[Redacted], Johana S.,1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Aug 23, 2021

Appeal No. 2019004910 (E.E.O.C. Aug. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johana S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019004910 Agency No. HS-ICE-00269-2018 and HS-ICE-01477-2018 DECISION On June 17, 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 13, 2019 final decision 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer, GS-1801-12, at the Agency’s Enforcement and Removal Operations (ERO) facility in Brooklyn Heights, Ohio. On January 3, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment/harassment and/or discrimination on the bases of sex (female), disability, and reprisal for prior protected EEO activity when: 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. 2019004910 2 1. On August 10, 2017, Complainant was issued a Notice of Medical Disqualification and Offer to Consider Reassignment Letter; 2. On August 30, 2017, the Deputy Field Office Director (DFOD) threatened Complainant and raised his voice at her when he told her that her options were to resign or to retire, and that she should follow the instructions and procedures outlined in the Notice of Medical Disqualification and Offer to Consider Reassignment Letter; 3. On September 6, 2017, Complainant’s request for reasonable accommodation went unanswered until November 14, 2017, at which time it was denied; 4. On October 6, 2017, Complainant was issued a notice of Proposed Removal; 5. On November 1, 2017, Complainant received a low rating on her Performance Appraisal; 6. On November 1, 2017, Complainant’s supervisor initially refused to speak with the Union Representative on Complainant’s behalf regarding her Performance Appraisal and subsequently the DFOD refused to reconsider Complainant’s rating in conversation with the Union President; 7. On November 8, 2017, Complainant’s supervisor ignored her, would not speak with her, and slammed the lobby door in her face; 8. On November 29, 2017, Complainant received a harassing email from management regarding her inventoried items; and 9. On November 22, 2017, Complainant received a letter terminating her from federal service, effective immediately. The Agency determined that the complaint contained mixed issues, which are appealable to the Merit Systems Protection Board, and non-mixed issues that are not. It bifurcated the complaint into two cases, both of which are included in this appeal. The non-mixed issues were processed under Agency No. HS-ICE-00269-2018 and the mixed issue was processed under Agency No. HS-ICE-01477-2018. The Agency dismissed claims (1) for untimely EEO counselor contact, citing 29 C.F.R. § 1614.105(a)(1). It dismissed claim (6), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that the allegation was more properly adjudicated within the negotiated grievance process. The Agency accepted claims (2), (3), (5), (7), (8), and (9)2 for investigation. The investigation produced the following pertinent evidence. Regarding her alleged basis of disability, Complainant attested that she suffered a work-related back injury and, in December 2015, was diagnosed with herniated discs and radiculopathy of the lumbar spine. She attested that her work restrictions were: 3 days a week light duty until she recovered; 4 hours walking/standing; limitation on pushing 20 pounds; pulling 20 pounds; and lifting 10 pounds. She attested that these restrictions were to remain in place until she 2 Claim 4, the proposed termination, was merged into claim 9, the final termination decision. 2019004910 3 completed treatment. She attested that she was able to perform 90 percent of the duties in her job description, but the Supervisory Detention and Deportation Officer (Supervisor1) assigned her to perform only background checks, which was what the Office of Worker’s Compensation (OWCP) and management had agreed. Supervisor1 attested that he was aware that Complainant had suffered a work-place injury. He attested that she was not performing her job but was performing only administrative duties. He attested that, since her return from her injury in December 2015, her duties were to conduct background checks and her schedule was Monday, Wednesdays and Fridays, from 9 am to 1 pm. He attested that Complainant's medical condition prevented her from performing her job duties and the essential functions of the Deportation Officer position with or without accommodations. He attested that she could not carry a firearm and, therefore, was not able to perform any law enforcement duties as required. He also attested that she could not perform any of the physical demands of the position. The Deputy Filed Office Director (Director1) attested that he was aware that Complainant had a back injury/condition. He attested that she had a modified work schedule and administrative duties due to her injury. He attested that Complainant’s medical condition prevented her from performing her duties as a Deportation Officer. He attested that she was restricted to working every other day for a maximum of four hours each day and was also restricted from the physical demands required of the job, including moving, lifting, or carrying anything over 10 pounds. Mr. Hamilton asserted that Complainant could not perform many, if not most, of the duties of a Deportation Officer, including law enforcement functions such as conducting arrests, target or subject interviews, any contact with arrestees or detainees, possessing and utilizing agency credentials, conducting investigations, transporting or escorting detainees, and many other functions based on the position description. The Field Officer Director (Director2) attested that she was also aware of Complainant’s back injury. She attested that Complainant had subsequently filed a claim with OWCP and was returned to full duty on May 14, 2013. She attested that, in December 2013, the Agency’s Medical Officer ordered a Fitness for Duty exam, which resulted in Complainant returning to full duty without restrictions in March 2014. She attested that, on December 7, 2015, Complainant fell while on duty and experienced a possible reoccurrence of the previous injury. Agency records document Complainant’s medical condition. They show that, on December 7, 2015, she was diagnosed with low back strain. The record includes a CA-1 Federal Employee’s Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, dated December 8, 2015. A Physician’s Report of Work Ability, dated December 7, 2015, indicates work restrictions. A Report of Work Status indicates that Complainant stopped working after her injury on December 7, 2015 and returned to work on June 30, 3016 on part- time modified duty with restrictions for 4 hours per day, 3 days per week -Monday, Wednesday, and Friday. A Work Capacity Evaluation dated April 19, 2017 indicates that she was on light duty with restrictions until surgical correction. A Certificate to Return to Work/School dated August 23, 2017 indicates that she was able to return to work on August 2019004910 4 25, 2017 and was required to continue light duty, refrain from moving, lifting, or carrying anything over 10 pounds, and scheduled days should continue as every other day. A physician’s letter dated November 17, 2017 indicates that her condition had not improved in two years and she wanted to have surgery. Regarding her alleged basis of reprisal, Complainant identified a prior EEO complaint in which she was the prevailing party in a harassment claim against management. She attested that Director2 was involved in that complaint. She also alleged that the responsible management officials in the instant complaint -Supervisor1, Director1, and Director2, were aware of her prior EEO complaint, as she had spoken to them about it. Supervisor1, Director1, and Director2 acknowledged that they were aware of Complainant’s prior EEO activity. Claim 2 Complainant attested that, on August 30, 2017, she called Director1 on the telephone to ask why she had received a Notice of Medical Disqualification and Offer to Consider Reassignment letter and he stated, “It’s time. We can not keep you like this anymore.” She attested that she told him that she was not permanently injured, there was no reason for the medical disqualification, and she believed management was using the injury as an excuse to remove her. She attested that, when she questioned him about a male employee being treated differently, he threatened her and raised his voice at her, telling her that her options were to resign or retire, and that she should follow the instructions and procedures outlined in the Notice of Medical Disqualification and Offer to Consider Reassignment letter. Director1 attested that, on or about August 14, 2017, Supervisor1 served Complainant with the Notice of Medical Disqualification and Offer to Consider Reassignment letter. He acknowledged participating in a phone call about it, but he denied suggesting that Complainant could resign as an option. He attested that he explained the substance of the letter, which referenced applying for disability retirement, and that he advised Complainant to read the letter carefully and follow the procedures outlined. He denied threatening Complainant or raising his voice. He also attested that Supervisor1 participated in the telephone call. Supervisor1 attested that he did not recall Director1 raising his voice during the conversation about the Notice of Medical Disqualification and Offer to Consider Reassignment letter. A Detention Officer (DO1) attested that Complainant told her that Director1 was badgering her to retire ore resign because she can no longer do the job of a Detention Officer. 2019004910 5 Claim 3 Complainant attested that, on August 30, 2017, she made an oral request for a reasonable accommodation to Director1 and his response was that he did not handle reasonable accommodations. She attested that, on September 6, 2017, she requested, via the Agency’s website, to continue working light duty with her current restrictions for a 4-month period following surgery as a reasonable accommodation. She attested that she planned to undergo corrective surgery for her back injury. She attested that, on October 16, 2017, she made another request for a reasonable accommodation and she did not receive a response until November 14, 2017, when Director1 notified her that her request was denied. Complainant indicated that, as of June 22, 2018, she had not had the corrective surgery. Director1 attested that, beginning in August 2017, Complainant was asked if she was interested in a reassignment as a last resort accommodation, given her inability to perform the duties of a Detention Officer. He attested that, at the end of August 2017, he walked Complainant through the process of contacting the Office of Diversity and Civil Rights (ODCR) via their website to request reassignment, as explained in the Notice of Medical Disqualification. He attested that, in late October or early November, he became aware that complainant contacted ODCR on or about September 6, 2017 to request an accommodation and that she made another request on October 16, 2017. He attested that the first letter did not request a specific accommodation, but the second letter requested that she continue to work 3 days per week and 4 hours per day. Director1 attested that Complainant had been performing administrative duties part-time for 18 months as an accommodation. Claim 5 Complainant alleged that, on November 1, 2017, she received a low rating on her performance appraisal. She attested that she had never received a low rating since starting in January 2017 and she believed she deserved an “excellent” or “outstanding” rating. She attested that she had never been reprimanded or had any deficiencies in her work. Supervisor1 attested that he was the Rating Official and Director1 was the Reviewing Official on Complainant’s Fiscal Year 2017 performance appraisal. He acknowledged that she received a rating of excellent in the prior rating period but attested that another supervisor was the reviewing official. Supervisor1 attested that he initially wanted to give Complainant a rating of excellent, to keep her rating consistent, but Director1 explained to him that a rating of excellent seemed inflated and, after a discussion, they agreed that Complainant had earned a rating of “fully successful.” He attested that Complainant had met the goals and objectives of that level. Director1 attested that, while he was the reviewing official for Complainant’s performance appraisal, he did not recall anything specific about the discussion with Supervisor1. 2019004910 6 Claim 7 Complainant alleged that, on November 8, 2017, Supervisor1 ignored her, would not speak with her, and slammed the lobby door in her face as she was attempting to pass him. She attested that this occurred upon her return from sick leave. She attested that DO1 witnessed the incident. Supervisor1 attested that, on this occasion, he did not engage Complainant, noting that she scowled at him. He attested that he recalled Complainant walking back from a break and he was walking in the door; he was going to hold the door open for her, but she was walking slowly, talking to another employee; and, while Complainant was still 10 to 15 feet behind the door, he let it close behind him. He denied slamming the door in her face. DO1 attested that she witnessed the incident on November 8, 2017. She attested that she and Complainant were going out to lunch and Supervisor1 was coming into the lobby when he slammed the door in Complainant’s face and kept walking. She attested that he gave Complainant a look of dislike/hate. A Deportation Officer (DO2) attested that she witnessed Supervisor1 ignore and not speak to Complainant. She attested that Supervisor1 treated Complainant in a way that was demeaning and deliberate and she could hear him exchange pleasantries with male officers and would stop to have conversations with them. Claim 8 Complainant alleged that, on November 29, 2017, Supervisor1 sent her a harassing email regarding her inventoried items. She attested that the email stated that he did not have her oversized belt badge. She attested that she returned all items to previous management. She attested that the incident was reported to Joint Intake on December 13, 2017 and she explained that she had filed an EEO complaint. She attested that he continued to be harassed about this deposing having returned the item in March 2016. Supervisor1 attested that he sent Complainant an email regarding the belt badge and she did not reply to his email. He attested that they had all her other inventoried items except the belt badge, and he was instructed by Director1 to ask her if she had it and, if so, what arrangements would work best for her to retrieve it. Supervisor1 attested that he sent the email to Complainant to communicate with her about a sensitive item that the Agency issued to her and was missing. Claims 4 and 9 On October 6, 2017, Director1 served Complainant a Notice of Proposed Removal in the presence of Supervisor1. The record includes statements from Complainant indicating that she 2019004910 7 was advised to write a letter to Director2 explaining her issues, as Director2 would be making the decision. She stated that Director1 stated that “he only knows he can’t keep [her] like this” and that “[she] would have to again make a choice to decide to retire or resign.” She stated that, in November 2017, she met with Director2 and the Union Steward and gave a written proposal and oral statement on why management should not remove her. A November 22, 2017 letter to Complainant from Director2 indicates that Complainant was being removed for medical inability to perform the duties of her position. It indicates that the reason stated in the proposal was sustained because Complainant had not been able to perform the full scope of the Deportation Officer job duties since approximately December 2015. The letter notes that Complainant had been informed that she could request a reassignment to a funded, vacant position for which she meets the basic qualifications and that is also within her medical restrictions. It indicates that, on or about August 10, 2017, Complainant was asked to provide a Reasonable Accommodation Request Form, a current resume, a list of geographical areas to which she would be willing to relocate at her own expense, and the pay grade she would consider, but Complainant failed to provide any of the requested information. The letter indicates that, although Complainant did not accept the offer of reassignment, the Agency investigated reassigning Complainant to a funded, vacant position at the same or lower grade for which Complainant met the basic qualifications, including medical qualifications, but there no positions available in her location or the Detroit Area of Responsibility that conform to Complainant’s medical restrictions. The letter provides that removal falls within the parameter of reasonableness and will promote the efficiency of the service. The letter indicates that the removal is effective November 22, 2017. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant makes numerous arguments that the Agency erred in the analysis of the record of investigation and “picked and choose” what they used for their determination. She argues the Agency’s final decision provided a surface-level analysis, was incomplete, and failed to include and address relevant evidence; there was no indication that she could not perform her modified limited essential duty position as the Agency and OWCP had agreed; the low performance rating was discriminatory and retaliatory; and her termination was in retaliation for her previous EEO case in which she was the prevailing party. The Agency did not submit a statement or brief in response. 2019004910 8 ANALYSIS AND FINDINGS 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”). Dismissed Claims The Agency dismissed claim (1) for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity (EEO) Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. The alleged event in claim (1) occurred on August 10, 2017. The record shows that Complainant initially contacted an EEO Counselor regarding the instant complaint on November 1, 2017, which is more than 45 days after the alleged event. We find Complainant has failed to offer sufficient justification for extending the time limit. Therefore, we find dismissal of this claim on this basis was timely. The Agency dismissed claim (6) for failure to state claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant’s allegations in claim (6) concern management’s actions in discussions with Complainant’s Union Representative regarding her performance appraisal. We find the Agency did not err in deciding that the essence of this claim is that Complainant’s union rights were being denied by management and the claim is more properly resolved in the negotiated 2019004910 9 grievance process rather than as an EEO complaint. See Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). Therefore, we find dismissal of this claim by the Agency was proper. Harassment Claim Complainant has alleged the Agency subjected her to harassment, noting several alleged instances. To establish a claim of hostile environment harassment, a 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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she 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, her sex, disability, or prior EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Most of Complainant's harassment allegations can generally be described as relating to routine managerial decisions, such as those relating to medical qualifications for her position, reasonable accommodations, removal, and performance appraisals. Complainant’s other allegations can generally be described as personality conflicts, trivial slights, and petty annoyances between a supervisor and a complainant. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017) (routine work assignments, instructions, and admonishments generally do not rise to the level of harassment because they are common workplace occurrences); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We have reviewed the record and, while it may suggest that management demonstrated poor communication and/or managerial skills, it does not establish that that the incidents at issue were based on Complainant's sex, disability, or prior EEO activity. Therefore, we find Complainant's allegations are insufficient to support her claim of discriminatory harassment. 2019004910 10 Denial of Reasonable Accommodation Claim Complainant alleged that the Agency denied her a reasonable accommodation. An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). In order to establish that she was denied a reasonable accommodation, a complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § I630.2(n)(3). Here, assuming arguendo that Complainant has a disability, her claim fails because we find she was not a qualified individual with a disability. The record shows that Complainant was unable to perform the essential duties of her position as a Detention Officer. Management explained that Complainant’s back condition rendered her unable to perform many, if not most, of the duties of a Deportation Officer, including law enforcement functions such as conducting arrests, target or subject interviews, any contact with arrestees or detainees, possessing and utilizing agency credentials, conducting investigations, transporting or escorting detainees, and many other functions based on the position description. Management also explained that Complainant was unable to meet the physical demands required of the job, including moving, lifting, or carrying anything over 10 pounds. Because of her medical problems, she was limited to administrative duties and working part-time, 4 hours per day, 3 days per week. Complainant generally asserts that the Agency denied her request to continue her modified, reduced schedule performing only administrative duties as a request for a reasonable accommodation. This, in essence, was a request to remain in her position without having to perform its essential functions. We have previously held that the Agency is under no obligation to convert a full-time position to a part-time position. See Tera B. v. Department of Veterans Affairs, EEOC Appeal No. 0120171354 (April 24, 2019). Additionally, while 2019004910 11 Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Department of Justice -- Bureau of Alcohol, Tobacco, Firearms & Explosives, EEOC Appeal No. 0720140010 (December 3, 2015). We also note that the Agency attempted to offer Complainant a reassignment as a last resort, but she declined to provide the requested information to allow for a search for another position. For these reasons, we find the Agency fulfilled its obligations under the Rehabilitation Act. Disparate Treatment Claims Complainant’s allegations regarding her low performance rating and her removal give rise to disparate treatment claims. Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). A complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of reprisal discrimination. Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). Assuming, arguendo, that Complainant established prima facie cases of discrimination, her claim still fails. We find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that management agreed that Complainant received a performance rating of fully successful because she had met the goals and objectives of that level. While Complainant argues that she had been received higher ratings in the past, the record does not establish by a preponderance of the evidence that the rating at issue was due to her sex, disability, or prior EEO activity. 2019004910 12 The Agency also explained that Complainant was removed for her medical inability to perform the duties of her position. The Agency noted that Complainant had not been able to perform the full scope of the Deportation Officer job duties since approximately December 2015, just over two years. The Agency explained that Complainant had been informed that she could request a reassignment to a funded, vacant position for which she meets the basic qualifications and that is also within her medical restrictions and was asked to provide a Reasonable Accommodation Request Form, a current resume, a list of geographical areas to which she would be willing to relocate at her own expense, and the pay grade she would consider, but Complainant did not provide any of the requested information. The Agency also explained that Complainant’s removal would promote the efficiency of the service. Although Complainant has alleged the Agency acted discriminately or in retaliation, we find the record does not establish by a preponderance of the evidence that the Agency removed her because of her sex, disability, or prior EEO activity. 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. 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 2019004910 13 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. The court has the sole discretion to grant or deny these types of requests. 2019004910 14 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 August 23, 2021 Date