[Redacted], Giselle T., 2 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2019004801 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle T.,2 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019004801 Hearing No. 510-2016-00454X Agency No. 200I-0548-2015100904 DECISION On June 28, 2019, 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 31, 2019, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented concern whether the Agency subjected Complainant to discrimination on the basis of her sex (transgender female) when her immediate supervisor allegedly forced her to 1 The record reflects that Complainant committed suicide on July 4, 2015. Accordingly, Complainant’s Estate has been substituted as the party-complainant herein. Our decision also refers to Complainant using female pronouns because Complainant identified as a transgender female. 2 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. 2019004801 2 undergo a fitness for duty examination, placed her on a performance improvement plan, and took other actions that collectively constituted a hostile work environment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Biomedical Equipment Support Specialist, GS-1601-09, at the VA Medical Center in West Palm Beach, Florida. On January 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on sex (transgender female)3 when: 1. Since September 2014, the Biomedical Engineering Chief (S1) summoned Complainant into his office at least once or twice a day to tell her that her performance was inadequate; 2. On or about September 9, 2014, S1 ordered Complainant to undergo a fitness for duty exam; 3. On or about September 18, 2014, Complainant was placed on a performance improvement plan (PIP); 4. On or about November 17, 2014, S1 submitted a proposal to the Union stating his intent to change Complainant’s tour of duty; 5. On or about November 24, 2014, S1 ordered Complainant to turn in her key to the room where her safety cabinet was located and where she stored solvents and machine parts; and 6. On or about November 24, 2014, Complainant discovered that her desk had been tampered with. On July 4, 2015, Complainant committed suicide. After learning of Complainant’s death, the Agency issued a final decision on September 17, 2015, dismissing the complaint. In EEOC Appeal No. 0120160204 (May 11, 2016), the Commission reversed the Agency’s final decision and ordered the Agency to process the complaint. In compliance with the Commission’s order, the Agency commenced an EEO investigation into the complaint. 3 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status violates Title VII's prohibition on discrimination “because of . . . sex.” 590 U.S. ___, 140 S. Ct. 1731 (2020). 2019004801 3 At the conclusion of the investigation, the Agency provided Complainant’s Estate with a copy of the report of investigation (ROI) and notice of the Estate’s right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant’s Estate timely requested a hearing. However, on January 29, 2018, the Agency filed a motion for a decision without a hearing. In opposing the Agency’s motion, the Estate vigorously asserted that the issuance of a decision without a hearing would be improper because there were genuine issues of material fact in dispute and that the evidence, when viewed in Complainant’s favor, demonstrated the existence of a hostile work environment. In this regard, the Estate initially emphasized that the matter at hand was not simply a case of an employee expressing disagreement with management decisions. To the contrary, the Estate argued that the case involved the issue of “a transgender employee who, because of her transgender status, [was] made an outcast, threatened, and generally treated differently than everyone else in the workplace.” The Estate asserted that, after Complainant disclosed her transition to a few coworkers, “those coworkers outed Complainant to other Agency employees without Complainant’s permission or knowledge.” The Estate maintained that Complainant’s transition became a frequent topic of discussion, and her coworkers “went so far as to mock both her transgender status and the fact that she alleged she was being harassed.” Furthermore, the Estate asserted that the Agency’s articulated reasons were pretext for discrimination. In support of such contention, the Estate argued that the evidence of record clearly demonstrated that S1 did not follow the proper protocol for issuing Complainant the fitness for duty examination and performance improvement plan. With regard to the proposed change to Complainant’s tour of duty and the removal of her key, the Estate emphasized that pretext could be inferred by S1’s shifting explanations for taking these actions. Given these evidentiary disputes, the Estate emphasized the need for a hearing to resolve the disputes and determine credibility. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s January 29, 2018, motion for a decision without a hearing and issued a decision without a hearing on May 24, 2019. In issuing the decision, the AJ initially dismissed claims 2 and 3 due to Complainant’s failure to timely initiate EEO counseling. However, the AJ nevertheless considered claims 2 and 3 as background evidence for Complainant’s overall hostile work environment claim. The AJ ultimately determined that Complainant could not prevail on her hostile environment claim because the Agency had legitimate, nondiscriminatory reasons for the alleged actions. With regard to claims 1 and 3, the AJ found that Complainant exhibited performance problems long before anyone knew of her gender transition. In reaching this conclusion, the AJ noted that Complainant had numerous unresolved work orders that had not been completed for months. The AJ found that, due this backlog, S1 had to meet with Complainant at least weekly to discuss her performance. The AJ concluded that S1’s interactions with Complainant were well within a supervisor’s prerogative. 2019004801 4 As for claim 2, the AJ found that S1 did not act discriminatorily when he referred Complainant to Employee Health and the Employee Assistance Program (EAP) after Complainant threatened suicide and complained of vomiting. In this regard, the AJ reasoned that S1 followed what he believed to be proper protocol and that the referral to Employee Health was not a formal fitness for duty examination. The AJ also noted that Complainant sought one additional EAP session after Employee Health declared her safe to return to work and that the Agency allowed Complainant to resume work. Finally, the AJ addressed claims 4 and 5. With regard to claim 4, the AJ found that S1 wanted Complainant to report to work a half hour earlier because he wanted to ensure that Complainant had someone to assist her when performing preventative maintenance on ceiling anchored patient lifts. However, when the union opposed the change, the Agency relented and did not change Complainant’s schedule. The AJ concluded that such incident could not be hostile or harassing because the change did not occur. As for claim 5, the AJ found that S1 did not subject Complainant to discrimination when he took possession of Complainant’s Agency provided key, as Complainant had received the key while working for another unit and no longer needed the key in her current unit. The AJ emphasized that no one else in Complainant’s unit had a similar key. We note that the AJ found no discrimination on claim 6. However, the AJ did not provide any analysis. We need not address whether the AJ erred in this regard, as the record reflects that the Estate expressly limited its appeal to claims 1 to 5. See Appellate Brief at 2 (listing only claims 1 to 5). The AJ concluded that the evidence of record failed to persuasively show that Complainant had been subjected to discrimination as alleged. 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. This appeal followed. CONTENTIONS ON APPEAL4 Through its attorneys, the Estate argues that Complainant’s coworkers were aware of Complainant’s gender transition, “[a]s early as March 2014 and no later than September 4, 2014,” when she “hinted” about her gender identity by encouraging her coworkers to watch the movie, Lady Valor, concerning a Navy Seal who underwent the gender transition process. When Complainant commenced estrogen therapy in April 2014, to begin the physical process of transitioning from male to female, she began to lose weight, had a reduction in the appearance of body hair, and became more passive. 4 On September 17, 2019, the Estate submitted a reply to the Agency’s response. As our regulations do not allow for the submission of multiple briefs, we will only consider Complainant's initial appellate brief. See 29 C.F.R. § 1614.403(d); see also Rios-Ortega v. Dep't of Def., EEOC Appeal No. 0120111979 (Nov. 5, 2012) (declining to address complainant’s submission of multiple briefs). 2019004801 5 The Estate asserts that Complainant’s coworkers and S1 began asking Complainant unwelcome questions when they noticed Complainant’s body appear to change. However, Complainant avoided directly answering the questions because she was fearful of her coworkers’ reactions. The Estate asserts that, although Complainant ultimately decided to disclose her transition to S1 in September 2014, S1 knew about Complainant’s transition prior to September 2014 because S1 admitted to knowing about Complainant’s request for her coworkers to watch Lady Valor. The Estate maintains that, following Complainant’s disclosure to S1, S1 improperly required Complainant to undergo a fitness for duty examination in violation of Agency policy, which only allowed supervisors to require examinations “when the employee occupies a position with established standards or physical requirements and there is a direct question about the employee’s ability to meet the established standards or physical requirements of the job.” The Estate asserts that S1 violated Agency policy by referring Complainant for a fitness of duty examination for suicidal ideation and vomiting and “not because he was concerned that [Complainant] was suffering from a medical condition that was impacting her work.” The Estate further maintains that S1 also attempted to put Complainant on a performance improvement plan and change her tour of duty following her disclosure. With regard to the PIP, the Estate asserts that S1 did not follow Agency protocol in attempting to put Complainant on a PIP and was only thwarted when the Agency’s Labor Relations Office told him that he did not have enough supporting information to put Complainant on a PIP. As for S1’s attempt to change Complainant’s tour of duty in November 2014, the Estate contends that S1 provided shifting explanations for the change. Specifically, the Estate notes that S1 initially stated that he proposed to change Complainant’s schedule because he found it prudent to have another person working with Complainant to help her with the ceiling lifts. However, the Estate notes that during S1’s subsequent deposition, S1 stated that his concern was not related to the ceiling lifts, but rather his concern about Complainant being alone in the workplace. The Estate states that Complainant’s tour of duty ultimately did not change due to objections from the union. The Estate additionally asserts that S1 harassed Complainant by directing Complainant to return the key to a mechanical equipment room. While the Estate notes that S1 argued that he took Complainant’s key because none of Complainant’s colleagues had a key, the Estate emphasized that two non-transgender employees were permitted to retain the key. The Estate contends that S1 concocted this explanation as a pretext for discrimination. The Estate also asserts that, following her disclosure of transgender status to two coworkers, they outed Complainant to other employees. The Estate maintains that, due to this improper disclosure, Complainant’s transition was widely discussed at work and that some of Complainant’s coworkers harassed her and refused to talk to her. However, when Complainant complained about the harassment, S1 attempted to discipline Complainant, rather than the alleged harassers. The Estate contends that the working environment that Complainant endured constituted a hostile work environment. Furthermore, the Estate emphasizes that the AJ fragmented Complainant’s hostile work environment claim by only reviewing the accepted claims. 2019004801 6 The Agency opposes the appeal and requests that the Commission affirm the Agency’s final order implementing the AJ’s finding of no discrimination. 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 Chapter 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”). ANALYSIS AND FINDINGS 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. In reviewing the AJ’s decision to grant the Agency’s motion for a decision without a hearing, we must draw all justifiable inferences in Complainant’s favor. For the following reasons, we find that the AJ correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. 2019004801 7 Dismissal of Claims 2 and 3 as Discrete Acts As an initial matter, we will review the AJ’s decision to dismiss claims 2 and 3 for failure to timely initiate EEO counseling. Under EEOC Regulation 29 C.F.R. § 1614.105(a)(1), complaints of discrimination must be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, Complainant has alleged that she was directed to undergo a fitness for duty examination on September 9, 2014, and placed on a PIP on September 18, 2014. Believing these incidents to be discriminatory, Complainant made initial contact with an EEO Counselor on November 25, 2014. ROI at 19. However, we note that the 45-day period for the reporting claims 2 and 3 ended on October 24, 2014, and November 3, 2014, respectively. Because Complainant failed to timely report these incidents to an EEO Counselor, we find that the AJ properly dismissed these claims. Our analysis, however, does not end there. We note that the U.S. Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). The Court further held that untimely discrete acts may be used as evidence in support of a timely hostile work environment claim. Given that the complaint includes timely allegations of discrimination by S1, we will consider claims 2 and 3 as part of Complainant’s overall harassment claim. Disparate Treatment On the merits of the complaint, we will first address claim 5, concerning Complainant’s allegation that S1 treated her in a disparate manner when he directed her to return the key to the mechanical equipment room but allowed non-transgender employees to keep their keys. For Complainant to prevail in a claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). 2019004801 8 Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged basis, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. As reflected in the record, S1 stated that, on October 30, 2014, Complainant was found asleep on a stretcher in the mechanical equipment room. ROI at 345. Though the Agency took no disciplinary action against Complainant because the incident occurred during Complainant’s lunch break, S1 determined that Complainant did not need the key and directed Complainant to return it. Id. at 86. S1 emphasized that none of Complainant’s colleagues had a key to the mechanical equipment room and that only S1 and the Staff Biomedical Engineer had keys. Id. at 85. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, the Estate maintained that S1’s actions were discriminatory because S1 allowed two non-transgender comparator employees (C1 and C2) to keep their keys but did not afford Complainant the same opportunity. Having reviewed the record, we find no evidence that S1 subjected Complainant to discrimination in this regard. As an initial matter, we find that the record fails to show that C2 had a key to the mechanical equipment room. In this regard, we note that C2 stated during his deposition that management took away his key several years ago because headquarters had concerns about the number of keys that had been issued. See Estate’s Appellate File at 105. As for C1, we agree with the Estate that the record does indeed show that C1 had a key to the mechanical equipment room. However, the record reflects that C1 had a key because he had to “go into the interstitial [spaces] to work on any equipment that passes through those areas.” Id. at 41. We ultimately do not find C1 to be similarly situated to Complainant because the record establishes that C1 performed management directed work duties in the mechanical equipment room. In finding no discrimination, we are mindful that S1 appears to have erroneously stated that only he and the Staff Biomedical Engineer had a key; however, we do not find this inconsistency, standing alone, to be sufficient evidence of pretext. For these reasons, we find that the Estate cannot prevail on claim 5. 2019004801 9 Harassment/Hostile Work Environment We now proceed to the merits of Complainant’s overall harassment claim. As an initial matter, we find that a finding of harassment on claim 5 is precluded by our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). Thus, our review is limited to claims 1 to 4. Generally, to prevail on a claim of harassment/hostile work environment, a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 or her statutorily protected class; (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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The alleged harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 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); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). With regard to Complainant’s allegation that she was subjected to harassment, we will assume arguendo that the events occurred as Complainant described and were unwanted. However, we agree with the AJ that Complainant has not shown that the alleged conduct occurred because of Complainant’s protected basis. Our review of the record for claims 1 and 3 shows that S1 had concerns about Complainant’s performance. During his deposition, S1 explained that Complainant failed to complete work orders within three business days, which was the performance standard. He noted that Complainant had hundreds of open work orders, with at least 51 work orders dated back several months to April 2014. ROI at 83. Due to Complainant’s failure to complete the work orders, S1 had to reassign the work to other employees. Id. S1 denied meeting with Complainant on a daily basis to discuss Complainant’s performance; however, S1 admitted to meeting with Complainant an average of once a week to figure out what was causing Complainant’s poor performance. Id. at 78-79. By September 2014, S1 determined that a PIP was warranted and attempted to put Complainant on a PIP. However, he was thwarted by the Labor Relations Office, which informed him that he had to give Complainant a 30-day opportunity to improve before putting her on a PIP. Id. at 83. The Labor Relations Office also suggested that he should just complete the rating period, as the period was due to end at the end of the month. Id. 2019004801 10 Having reviewed the record, we find that S1 did not act in a discriminatory manner in addressing Complainant’s performance deficiencies. In this regard, we are mindful that S1 failed to adhere to Agency policy when he attempted to put Complainant on a PIP without affording her a 30-day opportunity to improve period; however, we are disinclined to infer discriminatory motive, as the Estate has not disputed S1’s contention that Complainant had hundreds of open work hours. Given S1’s legitimate concerns about Complainant’s performance, we agree with the AJ that S1 was well within his prerogative as a supervisor to exercise oversight over Complainant’s work. With regard to claim 2, we are unable to conclude that the Agency acted discriminatorily when S1 allegedly directed Complainant to undergo a fitness for duty examination. Here, the record reflects that S1 referred Complainant to Employee Health for an examination after Complainant placed her finger in her mouth and said to S1, “Maybe I ought to end it all?” ROI at 80. In response, S1 encouraged Complainant to go Employee Health to seek help for suicidal ideation and other symptoms of anxiety such as vomiting. Id. at 81. S1 stated that Complainant was initially afraid to seek help, but eventually agreed after S1 reassured her. Id. Having reviewed the Agency’s handbook, we agree with the AJ that S1 did not violate the Agency’s policies on fitness for duty examinations. Id. at 161-62 (“Agency offered Fitness-for-Duty Examinations”). We further find S1’s concerns to be legitimate and nondiscriminatory.5 As for claim 4, regarding the proposed change to Complainant’s tour, we find no inherent inconsistency between S1’s transcribed affidavit and his deposition. Our review of Complainant’s affidavit shows that S1 stated that he thought it would be prudent to have another person working with Complainant. ROI at 84. At his subsequent deposition, when asked about whether he was worried about Complainant working the ceiling lift by herself or just being in the workplace in general, S1 replied that he had both concerns. See Estate’s Appellate File at 59. We do not find S1’s statements to be so inconsistent as to suggest pretext. Moreover, we note that S1’s proposal to change Complainant’s tour was never implemented due to opposition from the union. In light of Complainant’s history of suicidal ideation and the nature of her work with ceiling lifts, which required working with 600-pound weights, we are disinclined to second guess S1’s motives. Finally, we note that the Estate has contended that the AJ improperly fragmented Complainant’s hostile environment claim by failing to consider her allegations of coworker harassment and reprisal for reporting coworker harassment; however, we will not consider these claims on appeal. As a general rule, the Commission has long 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 Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). We note that Complainant never raised these allegations when she filed her formal complaint and did not request an amendment to her complaint. 5 Though Complainant has not alleged discrimination based on disability, we note that in the disability context, the Commission has long held that the Rehabilitation Act permits agencies to direct suicidal employees to undergo fitness for duty examinations. See Grimes v. U.S. Postal Serv., EEOC Appeal No. 01A02459 (July 17, 2002). 2019004801 11 While we acknowledged that the Estate raised these allegations at the hearing stage, following Complainant’s death, we note that neither the Estate nor its attorneys filed a motion to amend the complaint to include these claims. To allow the Estate to do so now would be contrary to our longstanding policy. In summary, we conclude that the Estate failed to prove Complainant’s allegations of discrimination. 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, which implemented the AJ’s finding of no discrimination. 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. 2019004801 12 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. 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 May 24, 2021 Date