[Redacted], Marti F., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020000574 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marti F.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000574 Agency No. ARDRUM17AUG02823 DECISION On September 18, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 6, 2019 final decision 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.2 BACKGROUND On December 14, 2015, Complainant was hired as a Clinical Social Worker, GS-0185-12, at the Agency’s Department of Behavioral Health, Fort Drum in New York, subject to a two-year probationary period. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 While Complainant originally also asserted a violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq., our examination of the record does not reveal a valid claim under this statute. Moreover, it appears Complainant withdrew this basis of alleged discrimination in her brief submitted on appeal. 2020000574 2 On September 25, 2017, Complainant filed a formal EEO complaint alleging she was the victim of discrimination based on disability (high risk pregnancy coupled with a cluster of autoimmune issues), sex (female), national origin (Kenyan), and age,3 as well as retaliation for engaging in protected activity (reporting allegations of discrimination, harassment and hostility in the workplace to management) when: 1. On August 8, 2017, the Supervisory Clinical Psychologist, also her first-line supervisor, denied Complainant’s reasonable accommodation request. 2. On August 29, 2017, the supervisor terminated Complainant’s employment during her probationary period. 3. Between September 2016 and August 29, 2017, the supervisor subjected her to a hostile work environment including the following incidents: a. On numerous occasions between January 2017 to August 29, 2017, the supervisor treated Complainant with bias, unfairness, inequity, and intolerance by failing to take action regarding numerous of incidents of discrimination and harassment she reported to him regarding treatment by co-workers due to her Family and Medical Leave Act (FMLA) status. b. On numerous occasions between January 2017 to August 29, 2017, the supervisor subjected Complainant to reprisal for having reported allegations of discrimination, harassment, and hostility in the workplace. c. On numerous occasions between May 5, 2017 to August 29, 2017, the supervisor threatened Complainant with various unfavorable employment actions (to include termination), often in direct relationship to her FMLA status and/or her engagement in protected activities (EEO, union, etc.). d. On numerous occasions between May 5, 2017 to August 29, 2017, the supervisor threatened Complainant with various unfavorable employment actions to include negative performance evaluations, threats to manufacture or elicit peer and patient complaints against her, threats to interfere with multiple job transfer offers, to cut off access to systems needed to complete time cards, review benefits, participate in credentialing, and pursue EEO/Inspector General (IG)/union activities. The supervisor requested the abeyance of Complainant’s hospital privileges. e. On June 29, 2017, the supervisor yelled and swore at Complainant and threatened to either take away her Alternative Work Schedule (AWS) or increase her work duties/number of weekly patient appointments. 3 In her brief submitted on appeal, Complainant withdrew national origin and age as the basis of her alleged discrimination. Complainant’s Brief, page 11. 2020000574 3 f. On June 29, 2017, the supervisor singled Complainant out and ordered her out of the office building. g. On June 30, 2017, the supervisor singled Complainant out, ordered her out of the office building and waited for her outside in the parking lot after his work hours. h. For a period of several weeks in late June 2017 and early July 2017, the supervisor did not grant Complainant time or the opportunity to work on her reasonable accommodation request, thereby delaying the process. i. On July 18, 2017, the supervisor repeatedly stated Complainant was to meet with him alone, though it had been communicated to the supervisor that she was fearful and uncomfortable meeting alone and had requested a third-party attend. j. On August 29, 2017, while on approved FMLA and not scheduled to work, the supervisor attempted to force Complainant to attend a meeting, had her against her will in a glass enclosure, followed and shouted at her, and threatened police action if she left or exercised her Weingarten rights. k. On numerous occasions in August/September 2016 to August 2017, the supervisor failed to correct reported errors in Complainant’s schedule/template. l. From January 2017 to August 2017, the supervisor repeatedly violated Complainant’s doctor’s recommendations while Complainant was on FMLA and increased rather than decreased the number of her weekly patient contact or appointment hours. m. On August 8, 2017, the supervisor denied Complainant’s participation in a student loan repayment program. n. On August 8, 2017, publicly humiliated Complainant in a staff meeting by announcing that the procedure for her annual performance evaluation procedure would be different from everyone else’s procedure. o. On August 8, 2017, the supervisor directed Complainant to remove herself from the records of 80 patients in Behavioral Health Data Platform (BHDP) patients that did not belong to Fort Drum, despite her ethical objections/concerns. p. From August 14, 2017 to August 29, 2017, while Complainant was on approved leave, the supervisor directed a different staff member to contact Complainant weekly to elicit information regarding her FMLA leave. 2020000574 4 4. Between May 5, 2017 and August 29, 2017, the Chief of the Department of Behavioral Health (“Chief”), also Complainant’s second-line supervisor, subjected her to discriminatory and retaliatory harassment as follows: a. On numerous occasions between June 2017 and August 29, 2017, the Chief failed to take action on the multiple allegations of discrimination and harassment Complainant reported to him that subjected her to a hostile work environment. b. On numerous occasions between January 2017 and August 2017, to include August 3, 2017, the Chief did not pro-rate Complainant’s productivity and would not adjust her Capacity Assessment Reporting Tool (CART) data in keeping with FMLA. c. From June 2017 to August 29, 2017, the Chief repeatedly violated Complainant’s doctor’s recommendations while on FMLA. d. On numerous occasions between June 2017 and August 29, 2017, the Chief subjected Complainant to reprisal for having reported allegations of discrimination, harassment and hostility in the workplace. e. On July 24, 2017, the Chief directed Complainant to look into her February 24, 2017 patient encounter which subjected her to an Army Regulation (AR) 15-6 investigation in response to following his directive. f. On numerous occasions August/September 2016 to August 2017, the Chief failed to correct reported errors in Complainant’s template. g. On August 8, 2017, the Chief directed Complainant to remove herself from the records of 80 patients in BHDP, patients that did not belong to Form Drum, despite her ethical objections/concerns. h. On August 11, 2017, the Chief attempted to interfere with Complainant speaking to an AR 15-6 investigator. i. On August 29, 2017, while on approved FMLA and not scheduled to work, the Chief attempted to force Complainant to attend a meeting, held against her will in a glass enclosure and allowed the supervisor to follow, shout at and threatened police action if she left or exercised her Weingarten rights. j. On or about August 8, 2017, the Chief refused to transfer Complainant to 2nd Brigade Embedded Behavior Health Team. k. On or about August 14, 2017, the Chief had Complainant’s access to her computer and files shut off. 2020000574 5 l. On August 23, 2017, the Chief voted to revoke Complainant’s clinical privileges at U.S. Army Medical Department Activity at Fort Drum, New York. 5. Complainant was subjected to discrimination and harassment based on disability, age, sex, genetic information, and national origin by the Deputy Commander for Clinical Services (“Deputy”), also Complainant’s third-line supervisor, when: a. On numerous occasions between June 2017 and August 29, 2017, the Deputy failed to take action on the multiple allegations of discrimination and harassment Complainant reported to her that subjected her to a hostile work environment. b. On numerous occasions between June 2017 and August 29, 2017, the Deputy subjected Complainant to reprisal for having reported allegations of discrimination, harassment and hostility in the workplace. c. From June 2017 to August 29, 2017, the Deputy repeatedly violated Complainant’s doctor’s recommendations while on FMLA. d. The Deputy was aware of and did not act on the report that for a period of several weeks, in late June and early July, the supervisor did not grant Complainant time or opportunity to work on her reasonable accommodation request, delaying the process. e. On numerous occasions between June 2017 and August 2017, the Deputy failed to correct reported errors in Complainant’s template. f. On August 29, 2017, while on approved FMLA and not scheduled to work, the Deputy allowed the supervisor and Chief to attempt to force Complainant to attend a meeting, hold her against her will in a glass enclosure and to allow the supervisor to follow, shout at and threatened police action if she left or exercised her Weingarten rights. m. On August 23, 2017, the Deputy voted to revoke Complainant’s clinical privileges at U.S. Army Medical Department Activity at Fort Drum, New York. 6. Complainant was subjected to discrimination and harassment based on disability, age, sex, genetic information, and national origin by the Colonel, MEDDAC Commander when: a. On August 15, 2017, the Colonel issued Complainant a notice of Abeyance of Clinical Privileges. b. On August 3, 2017, the Colonel declined to meet with Complainant under his Open- Door Policy. 2020000574 6 c. On August 29, 2017, while on approved FMLA and not scheduled to work, the Colonel allowed the supervisor and Chief to attempt to force Complainant to attend a meeting, hold her against her will in a glass enclosure and to allow the supervisor to follow, shout at and threated police action if she left or exercised her Weingarten rights. d. Despite “agreeing to a neutral reference, verifying only position and dates of employment” on August 8, 2017, the Colonel allowed Fort Drum MEDDAC to provide negative information about Complainant to another Federal installation where she had been offered a position transfer resulting in the withdrawal of the job offer or transfer. e. Despite “agreeing to the neutral reference, verifying only position and dates of employment” on August 28, 2017, the Colonel allowed Fort Drum MEDDAC to delay provision of transfer from Standard Form (SF) 75, requested by another agency, in an effort to interfere with Complainant’s Federal job transfer. f. Despite “agreeing to a neutral reference, verifying only position and dates of employment” on August 31, 2017, the Colonel allowed Fort Drum MEDDAC to provide negative information about Complainant to another Federal installation where she had been offered a position transfer resulting in the withdrawal of the job offer or transfer. g. On August 8, 2017, the Colonel allowed Fort Drum MEDDAC to provide negative information about Complainant to another Federal installation where she had been offered a position transfer resulting in the withdrawal of the job offer or transfer. h. On August 28, 2017, the Colonel allowed Fort Drum MEDDAC to delay provision of transfer from SF 75, requested by another agency, in an effort to interfere with Complainant’s Federal job transfer. i. On August 31, 2017, the Colonel allowed Fort Drum MEDDAC to provide negative information about Complainant to another Federal installation where she had been offered a position transfer resulting in the withdrawal of the job offer or transfer. j. On November 16, 2017, the Colonel revoked Complainant’s clinical privileges at U.S. Army Medical Department Activity, Fort Drum, New York. On August 6, 2019, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination or retaliatory was established. The instant appeal followed. 2020000574 7 ANALYSIS AND FINDINGS Harassment/Hostile Work Environment To establish a claim of hostile environment harassment, 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. The Supervisory Clinical Psychologist, also Complainant’s first-line supervisor (male) denied subjecting Complainant to harassment. He noted that Complainant had mentioned remarks made by team members about her participation in FMLA. However, he stated that when he asked Complainant for specifics remarks, she refused to give any details about what was being said or the identity of the party making the remarks. The supervisor informed Complainant that he could not act without such details, and that Complainant understood that the supervisor required specific information. Furthermore, the supervisor stated he offered to investigate and possibly intervene, if given specifics regarding what was being said by whom. With respect to Complainant’s claim that the supervisor threatened her with various unfavorable employment in direct relationship to her FMLA status and/or her engagement in protected activities, the supervisor denied all of these matters, with the exception of a request for abeyance of clinical privileges, which the supervisor determined was due to substandard work performance that potential implicated the quality of patient care. The supervisor asserted that due to staffing shortages in June 2017, he had requested temporary suspension of Alternative Work Schedule (AWS) for all staff to meet mission requirements. The supervisor stated, moreover that he did not threaten to increase Complainant’s work duties or the number of her weekly appointments. He noted that during a meeting with the union, Complainant stated that employees were staying past their assigned tour of duty. The supervisor stated that he was not aware of this matter, but that he agreed to ensure that all employees left the building at the end of their assigned tour. 2020000574 8 Furthermore, the supervisor averred that Complainant was in direct communication with the Chief regarding time to work on her reasonable accommodation request. He told Complainant that he would give her time to work on the request and needed an estimate how much time was needed. The supervisor stated that when the Chief received the required information, Complainant was given the requested time. The supervisor also stated that he was informed by EEO officials that he needed to meet with Complainant to complete the supervisor’s portion of the reasonable accommodation and that he attempted to arrange a meeting with Complainant. He asserted that he did not require Complainant to work with him alone and offered to meet with Complainant and a third party of her choice. Complainant claimed further that the supervisor failed to correct reported errors in her schedule/template; while she was on approved FMLA and not scheduled to work, he attempted to force her to attend a meeting; and had her held against her will in a glass enclosure, followed her and shouted at her, and threatened police action if she left or exercise her Weingarten rights. However, the supervisor denied these allegations. He asserted that errors in Complainant’s template were forwarded to the appropriate administrative staff for correction. The supervisor further stated that over a period of weeks, management had not been successful in reaching the Complainant with notification of abeyance of privileges or her proposed termination. The supervisor attempted to meet with the Complainant in conjunction with a scheduled HR appointment. Complainant, however, refused to meet with him. The supervisor noted that as Complainant was leaving the building, an HR staff member caught up with Complainant in the vestibule of the building (a “glass enclosure”) in an attempt to convince Complainant to address the documentation (sign that she received the notices) and turn in government property (CAC card; keys; MEDDAC ID). The supervisor stated that Complainant left the building without returning government property, and that Complainant was not held against her will. The supervisor did admit to informing Complainant that the MPs would be called if she did not return the government property in question. The Chief of Department of Behavioral Health (male) stated that during the relevant period he consulted with his supervisor, the Human Resources, Labor Management/Employee Relations, and Agency counsel. He stated that based on his consultation, he completed a supervisory inquiry, investigating Complainant’s complaints about harassment from coworkers and her supervisor. The Chief stated that his inquiry included interviews with every member of the team. He stated that he informed Complainant when he completed the investigation and that if she had any complaints, she should let him know. Complainant also claimed that the Chief did not prorate her productivity and would not adjust her Capacity Assessment Reporting Tool (CART) data in keeping with her FMLA leave used and did not grant her time or the opportunity to work on her reasonable accommodation request. The Chief stated that he had indicated directly to Complainant, in the presence of her union representative, that the Agency would prorate her productivity and availability requirements based on time she was out of the office due to FMLA leave. He stated that in his grievance response to Complainant dated May 31, 2017, he provided Complainant a prorated production 2020000574 9 target (545 Relative Value Units) for the first three months of the rating period and also let her know that she only generated 440 RVSs during the time period. The Chief noted that the actual target would have been 565 RVUS and that Complainant was actually exceeding her availability standard (0.65FTE), which was listed as 0.76FTE. The Chief also noted that despite Complainant having 0.11 FTE available over a non-prorated requirement, she was not meeting the productivity standard. The Deputy Commander for Clinical Services, also Complainant’s third-line supervisor (female), stated that she directed the Chief to perform a supervisory inquiry into Complainant’s alleged hostile work environment. She stated that she reviewed the findings and approved the recommendations. The consensus was that there was no hostile work environment. During a follow-up meeting on August 1, 2017, the Deputy asked Complainant if the supervisor’s purportedly hostile behavior continued since her meeting with the Chief to discuss the results of the inquiry, and that Complainant responded that the purported hostile behavior had not continued. With respect to Complainant’s allegation that on August 23, 2017, the Deputy allegedly voted to revoke her clinical privileges, the Deputy explained that she is the Chair of the Credentials Committee meeting and, “I vote only in the case of a tie. On August 22, 2017, the committee met to discuss whether or not they agreed with the Commander’s decision to place the Complainant’s privileges in abeyance pending the results of a Clinical Quality Management Investigation. The committee did not vote to revoke her clinical privileges. Clinical abeyance is not considered to be an adverse action. The committee vote to maintain the clinical abeyance and initiate an investigation was unanimous. No tie-break needed.” The Colonel (male), also the Commander, Fort Drum MEDDAC, stated that on August 11, 2017, he was briefed on Complainant’s alleged patient safety violations. The Colonel stated there were several investigations concurrently ongoing, and that the reprisal claims were not substantiated during these investigations. Complainant claimed that despite agreeing to a neutral reference, verifying only positions and dates of employment, on August 8 and 31, 2017, the Colonel nevertheless allowed Fort Drum MEDDAC to provide negative information about her to another Federal installation where she had been offered a position transfer, resulting in the withdrawal of the job offer/transfer. However, the Colonel asserted that he was not in command of Fort Drum MEDDAC on August 8, 2017. He stated that he took command on August 11, 2017 and had neither direct not indirect legal authority to allow Fort Drum MEDDAC to take any action. Further, the Colonel stated as for the August 31, 2017, “I neither aware of Fort Drum MEDDAC providing negative information nor aware of any agreement for a neutral reference following termination. Additionally, I neither ordered a delay provision for transfer from SF 75 nor interfered with a Federal job transfer.” 2020000574 10 After careful review of the evidence of record, we conclude that Complainant has provided no evidence to support her claim that her treatment was the result of her sex, national origin, disability, age and prior protected activity. Her claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Denial of Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. On January 31, 2017, Complaint requested intermittent Leave Without Pay (LWOP) under the Family and Medical Leave Act (FMLA) based upon the medical conditions of infertility and recurrent pregnancy. In the request, Complainant’s healthcare provider affirmed that neither of these medical conditions prevented her from performing any of the functions of her job and otherwise did not describe any limitations resulting from these conditions. Sixteen days later, on February 16, 2017, Complainant’s request was approved. On July 6, 2017, Complainant requested another reasonable accommodation with the assistance of the Fort Drum EEO office. Management met with her on July 19, 2019, to discuss the requested accommodation. Specifically, she requested access to ventilation, an office with a window, reduced workload, and to be allowed to work outside of normal duty hours so that she could attend medical appointments. Her request was based upon two claimed medical conditions: reactive airway disease and Vitamin D deficiency. Her request was reviewed by the Fort Drum Reasonable Accommodation Panel (RAP)-made up of medical advisors, human resource (HR) specialists, and legal advisors--which met and discussed Complainant’s request on July 24, 2017. On August 8, 2017, Complainant’s request was denied for inadequate medical documentation. In addition, MEDDAC Industrial Health personnel had confirmed that air quality within the clinic was within the acceptable range for indoor air and that sunlight through a window was not an effective means of treating a Vitamin D deficiency. Finally, management reasoned that reducing her workload would reduce her performance standard and so was not a reasonable accommodation; and that using sick leave or FMLA protected leave without pay, not working outside duty hours, was the appropriate method of attending medical appointments during scheduled duty hours. We conclude that Complainant has failed to prove that the Agency’s actions resulted in a violation of her rights under the Rehabilitation act to secure reasonable accommodation for her disabilities. It is clear that the Agency promptly engaged with Complainant to discuss and review her accommodation requests and granted Complainant the accommodation of intermittent leave protected by the FMLA to attend medical appointments related to her disabilities. This 2020000574 11 was an effective accommodation provided in lieu of Complainant’s request to change her work schedule. Complainant is not entitled to the accommodation of her choice, only to an effective accommodation. Complainant failed to prove that there was medical support for her request for an office with a window. Therefore, the Agency’s denial did not violate the Rehabilitation Act. Finally, with regard to Complainant’s request that her workload be decreased, we again find that there was no medical evidence supporting this accommodation was necessitated by her disabilities. Moreover, the record establishes that granting this accommodation would require the restructuring of an essential function of Complainant’s position which is not required under the Rehabilitation Act. See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, Notice No. 915.002 (revised October 17, 2002). In sum, we find the record evidence does not support a finding that the Agency violated the Rehabilitation Act with respect to Complainant’s accommodation requests. Disparate Treatment - Revoking of Clinical Privileges and Termination 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 case of discrimination by presenting facts which, 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 based on 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 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. 2020000574 12 On June 9, 2017, the Complainant’s supervisory chain became aware that the Complainant was failing to completely and accurately record medical treatment notes in her patients’ records. Management then began a further examination of Complainant’s patient records and discovered that Complainant’s clinical notes contained the following errors: incorrect gender, missing safety evaluations, incorrect patient dispositions (i.e., inaccurate documentation that a patient was sent to the Emergency Room, etc.), irrelevant and erroneous clinical note templates, and treatment notes copied from other records. Based on the Complainant’s failure to enter complete and accurate information in her patients medical treatment records which created a risk to her patients, on August 15, 2017, the Colonel notified Complainant that her clinical privileges at the MEDDAC were placed in abeyance and that a clinical quality management investigation (CQM-I) would be conducted to determine whether she engaged in a pattern of substandard care. A CQM-I is required by Army Regulation (AR) 40-68, Chapter 10, and Department of Defense Manual (DoDM) 6025.13 when substandard patient care which creates a risk to patients is alleged or suspected. Privileged providers subject to a CQM-I are afforded full procedural and substantive due process, including the right to counsel, right to a hearing, and a multiple level appeal process. On August 29, 2017, Complainant was terminated during her probationary period for entering incomplete and erroneous information in her patients’ medical treatment records which demonstrated a lack of trustworthiness and created the potential for “severe and potentially catastrophic risks to the patients.” Consistent with the provisions both AR 40-68 and DoDM 6025.13, even after her termination, the CQM-I process with respect to the Complainant continues and she is represented by counsel in that matter. After careful review of the record, we conclude that beyond her bare assertions, Complainant failed to prove, by a preponderance of the evidence, that her sex, national origin, disability, or prior EEO activity played any role in the decision to suspend her clinical privileges or terminate her employment prior to the end of her probationary period. CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020000574 13 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2020000574 14 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 May 24, 2021 Date