[Redacted], Jeramy R., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 17, 2021

Appeal No. 2020000749 (E.E.O.C. Feb. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeramy R.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000749 Hearing No. 520-2017-00692X Agency No. 200H05232016105008 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 July 12, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Administrative Officer of the Day (AOD), GS-9, at the Agency’s VA Medical Center in Brockton, Massachusetts. On October 12, 2016, Complainant filed a formal EEO complaint, that was subsequently amended multiple times, claiming that the Agency discriminated against him and subjected 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. 2020000749 2 to a hostile work environment based on disability (sleep apnea) and in reprisal for prior protected EEO activity2 when: 1. on May 6, 2017,3 Complainant’s first level supervisor (S1) told him and other staff that she would not let her VA position interfere with her position at Walmart; 2. on May 6, 2016, S1 sent an email meant for Complainant to another co-worker; 3. on May 11, 2016, S1 scheduled Complainant for two evening and overnight shifts without speaking with him; 4. on May 12, 2016, S1 was hostile in manner and tone toward Complainant when he submitted a doctor’s note restricting him to one schedule; 5. on or about May 12, 2016, S1 tried to coerce Complainant into covering for an absent employee, even though Complainant had the doctor’s note limiting him to one schedule; 6. on May 13, 2016 and June 1, 2016, S1 refused to discuss Complainant’s restricted work schedule and told him he needed to “request reasonable accommodation;” 7. on May 18, 2016, S1 denied Complainant’s leave requests for annual leave for July 9, 2016 and July 14, 2016 and offered him the period July 17-24, 2016 instead; 8. on May 19, 2016, and again on June 8, 2016, S1 refused to reconsider his denied leave request made May 18, 2016; 9. on June 17, 2016, S1 told Complainant to a follow up immediately so she could track an error that he made that, even though he had no previous training to avoid such an error; 10. on June 23, 2016, S1 did not assist Complainant in obtaining Massachusetts military records she had directed him to provide her; 11. on June 23, 2016, S1 told Complainant she was denying his overtime scheduled for July 31, 2016; 2 Complainant testified that he had not filed any prior EEO complaints. However, he initiated EEO Counselor contact on August 29, 2016. Therefore, Complainant’s allegations of reprisal only apply to claims after August reprisal claims only apply to claims after August 29, 2016 (claims 26, 27, 28, and 30). 3 Complainant clarified in his affidavit that this alleged incident occurred on May 6, 2016. 2020000749 3 12. on June 26, 2016, S1 did not answer Complainant’s phone calls or emails and failed to relieve Complainant in order to force him into working an overnight shift; 13. on June 26, 2016, S1 called the AOD desk looking for Complainant and instructed Complainant’s co-worker to delete his notes in the AOD log about S1 not showing up for work and Complainant’s attempts to locate S1 so that she could relieve him; 14. on June 30, 2016, Complainant learned that he was charged one- and one-half hours of AWOL for June 26, 2016; 15. on June 30, 2016, S1 questioned Complainant about saving information in “the log” after she had directed Complainant’s co-worker to delete it on June 26, 2016; 16. on July 7, 2016, S1 directed Complainant’s co-worker to tell him she could not cover his shift unless there was written approval for her to work overtime; 17. on July 13, 2016, S1 disapproved Complainant’s medical excuse from work until his condition improved; 18. during the week of July 14-18, 2016, S1 charged Complainant forty hours AWOL; 19. on July 21, 2016, S1 accused Complainant of not responding to an email in a timely fashion; 20. on July 21, 2016, S1 told Complainant he should turn away a veteran for admission because the veteran was dishonorably discharged. However, Complainant “stood firm” and checked the veteran in and found out the next day the patient was eligible for admission; 21. on July 31, 2016, S1 charged Complainant one- and one-half hours of AWOL; 22. on August 4, 2016, and in response to Complainant’s query as to why he had to request a reasonable accommodation for a schedule change while his co-workers requesting changes in schedules did not, S1 told Complainant, “That’s not your concern, they’ve been here longer than you;” 23. on August 21, 2016, S1 issued Complainant a proposed reprimand dated August 5, 2016; 2020000749 4 24. on September 1, 2016, Complainant was notified of his non-selection for the position of Program Specialist, GS-0301-11, from vacancy announcement number RS-16-KA-1719639-BU in Voluntary Service; 25. on September 15, 2016, the Business Manager, issued Complainant a reprimand sustaining charges in the proposed reprimand sustaining charges in the proposed reprimand of August 5, 2016; 26. on October 17, 2016, S1 advised Complainant that any leave requests for 2017 should not be requested until January 1, 2017 and any approvals for that time period made by her during 2016 would need to be re-entered in January 2017, where seniority would be a factor, although she approved leave for Complainant’s co-worker and her “friend” in 2016 without following similar instructions; 27. on or about April 27, 2017, Complainant learned that S1 assigned him two different schedules during the week of May 28, 2017 to June 2, 2017, which is against his doctor’s orders; 28. on or about April 27, 2017, Complainant learned that S1 scheduled him to work on May 29, 2017, even though she previously advised him on February 23, 2017 that he would not be assigned to work on his scheduled day off; 29. on April 24, 2017, the Business Office Manager, advised Complainant that he was detailed to the West Roxbury Campus effective June 1, 2017; and 30. on May 2, 2017, Complainant learned from two different employees that S1 has been making negative comments about him by telling staff they need to “watch [Complainant],” that “he can’t be trusted, he’ll report you to management if you do anything wrong and [he’ll] write down the times people come and go.” Following the completion of the report of investigation of the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on May 28, 2019, the Agency issued a motion for summary judgment. After receiving an opposition from Complainant and additional response from the Agency, the AJ issued a decision by summary judgment in favor of the Agency.4 On July 12, 2019, the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. 4 The record indicates that before the AJ issued the decision, Complainant withdrew claims 1, 2, 3, 16, 24, 25, and 29. 2020000749 5 ANALYSIS AND FINDINGS 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Complainant has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service 2020000749 6 Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for its actions. Complainant testified that he has a service-connected disability, sleep apnea, which, for the past twenty years, interferes with his daily actives if he does not sleep well the night before. Consequently, Complainant stated that he has a work restriction which requires that he work the same schedule for a 40-hour work week. Complainant could work either an afternoon shift (3pm - 11pm) or an overnight shift (10pm - 8am) during the full 40- hour work week, but not a combination. We presume for the purposes of analysis only, and without so finding, that Complainant is an individual with a qualified disability. Work Restrictions (Claims 5 through 6, 22, and 27) Complainant alleges S1 responded in a hostile manner regarding his work restrictions; S1 tried to coerce Complainant into working another schedule even though he could only work one schedule; S1 refused to discuss his work restrictions; and S1 assigned him to work two different schedules which violated his work restrictions. S1 stated that she processed Complainant’s work restriction as a request for reasonable accommodation because the work restriction conflicted with the tour of duty Complainant was hired to complete. Specifically, Complainant’s work restriction required that he work the same shift during a 40-hour work week. S1 explained that Complainant was hired to work WHEN hours which meant that he could work weekends, holidays, evenings, and nights or different shifts at any given time. S1 indicated that Complainant’s reasonable accommodation request was then placed under review which was not completed until August 12, 2016. In the interim, S1 stated that she provided Complainant an accommodation and directed Complainant to resume his normal schedule working the 2pm to midnight shift.5 S1 noted that Complainant worked this shift during the period his accommodation request was under review. Although Complainant’s request for reasonable accommodation was denied on August 12, 2016, S1 stated that she still tried to maintain, as much as possible, Complainant on the same shift and she often completed an uncovered shift herself if it involved different shifts. Nevertheless, S1 noted that in January 2017, Complainant volunteered to take another AOD’s shift (10pm to 8am) because that AOD was involved in a car accident. 5 S1 acknowledged that this schedule eliminated Complainant from any offered overtime. However, S1 explained that she gave Complainant the option to work a couple of additional hours before his shift began. 2020000749 7 S1 denied attempting to coerce Complainant into working another AOD’s shift on March 12, 2016. S1 indicated that an AOD had called out sick and she asked if he wanted to work overtime or if he wanted her to call another AOD to cover the shift. Both S1 and Complainant testified that it was customary practice for an AOD to stay and cover the next shift and earn overtime if the AOD working the next shift did not show up. Complainant specifically testified that there was “an unwritten rule that the AOD that’s on would cover for the AOD who calls in sick for the next shift.” However, S1 testified that Complainant’s timesheet failed to indicate that he worked a secondary back to back shift on May 12, 2016. S1 noted that Complainant only worked the 2pm to midnight shift on May 5, 6, 7, 8, 12, 13, and 14, 2016. Regarding discussion of Complainant’s reasonable accommodation requests on May 13, 2016 and June 1, 2016, S1 explained that during this period Complainant had not submitted the necessary paperwork to request a reasonable accommodation which further delayed the process to determine whether he was eligible for an accommodation. However, as previously stated, S1 continued to provide Complainant with an interim accommodation during this time. S1 further acknowledged Complainant’s inquiry about another co-worker’s reasonable accommodation for a schedule change. S1 explained that she informed Complainant that she would not discuss other employee’s reasonable accommodations with Complainant as required by Agency policy. Although Complainant’s reasonable accommodation request was denied in August 2016, the record supports that S1 still tried to only assign Complainant the same shift for the 40-hour work week. Specifically, Complainant’s response to the Agency’s second request for discovery, question 22, indicates that Complainant acknowledged that S1 changed his scheduled to accommodate his request to work one shift when he raised a concern about the schedule for the week of May 28, 2017. Leave Requests and Time and Attendance (Claims 7, 8, 14, 17, 18, 21, 26, 28) Complainant’s leave requests for July 9 and 14, 2016 were denied because senior AOD staff were already out on leave for those requested days and there could only be AOD out at time. Additionally, Complainant’s sick leave requests for July 14 - 17, 2016 were also denied because Complainant failed to provide sufficient documentation from his physician regarding his absence. The doctor’s note only indicated that Complainant needed to be excused from work, without any indication of his condition. Furthermore, Complainant submitted this sick leave request after his annual leave request for the same dates was denied. The record supports that Complainant was charged one and one half hours on AWOL on June 26, 2016 and July 31, 2017 because Complainant left work without permission before his shift ended and was charged AWOL for the remaining time he should have worked. 2020000749 8 Complainant also acknowledged in his deposition that his co-worker’s January 5 - 6, 2017 leave request fell within the approval leave period for 2016. Specifically, the 2016 leave year ran from January 10, 2016 (the last pay period in 2016) to January 7, 2017 (the last pay period in the following year). Consequently, Complainant’s co-worker had requested her January 5 -6, 2017 leave request in the 2016 leave year as required, and she had not been approved for any leave for 2017 as Complainant alleged. Finally, Complainant acknowledged that S1 changed his scheduled when he notified her that she had scheduled him to work on his scheduled day off on May 29, 2017. Overtime (Claims 11 and 12) S1 explained that she forgot that she was covering the shift after Complainant’s shift ended on June 26, 2016. S1 further explained that this shift was an extra shift she was working in addition to her 40-hour work week. S1 acknowledged that S1 called her work phone and left a voice message around 12:30am. However, she did not hear it because she did not keep her work phone with her at night. S1 indicated that she had previously instructed her staff to call her on her personal phone where she could be contacted 24/7. However, Complainant did not call her personal phone and he did not page her. S1 explained that the nursing coordinator called her personal phone at 1:07am informing her that Complainant was leaving work and there was no one present to cover him. S1 noted that, per union regulation, an employee had two hours to call in before being marked AWOL, and therefore, Complainant was required to have waited an additional one and one half hours before leaving his post unattended. Both Complainant and S1 testified that Complainant ultimately worked overtime on July 31, 2016. S1 explained that she needed coverage for the period 10am to 2pm which was directly before the start of Complainant’s 2pm shift. S1 indicated that she hesitated with assigning Complainant to work more hours because his doctor’s note restricted him to working no more than 40 hours a week on the same shift. Proposed Reprimand (Claim 23) A copy of the August 5, 2016 proposed reprimand indicates that S1 charged Complainant with four charges: (1) abandonment of position, (2) absence without official leave, (3) failure to comply with leave requesting procedures, and (4) unacceptable conduct. For charge 1, the letter indicated that Complainant left his tour of duty from 12:30am though 1:00am before being relieved by appropriate personnel and without authorization. For charge 2, the letter indicated that on July 31, 2016, Complainant left work 1.50 hours early without permission and from July 14 - 17, 2016, Complainant was absent from work and failed to provide adequate medical documentation certifying that his absence was related to a sickness or injury. Charge 3, stated that Complainant failed to obtain permission from his supervisor when he left work on July 31, 2016 before his shift ended. Finally, charge 4 indicated that Complainant yelled at co-worker. 2020000749 9 The record supports that Complainant filed a written response to the proposed reprimand, however, on September 8, 2016, Complainant’s second level supervisor upheld the decision to reprimand Complainant. Additionally, Complainant acknowledged in his deposition that he did not believe that S2’s decision to uphold the reprimand was discriminatory. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability and reprisal for prior protected EEO activity. Therefore, Complainant’s claim of discriminatory harassment in claims 5 - 8, 11, 12, 14, 17, 18, 21, 22, 23, 26, 27, and 28 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by disability or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Reasonable Accommodation To the extent that Complainant alleges that he was denied a reasonable accommodation, our review of the record supports that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act. To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. As already determined, the evidence shows that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. The record indicates that Complainant presented his work restrictions to S1 as early as May 2016. The Agency accepted Complainant’s restrictions as a request for accommodation because the restrictions conflicted with the tours of duty Complainant was hired to perform. Additionally, the Agency provided Complainant with interim accommodations which were within his work restrictions during the period his reasonable accommodation request was under review. A copy of the August 12, 2016, reasonable accommodation determination letter stated that Complainant waited until June 21, 2016, to submit a formal reasonable accommodation request, to work a regular consistent tour of duty. Additionally, Complainant did not provide the necessary medical documentation until July 25, 2016. The determination letter indicates that Complainant’s medical documentation did not identify the nature of Complainant’s disability and did not support the requested accommodation. 2020000749 10 Finally, the determination letter states that Complainant submitted an August 12, 2016 email indicating that he was not requesting a reasonable accommodation. Consequently, the Reasonable Accommodation Committee accepted Complainant’s August 12, 2016 submission and closed the matter. Given these facts, we find that the Agency did not violate the Rehabilitation Act when the Agency ceased processing Complainant’s reasonable accommodation request after receiving notification from Complainant that he did not request a reasonable accommodation. Hostile Work Environment To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Insert harassment paragraph. The AJ correctly determined that Complainant was not subjected to discriminatory harassment as alleged. Hostile Manner in Response to Work Restrictions (Claim 4) S1 denied addressing Complainant in a hostile manner when he informed her of his need to work the same shift each week. S1 clarified that she raised her voice so that Complainant could hear her because Complainant wore bilateral hearings aids and often could not hear her when she spoke with a low voice. June 17, 2016 follow-up email (Claim 9) The record indicates that S1 sent Complainant an email on June 17, 2016 after Complainant failed to respond to a June 10, 2016 email requesting that he explain why he deleted patient information. S1 requested that Complainant explain his actions so that she could follow-up on the error. Complainant acknowledged that he made the error. 2020000749 11 Complainant indicated, however, that S1 failed to train him on how to document classifications for patients admitted to the Brockton domiciliary. Massachusetts Military Records Assistance (Claim 10) S1 explained that she did not, at the time, have the username or password required to access the information Complainant needed despite her requests for it. Request to Delete Complainant’s Notes (Claims 13 and 15) S1 acknowledged that she requested that Complainant’s notes in the AOD log be deleted. S1 explained that Complainant’s notes mentioned that she did not show up to cover a shift and Complainant abandoned his shift without coverage for the next shift. S1 further explained the AOD log was viewed by the director and if the director had read Complainant’s notes, Complainant could have been subjected to an automatic termination. S1 indicated that Complainant was required to stay on post until someone relieved him, but Complainant abandoned his post and put the campus at risk. S1 asserted that she was protecting Complainant and she wanted to resolve this issue at the service level. S1 acknowledged that Complainant was provided a copy of the AOD log including his notes before they were removed. S1 further acknowledged that she asked Complainant to confirm that he saved his notes after S1 had instructed a co-worker to delete the notes. S1 explained that she had not physically seen the notes and she wanted to confirm that Complainant had saved the notes in the system. July 21, 2016 Follow up Email (Claim 19) S1 testified that she asked Complainant to update the AOD log two hours after she had initially asked him to complete this task. The record indicates that S1 emailed Complainant at 8:07pm and Complainant did not respond until 10:15pm. Dispute on Veteran’s Admission (Claim 20) Complainant testified that S1 instructed him to turn a veteran away because he was ineligible for services. However, Complainant explained that the veteran was eligible for mental health support. Complainant further explained that S1 told him the wrong information, which was harassment. Nevertheless, Complainant acknowledged that S1 agreed with him within ten minutes of discussing the matter and the veteran was admitted. Negative Comments about Complainant (Claim 30) Aside from Complainant’s assertion, there is no other testimony in the record to support that S1 made the negative comments at issue. 2020000749 12 Considering these claims, even if true, Complainant has not shown evidence that considerations of his disability or retaliatory animus motivated management’s actions towards Complainant. S1 denied yelling at Complainant when he provided her his work restrictions. Rather, she spoke loudly so that Complainant could hear her because he used hearing aids. The record indicates that S1 issued follow-up emails because Complainant failed to respond or timely respond to the initial requests. The record further indicates that S1 had Complainant’s notes deleted from the AOD log because the contents of those notes would have subjected Complainant to an automatic termination. Additionally, the record reflects that Complainant and S1 initially disagreed on whether a veteran was eligible for services, but S1 eventually agreed with Complainant that the veteran was eligible. Finally, there is no evidence aside from Complainant’s testimony to collaborate Complainant’s assertion that S1 made negative comments about him. These incidents Complainant alleges are not sufficiently severe or pervasive as to constitute hostile work environment/harassment under Commission regulation. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, we find that Complainant failed to demonstrate that the Agency discriminated against him as alleged. CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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. 2020000749 13 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. 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. 2020000749 14 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 February 17, 2021 Date