[Redacted], Kathie N., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2019005012 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathie N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019005012 Hearing No. 510-2016-00392X Agency No. 4G-335-0012-16 DECISION On June 25, 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 June 20, 2019, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., 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. ISSUES PRESENTED The issues presented on appeal are: (1) whether the EEOC Administrative Judge (AJ) properly granted summary judgment; (2) whether Complainant is a qualified individual with a disability; and (3) whether preponderant evidence establishes that Complainant was subjected to discrimination based on sex, age, and/or reprisal. 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. 2019005012 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a PS-7 Lead Sales Service Associate/Lead Clerk at the Agency’s Deltona Pines Station facility in Deltona, Florida. Complainant identified an Acting Supervisor, Customer Service (S1), the Acting Deltona Pines Manager (S2), and the Deltona Officer-in-Charge (S3) as the management officials who subjected her to discrimination. Complainant is female and was born in July 1962, so she was 53 years old during the events giving rise to this complaint. Complainant sustained a work injury to her neck as a result of repetitive motion and was diagnosed with degenerative disc disease. Complainant averred that the degenerative disc disease caused chronic neck pain that also radiated to the head, shoulders, arms, and hands. According to Complainant, her degenerative disc disease substantially limited her ability to lift, push or pull more than 10 pounds, reach her arms above shoulder level, climb, or kneel. Complainant stated that she could not pick up her 10-month-old granddaughter who weighed 18 pounds or play with her at the playground. Complainant had surgeries on each shoulder in 2012 and 2013. Complainant stated that she had engaged in protected EEO activity by filing an EEO complaint in February 2012 and by requesting reasonable accommodations for her disability. According to Complainant, S1, S2, and S3 were not involved in her February 2012 EEO complaint, but they were aware of her requests for reasonable accommodation. On June 19, 2015, Complainant accepted an Offer of Modified Assignment (Limited Duty) that consisted of normal Sales Service Associate duties within the following medical limitations: lifting and carrying less than 10 pounds, pushing and pulling less than 10 pounds, and no reaching above the shoulder. The record contains an August 25, 2015, note from Complainant’s pain management physician that states, “Patient would benefit medically from a less labor intensive role at her work that does not involve pitching packages continually.” Report of Investigation (ROI) at 233. The record also contains a September 1, 2015, Office of Workers’ Compensation (OWCP) Duty Status Report from Complainant’s pain management doctor, which listed the following restrictions: no continuous lifting or carrying; up to 10 pounds intermittent lifting or carrying for one hour; up to 10 pounds intermittent pushing or pulling for one hour; no climbing or kneeling; no continuous reaching above shoulder; up to one pound intermittent reaching above shoulder for up to three hours per day; up to one hour intermittent twisting; up to six hours intermittent sitting or standing; up to four hours intermittent walking or simple grasping; up to two hours intermittent bending or stooping; up to five hours intermittent fine manipulation, including keyboarding. Complainant stated that, on October 14, 2015, S2 ordered her to stop what she was doing and pitch parcels. According to Complainant, she pointed out her medical restrictions to S2 and that she had already reached her daily limit of pitching parcels, but he told her that he was giving her a direct order to pitch the mail. Complainant averred that S3 called her and S2 into the office and that S2 and S3 argued with her. Complainant alleged that she told S2 and S3 that they had to comply with her medical restrictions. According to Complainant, S3 stated, “If you insist on having new duties, you will regret it!” 2019005012 3 Complainant stated that she got very upset and told S2 and S3 that they did not seem to care that she could get seriously injured. Complainant averred that S3 hugged her and told her that he did care about her. According to Complainant, S2 and S3 asked her not to vent her anger at them while she was on the workroom floor. Complainant stated that, as Lead Clerk, she was responsible for making the weekly Clerk work schedule, coordinating Clerk vacations, and setting daily lunch and break times as the workload fluctuated. Complainant averred that S2 took away these Lead Clerk duties on October 14, 2015, when he took over work schedules for the Clerks. According to Complainant, when she asked S2 about this, he told her that she was still the Lead Clerk but that she would not be responsible for setting the schedule and tracking vacation or overtime. Complainant stated that S2 told her that the schedule she created did not work for Deltona Pines. According to S2, he took away Complainant’s scheduling duties because she created a schedule with hours that were favorable to her but that caused other Clerks to work unnecessary overtime. Complainant alleged that the Clerks were told to ask S1 or S2 about when to take lunch breaks or what tasks to work on instead of asking her. Complainant stated that this change caused confusion in the workplace and that she no longer felt she had an open line of communication with other Clerks. Complainant averred that, when S1 arrived at work on October 24, 2015, she asked him where her assistance was, and S1 told her that S2 had changed the schedule of an employee (C1) who had been helping her. Complainant alleged that she told S1 that she had already reached her daily limit of pitching parcels and asked what she should do. According to Complainant, S1 responded that he did not have anyone else, and she said that it was not fair to put her in that position, making her feel like she had to pitch the parcels. Complainant stated that she told S1 that he was forcing her to work outside of her restrictions and added that it was unfair because S1 and S2 knew that she had medical restrictions. S2 stated that C1 was a Postal Support Employee (PSE) who did not have a fixed schedule. According to S2, C1 was scheduled to work later in the day on the day in question so she could cover the window. On October 28, 2015, Complainant accepted a new Offer of Modified Assignment (Limited Duty) with the following duties: one hour of working hot case, letters, flats, and spurs up to 10 pounds; one hour of boxing mail; and six hours working the window, MPOS, and Lobby Director. The assignment stated that Complainant would lift no more than 10 pounds for up to one hour, would bend up to one hour, and would sit and stand for seven hours. Complainant stated that she told S2 that working at the window hurt her neck and shoulder. On October 28, 2015, Complainant provided a note to management with the subject line “Reasonable accommodation.” In the note, Complainant stated, “The repetitive movement of reaching shoulder level over the window causes my shoulders and neck a burning sensation. Just letting you know. I will clear it with Doctor.” ROI at 276. The record contains a November 2, 2015, note from Complainant’s pain management doctor, which states, “limited to no window work, puts too much stress and strain on neck and shoulder.” ROI at 217. 2019005012 4 On November 3, 2015, Complainant accepted a new Offer of Modified Assignment (Limited Duties), which consisted of: one to two hours of working hot case; one to two hours of box mail; and four to five hours working the window, mobile point of sale (MPOS), and Lobby Director. The assignment stated that Complainant would lift no more than 10 pounds for up to one hour and would sit and stand for seven hours. On November 3, 2015, Complainant gave S2 a note that stated that she was requesting a reasonable accommodation. On November 5, 2015, Complainant provided management with a document entitled “Reasonable Accommodations,” which was a list of tasks she could perform without violating her medical restrictions. The record also contains a November 5, 2015, OWCP Duty Status Report from Complainant’s pain management doctor, which listed the following restrictions: no continuous lifting or carrying; up to 10 pounds intermittent lifting or carrying for one hour; up to 10 pounds intermittent pushing or pulling for one hour; no continuous reaching above shoulder; up to one pound intermittent reaching above shoulder for two to three hours per day; up to six hours intermittent sitting or standing; up to four hours intermittent walking or simple grasping; up to two hours intermittent bending or stooping; up to five hours intermittent fine manipulation, including keyboarding. The doctor noted, “Cannot work at ‘window’ because standing in place and working at shoulder level with reaching across counter causes excessive stress/strain on neck and shoulder.” ROI at 251. In November 2015, Complainant filed a union grievance concerning management’s failure to reasonably accommodate her. The record contains a November 14, 2015, OWCP Duty Status report, which listed the following restrictions: no continuous lifting or carrying; up to 10 pounds intermittent lifting or carrying for one hour; up to 10 pounds intermittent pushing or pulling for one hour; no continuous reaching above shoulder; up to one pound intermittent reaching above shoulder for two to three hours per day; up to six hours intermittent sitting or standing; up to four hours intermittent walking or simple grasping; up to two hours intermittent bending or stooping; up to five hours intermittent fine manipulation, including keyboarding. The doctor again noted that Complainant could not work at the window because the excessive work at shoulder level and reaching across the counter caused excessive stress and strain on Complainant’s neck and shoulders. ROI at 253. According to Complainant, management allowed a Clerk (C2) to transfer away from Deltona Pines in December 2015. Complainant stated that transfers during the month of December are very rare because of the increased mail volume at that time of year. Complainant averred that C2 was not replaced, leaving Deltona Pines very short staffed. Complainant alleged, that after C2 left, she was forced to work outside of her restrictions when there was not another Clerk available for certain tasks. S3 stated that C2 did not transfer in December 2015. According to S3, C2 applied for a vacant position in Port Orange, Florida and was selected as the highest-scoring applicant for the position. The record contains a January 19, 2016, OWCP Duty Status Report from Complainant’s orthopedic surgeon, which stated that Complainant’s limitations were: no continuous lifting or carrying; up to 10 pounds intermittent lifting or carrying for one hour; up to 10 pounds intermittent pushing or pulling for one hour; no reaching above the shoulder at all; up to six hours intermittent sitting or standing; up to four hours intermittent walking or simple grasping; 2019005012 5 up to two hours intermittent bending or stooping; up to five hours intermittent fine manipulation, including keyboarding. Complainant stated that, when she returned from her lunch break on January 20, 2016, S2 told her to put on her uniform and work at the window. According to Complainant, she told S2 that her new medical documentation stated that she could not reach over the shoulder at all. Complainant alleged that S2 stated that he did not care, that he needed her to work at the window, and that working at the window was within her restrictions. Complainant averred that S2 told her that he was giving her a direct order to work the window. Complainant stated that she called her Workers’ Compensation case worker (WC1). According to Complainant, WC1 told her that she should not violate her doctor’s orders, but she added that she was not sure that working the window entailed reaching over her shoulder. Complainant averred that WC1 told her that medical providers could not tell management what tasks she could perform. Complainant stated that she started crying because she was worried she would hurt herself but did not want to lose her job. On January 21, 2016, Complainant accepted a new Offer of Modified Assignment (Limited Duties) consisting of the following: six hours of selling money orders and stamps from point of sale (POS) machine; one hour of Lead SSA duties; one hour of second notices and WebBats maintenance; and six hours of Lobby Assistant/MPOS transactions. The restrictions of the assignment were lifting/pushing up to 10 pounds no more than one hour per day, sitting/standing up to six hours per day, walking/grasping/fine manipulation up to four hours per day, and no reaching above shoulder. The record contains a January 25, 2016, note from Complainant’s orthopedic surgeon, which states that Complainant should not work at the window, noting that “prolonged standing in place and working at shoulder level with reaching across counter causes excessive sprain stress on neck and shoulder.” ROI at 243. The surgeon noted that standing on a five and a half inch elevated platform at the window to minimize reaching at shoulder level was not advised, as standing on the platform would change the angle of Complainant’s neck when looking down at the monitor, placing prolonged strain and pressure on the cervical spine. On January 29, 2016, Complainant’s pain management doctor completed forms certifying Complainant’s need for Family and Medical Leave Act (FMLA) leave, estimating that she would be incapacitated by two episodes lasting two to three days per month and that she might need one to two days to recover after medical treatment. The record contains a March 23, 2016, letter from the District Reasonable Accommodation Committee (DRAC) Chairman. In the letter, the DRAC Chairman stated that Complainant was not a qualified individual with a disability under the Rehabilitation Act who was entitled to reasonable accommodation. However, the DRAC Chairman noted that Complainant was entitled to limited duty because of her workers’ compensation claim. 2019005012 6 Procedural History On December 11, 2015, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of sex (female), disability (degenerative disc disease), age (53 years old), and reprisal for prior protected EEO activity (past EEO complaints and reasonable accommodation requests) when: 1. On October 14, 2015, she was instructed to work outside of her medical restrictions; 2. On October 14, 2015, her Lead Clerk duties were taken away from her; 3. Beginning on October 14, 2015, and continuing, management failed to accommodate her work restrictions after the employees who provided her with assistance were reassigned; 4. On November 2, 2015, she received a job offer that assigned her the duties of a Window Clerk and changed her schedule; and 5. On January 20, 2016, she was instructed to work outside of her medical restrictions. The Agency accepted the above issues for investigation, framing the issues as part of a hostile work environment claim. On January 11, 2016, Complainant’s attorney wrote a letter to the Agency, challenging the framing of the claims and asserting that, in Complainant’s formal complaint, she raised disparate treatment and denial of reasonable accommodation claims in addition to the hostile work environment claim. ROI at 367-68. On January 20, 2016, an EEO Services Analyst responded that the accepted issues were properly framed and that the Agency would not modify the accepted claims. ROI at 366. 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 EEOC AJ. Complainant timely requested a hearing. The Agency filed a motion for a decision without a hearing on July 24, 2017. In its motion, the Agency argued that Complainant could not establish discrimination based on disability because she could not establish that she was disabled as defined under the Rehabilitation Act because she was not a qualified individual with a disability. The Agency contended that Complainant was not a qualified individual with a disability because she was not able to perform her window duties. The Agency noted that, in addition to Complainant not being able to perform the essential functions of her position, there was no evidence that there was a vacant, funded position to which she could be reassigned. Complainant filed a response to the Agency’s motion for a decision without a hearing on August 7, 2017, contending that there were several genuine issues of material fact. The Agency replied to Complainant’s response on August 14, 2017. 2019005012 7 In its reply, the Agency contended that Complainant misstated the accepted issue, as the Agency had only accepted a harassment claim, and the AJ’s Order on Initial Conference and Deadlines and Record Completion confirmed that this was the only issue. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on June 7, 2019. The AJ found that, “As a threshold matter, the record failed to establish Complainant was disabled as defined by the Rehabilitation Act. It was undisputed that Complainant suffered from a physical impairment which substantially limited her performance of major life activities. However, the record failed to establish that Complainant could perform the essential functions of her position with[] or without accommodation.” AJ Decision (AJD) at 5. The AJ determined that, because Complainant had not established that she could perform the essential functions of her position, she could not establish that she was subjected to discrimination based on disability. The AJ concluded that Complainant was not subjected to discrimination because she failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in finding that Complainant was not an individual with a disability. According to Complainant, the AJ’s decision evaluated the circumstances surrounding the hostile work environment from the Agency’s perspective rather than examining whether a reasonable person in Complainant’s situation would find the situation objectively hostile. Finally, Complainant contends that the AJ considered evidence that was favorable to the Agency while overlooking evidence that supported Complainant’s claims. In response to Complainant’s appeal, the Agency contends that Complainant is not protected by the Rehabilitation Act because she cannot establish that she is a qualified individual with a disability. According to the Agency, window duties are an essential function of Complainant’s position. The Agency contends that it provided legitimate, nondiscriminatory reasons for the instances of alleged harassment. The Agency also argues that Complainant could not establish that the alleged harassment was sufficiently severe or pervasive to constitute a hostile work environment. The Agency further contends that the only accepted issue is whether Complainant was subjected to discriminatory harassment but that, assuming that denial of reasonable accommodation and/or disparate treatment were at issue, that Complainant could not establish that she was subjected to discrimination as alleged. 2019005012 8 ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Framing of Complainant’s Claims As a preliminary matter, we consider the Agency’s framing of Complainant’s claims. The Agency accepted a harassment claim for investigation, and the Agency contends on appeal that the AJ’s initial order confirmed that the harassment claim was the only claim at issue. Upon review, we find the issues raised by Complainant to the EEO counselor and in her formal EEO complaint clearly include an allegation of denial of reasonable accommodation, in addition to her harassment claim. See Teresa B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019003335 (Sept. 14, 2020) (although agency framed and analyzed complainant’s 12 allegations as part of one hostile work environment claim, one of the allegations was properly analyzed as a failure to provide a reasonable accommodation). Complainant also objected to the Agency’s framing of the claims prior to the investigation. Accordingly, we will consider whether it would have been appropriate for the AJ to have issued a decision without a hearing based on these claims. Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2019005012 9 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant contends that the AJ improperly weighed the evidence, overlooking evidence that supported her claims while accepting evidence that was favorable to the Agency. We disagree. Further, Complainant has not identified genuine issues of material fact. Accordingly, we find that the AJ appropriately granted the Agency’s motion for summary judgment. Discrimination Based on Disability Complainant alleged that she was denied a reasonable accommodation for her disability and that she was subjected to harassment based on disability. In order to establish that Complainant was denied a reasonable accommodation, 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, No. 915.002 (Oct. 17, 2002). 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). Under the Commission's regulations at 29 C.F.R. § 1630.2(m), a qualified individual with a disability is an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. In order to establish a claim of harassment based on disability, Complainant must first establish that she is a qualified individual with a disability. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). Based on the facts in the record, we find that Complainant has failed to demonstrate that she is a qualified individual with a disability because she was unable to perform the essential duties of a Lead Clerk. During the time period at issue in this complaint, Complainant accepted a series of modified limited duty assignments. Due to her worsening medical condition, Complainant’s restrictions became more limiting. We find that the Agency provided Complainant with “make work,” as she was not performing the duties of a Lead Clerk, which included performing various tasks while working at the window. 2019005012 10 As such, Complainant has not demonstrated that she is a qualified individual with a disability with respect to her Lead Clerk position. Further, there is no evidence in the record to show that Complainant could have been provided with a reasonable accommodation that would have allowed her to perform the essential functions of this position. Rather, we find that the modified assignments that Complainant received were the result of the Agency's effort to make work for Complainant. The Rehabilitation Act does not require the Agency to consider accommodating complainant's restrictions by creating a ““make work” assignment because such an assignment is not a vacant, funded position. See Saul v. U.S. Postal Serv., EEOC Appeal No. 01970693 (May 10, 2001). Nor does the record show that given Complainant’s various limitations, there was a vacant, funded position which she could perform. Therefore, we find that Complainant has not shown that the Agency's failure to provide her with a reasonable accommodation constituted a violation of the Rehabilitation Act. Harassment Based on Sex, Age, and Reprisal Complainant also alleged that she was subjected to harassment based on sex, age, and reprisal for prior protected EEO activity. To establish a claim of 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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). We find that Complainant has failed to establish that the instances of alleged harassment were based on her membership in any protected class. The Agency adjusted Complainant’s modified assignments based on her changing medical restrictions. The Agency took away Complainant’s scheduling duties because she did not take into account the likelihood of employees incurring overtime when she made the schedule. The Agency adjusted the schedule of C1, a PSE who had assisted Complainant, to ensure coverage. The Agency allowed C2 to transfer to another facility because he applied for and was the highest scoring applicant for a vacant, funded position. The Agency adjusted Complainant’s schedule when it offered her a new modified assignment in accordance with her medical restrictions. Complainant has not established that she was subjected to a hostile work environment nor that any alleged harassment was based on her sex, age, and/or prior protected activity. 2019005012 11 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order fully implementing the decision without a hearing finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 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. 2019005012 12 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations July 28, 2021 Date