[Redacted], Jaqueline L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020004054 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaqueline L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004054 Agency No. 1E-981-0021-19 DECISION On July 6, 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 June 8, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Seattle East Delivery and Distribution Center (Seattle East DDC) in Redmond, Washington. She joined the Agency over 20 years prior. See Report of Investigation (ROI) at 00595. Complainant was supervised by two Supervisors of Distribution Operations Supervisors (SDO-1 and SDO-2), who, in turn, were supervised by a Manager of Distribution Operations (MDO). Id. at 00140.2 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. 2 SDO-1 is identified on page 00338 of the ROI. SDO-2 is identified on page 00424. 2020004054 2 From October 16, 2018 to December 11, 2018, Complainant failed to report to work on four occasions, citing a variety of reasons. ROI at 00633. These reasons included: an unspecified medical condition, ordinary tardiness, an unspecified emergency, and sickness. Id. Complainant subsequently sustained an on-the-job injury on January 9, 2019, resulting in pain in her left leg, knee and back. ROI at 00250. She claimed that the injury prevented her from engaging in bending, twisting, lifting, and prolonged standing. Id. The following day, Complainant took sick leave and remained on sick leave until January 12, 2019. Id. at 633-34. Complainant took sick leave again on February 6, 2019. On February 12-13, and 15, 2019, Complainant failed to report to work due to snow. Id. She also failed to report to work on March 5, 2019, citing sickness. Id. Due to Complainant’s repeated unscheduled absences, totaling 14 instances between October 16, 2018 and March 5, 2019, SDO-1 held an investigative interview on March 8, 2019, to assess the reasons for Complainant’s absences. At the meeting, Complainant attributed her absences to “sick[ness], medical condition, emergency, snow days, [and] traffic.” ROI at 00278 and 00633- 34. On March 15, 2019, SDO-1 issued Complainant a letter of warning for failure to be regular in attendance from October 16, 2018 to March 5, 2019. Id. at 00277-78. In warning Complainant, SDO-1 advised Complainant of her obligation to be in regular attendance. Id. After Complainant filed a grievance challenging the letter of warning, the Agency agreed to rescind the letter. Id. at 00944. More than two months after her injury, Complainant met with her physician on March 26, 2019, to assess her injuries. Following an examination, Complainant’s physician diagnosed Complainant with back sprain, left leg sprain, muscle spasms, radiculopathy in lower back and left leg, and left knee pain. ROI at 00142. On the same day, Complainant applied for leave under the Family and Medical Leave Act (FMLA). Id. at 00809.3 She then stopped reporting to work beginning April 4, 2019. Id. at 00904-5. Between April 4, 2019 and May 7, 2019, Complainant filed 10 separate requests for annual or sick leave without submitting accompanying medical documentation. ROI at 00081-83. Because Complainant failed to submit medical documentation to substantiate absences in excess of three days, management denied her requests for annual or sick leave for this period. Complainant was ultimately approved for FMLA leave on April 25, 2019, for the period between March 26, 2019 through January 3, 2020. Id. at 00785 and 00809. As Complainant had been absent since April 4, 2019, the Agency sent Complainant a letter on May 6, 2019, inquiring about her duty status. ROI at 00373-74. In the letter, the Agency also reminded Complainant that she needed to submit medical documentation, as Agency policy required such documentation for absences in excess of three days. Id. 3 Complainant stated that she applied for FMLA on April 4, 2019; however, the record shows that she applied for FMLA on March 26, 2019. ROI at 00809. 2020004054 3 The Agency advised Complainant that failure to report her duty status would result in being placed on absent without leave (AWOL) status. Id. Complainant subsequently filed a CA-17 (Duty Status Report) form on May 8, 2019, with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). Id. at 00198. The duty status report reflected the following limitations: no more than occasional standing/walking, no climbing, twisting, bending, stooping, squatting, kneeling, crawling, no more than occasional lifting of up to five pounds, and seldom lifting of up to seven and a half pounds.4 Id. at 00700. On May 9, 2019, Complainant allegedly met with both SDO-1 and the MDO. Complainant recounted that during the meeting, SDO-1 stated, “I don’t believe you.” ROI at 00162. Complainant also recalled that the MDO told her that she thought that Complainant could not do anything at work. Id. Though the MDO did not recall the meeting, SDO-1 maintained that the alleged incident occurred the night of April 11, 2019. Id. at 00099-00100. The SDO-1 recalled that, on that night, Complainant brought in a medical note requiring her to sit down every hour. Id. When SDO-1 explained to Complainant that the Seattle East DDC did not have any jobs available within that restriction, Complainant allegedly told SDO-1 that she did not have to sit down every hour as directed by her physician. Id. SDO-1 averred that Complainant became very agitated when she told Complainant that she had to go by what Complainant’s physician ordered. Id. The following month, in early June 2019, SDO-2 directed Complainant to report back to work to review her medical restrictions. ROI at 00441-42. When Complainant failed to show, SDO-2 marked Complainant as AWOL from June 1, 2019 through June 7, 2019. Id. Complainant subsequently filed a grievance challenging the charge of AWOL. Like the letter of warning, the Agency ultimately settled Complainant’s grievance by changing the AWOLs to sick leave. Id. at 00947. On June 12, 2019, Complainant’s physician restricted Complainant to less than five pounds of continuous lifting and five pounds of intermittent lifting. ROI at 00770. Complainant’s physician, however, cleared Complainant to drive no more than 30 minutes per day. Id. In response to Complainant’s OWCP claim, which Complainant had previously filed on May 8, 2019, SDO-1 attempted to find positions that were more amenable to Complainant’s medical restrictions. On June 18, 2019, SDO-1 located two sedentary office jobs for Complainant located at facilities in Federal Way, Washington and Redmond, Washington. ROI at 00911. Though the duties associated with these jobs were well within Complainant’s medical restrictions, Complainant declined the offers of reassignment on June 20, 2019, due to her concern that she would need to drive more than 30 minutes per day. Id. at 00198. 4 Due to the illegibility of the physician’s handwriting, we are unable to clearly discern whether Complainant was capable of seldom lifting seven and a half pounds or 75 pounds. However, we find, as did the Agency, that Complainant, at this stage, was only capable of lifting seven and a half pounds. ROI at 00700. 2020004054 4 Complainant complained that she was not “given any time to take [the modified job offers] to [her] doctor, to look into relocating.” Id. at 00151. Due to Complainant’s rejection of the provided accommodations, SDO-1 referred Complainant’s reasonable accommodation request to the Agency’s District Reasonable Accommodation Committee (DRAC) on June 24, 2019, for further review. Id. at 00738. While Complainant’s reasonable accommodation request was pending with the DRAC, Complainant separately requested a transfer to the Bothell Post Office in Bothell, Washington. However, the Bothell Postmaster ultimately denied Complainant’s transfer request on July 30, 2019, citing Complainant’s poor attendance record. ROI at 00975. On August 7, 2019, the DRAC met with Complainant to discuss her reasonable accommodation request and subsequently denied her request in writing three days later. In denying Complainant’s request, the DRAC acknowledged that Complainant had a disability; however, the DRAC concluded that Complainant was not a qualified individual with a disability within the meaning of the Rehabilitation Act because Complainant did not “satisfy the requisite skills, experience, and other job-related requirements of the position [at] issue” and “no reasonable accommodation would enable [her] to perform those essential functions.” ROI at 00725-26. On October 7, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (back and left leg), age (over 40), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 and Section 501 of the Rehabilitation Act of 1973. The Agency accepted the following claims for investigation:5 1. On March 15, 2019, she was issued a Letter of Warning for “Failure to be Regular in Attendance”; 2. Since May 9, 2019,6 management has denied her the use of her sick leave or annual leave; 3. Since May 9, 2019, she has not been given light or limited duty so that she could return to work; 4. From June 1, 2019, through June 7, 2019, she was marked Absent Without Leave (AWOL); 5. On August 10, 2019, the DRAC denied her request for reasonable accommodation; 6. On October 12, 2019, her bid position was abolished;7 5 In addition to the eight claims listed below, Complainant also alleged that “management denied [her] Federal Employees’ Compensation Act (FECA) benefits and falsified FECA records. ROI at 00051-52. As Complainant has not challenged the Agency’s dismissal of this claim, we will not address it on appeal. 6 Though Complainant alleged that management denied her leave requests since May 9, 2019, nearly all the alleged instances identified by Complainant occurred on or prior to April 30, 2019. ROI at 00148. The last instance identified by Complainant occurred on May 6-7, 2019. Id. She has not identified any instances since May 9, 2019. 2020004054 5 7. On a date to be specified, Complainant was accused of providing false information; and 8. On a date to be specified, she was denied a transfer. The month after Complainant filed her EEO complaint, the Agency issued Complainant a letter dated November 6, 2019, offering her a sedentary office job in Vashon, Washington. The Agency also reoffered Complainant the same sedentary position in Federal Way, Washington, which the Agency had previously offered to her on June 18, 2019. Complainant accepted the position at Federal Way “under protest”, as she still had concerns about having to drive to the office. ROI at 00227. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In issuing the decision, the Agency first addressed claims 3 and 5, concerning Complainant’s request for reasonable accommodation. Having reviewed the record, the Agency found that even assuming arguendo that Complainant was an individual with a disability during the relevant period, she failed to demonstrate that the Agency fell short of its obligation to accommodate her. In this regard, the Agency noted that “[C]omplainant was offered the choice of two different light duty positions and declined them both due to the commute.” See Final Decision at 24. The Agency further noted that the DRAC denied Complainant’s reasonable accommodation request on August 10, 2019, because Complainant failed to show that she was a qualified individual with a disability. Id. The Agency ultimately agreed with the DRAC that Complainant was not a qualified individual with a disability within the meaning of the Rehabilitation Act, as the record showed that she did not have “the requisite skills, experience, and other job-related requirements of the position [at] issue” and “no further accommodation would enable her to perform those essential functions.” Id. With regard to claims 2, 4, and 8, the Agency found that management had legitimate, nondiscriminatory reasons for taking the alleged actions. Specifically, as to claim (2) the Agency found that management denied Complainant’s use of sick or annual leave on the alleged dates in April and May 2019, because Complainant did not report to work and did not notify management. Furthermore, the Agency found that Complainant failed to respond to management’s requests for medical documentation, which was standard Agency policy for absences lasting more than three days. In the same vein, regarding claim (4), the Agency also found that management’s underlying reason for marking Complainant as AWOL from June 1, 2019 through June 7, 2019, was based on Complainant’s failure to either report to work or call in her absence. As for the denial of Complainant’s transfer request (claim 8), the Agency found that the denial of Complainant’s request was based on Complainant’s poor attendance record. 7 Complainant withdrew claim 6 on January 3, 2020. 2020004054 6 The Agency ultimately concluded that Complainant failed to persuasively show that the Agency’s articulated reasons were pretext for discrimination. Finally, the Agency considered claims 1 and 7, along with claims 2, 3, 4, 5, and 8, as part of Complainant’s hostile work environment claim. Having reviewed the record, the Agency concluded that Complainant failed to establish a prima facie case of harassment. This appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency filed contentions on appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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”). ANALYSIS AND FINDINGS Denial of Reasonable Accommodation: Claims 3 and 5 Under the Commission’s regulations, 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. 29 C.F.R. §§ 1630.2(o) and (p). To establish that the Agency denied Complainant a reasonable accommodation, Complainant must show that: (1) she was an individual with a disability; (2) she was 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 (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Our review of the record here shows that Complainant was unable to perform the duties of her position of record due to her on-the-job injury in January 2019. 2020004054 7 Though Complainant sought a modified light or limited duty assignment to reflect the sedentary medical restrictions assigned by her physician, SDO-1 was unable to locate sedentary office jobs at Complainant’s facility. Consequently, SDO-1 attempted to find jobs within Complainant’s medical restrictions. Following a reassignment search, SDO-1 located and offered two sedentary office jobs located in Federal Way, Washington and Redmond, Washington. However, Complainant declined the offers of reassignment on June 20, 2019, not because the offered jobs violated her medical restrictions, but due to her concern that she would need to drive more than 30 minutes per day to commute to and from work. As Complainant could not perform the duties of her position of record or any other position, the Agency’s DRAC concluded that Complainant was not a qualified individual with a disability as she did not “satisfy the requisite skills, experience, and other job-related requirements of the position [at] issue” and “no reasonable accommodation would enable [her] to perform those essential functions.” Ultimately, Complainant accepted the previously offered position at Federal Way albeit under protest, despite her concerns about driving. Upon review, we find that the probative evidence fails to show that the Agency improperly denied her requests for reasonable accommodation. To the contrary, we determine that the Agency made good faith efforts to locate jobs within Complainant’s medical restrictions; however, Complainant was the one who initially declined the offers due to her concerns about commuting. While we acknowledge that the Commission has long held that a request for a shorter commuting time due to a disability triggers an Agency’s obligation under the Rehabilitation Act,8 the bottom line remains that Complainant, by her own admission, was unable to perform both the duties of her position of record and the duties of the offered modified duty assignment positions. As Complainant has not pointed to any vacant, funded, sedentary positions available at her facility or any other facility within her driving restriction, we agree with the Agency that Complainant was not a qualified individual with a disability during the relevant period. We, therefore, conclude that Complainant cannot prevail on her denial of reasonable accommodation claims. Disparate Treatment: Claims 1, 2, 4, and 8 For Complainant to prevail on claims 1, 2, 4, and 8, concerning her allegations of disparate treatment discrimination, 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 Constr. 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). 8 See Southerland v. U.S. Postal Serv., EEOC Appeal No. 0120091983 (June 15, 2010), citing Kubik v. Dep’t of Transp., EEOC Appeal No. 01973801 (July 9, 2001). 2020004054 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 bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged actions. For claim 1, SDO-1 explained that she issued Complainant a letter of warning on March 15, 2019, because Complainant failed to report to work as scheduled on 14 instances between October 16, 2018 to March 5, 2019. ROI at 00077-78 and 00627. With regard to claim 2, the record reflects that various management officials in Complainant’s chain of command denied Complainant’s requests for annual and/or sick leave because Complainant failed to submit medical documentation to substantiate her need for absences in excess of three days. The MDO emphasized that employees who claim FMLA are still required to provide medical documentation to local management in accordance with Agency policy, as local management “will not get any medical note from [the] FMLA Office, and FMLA will only indicate the duration and frequency of the leave that an employee will need for their conditions.” ROI at 00082-83. As for claim 4, SDO-2 explained that she marked Complainant as AWOL from June 1, 2009 to June 7, 2019, because she instructed Complainant to come into the office to discuss Complainant’s CA-17, but Complainant was a “no call, no show.” ROI at 00094. Finally, for claim 8, the Bothell Postmaster maintained that he denied Complainant’s transfer request because Complainant had a poor attendance record. ROI at 00101. 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 for claim 1, Complainant surmised that management issued her a letter of warning on March 15, 2019, because she did not provide a medical note. Complainant was unsure as to whether management’s expressed concerns about her pattern and continual use of sick leave was true or not. 2020004054 9 However, she nevertheless disagreed with management’s reasoning, as she believed that her leave usage was not excessive, and she noted that she was waiting to see a physician so that she could get FMLA. ROI at 00076-77. With regard to claim 2, Complainant averred that management should not have denied her requests for leave because she had been incapacitated until May 9, 2019, and had been approved for FMLA on April 25, 2019. Complainant maintained that she did not need a medical note because she had already been approved for FMLA. ROI at 00081-82. As for claim 4, Complainant reiterated her belief that she was marked AWOL for not providing a medical note and maintained that she had medical documentation in place, as well as approved FMLA. ROI at 00092-93. Regarding claim 8, Complainant asserted that the Bothell Postmaster denied her transfer request because of the MDO’s erroneous recording of her attendance status. ROI at 00101. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that she was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are unpersuaded by Complainant’s evidence of pretext. While we certainly understand that Complainant subjectively believes that her leave usage prior to March 15, 2019 (claim 1), was not excessive, we note that Complainant incurred a total of 14 instances of unscheduled leave usage. Out of the 14 instances, four instances occurred prior to her on-the-job injury on January 9, 2019. Out of the remaining 10 instances, three instances were for snow days and two instances were for ordinary tardiness. Given these circumstances, we are simply disinclined to find that SDO-1 acted discriminatorily in warning Complainant about her pattern of leave usage. ROI at 00633-64. In the same vein, we cannot find discriminatory animus with regard to the Bothell Postmaster’s decision to deny Complainant’s transfer request based on Complainant’s attendance record (claim 8), as the record persuasively shows Complainant took many unscheduled absences, even prior to her injury and request for FMLA. For these reasons, we conclude that Complainant cannot prevail on claims 1 and 8. 2020004054 10 For claim 2, we find no evidence that the Agency treated Complainant in a disparate manner in denying her requests for annual and/or sick leave, as she has not shown that other employees were allowed to request leave in excess of three days without providing medical documentation.9 We also find no other persuasive evidence of discrimination. With regard to claim 4, while Complainant stated that she was marked AWOL for not providing a medical note, we note that SDO-2 clearly averred that she marked Complainant as AWOL for failing to either report to work or call in after she had been instructed to return to work. As Complainant failed to respond to the SDO-2, we are disinclined to find that the SDO-2 acted discriminatorily in marking Complainant as AWOL following Complainant’s non-response. Hostile Work Environment Claim As an initial matter, we find that a finding of harassment is precluded on 1-5, and 8, due to 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 (Sept. 21, 2000). We turn now to claim 7, concerning Complainant’s allegation that management accused her of providing false information. We note that SDO-1 clarified that the dispute concerned Complainant’s request to exceed the restrictions assessed by her physician. To establish a claim of harassment on claim 7, 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 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 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 and 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). 9 To the extent Complainant contends that the Agency interfered with her unpaid FMLA rights by failing to allow her to use paid annual and/or sick leave, we note that the Commission generally has no jurisdiction over claims based on the FMLA. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC). 2020004054 11 To prevail on a 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 Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § 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 also Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). 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 find that she has not shown that the conduct occurred because of her protected classes. To the extent that Complainant asserts that her chain of command acted unprofessionally towards her during the meeting, we note that antidiscrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). We find that Complainant has not shown that the alleged conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. We also find that the alleged conduct would not dissuade a reasonable person from making or supporting a charge of discrimination. Accordingly, we find that Complainant cannot prevail on her hostile work environment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2020004054 12 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2020004054 13 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 15, 2021 Date