation dated February 11, 2019, and that the Agency had a responsibility to revisit her accommodation request. For claim 2, Complainant argues that Agency contradicted itself by stating that the Manager did not approve her request for overtime because there was not a need, but then argued in its Motion for Summary Judgement that the Manager did approve the overtime request. Regarding claim 3, Complainant asserts that the Assistant Director and the Human Resources Specialist gave conflicting reasons for her timecard audit. Specifically, Complainant states that both claimed responsibility for the audit, and that the Assistant Director stated that the purpose of the audit was to determine any miscalculations, which contradicted the Human Resources Specialist’s stated reason that she ordered the audit so that a new Local Reasonable Accommodation Coordinator could review the number of hours employees have under FMLA. Complainant argues that there is no evidence that a “new” Local Reasonable Accommodation Coordinator was appointed, and the Human Resources Specialist’s statement that she requested audits on all employees with reasonable accommodations would indicate an admission of discriminating against disabled employees. Complainant also argues that she and the Agency disagreed on the release of medical information, and that she did not consent to the release of this information. Regarding claim 5, Complainant argues that the denial of LWOP was retaliatory for filing her EEO complaint. Complainant requests that the Commission reverse the Agency’s final order and remand her complaint for a hearing. 2020004268 6 Agency’s Contentions As an initial matter, the Agency asserts that Complainant’s appeal is untimely. The Agency notes that it served the final order on Complainant on May 29, 2020, and that her July 11, 2020 appeal is past her 30-day deadline. The Agency requests that the appeal be dismissed as not timely. In the alternative, the Agency avers that the final order is thorough and well analyzed. Regarding the merits of Complainant’s complaint, the Agency argues that Complainant makes numerous factual determinations that she claims dispute the AJ’s decision. However, Complainant failed to include citations to the record for her factual conclusions or failed to raise an undisputed material fact. The Agency asserts that Complainant failed to present any relevant evidence on appeal that warrants review. The Agency notes that Complainant raises three employees that she believes are comparators, but she makes factual statements that are unsupported by the record and cannot be analyzed. In addition, the Agency maintains that Complainant attacks the responses regarding her reasonable accommodation request, but the record reflects that the management officials addressed and responded numerous times to Complainant, and she was not satisfied. The Agency requests that the Commission affirm its final order. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). 2020004268 7 ANALYSIS AND FINDINGS Decision without a hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant disputes many of the Agency’s material facts; for example, Complainant disputes that she was in a training status; that she discussed work-related matters with her supervisor, which justified the grant of her overtime request; and that the Manager did not engage in the interactive process prior to the issuance of his decision on December 3, 2018. However, we find that Complainant did not show that any facts were material and/or in dispute. We note that Complainant’s trainee status is not material because the Manager’s denial of her telework request did not reveal that it was based on a trainee status. In addition, it is undisputed that the Manager did not meet with Complainant prior to the issuance of his December 3, 2018 decision. We further note that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). In this case, we find that Complainant offered her disagreement with the Agency’s actions, but she did not provide evidence to show a genuine dispute of a material fact. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. 2020004268 8 Timeliness of Appeal As an initial matter, the Agency argues that Complainant’s appeal is not the timely. Appeals to the Commission must be filed within thirty (30) calendar days after Complainant receives notice of the Agency’s final action. 29 C.F.R. § 1614.402(a). Here, Complainant stated that she did not receive a copy of the Agency’s final order until June 13, 2020, due to a lack of internet access after she moved. Complainant subsequently filed her appeal on July 11, 2020. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). While the Agency challenged the timeliness of Complainant’s appeal, it did not provide any evidence to show when Complainant received the final order. We note that the Agency referred to an “attachment A” in its appeal brief, but no attachment was included. As such, we find that the Agency did not meet its burden to show that Complainant’s appeal was untimely. New claims and evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. On appeal, Complainant provided new documents, but she has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. In addition, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). Complainant raises new claims in her appeal, such as a claim of disparate treatment based on race in the processing of reasonable accommodation requests and alleged disability discrimination when the Human Resources Specialist audited Complainant’s timecard. We note that the management officials were not provided with an opportunity to respond to these additional claims. As such, we will not address any new claims raised on appeal in the instant decision. 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). 2020004268 9 “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 the Agency initially denied Complainant’s requested accommodation of telework four days per week, but it granted her an alternative accommodation of telework for two days per week. ROI at 105-6. We note that while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Question 9. Complainant argues on appeal that she notified the Agency that the granted accommodation was not effective. However, a review of Complainant’s communications to various Agency officials does not show that she explained why a two-day telework accommodation was not effective. For example, on January 11, 2019, Complainant stated that this accommodation was ineffective “because per regulations when a person has a permanent disability you cannot grant a temporary accommodation.” ROI at 44. To the extent that Complainant later determined that the two-day telework accommodation was not effective, she renewed her request for telework for four days a week on or about March 1, 2019, which the Agency granted in April 2019. ROI at 103-4. Complainant also argues that the Manager failed to engage in the interactive process. After receiving a request for reasonable accommodation, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also Enforcement Guidance at Question 5. However, the Commission has recognized that an agency’s failure to engage in the interactive process does not, in itself, constitute a violation of the Rehabilitation Act. See Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (Mar. 13. 2013) (citing Doe v. Social Sec. Admin. Appeal No. 01A14791 (Feb. 21, 2003)). Liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id. Accordingly, the fact that the Agency failed to properly engage in the interactive process, does not, by itself, demand a finding that Complainant was denied a reasonable accommodation. Rather, to establish a denial of a reasonable accommodation, Complainant must establish that the failure to engage in the interactive process resulted in the Agency’s failure to provide a reasonable accommodation. Id. In this case, we find that, while there is no evidence that the Manager engaged in the interactive process, his failure to engage in the interactive process did not result in the Agency’s failure to provide a reasonable accommodation because he granted Complainant an alternative accommodation. 2020004268 10 Complainant asserts that there was an unreasonable delay in the provision of her accommodation. The Commission has held that failure to respond to a request for accommodation in a timely manner may result in a finding of discrimination. See Denese G.v. Dep’t of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016); Shealy v. Equal Employment Opport. Comm., EEOC Appeal No. 0120070356 (April 18, 2011); Villanueva v. Dep’t of Homeland Security, EEOC Appeal No. 01A34968 (Aug. 10, 2006). In determining whether there was an unnecessary delay, we are to consider (1) the reasons for the delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Enforcement Guidance at Question 10, n.38. Complainant averred that she initiated her reasonable accommodation request in September 2018, but she did not receive a decision until December 3, 2018. However, we note that Complainant affirmed that she did not provide her supporting medical documentation until November 5, 2018, and that the decision on her request was issued approximately one month later, which was not an unreasonable delay. The record also shows that the Manager informed Complainant on December 6, 2018, that he would put in a request for a laptop for Complainant, but it would depend on how quickly the equipment would become available and issued. ROI at 24. We find that the Manager initiated the request for Complainant to obtain a laptop a few days after he granted the telework, and that there is no evidence that there was any delay apart from a need to wait for an availability of the necessary telework equipment in mid-January, which was not unreasonable. Complainant also asserts that the Agency delayed in effecting her desk move until April 2019. However, while the Agency offered Complainant a desk move in the December 23, 2018 decision, the Assistant Director stated that Complainant declined the accommodation, and she was moved in March 2019. ROI at 165. The record shows that when the Human Resources Specialist asked Complainant to confirm that she was “not accepting” the Assistant Director’s decision, Complainant responded that the Human Resources Specialist was incorrect and that the Assistant Director’s decision was “still defective.” ROI at 18-19. We find that Complainant did not provide a clear response to the Assistant Director’s reasonable accommodation decision, and that it was reasonable for the Agency to conclude that Complainant rejected the Assistant Director’s offered reasonable accommodations and not move forward with implementation at the time. We also find that Complainant did not provide any evidence to support her assertion that she agreed to the Agency’s suggested desk move in December 2018. Based on the specific factors in this case, we find that Complainant did not show that the Agency unreasonably delayed the provision of her reasonable accommodations. The record shows that Complainant was initially granted an accommodation of telework for two days per week, and while the Agency’s initial decision noted that this accommodation was granted for 60 days, Complainant did not claim that the accommodation was ever removed. 2020004268 11 Following additional interaction with Complainant, the Agency subsequently granted Complainant’s requested accommodation of telework for four days per week and a desk move in the spring of 2019. As such, we find that Complainant did not establish that the Agency failed to provide a reasonable accommodation. Medical Disclosure Under the Rehabilitation Act, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). Here, we find that the Human Resources Specialist did not violate the Rehabilitation Act when she sent an email in which she divulged that Complainant attended “Physical Therapy appointments.” ROI at 90. The email contained no additional details regarding Complainant’s medical condition or history, and as such, we find that there was no improper medical disclosure. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant may establish a prima facie case of discrimination by providing evidence that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal quotation marks omitted). For claim 1, Complainant argues that non-disabled employees were treated more favorably in their ability to telework. 2020004268 12 However, we find that Complainant did not establish a prima facie case of disparate treatment based on disability because she did not identify any similarly situated non-disabled employees who were treated more favorably. Complainant only offers a general argument that non-disabled employees were allowed to telework four days a week, without providing specific evidence to show an inference of discrimination. As such, we find that Complainant did not establish a prima facie case of disability discrimination alleging disparate treatment for claim 1. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability for claim 2, and in reprisal for protected EEO activity for claims 4 and 5, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 2, the Assistant Director stated that she denied the overtime request because Complainant chose to stay to late and speak to a union representative, which could have been scheduled for another day. The Assistant Director added that she spoke with the Manager, who informed her that the meeting was over by the end of Complainant’s tour. ROI at 166. Regarding claim 4, the Human Resources Specialist stated that the Agency did not revoke Complainant’s FMLA, but she informed Complainant that it had expired because her medical documentation only covered six months, and Complainant was advised to obtain additional medical information. ROI at 178-9. For claim 5, the Assistant Director stated that Complainant was charged AWOL for April 3, 2019, because she did not have any remaining FMLA hours. We find that Complainant has not shown that the proffered reasons were pretexts 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 argues that Agency contradicted itself by stating that the Manager did not approve her request for overtime because there was not a need, but then argued in its Motion for Summary Judgement that the Manager did approve the overtime request. However, a review of the Agency’s motion shows that it stated that the Manager “allowed optional overtime” in the context of Complainant’s reasonable accommodation request, but that the Agency did not claim that the Manager approved this specific overtime request. As such, we do not find that the Agency contradicted itself for claim 2. We note that the record shows that the Agency’s actions in claims 4 and 5 were based on errors regarding Complainant’s FMLA, and upon additional information from Complainant, the Agency corrected its mistakes. However, a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). Here, Complainant did not provide evidence showing that the management officials’ proffered reasons were not worthy of belief. 2020004268 13 Complainant’s bare assertions that management officials retaliated against her are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her disability, or in reprisal for protected EEO activity, for claims 1, 2, 4, or 5. Retaliatory Harassment As discussed above, we found that Complainant did not establish a case of retaliation for claims 4 and 5. Further, we conclude that 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 basis. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to retaliatory harassment for claims 4 or 5. For the remaining incidents of harassment in claim 3, to establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [Complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find that Complainant belongs to a statutorily protected class based on the instant EEO complaint, and that she was subjected to unwanted verbal conduct. However, there is no evidence that the audit of Complainant’s timecard; the Director’s statement that he would not meet with her unless she had a union representative; or the Human Resources Specialist’s e-mail allegedly containing private medical information were due to the protected activity. While Complainant asserts that the Assistant Director and the Human Resources Specialist both claimed that they initiated the audit and gave conflicting reasons for the audit, we find that their responses are not mutually exclusive. 2020004268 14 The Assistant Director stated that the audit was conducted to ensure proper tracking of used FMLA hours, and the Human Resources Specialist stated that the audit was conducted to provide “good information” to the new Local Reasonable Accommodation Coordinator. ROI at 166, 177. We also find that Complainant did not provide any supporting evidence that the audit or the e- mail allegedly containing private medical information were based on retaliation. In addition, we note that there is no evidence that the Director was aware of Complainant’s EEO activity. Complainant stated that she sent an email on January 8, 2019, to various Agency officials to inform them of her EEO complaint. However, Complainant did not list the Director as a recipient of her email, nor allege that she informed the Director of her EEO activity prior to their meeting on March 27, 2019. ROI at 149. We find that Complainant did not show retaliatory motivation for the incidents in claim 3, and as such, she did not establish that the Agency subjected her to retaliatory harassment. 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability, or in reprisal for 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. 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 2020004268 15 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. 2020004268 16 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 22, 2021 Date