U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020004597 Agency No. HS-FEMA-02625-2018 DECISION On August 18, 2020, 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 July 21, 2020, final decision concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-09, at the Agency’s Office of the Chief Procurement Officer, Closeout Acquisition Operations Division in Washington, D.C. Complainant was directly supervised by the Section Chief, who coincidentally was the individual who interviewed and hired him. 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. 2020004597 2 On December 21, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (brown), disability (physical and mental), age (over 40), and reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when: 1. On August 13, 2018, Complainant received a termination notice [issued by the Section Chief];2 2. From on or around August 8, 2017 through September 24, 2018, management failed to accommodate Complainant based on his medical restrictions; 3. From sometime in September 2017 through September 24, 2018, the Section Chief and the Contract Specialist scrutinized Complainant’s files and delayed completion of his case files; 4. Sometime in January 2018, management removed Complainant as the project lead on the EADS3 Cost Reimbursement Project; and 5. Sometime in June 2017, management denied Complainant the opportunity to compete or be noncompetitively selected for a position reviewing contract files; At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency initially dismissed claims 4 and 5 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact and addressed these matters as part of Complainant’s hostile work environment. The Agency ultimately concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In reaching this conclusion, the Agency carefully considered Complainant’s denial of reasonable accommodation claim concerning his request for two computer monitors and found that management reasonably accommodated Complainant by providing him with the requested monitors at work. While the Agency acknowledged that management did not provide Complainant with two computer monitors for his use while teleworking, the Agency found management’s failure to do so to be not discriminatory because Complainant did not meet the production metrics to qualify for telework. With regard to Complainant’s removal, the Agency found that management had legitimate, nondiscriminatory reasons for removing Complainant, as the record showed that the removal action was based on Complainant’s failure to meet production metrics. The Agency also found no discrimination on Complainant’s remaining claims. This appeal followed. 2 It appears that Complainant received the termination notice on September 24, 2018. ROI at 8. 3 As noted in the Agency’s final decision, “EADS” is undefined in the ROI. 2020004597 3 On appeal, Complainant vehemently disputes the Agency’s finding of no discrimination and maintains that the Agency did in fact deny him reasonable accommodation. In this regard, Complainant argues that the Agency’s assertion that he did not qualify for telework to be “unsupported by the facts” as he received an “Achieved Expectations” rating on a quarterly assessment. Furthermore, Complainant asserts that contrary to the Agency’s claim that he was not eligible to telework, his supervisor did in fact verbally authorize him to telework on an ad hoc basis. The Agency opposes the appeal and maintains that Complainant’s performance was subpar and ultimately led to his removal. In so arguing, the Agency points to numerous evaluations contained in the record, wherein Complainant was assessed below the “Achieved Expectations” level. The Agency also maintains that Complainant’s reasonable accommodation request for two computer monitors at home was not denied outright but approved on a provisional basis pending his attainment of the production metrics. The Agency asserts that Complainant was not given his requested monitors due to his removal. Upon careful review of the Agency’s final decision and the evidence of record, we find that the Agency correctly determined that Complainant failed to establish that the Agency subjected him to discrimination as alleged. While we are mindful of Complainant’s contentions on appeal, we find that the totality of the record shows that Complainant’s performance repeatedly fell below expectations, thus leading to his removal. As for Complainant’s contentions regarding his denial of reasonable accommodation, we carefully considered Complainant’s assertion that management allowed him to telework; however, we ultimately conclude that Complainant failed to persuasively show that he was allowed to telework.4 We also find no error regarding the Agency’s assessment of the remaining claims and his claim of harassment. Based on the foregoing, we conclude that Complainant cannot prevail on his complaint. Accordingly, we AFFIRM the Agency’s final decision. 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. 4 During the EEO investigation, Complainant claimed that his supervisor verbally approved his telework request. ROI at 85. Complainant has not provided any written evidence to corroborate this assertion. 2020004597 4 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). 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. 2020004597 5 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 June 9, 2022 Date
