U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson A.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency. Appeal No. 2020002690 Agency No. NCN-19-ARC-00166 DECISION On March 10, 2020, 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 March 9, 2020, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Project Manager, GS-2210-14, at the Agency’s Ames Research Center (ARC) facility in Moffett Field, California. On May 21, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of disability (physical), age, and/or reprisal for prior protected EEO when: 1. On April 11, 2019, Complainant’s Facilities Services Manager (FSM) duties were reassigned to a younger contract employee; 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. 2020002690 2 2. On April 26, 2019, Complainant’s supervisor issued a letter stating that, since Complainant did not return to work by April 15, 2019, he was marked Absent Without Official Leave (AWOL), and requesting additional medical documentation to support Complainant’s continued absence from work; 3. Effective May 28, 2019, Complainant was suspended for 14 days; 4. On June 24, 2019, Complainant was placed on Administrative Leave; 5. From April to June 2019, Complainant was subjected to the following incidents of harassment: a. On April 1, 2019, he was informed by his supervisor that he could be considered AWOL and open to Human Resources action, even when he was Ames Health Unit processing his return-to-work clearance; b. On April 1, 2019, his supervisor stated that he did not know the return to work clearance process; c. On April 8, 2019, Complainant was removed from Contracting Officer Technical Representative (COTR) training to attend a meeting; d. On June 24, 2019, he was issued a Notice of Proposed Removal. On September 16, 2019, the Division Chief issued Complainant a Notice of Decision to Remove. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Alleged Bases Regarding his alleged basis of reprisal, Complainant attested that the instant complaint is his only EEO activity, noting that he initially contacted the EEO office on April 12, 2019. Regarding his alleged basis of disability, Complainant attested that he suffers from chronic back and sciatic nerve pain and has a neurological condition, lumbar nerve root disorder. He attested that his medical condition, when active, limits and restricts his ability to walk and sit, as his legs go numb after a couple of hours of sitting and he needs to get up and rest for an hour. However, he attested that his medical condition does not interfere with his ability to perform the essential functions of his position. He attested that he never requested a reasonable accommodation, but management was aware that he was under a doctor’s care, as he informed his supervisor, around May 28, 2019, that he had been injured at work on May 14, 2019. Claim 1: FSM Duties Reassigned Complainant attested that, on April 11, 2019, his first-line supervisor (Supervisor1) reassigned his FSM duties of being the point of contact for the building and things such as fire drills, inspections, etc. to a contract employee. He attested that he was not given a reason for his duties being reassigned, but the only reason he could think of was his injury or disability, noting that he had work restrictions at the time and his physician had placed him on “light duty.” 2020002690 3 Supervisor1 attested that Complainant was assigned FSM duties that largely consisted of office and hallway safety inspections and he felt Complainant was fully capable of performing these duties. However, the only time that he could recall Complainant performed these duties was in March 2019, when Complainant said he went into a room where water was coming from the ceiling and, when he moved a bucket, he injured himself. Supervisor1 attested that, it was mission-critical that fire extinguishers, lights, and other items of the checklist be inspected and, when Complainant refused to perform these tasks, he assigned them to Complainant’s back-up, an Administrative Assistant (AA). AA attested that she started performing the FSM duties in 2016, but around February 2019, Supervisor1 informed her that he was assigning these duties to Complainant. She attested that Complainant performed these duties until around May 2019, but he was never around, and people were contacting her for facilities services assistance, so the duties were reassigned to her. Claim 2: Marked AWOL and Required to Provide Medical Documentation Complainant attested that, on April 26, 2019, Supervisor1 issued him a letter stating that since he did not return to work by April 15, 2019, he was marked AWOL. Complainant attested that he was at work on the days he was marked AWOL. Complainant attested that, on the dates at issue, he was at his duty station and Supervisor1 was teleworking and unable to see him, so he called Supervisor1 and left him a written note detailing the work he had completed. Complainant alleged that, on April 26, 2019, Supervisor1 requested additional medical documentation regarding his absence from work. Complainant attested that his medical records were at the Health Unit and under a privacy agreement, but the Health Unit released his medical information relating to his work restrictions to Supervisor1. Supervisor1 attested that, between April 1 and 15, 2019, Complainant should have been at work, performing light duties, even though he was under a doctor’s care. He attested that Complainant was cleared to return to work on April 15, 2019, but by April 26, 2019, he still had not returned to work or provided sufficient medical documentation to support his absence. Supervisor1 attested that, on April 26, 2019, he gave Complainant a letter informing him that he was expected to be at his duty station. Supervisor1 attested that, because none of Complainant’s activities away from his duty station were pre-authorized or communicated to him, he was marked AWOL on several days when he could not provide evidence or witnesses to attest that he was elsewhere on campus. ER Specialist attested that Supervisor1 contacted him around the third week of April 2019 because he had not heard from Complainant and he sought guidance regarding Complainant’s failure to report for several days without notifying him. He attested that he advised Supervisor1 that, upon his return, if Complainant provided reasonable medical documentation, he could change the AWOL status to approved leave status. 2020002690 4 A Return-to-Work letter dated April 26, 2019, from Supervisor1 to Complainant, indicates that the medical documentation from the Health Unit dated April 15, 2019 states that Complainant was cleared to return to work under limited conditions. It also provides that, to date, Complainant had not returned to work nor provided sufficient medical documentation for his continued absence from his place of duty. It provides that Complainant was ordered to return to work no later than May 1, 2019 and an adverse action could be taken against him, unless he becomes available for duty. It also provides that Complainant had failed to respond to Supervisor’s attempts to contact him by email and phone and his absence would be charged as AWOL until he returns to duty but, if he provides reasonable medical documentation upon return, the AWOL status will be changed to an approved leave status. Claims 3 and 4: Suspension and Administrative Leave Complainant was suspended from May 28, 2019 through June 11, 2019. He attested that the charges were disrespectful conduct and failure or delay in carrying out assignments or orders, but the reasons for the suspensions were not clear. He noted an email that he sent to Supervisor1 contributed to the charge of being disrespectful, but he disagreed that he was disrespectful. He also disagreed with the charge that he delayed or failed to carry out any of his assignments. Supervisor1 attested to Complainant’s disrespectful emails that contributed to the proposed suspension. He attested that he determined the proposed suspension was appropriate after consulting with the Legal Department and a former Employee Relations Specialist. Supervisor1 attested that they had extensive meetings and exchanges related to addressing Complainant’s erratic behavior and decided that suspending him was appropriate. Supervisor1 attested Complainant was placed on administrative leave, pending his suspension. He attested that was not uncommon in such situations to place an employee on administrative leave. Supervisor2 attested that Complainant had been warned and reprimanded prior to being suspended. She attested that Complainant had been given an official reprimand in 2014 for discourteous conduct and, in December 2018, she issued Complainant a Letter of Reprimand for failure/delay in carrying out his official assignments. She attested that Complainant was suspended for disrespectful conduct and for not completing work as assigned. She attested that, in making the decision to suspend Complainant, she reviewed the Agency’s Guide for Table of Disciplinary Offenses and Penalties and the Douglas Factors and gave consideration to aggravating and mitigating factors. She attested that she determined that the December 6, 2018 Letter of Reprimand had proven inadequate and ineffective to deter Complainant’s conduct and she did not believe a less severe penalty would have been adequate to prevent similar misconduct in the future. She attested that she had hoped the penalty of suspension would emphasize the seriousness of Complainant’s actions and correct his behavior. She attested that she consulted with an Employee Relations Specialist (ER Specialist) because she wanted to make sure the suspension was commensurate with the infraction from an HR perspective. 2020002690 5 ER Specialist attested that he provided advice and guidance and assisted Supervisor2 in drafting the decision letter, after Supervisor2 had made the decision to sustain the proposed suspension. He attested that he provided Supervisor2 a brief, outlining the background of the case, with instructions on how to approach the matter. He attested that, in determining the appropriate penalty, Supervisor2 used the Agency’s Table of Penalties and reviewed the Douglas Factors. An April 8, 2019 Notice of Proposal to Suspend from Complainant’s Supervisor1 to Complainant provides notice that, in order to promote the efficiency of the service, Supervisor1 proposed to suspend Complainant for 14 calendar days for disrespectful conduct and failure or delay in carrying out official assignments. Regarding the charge of disrespectful conduct, it provides that, on February 1 and 26, 2019 and March 1, 2019, Complainant sent several disrespectful emails in which he was either unresponsive to questions and directions from Supervisor1, disrespectful when responding to questions and directions from Supervisor1, or dismissive of legitimate business-based emails from Supervisor1. Regarding the charge of failure or delay(s) in carrying out official duties, it provides that Complainant failed to timely complete or respond to official assignments due on January 30 and 31, 2019; February 22, 2019; and March 1, 2019. It provides background information and details relating to both charges. It also provides that any reply should be made to Supervisor2. An April 17, 2019 letter from Complainant to Supervisor2 generally provides that Complainant disputes the charges and provides that he views this proposal as a threat. It also provides that he filed a complaint with EEO and OSC and notes that he is still under a doctor’s care and that Continuation of Pay (COP) has been authorized for the next 45 days. It asks that the proposal not be approved, as he believes the charges do not equal the penalty. A May 21, 2019 Decision to Suspend from Supervisor2 to Complainant provides that the evidence supports the charges in the proposed suspension and the decision was to sustain the proposed action and suspend Complainant without pay for 14 days, effective May 28, 2019. It provides Complainant would return to duty on June 11, 2019. It provides that Supervisor2 considered the Douglas Factors and the Agency’s Table of Disciplinary Offenses and Penalties, as well as aggravating and mitigating factors. A May 23, 2019 letter from Supervisor1 to Complainant indicates that Complainant was placed on administrative leave, effective immediately, through May 27, 2019, after which Complainant would begin serving his 14-day suspension. It indicates that this is not a disciplinary action but is an “in pay status” that is not charged to Complainant’s leave balance. Complainant alleged that, following his suspension, he was discriminated against on June 24, 2019, when he was placed on administrative leave. He attested that he was not given a reason for being placed on administrative leave and he did not believe that he should have been placed on administrative leave because he did nothing to warrant it. 2020002690 6 Supervisor1 attested that, during the time of suspension, a proposed removal was being formulated. He also attested that he began to view Complainant as a security threat, as Complainant had started to harass him repeatedly via voicemail and in writing. He also attested that Complainant began posting bizarre handwritten notes outside his office for everyone to see and this resulted in concerns about personal security. He attested that Federal Protective Service (FPS) had determined that Complainant owned four firearms and this, along with Complainant’s erratic and threatening behavior led him to believe Complainant needed to be placed on administrative leave beginning June 24, 2019. He also attested that there were two Threat Assessment Team meetings prior to deciding to place Complainant on administrative leave. ER Specialist attested that he assisted in drafting the letter placing Complainant on administrative leave. He attested that Supervisor1 sought his advice and guidance regarding his concern of Complainant’s continued absence from duty, odd behavior, and Supervisor1’s inability to control Complainant’s whereabouts. He explained that administrative leave is not a corrective action and it can be used by a supervisor for situations that excuse the employee without loss of pay or being charged leave. He also attested that he advised Supervisor1 that after Complainant had served his 14-day suspension that, rather than have him stay home, he should bring him back to work, but this did not happen because management was adamant about not wanting Complainant back in the work area. A memorandum from Supervisor1 to Complainant, dated June 24, 2019, provides notice that Complainant was being placed on “Notice Leave,” effective immediately until the end of the notice period. It indicates that this is not a disciplinary action but is an “in pay” status that is not charged to Complainant’s leave balance. Claims 5(a) and (b): AWOL and Return-to-Work Clearance Complainant attested that his duty hours were 8 am to 4 pm, but he was on a maxiflex schedule allowing him to start between 6 am and 10 am without managerial approval. He attested that, on April 1, 2019, he was at the Ames Health Unit at 8 am, 10 am, and 1 pm getting return-to work clearance. He attested that he was not at work because he could not return to work until he obtained clearance to do so. When asked if he informed management that he would be at the Health Unit on that date, processing his return-to-work clearance, Complainant attested that he called Supervisor1 and told him he would be in COTR class. Complainant attested that he checked in to work at 3:00 p.m. on April 1, 2019. Complainant attested that Supervisor1 told him that he was considered AWOL for April 1, 2019 and open to HR action. Complainant acknowledged that he did not timely respond to management’s emails inquiring as to his whereabouts, but he called Supervisor1, which is allowed. He also attested that he was in his office at the time and did not have email access because his computer was out for service. 2020002690 7 Supervisor1 attested that he sent Complainant an email telling him that he did not know where he was and informing him that AA had been to his office at 10:30 am and reported that Complainant was not in his office. He attested that he informed Complainant that, without approved leave, he expected him to report to work immediately or submit a leave request. Supervisor1 attested that Complainant was expected to be at work and, when Supervisor1 checked throughout the day, Complainant did not appear to be at his duty station. Supervisor1 explained that Complainant needed to know this was unacceptable and he would be considered AWOL and open to some type of disciplinary (HR) action. Supervisor1 attested that he subsequently learned that Complainant was at the Health Unit on this day between the hours of 1:00 and 2:30 pm. He explained that Complainant should have gone to the Health Unit for an assessment and, if cleared, gone to his office and started work. Supervisor1 also explained that Complainant was expected to be at his duty station at his usual start time of 8 am and should have informed Supervisor1 of his whereabouts. Complainant alleged that Supervisor1 informed him that he did not know the return-to-work process. Complainant attested that he knew the process. Supervisor1 denied making the statement as alleged. Claim 5(c): Removal from COTR Training Complainant attested that, on April 8, 2019, while he was in COTR class, Supervisor1 entered the classroom and removed him from the training to discuss something and told him that he could not return to the training. Complainant attested that Supervisor1 instructed him to come to the office with him where Supervisor1 gave him a Letter of Proposed Suspension and instructed him to work on the letter, rather than go back to class. Complainant attested that it was necessary that he attend COTR training in order to support the contracting office for IT procurements. Supervisor1 explained that Complainant’s job required that he attend COTR training every two years in order for him to perform contract management activities and functions and work with contractors to make sure they meet their contractual obligations. He attested that he assigned Complainant to attend the week-long training, but he removed him from the training in order to issue a Letter of Suspension. He explained that it was not uncommon when issuing disciplinary actions, to have security, i.e., the FPS, on standby and, when he consulted security, he was advised to have Complainant come to his office and issue him the letter. Supervisor1 attested that he advised Complainant the COTR training was offered twice annually and he could make it up some other time. Claim 5(d): Notice of Proposed Removal and Removal Complainant attested that Supervisor1 told him that he was proposing his removal because he had been AWOL. Complainant denied being AWOL on April 18, 19, 22, 23, and 30, 2019 and May 1, 3, 6, 7, 8, and 9, 2019 as alleged. 2020002690 8 He offered several explanations for his whereabouts, including being in the EEO office or in the Health Unit; working on the final written input for the suspension in his office and the library; or walking for his medical health. Complainant attested that he followed established leave procedures and instructions as it relates to the use of emails when corresponding with Supervisor1. Supervisor1 attested that proposed Complainant’s removal because of Complainant’s being AWOL, failure to follow established leave procedures, and failure to follow instructions. Supervisor1 attested that, leading up to the proposed removal, Complainant was unable to be located on the Agency’s campus and his behavior had become extremely erratic and worrisome. He attested that Complainant had been warned, counseled, and disciplined regarding his behavior, including a Letter of Reprimand in December 2018 and a 14-day suspension from May 28 - June 11, 2019. Supervisor1 attested that, in proposing Complainant’s removal, he consulted with ER Specialist and the Agency’s Legal Department and he applied the Douglas Factors to determine that proposing his removal was the appropriate action. Supervisor2 attested that she was the deciding official on the proposed removal and she had a general knowledge that some action would be coming, but she did not know the exact action until it was presented to her for review. She attested that, in making her decision, she applied the Douglas Factors and consulted with ER Specialist. ER Specialist attested that Supervisor1 contacted him regarding Complainant’s removal and his advice to discipline Complainant was based on the fact this was Complainant’s third offense, as Complainant had previously been issued a Letter of Reprimand in December 2018 for failure or delay(s) in carrying out official assignments or orders and, in May 2019, he was issued a 14-day suspension for disrespectful conduct and failure in carrying out official assignments or orders. He attested that he drafted the Letter of Removal for Supervisor2’s signature. A June 24, 2019 Notice of Proposed Removal from Supervisor1 to Complainant provides that Supervisor1 proposed to remove Complainant for being AWOL, noting 13 specifications from April 16, 2019 to May 10, 2019; failure to follow established leave procedures, noting 13 specifications from April 16, 2019 to May 10, 2019; and failure to follow instructions, noting 13 specifications from May 8, 2019 and May 21, 2019. A September 19, 2019 Notice of Decision to Remove from Supervisor2 to Complainant indicates that the documentary evidence supports the proposed removal. It indicates that Supervisor2 considered the Douglas Factors, noting that the offenses of AWOL, failure to follow established leave procedures, and failure to follow instructions are serious offenses that Complainant repeated often. 2020002690 9 It also provides that Complainant was AWOL for 13 business days and repeatedly failed to communicate his whereabouts during duty hours or coordinate work assignments with Supervisor1; Complainant’s failure to follow leave procedure for 13 business days was misconduct that forced Supervisor1 to redistribute Complainant’s assigned work duties to other employees; Complainant failed to follow instructions to use email when communicating with Supervisor1 on various occasions and his lack of responsiveness to email resulted in his failure to complete his duties. It provides that Supervisor2 decided to sustain the charges for Complainant’s misconduct and to promote the efficiency of the Agency. The effective date of the removal was September 17, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.2 In response, the Agency argues that Complainant can not establish a prima facie case of age or disability discrimination or reprisal and has failed to prove that the Agency subjected him to harassment. The Agency asks that we affirm its final decision. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Harassment Claim To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 2 Complainant submitted numerous statements and information in support of his appeal. However, he failed to do so within the requisite time and his requests for an extension were denied. See 29 C.F.R. § 1614.403(d). 2020002690 10 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 his harassment claim, Complainant must establish that he 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, his age, disability, or prior protected EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Most of Complainant's harassment allegations reflect Complainant’s disagreement with managerial decisions and supervisory actions, such as those relating to the assignment of duties, time and attendance, discipline, training, and policies. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Additionally, with respect to Complainant’s disagreements with things Supervisor1 said, such as he could be marked AWOL and he did not know the return to work clearance process, we find these allegations are insufficiently severe or pervasive to have altered the conditions of Complainant's employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Although Complainant alleged that the Agency acted discriminately, the record does not establish that the Agency’s actions were taken because his age, disability, or prior protected EEO activity. Therefore, we find his allegations are insufficient to support a claim of discriminatory harassment. Disparate Treatment Claims 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 a complainant to prevail, he or 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 2020002690 11 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, non-discriminatory 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 on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). To establish a prima facie case of disparate treatment on the basis of reprisal, a complainant must show that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132503 (Aug. 28, 2014), citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 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, as here, 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). Here, Complainant’s allegations regarding having his duties removed, being marked AWOL, suspended, placed on administrative leave, and ultimately removed, give rise to claims of disparate treatment. However, even assuming arguendo that he established a prima facie case with respect to these claims, his claims still fail. We find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant’s FSM duties were assigned to another employee because these were mission-critical responsibilities and Complainant refused to perform these tasks. The Agency explained that Complainant was marked AWOL because medical documentation dated April 15, 2019 indicated that Complainant was cleared to return to work under limited conditions, but, as of April 26, 2019, he had failed to do return to work or provide sufficient medical documentation for his continued absence from his duty station. The Agency explained that Complainant was suspended for disrespectful conduct and failure or delay in carrying out official assignments. The Agency explained that Complainant was placed on administrative leave, pending a proposed removal, particularly because Complainant was viewed as a security threat. The Agency explained that Complainant was removed because of his AWOL, failure to follow established leave procedures, and failure to follow instructions, which are serious offenses that Complainant repeated often. 2020002690 12 Although Complainant alleged that the Agency acted with discriminatory and/or retaliatory animus, we find that the record does not establish by a preponderance of the evidence that the Agency acted on the basis of his age or disability or that there was any nexus between the Agency’s actions and his 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020002690 13 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 3, 2021 Date
