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

Equal Employment Opportunity Commission

Mar 23, 2021

Appeal No. 2019005353 (E.E.O.C. Mar. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ryan C.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2019005353 Hearing No. 570- 2018-00099X Agency No. ARMYER17FEB00524 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 17, 2019,2 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected him to discrimination or harassment based on disability or in reprisal for protected EEO activity. 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 We note that while Complainant’s June 17, 2019 appeal was premature, we find that the appeal is now ripe for adjudication given that the Agency subsequently issued a final decision on July 17, 2019. 2019005353 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nurse Case Manager at the Agency’s Andrew Rader Health Clinic (Rader) in Fort Myer, Virginia. Complainant stated that through February 2017, he worked in the Behavioral Health Clinic and reported to his first- line supervisor (S1) (undisclosed disability status), and that a Sergeant (SGT) (undisclosed disability status) was in charge of Behavioral Health but was not Complainant’s supervisor. Complainant then transferred to Primary Care and reported to a new first-line supervisor (S2) (individual with a disability). Complainant’s second-line supervisor remained the Director for Clinical Services (DCS) (undisclosed disability status). Report of Investigation (ROI) at 1288. On March 30, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment based on his disability (anxiety, attention deficit disorder, bipolar disorder) and in reprisal for prior protected EEO activity (reasonable accommodation request and instant EEO complaint) when: 1. on or about September 2016, SGT instructed Complainant to reschedule patients prior to him taking leave; 2. on or about February 14, 2017, SGT interfered with Complainant scheduling a patient; 3. on or about March 30, 2017, SGT interfered with Complainant scheduling a patient; 4. in or about September 2016, Complainant was informed that his job was being changed to work in Primary Care; 5. on or about September 2016, SGT threw Complainant’s position description in his face;3 6. since November 2016, Complainant was denied additional training to assist him with additional duties; 7. on or about February 1, 2017, Complainant’s performance objectives were changed; 8. on or about February 15, 2017, DCS denied Complainant the opportunity to attend the mandatory Nurse Case Management Course; 9. on or about February 15, 2017, the Senior Nurse Case Manager (SNCM) informed Complainant that he would need to obtain an additional clearance to work with children and adolescents; 10. on or about February 16, 2017, Complainant was informed by S2 that his job may be eliminated; 3 In his affidavit, Complainant stated that SGT did not throw a document in his face. ROI at 1304. 2019005353 3 11. on or about March 28, 2017, the Regional Consultant for Case Management (RCCM) informed Complainant that his training requirement was outstanding; 12. on or about March 29, 2017, Complainant and other Nurse Case Managers were notified to submit their record of training, which included a competency assessment; 13. in or about November 2016, Complainant received a letter of counseling for incorrectly billing a claim, and writing an “encounter” that documents were scanned in when they were not scanned in; 14. in or about December 2016, Complainant’s supervisors threatened to place him on a Performance Improvement Plan (PIP); 15. in or about March 2017, Complainant received a letter of counseling from S2 for working outside of his scheduled work hours; 16. on or about January 19, 2017, SGT slammed the door in Complainant’s face; 17. on or about January 26, 2017, SGT sent an email to Complainant and his supervisors in reference to delinquent encounters; 18. on or about February 13, 2017, SGT emailed Complainant about an incorrect timecard; 19. in or about March 2017, SGT threw away Complainant’s door sign; 20. on or about February 14, 2017, Complainant’s reasonable accommodation requests were denied, specifically the opportunity to telework, a compressed work schedule, and the return of a laptop computer; and 21. on or about March 29, 2017, Complainant was denied speakers for his computer; 22. on or about April 3, 2017, Complainant was informed that he was being investigated for a Health Insurance Portability and Accountability Act (HIPAA) violation and was later told it was a mistake; and 23. on or about April 2017, Complainant was given instructions to limit patient information in email communications.4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. 4 Complainant amended his complaint to add incidents 22 and 23, alleging only retaliation as the basis for the two incidents. 2019005353 4 On June 17, 2019, Complainant filed the instant appeal, noting that the Agency’s deadline to issue a final decision had passed and it failed to issue the final decision. The Agency subsequently issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that management officials provided legitimate, nondiscriminatory reasons for their actions and that Complainant did not provide any evidence of pretext for discrimination. The Agency also found that management officials granted numerous accommodations to Complainant, and that they properly denied his request for telework because he would be unable to perform essential functions from home, and his request for a laptop because Complainant could perform the same functions on his desktop computer. In addition, the Agency found that there was no evidence that SGT’s actions were motivated by discriminatory animus or that they were sufficiently severe or pervasive to create a hostile work environment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant submitted a brief in support of his appeal. The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL Through his attorney, Complainant argues that the Agency failed to accommodate him and failed to engage in the interactive process. Complainant asserts that the Agency took away his laptop, but that many of his coworkers were allowed laptops. In addition, Complainant states that when he requested training, it was rushed and did not provide him with the assistance that he needed. Complainant asserts that his trainer provided incorrect or outdated information. Complainant argues that following his protected EEO activity of requesting a reasonable accommodation and filing the instant EEO complaint, he was denied training; threatened with a PIP; given revised performance objectives; threatened that his job may be eliminated; erroneously told that he did not have the proper clearance to perform part of his duties; publicly faulted for not completing training; issued a letter of counseling; and informed that he would be investigated for a HIPAA violation, which was a mistake. Complainant asserts that the management’s legitimate reasons were pretexts for discrimination. Complainant states that his supervisors’ claims that the threats of a PIP and HIPAA investigation were a mistake are simply unbelievable because procedures were not followed, and that an “oops” is not a believable explanation for threats of criminal charges and an investigation. Complainant also notes that S2 did not explain the reason why Complainant was prohibited from working after hours or from home while the other Nurse Case Managers did not receive the same limitation. Complainant argues that he was subjected to continued harassment from SGT. For example, SGT sent Complainant a text message while he was on his lunch break, and when Complainant did not respond, SGT called him and then barged into the office where Complainant was discussing a case and SGT slammed the door in Complainant’s face. 2019005353 5 Complainant also argues that the harassment unreasonably interfered with his work; for example, when his performance objectives and workload were changed, and he was denied training. Complainant asserts that management created an intimidating, hostile, and offensive work environment when they harassed him about his job security, and that there is a basis to impute liability because management officials were directly responsible for the harassment. Complainant requests that the Commission find that he was subjected to discriminatory harassment based on his disability and in reprisal for protected EEO activity; and award him compensatory damages, attorney’s fees, and other just and necessary awards. 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 Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he 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). 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). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant or that it failed to engage in the interactive process (claim 20). In December 2016, Complainant initiated his reasonable accommodation requests for: (a) training/training refreshers for current job duties; (b) additional training and extended time for learning new job duties; (c) additional time to complete assignments and documentation; (d) three 5-10 minute breaks to improve focus and 2019005353 6 productivity; and (e) compressed work schedule or one telework day per week to allow for regular treatment sessions with therapist. On January 26, 2017, S1 issued a decision granting requests a, c, and d, and denying requests c and e. S1 denied requests c and e, in part, because they would remove the essential function of meeting patients on-site. ROI at 992-3. On February 14, 2017, S1 specified that Complainant would be provided additional training by SNCM to acquire skills for his new position, and that he was approved to apply to a three-week “Nurse Course Management” course in San Antonio, Texas. S1 added that Complainant was authorized to divide his 30-minute break in whatever manner best supports his focus. ROI at 994. On March 1, 2017, Complainant submitted another reasonable accommodation request for the return of his laptop to enable him, which was taken away from him without explanation, to conduct training at home. Complainant also raised concerns that his training needs were not being met because the training provided by SCNM was not “formal,” but provided during SCNM’s lunchbreak, and there was no funding for Complainant to attend the three-week Nurse Case Management course. ROI at 998-1001. On April 10, 2017, S2 informed Complainant that they would delete his last patient of the day, scheduled for 14:00, to provide him with uninterrupted time to complete his other duties. ROI at 986. On May 2, 2017, S2 provided a response to Complainant’s reasonable accommodation request, noting that Complainant’s requests related to training and breaks were previously addressed in S1’s February 14, 2017 memo, including that Complainant would be attending the Nurse Case Manager training at the end of the month. S2 also stated that Nurse Case Managers are scheduled to see eight patients per day, and that Complainant’s schedule was changed to see only seven patients per day. ROI at 1003-4. S2 noted that she discussed with Complainant his reasonable accommodation requests on June 16, 2017. S2 stated that Complainant had a laptop when he worked in Behavioral Health, which needed to be returned when he moved to Primary Care, and that Complainant’s new office was equipped with a desktop computer. S2 stated that Complainant informed her that he needed the laptop to complete his documentation duties, but that S2 responded that Complainant was not completing his documentation even when he had a laptop. S2 stated that Complainant then stated that they could “forget about” his laptop request. S2 stated that Complainant also stated that he needed to attend his weekly medical appointments and did not have enough leave, so S2 recommended that Complainant consider leave under the Family and Medical Leave Act. ROI at 1051, 1105-6. S2 also stated that Complainant agreed to a work schedule of 7:00-16:00, four days per week, which would allow him to attend his weekly medical appointments. ROI at 1441. We find that the Agency accommodated Complainant by granting his requests for training; the ability to take self-directed breaks throughout his day; removed one of Complainant’s daily required patients to give him additional time to complete his work; and provided him a modified work schedule. 2019005353 7 The Commission has recognized that an agency is not required to remove any of the essential functions of a position as a reasonable accommodation. See Enforcement Guidance at General Principles. See also Larraine S. v. Dep’t of Agric., EEOC Appeal No. 0120180647 (Aug. 15, 2019); Carlton T. v. Dep’t of the Navy, EEOC Appeal No. 0120151566 (Feb. 7, 2018); Timika O. v. Dep’t of the Navy, EEOC Appeal No. 0220140008 (Mar. 9, 2017). In this case, we find that the Agency did not fail to accommodate when it denied Complainant’s request to telework because it would remove the essential function of meeting face-to-face with patients. The Deputy Commander (DC) (no disability) stated that as a healthcare provider, Complainant’s duties require constant interactions with patients and staff. DC noted that all Nurse Case Managers were coded as “NE106,” which is not telework eligible due to the requirement that their duties include extensive face-to-face contact with supervisors, employees, and patients. ROI at 1653, 1064. We note that while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Question 9. On appeal, Complainant argues that the accommodations were not effective. Specifically, Complainant stated that the Agency did not give him a laptop but that many of his coworkers were allowed laptops, and when he requested training, it was rushed and did not provide him with the assistance that he needed, and he was provided incorrect or outdated information. However, Complainant did not cite to any evidence in the record that would support his assertions. We further note that the record shows that Agency officials repeatedly interacted with Complainant to respond to his reasonable accommodation requests. Accordingly, we find that Complainant did not establish that the Agency discriminated against him, because the record reflects that it provided him with reasonable accommodations and continued to engage in the interactive process. Disparate Treatment 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 Complainant to prevail, he 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 Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. 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 his 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 Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). 2019005353 8 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his disability and in reprisal for protected EEO activity for claims 4, 6-15, and 21-23, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 4, S1 stated that Complainant was one of three Nurse Case Managers in the Clinic, and that he was moved to work more closely with his peers. ROI at 1404-5. DC stated that Complainant’s move was part of a larger initiative to improve use of space and improve efficiencies, and that at least 15 other employees were also moved. ROI at 1643. Regarding claim 6, S2 stated that SNCM was assigned to provide training to Complainant one hour per day, from November to December. ROI at 1431. For claim 7, S1 stated that Complainant’s performance objectives were changed to align with his Nurse Case Manager peers, who shared the same position description. ROI at 1407. S2 added that Complainant was placed on the standard Nurse Case Manager performance objectives after he became her employee. ROI at 1432. For claim 8, DCS stated that she approved Complainant’s training request on January 25, 2017, and that Complainant admitted that he had not completed the prerequisites. DCS stated that the approval was a standing offer that Complainant could take after he completed the prerequisites.5 ROI at 1507. S2 added that Complainant was scheduled to attend the training in August 2017. ROI at 1433. Regarding claim 9, SNCM stated that she informed Complainant that he should check with S2 to see if a background check was completed as part of his in-processing because Complainant would soon be assuming Nurse Case Management responsibilities for Pediatric Behavioral Health patients. SNCM stated that it was determined that since Nurse Case Managers do not see pediatric patients without their parents, a security check was not needed. ROI at 1570. For claim 10, DCS stated that when the Agency decided to co-locate all the Nurse Case Managers, part of the motivation was to improve their productivity. DCS stated that if productivity did not improve, the Rader facility faced the risk of losing all GS-12 Nurse Case Manager positions. DCS stated that the potential loss of these positions was not specific to the Rader facility or Complainant. ROI at 1509. Regarding claim 11, RCCM stated that there are specific training requirements, which she typically reviewed on a quarterly basis. RCCM noted that Complainant had many opportunities but failed to comply. ROI at 1590. For claim 12, S2 stated that there is a mandatory reporting requirement of training records for all Nurse Case Managers. ROI at 1436. Regarding claim 13, S1 stated that Complainant was issued a counseling letter because he billed for services that were not provided and claimed to have scanned documents into the system, despite not having completed the training to perform this function. ROI at 1412. 5 The record also shows that travel for all Rader employees was on hold from April 28, 2017, through May 24, 2017. ROI at 803, 809. 2019005353 9 For claim 14, the Commander (no disability) stated that when she and DCS met with Complainant to discuss his job performance, she inadvertently used the term “PIP,” but immediately corrected herself and clarified that they were only seeking to assist Complainant with improving his performance. ROI at 1628. Regarding claim 15, S2 stated that she issued Complainant a memorandum regarding staying after duty hours. S2 stated that she received an email from Complainant, which was timestamped at 18:00, but the clinic closes at 16:00. S2 stated that supervisors were responsible for compensating employees who work outside of their duty hours and that this should be pre-approved. S2 noted that the latest a nurse may stay is usually no more than 30 minutes. ROI at 1438. For claim 21, S2 stated that they obtained a speaker from a different computer and gave it to Complainant, and that she later learned that Complainant did not need the speaker because his computer had an internal speaker. ROI at 1442. For claim 22, S2 stated that when she discussed Complainant’s staying after hours, he stated that he saw that SNCM had timestamps in patient records at 6:30 p.m. S2 stated that when she asked Complainant if he had been reviewing patient records that he did not have a need to know, he did not respond. S2 stated that she informed her managers, and that she learned about the investigation when Complainant copied her on an email to a HIPAA Officer regarding a meeting. S2 stated that the investigation was not a mistake, and that during a meeting with Complainant, they informed him that the HIPAA Officer “jumped some of the process.” ROI at 1443. DCS corroborated that it appeared that the HIPAA Officer took steps “out of order,” but that there was no mistake in initiating the HIPAA inquiry based on Complainant’s admission of accessing patient records. ROI at 1522. Regarding claim 23, S2 stated that she and DSC repeatedly informed Complainant that it was not appropriate to send emails that contain a patient’s name, Social Security number, date of birth, and mental health history. S2 noted that the staff was supposed to use the electronic medical records system and the Secure Messaging system that allows patients to securely email their providers. ROI at 1444. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that the management’s legitimate reasons were pretexts for discrimination. Specifically, Complainant asserted that his supervisors’ claims that the threats of a PIP and HIPAA investigation were a mistake are simply unbelievable because procedures were not followed, and that an “oops” is not a believable explanation for threats of criminal charges and an investigation. Complainant alleged that the Commander ordered the HIPAA investigation. 2019005353 10 ROI at 1326. However, there is no evidence that the HIPAA investigation was a mistake. In addition, the Commander stated that she quickly corrected herself when she inadvertently said “PIP.” We note that a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). While the Commander admitted to making a mistake, Complainant did not present any evidence of discriminatory animus from the Commander. Complainant also argued that S2 did not explain the reason why Complainant was prohibited from working after hours or from home while the other Nurse Case Managers did not receive the same limitation. However, SNCM stated that all employees were advised that they were not to work beyond the clinic hours, without proper approval. ROI at 1573. In addition, there is no evidence that the other Nurse Case Managers were able to telework. Here, Complainant made bare assertions that management officials discriminated against him, which are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his disability or in reprisal for protected EEO activity for claims 4, 6-15, and 21-23. Harassment As discussed above, we found that Complainant did not establish a case of discrimination for claims 4, 6-15, and 20-23. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of these actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on his disability or in reprisal for protected EEO activity for these incidents. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to statutorily protected classes based on his disability and protected EEO activity, and that he was subjected to unwelcome conduct by SGT (incidents 1-3, 5, 16-19). However, we find that Complainant did not establish that any of the complained of conduct was due to his disability or in reprisal for his protected EEO activity, and that SGT provided explanations for his actions. 2019005353 11 For example, SGT stated that he asked Complainant to reschedule a patient because it was part of his duties, and that he threw away Complainant’s door sign because a new provider moved into Complainant’s old office and SGT changed the sign to reflect the update. ROI at 1537, 1551. In addition, we note that most of SGT’s actions were work-related, and the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, Complainant did not show that SGT’s conduct was abusive or offensive, and he did not provide any evidence that SGT was motivated by Complainant’s protected bases. Complainant stated that SGT harassed and intimidated many civilian and military employees, but Complainant did not show that SGT’s behavior toward him was due to his disability or protected EEO activity. ROI at 1331. We note that a witness stated that she complained of SGT’s “pattern of angry and unprofessional behavior” when he slammed the door in their faces, and she believed that SGT targeted those whom he perceived as “weak.” ROI at 1670-1. On appeal, Complainant asserted that the harassment unreasonably interfered with his work; for example, when his performance objectives and workload were changed, and he was denied training. However, we note that the complained of actions were unrelated to any alleged harassment by SGT. As such, we find that Complainant did not establish that the Agency subjected him to harassment based on his disability or in reprisal for prior protected 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 finding that Complainant did not establish that he was subjected to discrimination or harassment based on his disability or in reprisal for protected EEO activity. 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. 2019005353 12 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. 2019005353 13 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 23, 2021 Date