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

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2019005129 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaniqua W.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2019005129 Hearing No. 570-2017-00743X Agency No. ARHQOSA16JAN00068 DECISION Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 14, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the reasons that follow, the Agency’s final decision is AFFIRMED in part and REVERSED in part. ISSUES PRESENTED The issues presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination and a hostile work environment based on her sex and disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Director of Army Special Programs Directorate (ASPD) at the Agency’s facility in Washington, D.C. 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. 2019005129 2 On August 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of sex (female) and disability (Post Traumatic Stress Disorder, or PTSD) when: 1. on August 6, 2015, the Vice Director of Army Staff (RMO12, male, no disability) failed to take corrective action after she informed him that she was subjected to physical abuse and harassment by a subordinate male employee; 2. on August 7, 2015, RMO1 and the Director, Executive Business Operations (RMO2, male, no disability), failed to take corrective action after she met with them to inform them that she was subjected to physical abuse and harassment by a subordinate male employee; 3. on November 16, 2015, the Lieutenant General Commanding General, Space and Missile Defense Command, (RMO3, male, no disability) verbally reprimanded her while in the presence of other Agency employees; 4. on November 16, 2015, RMO1 requested that she “voluntarily” agree to a demotion to the position of Deputy Director (GS-14) for ASPD; 5. on November 30, 2015, RMO1 removed her from her position as Director, ASPD, GS-15; 6. in December 2015, RMO1 informed her and her former subordinates that she suffered from medical issues in retaliation for her protected activity; and 7. from February 25, 2016 to present, her requests for reasonable accommodation to telework one day per week and to bring a certified service dog to work were denied by RMO1. The Agency accepted the claims for investigation. The investigative record reflects the following pertinent matters relating to the subject claim. Claims 1 - 2 On or about August 4, 2015, Complainant asserted that a subordinate male employee (E1) followed her into her office, verbally assaulted her, and grabbed her arm leaving a large bruise. On or about August 6, 2015, Complainant issued a counseling statement to E1, with Agency Counsel present as a witness. E1 later reported to RMO1 that the situation was blown out of proportion and that it was a race issue because he is African-American, and Complainant is Caucasian. E1 denied aggressively grabbing Complainant and asserted that he merely touched her arm. 2 Responsible Management Official 1. 2019005129 3 On August 6 and 7, 2015, Complainant asserted that RMO1 and RMO2 failed to take corrective action after she met with them to inform them that she was subjected to physical abuse and harassment by E1. She asserted that she requested a No Contact Order which was denied. RMO1 asserted that he never denied the request and that he did not have authority to issue one. However, RMO1 also noted that he requested Complainant to submit a statement so that he could assist her in the No Contact request. RMO1 asserted that Complainant never provided him with one. RMO1 stated that he did take swift and corrective action. On August 7, 2015, RMO1 placed E1 on a two-week leave of absence, reassigned E1 to RMO2’s supervision, and relocated E1’s office to be closer to him (RMO1). Complainant asserted that this was not enough, and that she experienced PTSD symptoms from the incident. Management initiated an internal investigation (Commander’s Investigation) into the August 2015 incident with E1. In December 2015, the results from the Commander’s Investigation were released. The report found that E1 had not committed the offense of “Failure to Obey Order or Regulation” but determined that E1 had committed the offense of “Conduct Unbecoming an Officer and a Gentlemen.” The report also determined that E1 had grabbed Complainant with enough force to cause her arm to bruise. The report noted that management would seek to issue E1 a Letter of Reprimand. The report authorized Complainant to request a No Contact Order and to receive counseling. Claim 3 On November 16, 2015, Complainant asserted that the Lieutenant General (LTG) of Space and Missile Defense Command, was publicly chastised by the Vice Chief of Staff in connection to a program that the LTG was managing. Complainant asserted that she was later in a private meeting with the LTG when he became verbally aggressive towards her, reprimanding her in front of RMO1 and other, unidentified employees. The LTG denied ever verbally assaulting Complainant. He said that Complainant’s organization was assisting him to get his organization in compliance with security protocols. The LTG stated that, in October 2015, Complainant stopped responding to his emails, which frustrated him. He acknowledged that he met with Complainant and expressed his frustration with her lack of response but denied verbally assaulting her or using inappropriate language. The LTG could not recall if RMO1 was present when they met. Complainant later informed RMO1 that she did not appreciate his lack of support nor the LTG’s behavior. Claims 4 - 6 In mid-November 2015, Complainant advised RMO1 that her health had suffered due to the workplace incidents and that “if it came down to my job and my health, then we need to make a change.” She stated that RMO1 asked if she would like to go from the Director to the Deputy Director position. RMO1 stated that her pay and grade level would stay the same. Complainant declined as she considered the move a demotion. Complainant acknowledged that RMO1 offered his assistance in trying to find a workplace balance for her. 2019005129 4 On November 30, 2015, RMO1 issued a “Memorandum, Subject: Relief from duties and detail assignment,” to Complainant relieving her of her duties effective December 6, 2015, and notifying her of her detail assignment to the Program Management Directorate effective December 7, 2015. Complainant acknowledged she was not actually demoted but she was surprised by the action. RMO1 declined involuntarily demoting Complainant and asserted that he only he detailed Complainant because she said her job was ruining her health. RMO1 noted that he relieved Complainant of the responsibilities of the Director’s position and detailed her to the Program Management Directorate, with no change to her grade level or pay. RMO1 asserted that the detail was initiated at Complainant’s request that something be done due to her health concerns. He said the detail to the Program Management Directorate ended in January 2016, and Complainant was then detailed to the G-23 Intelligence Directorate, later to the Office of Personnel Management, and then to the Under Secretary for Defense Intelligence. He said that prior to each detail, he asked Complainant if she agreed to the detail and each time she did. In December 2015, Complainant alleged that RMO1 informed her former colleagues that she was relieved of her duties due to medical issues. Complainant asserted that this was in retaliation for her protected bases and EEO activity. RMO1 denied releasing any information that Complainant herself did not already release and/or request to be released on her behalf. RMO1 asserted that Complainant had sent him an email on September 16, 2015, requesting that he inform employees that she was taking time due to medical concerns. Report of Investigation (ROI) at 137. RMO1 asserted that he informed Complainant’s peers at a December staff meeting, in which all seven directors were present, that Complainant was on a detail for health reasons. He asserted that he did not elaborate any further, and that he shared exactly what was in the email. RMO1 stated that he “felt a need to explain at the senior leadership level…why one of the directors who had met week and week with us collectively was no longer attending our director meetings.” ROI at 157. Complainant asserted that the September email referenced by RMO1 only indicated four branch chiefs, not the additional directors that RMO1 informed during the December 2015 staff meeting. ROI at 137. Claim 7 On December 1, 2015, Complainant requested additional information on telework as a reasonable accommodation. Complainant contacted the Administrative Officer on this request and copied management officials, including RMO1. Complainant’s email noted that she was requesting information and that it was not an actual request to telework. The Administrative Officer informed Complainant that she would need to go through her detail organization and provided her with the forms she would need for telework requests. 3 G-2 abbreviation was not defined in the record. G-2 references the Agency’s intelligence staff. 2019005129 5 On February 25, 2016, Complainant requested the following reasonable accommodation requests: telework once a week; and have a medical alert Certified Service Dog (CSD) in the workplace. During the investigation, Complainant acknowledged that her requests were not denied but asserted that management intentionally delayed action. RMO1 and RMO2 asserted that Complainant never submitted any reasonable accommodation requests in February 2016, and that the only request was submitted in May 2016. In a memorandum dated May 17, 2016, Complainant requested a CSD, an ergonomic workstation, a computer mouse, and custom air back support. In June 2016, RMO2 requested additional information on the CSD request. On June 16, 2016, Complainant provided the additional information. On July 21, 2016, RMO2 approved all of Complainant’s requests. On October 17, 2016, while detailed to the Office of the Deputy Chief, Complainant requested permission to telework once a week. Her detail supervisor at the time approved of the request. Hostile Work Environment Regarding the harassment, Complainant asserted that she suffered a loss with respect to her workplace status as she held a very prestigious position and was then detailed with little to no duties. Her work environment has changed several times since December 1, 2015. She acknowledged that each detail assignment has “gone above and beyond” to accommodate her. She believes the alleged harassment has affected her employment opportunities, stating her reputation has been ruined in the highly classified community because she was removed from her duties, which is perceived as her being fired. Her mental health has been questioned as to whether she should have access to sensitive information. She states it is impossible to apply for a position without a performance evaluation or with a job title that does not match the duties she is fulfilling. When asked if she had complained to any management official about the alleged harassment, she states, “I worked at a senior level of the [Agency] and do not know who else I would have complained to.” Post Investigation At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. On April 9, 2019, the AJ remanded the matter for a final Agency decision (FAD). Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Neither the Agency nor Complainant provided an appellate brief. 2019005129 6 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Disparate Treatment - Claims 1, 2, 4 and 5 Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Co. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). With respect to Complainant’s disparate treatment claim, we assume, arguendo, that Complainant established a prima facie case of discrimination based on her sex and disability. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Based on the record, we find that the Agency has articulated legitimate nondiscriminatory reasons for its actions. 2019005129 7 In claims 1 and 2, Complainant asserted that the Agency failed to take corrective action in the incident with E1. However, the record demonstrates that following the incident, RMO1 removed E1 from Complainant’s supervision, relocated E1’s office space, and placed E1 on a two-week leave of absence. Complainant acknowledged these actions but asserted that it was not enough. For example, Complainant noted that RMO1 refused to issue a No Contact Order. The record demonstrated that RMO1 did not have the authority to issue one. Instead, RMO1 sought to assist Complainant in filing a No Contact Order and noted that, following the internal Commander’s Investigation, Complainant was informed she could file a No Contact Order. While there was a demonstrated delay in Complainant’s ability to obtain a No Contact Order against E1, approximately five months, this was due to the internal investigation and not due to RMO1 or RMO2’s lack of intervention. Regarding claims 4 and 5, that Complainant was demoted, removed, and then detailed, we also find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here, Complainant acknowledged during the investigation that she was not involuntarily demoted. Instead, RMO1 relieved Complainant of her duties after Complainant informed RMO1 that her health was being severely impacted by stressful work conditions. It was noted that Complainant preferred to remain in her position and obtain additional employees to assist her, however, management determined that the request would not be feasible. Instead, RMO1 chose to place Complainant on various details in an effort to reduce Complainant’s stress. While RMO1 did remove Complainant from her Director position, it was without a change to her pay or grade level, and with her consent at each detail opportunity. Based on the record, there is no demonstration that RMO1’s actions were motivated by discriminatory animus. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). While Complainant sharply disagreed, mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by discriminatory or retaliatory animus. Complainant has failed in this regard. Lastly, we note that in this matter, beyond the ROI and Complainant’s arguments, Complainant did not present further evidence to support her claims. While Complainant initially requested a hearing before an EEOC AJ, she subsequently withdrew her request, and as a result we do not have the benefit of an AJ's credibility determinations regarding the witnesses. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. 2019005129 8 Reasonable Accommodation - Claim 7 Under the Commission’s regulations, federal agencies may not discriminate against individuals with disabilities. The Agency is required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless the Agency can show that reasonable accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (December 3, 2015). Reasonable accommodation may include making facilities accessible, job restructuring, modifying work schedules, and other similar actions. Dennis v. Dep’t of Educ., EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory Comm’n, EEOC Appeal No. 0120041082 (Aug. 2, 2007), request for reconsideration denied, EEOC Request No. 0520070907 (July 9, 2008). A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, App. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. Part 1630, App. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. With respect to Complainant’s reasonable accommodation claim,4 we find that, despite Complainant’s claim to the contrary, there was no evidence that management officials denied or intentionally delayed her requests. Moreover, Complainant also acknowledged that her requests were never denied, but that her complaint focused on a lack of speedy response. The record demonstrated that Complainant made an inquiry on telework procedures in December 2015, for informational purposes only, and received a prompt reply. Complainant later asserted that she submitted requests for certain reasonable accommodations, including the use of a CSD, an Ergotron Workfit-S Dual with Worksurfact+ station, roller mouse, custom air back support, and a document holder, on February 25, 2016. However, there is no indication that the form was received until May 17, 2016. On June 9, 2016, Complainant received a request to provide certain medical documentation to support her requests and, by July 21, 2016, RMO2 approved Complainant’s May 17, 2016 requests. On October 17, 2016, Complainant requested authorization to telework one day per week. Upon receipt of Complainant’s formal telework request, it was granted on November 28, 2016. 4 For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019005129 9 Based on the record, there is no indication that the Agency failed to properly engage with Complainant and/or intentionally delayed processing her reasonable accommodation requests. Harassment - Claims 1 - 5, and 7 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 and disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). In her harassment claim, in addition to the incidents discussed above, Complainant generally alleged that she was subjected her to a hostile work environment through a variety of incidents. For example, Complainant asserted that the LTG publicly verbally reprimanded her (claim 3). The LTG acknowledged that he was frustrated with Complainant during a meeting they had but denied being inappropriate. We note that discrimination statutes do not create a right to work in a pleasant environment, merely one that is free from discrimination. The interaction may not have been pleasant but there is no evidence that it rose to a level of discriminatory harassment. Based on a review of the record, we find that this claim, either taken separately or as a whole with the others Complainant alleged, do not rise to a level that is so severe or pervasive that a reasonable person would consider them to be hostile. We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s sex and/or disability played any role in the Agency’s actions. Medical Disclosure - Claim 6 Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14. These requirements also extend to medical information that an individual voluntarily discloses to an employer. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000) (Guidance I). The confidentiality obligation imposed on an employer by the ADA remains regardless of whether an applicant is eventually hired, or the employment relationship ends. See ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical 2019005129 10 Examinations, at 18 (October 10, 1995) (Guidance II). These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. See Higgins v. Dep’t of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003): Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000); Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (Jan. 11, 2011), req. for recon. den’d, EEOC Request No. 0520110302 (Apr. 29, 2011). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). The ADA and its implementing regulations list the following limited exceptions to the confidentiality requirement: supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with this part shall be provided relevant information on request. 42 U.S.C. §§ 12112(d)(3)(B),(4)(C); 29 C.F.R. § 1630.14; Guidance I, at 4. In this matter, RMO1 acknowledged that he disclosed Complainant’s absence as due to medical reasons. It was also clear that he disclosed this information during a meeting with seven directors. RMO1 also informed the EEO Investigator that he felt an obligation to explain Complainant’s detail and absence to senior leadership. RMO1 attempts to explain the disclosure as only relaying information that Complainant had allowed him to relay in her September 16, 2015 email. However, there is nothing implicit in Complainant’s email that allows RMO1 to release any medically related information about Complainant’s status to anyone beyond the four individuals she had listed. The record demonstrated that Complainant had previously emailed RMO1 indicating that it would be acceptable to disclose her absence as medically related to just the four individuals that she most frequently worked with, and not the additional individuals present at the December 2015 staff meeting. We acknowledge RMO1’s statement that he did not provide explicit details of her condition, and that he only intended to relay what he believed Complainant wanted him too. However, there was no indication that the release of any medically related details regarding Complainant’s absence was qualified under the limited exceptions to the confidentiality requirement. As such, we determine that the Agency violated the Rehabilitation Act with respect to claim 6.5 5 As we have found that Complainant has established disparate treatment with respect to claim 6, we need not address that this matter also constituted harassment because this would not alter our remedies. 2019005129 11 We find that Complainant established that the Agency committed a violation of the Rehabilitation Act with respect to claim 6. However, Complainant failed to show by a preponderance of the evidence that, more likely than not, the Agency subjected her to discrimination or retaliation in her remaining claims. CONCLUSION Therefore, 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 with respect to claims 1-5 and 7. We REVERSE the Agency’s final decision with regard to claim 6 and REMAND the matter for further processing accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action regarding claim 6: 1. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. Thereafter, within ninety (90) calendar days of the date this decision is issued, the Agency shall determine the amount of compensatory damages to be awarded. Within thirty (30) days of determining the amount of compensatory damages, the Agency shall pay Complainant the compensatory damages. 2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide eight hours of in-person or interactive training to RMO16 regarding his responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency’s obligations under Section 501 of the Rehabilitation Act, particularly its duties regarding medical confidentiality. 3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against RMO1. The Commission does not consider training to be disciplinary. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If RMO1 has left the Agency’s employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” 6 Name and title of RMO1 can be found in the Report of Investigation on page 5. 2019005129 12 The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Washington, D.C. facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2019005129 13 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2019005129 14 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2019005129 15 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, Director Office of Federal Operations July 19, 2021 Date