[Redacted], Wyatt W., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 6, 2021

Appeal No. 2020004846 (E.E.O.C. Oct. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wyatt W.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004846 Agency No. ARPOLK17AUG02988 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a July 24, 2020 Final Agency Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was working for the Agency as a Lead Budget Analyst, GS-12, (term appointment), office of the Assistant Chief of Staff (“ACofS”) at the G8 Directorate for the Joint Readiness Training Center ("JRTC") and Fort Polk Post Headquarters, in Fort Polk, Louisiana. On October 12, 2017, Complainant filed a formal EEO complaint alleging that he was subjected to a hostile work environment/ harassment and disparate treatment by the Agency on the bases of sex (male), race (Caucasian/American Indian), color (white), age (68), physical disability (carpal tunnel syndrome) and reprisal for prior protected activity when: 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. 2020004846 2 1. From January through August 2017, his first level supervisor (“S1”) belittled him and was belligerent toward him, 2. On July 13, 2017, his third level supervisor (“S3”) told him that he was “out of touch, too old, and too slow,” and, 3. On July 20, 2017, S3 issued him a Memorandum notifying him that his term would expire on October 4, 2017. The Agency accepted the complaint and conducted an investigation which revealed the following relevant facts. Agency policy allows management to appoint former employees who are collecting retirement benefits (annuitants), to temporarily fill gaps in required personnel needs. Such gaps can include mission-critical positions that are historically difficult to fill or keep filled, or instances where the annuitant has unique or specialized skills, necessary to further the organization’s mission. Reemployed annuitants serve for limited terms, at the pleasure of their appointing officer, thus, they do not accrue seniority, and are not subject to the same performance improvement mechanisms as competitive service employees. Under the appointment policy, reemployed annuitants may be “bumped” from their appointment in order to place a permanent competitive service employee, in accordance with the Agency’s other personnel policies, such as Priority Placement and the Interagency Career Transition Assistance Plan. On or about December 4, 2013, Complainant was appointed, as a reemployed annuitant, to the position of Resource Management Officer (Deputy), GS-13, Installation Management Command (“IMCOM”), for the G8 Directorate. A document issued the same day, entitled “Employment of Annuitants,” and signed by the appointing officials (S3 and S3’s supervisor), explained that Complainant’s appointment was justified under Agency policy, as he was filling a position that was historically "hard-to-fill." It also explained that Complainant had over 50 years of Federal Government experience and offered a wealth of institutional and specialized knowledge regarding all aspects of resource management specific to the G8 Directorate. The December 4, 2013 document indicates that Complainant was a retired Agency employee, who returned to work as a reemployed annuitant, then was converted to a permanent position in 2010. However, the document is clear that the Resource Management Officer (Deputy), GS-13, position Complainant would fill was a full time, permanent “appointment,” of a reemployed annuitant. Effective November 1, 2015, Complainant was “bumped” from his appointment by a competitive service employee exercising her right of assignment after transferring from Germany. He was reassigned from IMCOM to the office of the Assistant Chief of Staff (“ACofS”) to fill the position of Lead Budget Analyst, GS-12, Budget Execution Division within the G8 Directorate. The employee filling Complainant’s prior appointment became his second level supervisor (“S2”) (female, Caucasian, White, 63, no physical disability), and S3 (male, African-American, black, 55, no physical disability), who, as the ACofS (Post Comptroller), GS-14, was previously Complainant’s first level supervisor, became his third level supervisor. 2020004846 3 Complainant states that his new primary duties were “to maintain accounts for different units at Fort Polk, track their spending, ensure what they sent was within their approved budget, and close them out at years’ end to a zero balance.” Complainant also testifies that he continued to perform many of the duties of his prior appointment, including briefing the Command Group, because S2 “did not know what she was doing” and was “uncomfortable” performing her job duties. In January 2017, S1 (female, black, African American, 48, no physical disability) was hired as a Supervisory Budget Analyst, GS-13, and became Complainant’s first level supervisor. Complainant chafed under S1’s leadership, as she allegedly subjected him to “belligerent” and “belittling” treatment. S2 and S3 attribute Complainant’s difficulties not to harassment, but to S1 changing his performance standards to fully reflect the duties of a Lead Budget Analyst, GS-12. In February 2017, and individually in March 2017, S1 notified all Budget Analysts, including Complainant, of her expectations regarding assignments. As with all budget analysts in the G-8 Directorate, Complainant was expected to use the General Fund Enterprise Business System (“GFEBS”), the Agency’s main automated financial system used to manage financial information. For instance, all Budget Analysts were expected to submit a daily status of funds (“SOF”) report through GFEBS by 8:30 am, so S3 could compile the daily consolidated SOF report. Until S1 arrived, Complainant was able to succeed in his position with minimal use of GFEBS because his former supervisor (“FS”) (male, bases not provided), assigned the technical elements of his duties to his colleague (“C1”) (female, African American, tan, 52, no physical disability), the other Lead Budget Analyst, GS-12. C1, and another colleague (“C2”) (male, Caucasian, white, 47, no physical disability) an Accounting Supervisor, GS-13, both testified that they regularly provided Complainant with GFEBS assistance. C1 confirmed that Complainant had a hefty workload and, in her opinion, he was not properly trained. C2 described GFEBS as “complex and role driven,” and recounted that Complainant was his second level supervisor before he retired as a permanent employee, theorizing that Complainant’s change from a leadership role contributed to his difficulties with GFEBS. Both C1 and C2 testify that S1 micromanaged her subordinates. S2 testified that she spoke with Complainant at S1’s request, because she “believed he could absolutely do the work that was asked of him, if he would only apply himself… [and she] understood that it takes time and repetition to become proficient.” She observed several times in the record that Complainant was “reluctant to learn GFEPS,” and he would ask C1 or his subordinates to complete his GFEPS tasks for him rather than learn the system. Complainant acknowledges that he asked others to complete GFEBS tasks but to a limited degree, explaining that he never received proper training GFEBS. Alternately, he indicates that he did not have time to train due to his workload and assisting S2 with his former job duties. S1 testified that she “had” to micromanage Complainant because he routinely failed to submit his SOF report and a few of his customers had notified S3 that Complainant committed errors while managing their account through GFEBS. 2020004846 4 Ultimately, S1 directed C1 to complete Complainant’s GFEBS entries and reports as well as her own at the end of the fiscal year so that all accounts were balanced and closed on time. Also, a few of Complainant’s customers notified S1 that Complainant committed errors within GFEBS, such as incidents where his assigned fund center was in the negative, causing a hard stop in access to funds. A May 31, 2017 email in the record reflects that one of Complainant’s customers asked S3 to remove Complainant as their assigned budget analyst, explaining, “we have had multiple issues certifying every month he has been the analyst.” The email attributes the issues to the complexity of the account, rather than lack of effort by Complainant. S1 reassigned the account to a Budget Analyst, GS-11, (female, white Caucasian, 35, no physical disability) who would ultimately be promoted to Lead Budget Analyst, GS-12, after Complainant’s appointment expired. On July 13, 2017, S3 and Complainant met in S3’s office to discuss Complainant’s appointment, as it was scheduled to expire on October 4, 2017. Complainant alleges that S3 informed him that his appointment would not be extended, and commented that Complainant was “out of touch, too old, and too slow.” S3 denies making the statement and no witnesses were present. On July 20, 2017, S3 issued a Memorandum formally notifying Complainant that his appointment would not be extended. In the Memorandum, S3 reasoned that Complainant’s appointment no longer met the criteria that would allow a reemployed annuitant to fill the position. Specifically, he stated, “[i]n today's market, I do not feel that this position is still ‘hard- to-fil’ at this time.” The Memorandum did not discuss Complainant’s performance or his slower pace when generating the daily SOF reports. S3 noted that he carefully considered the recommendations of other supervisors before reaching his decision. C1, C2, and another one of Complainant’s coworkers (“C3”) (female, Caucasian, white, 63, no physical disability), a Management Analyst, GS-12, emphatically testify that they disagreed with the decision not to extend Complainant’s appointment, reasoning that Complainant’s knowledge and experience made him an asset to the organization and beneficial to its mission. C2 also emphasizes Complainant’s past leadership experience within the Agency. Significantly, their rationale is unrelated to Complainant’s position as a Lead Budget Analyst, GS-12. While C3 states that the appointment should have been extended “because it was a required position,” she does not address the fact that Complainant’s position was filled through an internal promotion once his appointment expired. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 2020004846 5 ANALYSIS AND FINDINGS 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”). Dissatisfaction with EEO Investigation The regulation under 29 C.F.R. § 1614.108(b) requires the Agency to create an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An “appropriate factual record” is “one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” § 1614.108(b). However, the complainant, upon receipt of the ROI, is provided an opportunity to cure defects in the record by either notifying the agency (in writing) of any perceived deficiencies in the investigation or requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. The record includes a June 8, 2018 election letter, which, in accordance with our regulations, was provided to Complainant when he received the ROI. The letter explained in plain language that the EEO investigation had concluded, and he could request a decision on his complaint by FAD or by requesting a hearing before an EEOC AJ. Enclosed were forms with instructions on how to request each option. The FAD request form specified very prominently that a decision would be made based on the complaint file for Complainant’s case. The record contains Complainant’s signed FAD request form, dated July 8, 2018. Upon thorough review, we find that the ROI for this complaint is sufficiently developed to create an “appropriate factual record.” The ROI contains affidavit testimony from Complainant, S1, S2, and S3 addressing the claims in this complaint, as well as Complainant’s top three witnesses, C1, C2, and C3. The EEO Investigator’s interview questions thoroughly addressed all three of the accepted claims. Additional statements in the record reflecting Complainant’s position include the EEO Counselor’s Report, and his Formal Complaint, provided in a detailed narrative format, a rebuttal statement, and documents he submitted for the record, such as emails, work product, and prior performance appraisals. Supporting documents in the ROI include copies of the personnel documentation (“SF-50”), forms detailing the terms of Complainant’s appointment, his position description, performance awards, and organizational charts, as well as employee demographics. The Memorandum at issue in Claim 3 is also included, as well as email communications between S1 and Complainant, and S1 and Management regarding Complainant’s performance. 2020004846 6 On appeal, Complainant asserts that the EEO Investigator was biased because she initially refused to interview any of his witnesses and excluded evidence material to his case. Specifically, Complainant states that he provided a secret recording of his July 13, 2017 conversation with S3, proving that S3 made the statement alleged in Claim 2, yet it is not in the record. Also, two of the witnesses the EEO Investigator declined to interview could have provided firsthand accounts of S1’s alleged conduct in Claim 1. Further, he alleges that he complained to an (unspecified) EEO Officer “who did nothing.” However, Complainant does not appear to have formally notified the Agency’s EEO Director of his concerns, and he declined the opportunity to correct defects in the record when he opted to receive a decision by FAD. We note that the EEO Investigator provided a sworn declaration for the record explaining that she asked Complainant to prioritize his list of 12 witnesses. She only attempted to contact the top 4, citing time constraints, and claiming that testimony from additional witnesses would be redundant. One of the witnesses she attempted to contact had retired without leaving forwarding contact information, but as previously stated, the EEO Investigator obtained substantive interviews C1, C2, and C3. Given the responses of C1, C2, and C3, and the extent to which the record was already developed, the EEO Investigator acted within her discretion. If Complainant wanted an opportunity to further develop the record through discovery and cross examination of witnesses, he should have requested a hearing before an AJ. See Tommy O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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 consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC 2020004846 7 Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As S3 explained in the July 20, 2017 Memorandum, the Agency’s legitimate nondiscriminatory reason for declining to extend Complainant’s appointment was that Complainant, a reemployed annuitant, was filling a position that was no longer hard to fill. The record reflects that S3 acted within the scope of his authority as the appointing official, and in accordance with Agency policies when he decided not to extend Complainant’s appointment. The position Complainant was initially appointed to, as a reemployed annuitant, was critical to the organization’s mission, and historically hard to fill, as the compensation was not competitive with salaries offered by non-government employers. Additionally, Complainant had relevant specialized knowledge. The Agency successfully established that by the time Complainant’s appointment concluded, its prior need to fill a “hard to fill” position no longer existed. S2 had been in the position for nearly two years, and already benefited from Complainant’s knowledge and assistance. S1 assigned the Budget Analyst, GS-11, who was later promoted to his position of Lead Budget Analyst, GS-12, to work closely with Complainant the last few months of his appointment, so that she also benefited from his specialized knowledge and was prepared for promotion. Moreover, the Agency’s policies make it clear that appointments of reemployed annuitants, such as Complainant, are intended to be temporary and only offered when a position is necessary to “meet critical mission needs.”2 S3’s decision is supported in the record, as both of Complainant’s appointments were filled by permanent employees after he left them. Complainant disputes S3’s assertion that he considered the recommendations of other management officials when deciding not to extend Complainant’s appointment. S2 testified that she told S3 that she recommended extending Complainant’s appointment because she believed Complainant “would become proficient if he were given more time and encouragement.” However, this rationale is inconsistent with Agency policy, which specifies that a reemployed annuitant’s appointment may not be granted or extended solely for their benefit. Rather, the appointment of annuitants must be made with “careful consideration” while “keeping in mind the Department’s need to ensure a steady pipeline of leadership talent.” DoDI 1400.25-V300, Pt. 4(a). DoDI 1400.25-V300, Encl. 2, Pt. 1(d). Despite the focus in the record on Complainant’s performance, S3 points out that even if Complainant was a “star performer,” which, with respect to the Lead Budget Analyst role, Complainant acknowledges he was not, the Agency’s decision not to extend is consistent with its policies and the stated function and purpose of its reemployed annuitant appointments. 2 DoD Civilian Personnel Management System: Employment of Federal Civilian Annuitants in the Department of Defense, Instruction No. 1400.25, Vol. 300 (Dec. 10, 2008) (“DoDI 1400.25- V300”) Pt. 4(a) (“reemployed annuitants shall be used, as needed, to support mission requirements and to help meet the Department’s workforce planning challenges”), we also Memorandum: “Modification of Temporary and Tern Appointments Within the Department of Defense” (June 12, 2017) (among other things, limiting the number of times a reemployed annuitant’s appointment may be extended). 2020004846 8 S3 testified, “the fact remains that my critical need no longer existed.” At the time he filled the position, there was a personnel shortage. Complainant’s appointment was intended to “fill a critical gap” and it was never the intention to continuously extend Complainant’s position.” Harassment/Hostile Work Environment 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. In making this assessment, a trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Complainant must also prove that the conduct was taken because of his prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). Complainant’s claims of harassment, even when considered together either lack the necessary specificity to state a claim, or constitute isolated incidents and common workplace occurrences, which are not sufficiently severe or pervasive to constitute harassment. The Commission has long held that when a harassment claim contains little beyond generalized assertions that are not severe or pervasive enough to constitute harassment, the claim will fail. See Michell B. v. United States Postal Serv., EEOC Appeal No. 0120140033 (Mar. 4, 2016) (harassment allegation failed to state a claim, as it did not specify the frequency and duration of alleged incidents of harassment) citing Monreal v. United States Postal Serv., EEOC Appeal No. 01A43828 (Jul. 28, 2005) (noting that the complainant's claim of harassment failed because she had not adduced evidence of specific harassing conduct). The record lacks specific evidence to support Complainant’s allegation that, over a period of approximately 8 months, S1 was belligerent and belittling toward him. Complainant refers to individuals who could support his allegations with testimony but, as previously discussed, references to witnesses who could provide supporting testimony cannot be considered in this decision. Of the testimony provided, C1 supports Complainant’s allegations, stating, “[S1’s] leadership style is through intimidation, control and instilling fear in her employees.” While C1 recalls incidents where S1 allegedly bullied her and kept her out of the loop on matters relevant to her position, she does not recall witnessing S1 belittle or act belligerently toward Complainant. She also references the underlying conflict between S1 and Complainant by noting that, “[Complainant] did not appear to be intimidated by [S1].” 2020004846 9 Complainant’s only examples of alleged belittling or belligerent actions by S1 fail to identify when and how often the actions occurred. For instance, Complainant testified that he felt S1 was “threatening” because she “relayed the fact that she was 6’3” and no one would dare mess with her.” On appeal, Complainant alleges that S1 told (unspecified) employees and customers that he “did not know what he was talking about” after he publicly corrected her during staff meetings for making “obvious misstatements” regarding internal policies and federal regulations. Neither of these instances of alleged harassment, nor the overarching allegation of “belittling” and “belligerent” conduct are specific enough to establish a hostile work environment or harassment. The Commission has also repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Dep’t of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). Even if we could consider Complainant’s vague examples of S1’s belittling and belligerent conduct, he describes isolated incidents, that were not so severe as to constitute harassment. Complainant uses similar language throughout the record, such as stating that, S2, a career employee deemed qualified for placement into a GS-13 position, “did not know what a JRTC was and had no idea what an infantry unit was or what it did” and that she “did not know what she was doing.” Further, the record reflects that Complainant was not harmed by S1’s alleged statement impugning his knowledge, given that his colleagues and Management all testified to Complainant’s extensive knowledge and experience in the G8 Division. Similarly, S3’s alleged comments Complainant’s age in Claim 2 constitute an isolated incident, unsupported by evidence in the record. S3 testified that he never made the comment as alleged in Claim 2, and notes that he perceived Complainant as “only 10 years my senior.” On appeal, Complainant challenges S1 and S3’s credibility. Among other things, he contends that S1 regularly misrepresents her educational credentials to impress people, and that “most of the staff at JRTC will tell you [S3] lies so much he has problems remembering what he has said.” These bald assertions are not sufficient evidence to support Complainant’s harassment allegations, which, in themselves are bald assertions. Allegations involving “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, which do not rise to the level of severity necessary to state a claim of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. Given the references to S1’s management style throughout the record, and, as it relates to Complainant’s allegations that he felt “belittled,” we have considered whether S1’s other actions, aside from the statements referenced by S1, when considered together could be considered harassment. Complainant’s assertion that S1 micromanaged her employees, is supported by C1 and C2’s testimony, and S1 even acknowledges that she believed she “had to” subject Complainant to micromanagement based on his performance on assignments that required the use of GFEBS. 2020004846 10 However, we have previously determined that micromanagement, while unpleasant, is a “common workplace occurrence” that is not so severe as to constitute harassment. See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (finding the complainant’s allegation that her supervisor monitored her work duties and time in and out of the office more closely than her coworkers amounted to a common workplace occurrence). Likewise, it is well established that instances of a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence.” See Agnus W. v. United States Postal Serv., EEOC Appeal No. 0120160826 (Mar. 23, 2016) citing Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). S1’s inquiries regarding the timely submission SOF reports, as well as S2’s inquiries on her behalf, are common workplace occurrences. The record further reveals that Complainant’s allegations of micromanagement related to submitting daily reports amounts to a disagreement with Management’s priorities. We emphasize that while an employee may prefer certain assignments over others, or have a different idea about how operations should be run, “these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved.” Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). Complainant contends that that he always submitted his reports, and the issue was that S1 would not accept them. Complainant’s rationalization, that even though he was “a little slow” his reports were more detailed than others, essentially voices his disagreement with Management’s emphasis on the morning deadline, which is not a matter of harassment. There is no reference in the record to Complainant’s alternate argument on appeal, that S1 intentionally made it impossible for him to submit the reports on time because she denied his request to replace his malfunctioning laptop. Reasonable Accommodation The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (“EEOC Guidance No. 915.002”), Question 1 (Oct. 17, 2002). After receiving a request for reasonable accommodation, the employer should engage in the “interactive process,” which is an informal process with the requesting individual to clarify their needs and identify the appropriate reasonable accommodation. See EEOC Guidance No. 915.002, see also, Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). 2020004846 11 We note that protected individuals are entitled to reasonable accommodations, but they are not necessarily entitled to their accommodation of choice. Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Liability for a failure to engage in the interactive process occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Id. Complainant appears to argue that he was denied a reasonable accommodation, alleging that the Agency erred when it failed to consider his carpel tunnel syndrome, which slowed his work pace, when it declined to extend his appointment. We note that even though it did not reference Complainant’s disability, a May 31, 2017 email from S1 to Complainant indicates that he was offered an accommodation. In the email, S1 recounts that Complainant told her he “was not fast and required additional time,” so S1 offered to extend the deadline, and modified Complainant’s arrival time to a half hour earlier. Complainant does not discuss this accommodation on appeal or offer additional details supporting denial of accommodation. Even if Complainant was provided with a reasonable accommodation that increased his efficiency, the Agency would not have extended his appointment. The Agency’s legitimate nondiscriminatory reason for declining to extend Complainant’s appointment was not based on Complainant’s work performance, or pace, but whether or not the position he held, as a reemployed annuitant was “hard to fill.” New Issues Raised on Appeal On appeal, Complainant discusses multiple issues that were not included in his Formal EEO Complaint, so they will not be adjudicated in this decision. Specifically, he alleges that the Agency hired him as a permanent employee, then, S3 “coerced” him into agreeing to an appointment as a reemployed annuitant, to prevent him from bumping younger employees. Complainant also alleges that S3 improperly distributed cash awards. In addition, Complainant alleges that beginning in or around July 2017, S1 intentionally caused his work to be delayed because she refused to allow him to replace his laptop through IT, even though the Agency had about 25 new laptops on hand to distribute to its employees in October 2017. If he wishes to pursue these allegations in a new complaint of discrimination, Complainant must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination as alleged. 2020004846 12 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 decision finding that Complainant did not establish discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004846 13 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 October 6, 2021 Date