0120170288
07-19-2018
Sacha K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sacha K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170288
Hearing No. 490-2015-00158X
Agency No. 4C-370-0100-14
DECISION
On October 4, 2016, 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 September 16, 2016, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ); and (2) whether the AJ properly found that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office in Germantown, Tennessee. According to Complainant, the Postmaster of the Germantown Post Office (S1) was her immediate supervisor. Complainant contacted an EEO Counselor on June 23, 2014, to allege that the Agency subjected her to discrimination and retaliation. In a formal complaint filed on August 13, 2014, and subsequently amended, Complainant alleged that the Agency harassed and discriminated against her on the basis of disability and in reprisal for prior protected EEO activity when:2
(1) beginning on or about May 7, 2014, she was required to submit medical documentation every 30 days to support a reasonable accommodation; and
(2) in October 2014 and on January 7, 2015, she was questioned about her request for assistance to complete her route, even though she had an eight-hour-per-day work restriction for a chronic medical condition.
Complainant engaged in prior EEO activity when she filed informal EEO complaints on July 17 and August 12, 2013. Those complaints were closed on August 16 and October 17, 2013.
In a November 9, 2013, handwritten note, Complainant stated that she wanted to have her name removed from the overtime-desired list. The note, which is not addressed to anyone, does not give a reason for Complainant's request. The record indicates that, from November 2013 to November 2014, Complainant was medically restricted from working overtime and could work only eight hours per day.
By letter dated May 2, 2014, the Memphis, Tennessee, Post Office PCES Postmaster (S2), who oversaw the Germantown Customer Service Operation, instructed Complainant to report to a mandatory meeting on May 7, 2014, "to discuss the provisions of [Complainant's] Light/Limited Duty Status." S2 also instructed Complainant to bring documentation regarding her current medical restrictions. S2 has stated that the Agency was trying to determine Complainant's medical restrictions and that "[t]he purpose of the meeting was to notify her that she needed to provide updated medical documentation every 30 days that stated her restrictions."
Complainant submitted a May 7, 2014, doctor's note in which her physician stated that Complainant was under the physician's care for chronic costochondritis and that her "work hours have been limited to eight hours a day to prevent exacerbation of her chronic medical condition."
Complainant has asserted that, in October 2014 and on January 7, 2015, S1 asked about her medical condition and why she could not complete her route in eight hours. In her responses to the Agency's interrogatories, Complainant stated that her overtime restriction ended in November 2014.
The record contains an October 8, 2014, Certificate for Return to Work in which a nurse practitioner states that Complainant was treated at an urgent-care center, could return to work on October 9, 2014, and had no restrictions. In a January 15, 2015, Certificate for Return to Work, a physician similarly stated that Complainant was treated at the urgent-care center, could return to work on January 19, 2015, and had no restrictions.
According to the EEO Investigator, "Complainant provided no other medical or [Family and Medical Leave Act (FMLA)] documentation." In addition, the EEO Investigator stated that "Complainant does not have any modified offers of assignment on file."
Complainant stated in her affidavit that she has mitral valve prolapse and chronic costochondritis, that it is a permanent condition, and that she made S1 aware of her condition in November 2013. In response to the EEO Investigator's question about whether she had provided anyone with medical documentation identifying her work-related restrictions, Complainant stated, "[S1] in November of 2013." Complainant also stated that she could perform all the duties of her City Carrier position but could work only eight hours per day. She asserted that she did not need a reasonable accommodation, had not requested one, and had not received one. Further, she argued that she should not have been asked to submit medical documentation every 30 days because she was "under FMLA."
In addition, Complainant alleged that the Agency treated her less favorably than it treated three named employees (CW1, CW2, and CW3). When asked why she believed that her medical condition and prior EEO activity were factors in the Agency's actions, Complainant replied that S1 "is vindictive."
S1 stated in her affidavit that she did not know what Complainant's medical restrictions were. According to S1, the documentation that Complainant submitted indicated that she could work only eight hours per day but did not provide specific information about her medical condition and restrictions. To S1's knowledge, Complainant had not requested a reasonable accommodation. When asked why the Agency wanted Complainant to provide documentation every 30 days, S1 replied, "Employees are required to provide medical documentation every 30 days, when there are limitations/restrictions." S1 denied that the Agency treated CW1, CW2, and CW3 more favorably than it treated Complainant. She was not aware that CW1 or CW2 had any medical restrictions. She stated that CW3 was allowed to take 15-minute breaks, if needed after driving for three hours, because of a workers-compensation matter from "years ago." According to S1, the arrangement "had little impact, as all carriers receive a 10-minute street break, and 30 minutes for lunch."
In addition, S1 stated that she became aware of Complainant's EEO complaint in this matter during the Redress dispute-resolution process. She was not aware of any other prior EEO activity by Complainant.
The record contains an unsigned, undated "affidavit" from S2. In the document, S2 stated that she became aware of the instant complaint during Redress and was not aware of Complainant's prior EEO activity. She knew that Complainant had an eight-hour work restriction but did not know if Complainant had any medical condition. S2 asserted that Complainant submitted documentation regarding the restriction "but no medical documentation and it did not have any type bio-medical restrictions." She also asserted that, "[a]s of today, [she had] not received acceptable medical documentation on the Complainant's restrictions." According to S2, Complainant did not give a reason why she could not work more than eight hours per day and did not request a reasonable accommodation. S2 stated that "[a]ll employees are required to provide medical documentation every 30 days if they have any limitations." She noted that she had met with more than 40 employees, including Complainant and two other employees from the Germantown facility who had medical restrictions, regarding their obligation to submit medical updates. The two other Germantown employees provided medical documentation.
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 EEOC AJ. Complainant timely requested a hearing. The Agency filed a Motion for a Decision without a Hearing on October 9, 2015, and a Supplement to Motion for a Decision without a Hearing on November 16, 2015. Complainant filed a Response to the Agency's Motions on November 18, 2015. On August 18, 2016, the AJ issued a decision without a hearing in favor of the Agency.
In her decision, the AJ stated that she permitted Complainant to amend her claims following a pre-hearing conference. The AJ found that there were no genuine issues of material fact and that the Agency was entitled to judgment as a matter of law. She concluded that retaliatory animus could not have motivated the May 2014 request for medical documentation. In that regard, the AJ determined that the request occurred before Complainant contacted an EEO Counselor about the instant complaint and that there was no evidence that S1 or S2 knew about Complainant's 2013 EEO activity. Further, noting that S2 questioned other employees about the need to provide updated medical documentation, the AJ stated that S2 did not single out Complainant when she asked her for medical documentation. With respect to Complainant's assertion that her FMLA paperwork covered her work restriction, the AJ found that "it was not unreasonable for the Agency to ask Complainant to produce medical documentation to support the 8-hour-a-day-work restriction even though it had apparently been informally honoring the restriction for several months."
The AJ further found that S1's October 2014 and January 2015 inquiries about Complainant's inability to complete her route in eight hours were isolated incidents and did not constitute discrimination or harassment. The AJ determined that, because Complainant never submitted the requested medical documentation, S1 had the right to ask Complainant why she needed assistance to finish her route in October 2014. In addition, given that Complainant was no longer under the overtime restriction when S1 questioned her in January 2015, S1 again had the right to question Complainant. Complainant's claim that S1 was "vindictive" did not establish that S1 harbored discriminatory or retaliatory animus. Viewing the evidence in the light most favorable to Complainant, the AJ concluded that Complainant did not establish that the Agency subjected her to discrimination or harassment.
The Agency issued a final order fully implementing the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency violated her rights with respect to a request for leave. In response, the Agency argues that substantial evidence supports the AJ's decision. The Agency also argues that Complainant may not raise new matters on appeal.3
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is material if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250 n.5. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In this case, we find that the AJ appropriately issued a decision without a hearing. The record has been adequately developed, Complainant had notice of the Agency's Motion and Supplement to Motion to a Decision without a Hearing, and she replied to the Motions. For the reasons discussed below, we find that, even assuming all material facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. There being no genuine issue of material fact, a decision without a hearing was appropriate.
Disability-Related Inquiry
Under the Rehabilitation Act, employers may make disability-related inquires or require medical examinations of employees only if they are job related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), 1630.14(c). "Generally, a disability-related inquiry or medical examination of an employee may be 'job related and consistent with business necessity' when an employer 'has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.'" Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000) (Enforcement Guidance on Employee Inquiries and Examinations) at Question 5. "Direct threat" means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r). "An employer is entitled only to the information necessary to determine whether the employee can do the essential functions of the job or work without posing a direct threat." Enforcement Guidance on Employee Inquiries and Examinations at Question 13.
When an individual with a disability requests reasonable accommodation, and the disability or need for accommodation is not obvious, an employer may request reasonable documentation about the disability and the functional limitations that necessitate reasonable accommodation. Id. at Question 7; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation) at Question 6. When an employee provides sufficient evidence of a disability and the need for accommodation, an employer's continued efforts to require the individual to provide more documentation could be considered retaliation. Enforcement Guidance on Employee Inquiries and Examinations at Question 11.
In this case, it is not clear whether, and to what extent, Complainant submitted medical documentation to support her request to be removed from the overtime-desired list in November 2013. Her note did not identify a disability, describe its functional limitations, or explain the need for reasonable accommodation.4 Although Complainant has asserted that she was "under FMLA," she has not described any medical documentation that she provided to the Agency in support of her FMLA request, and the record does not contain any such documentation. The record contains no evidence that Agency officials knew that Complainant had a disability necessitating the reasonable accommodation of an eight-hour work day. Under these specific, narrow circumstances, we find that that the Agency's request that Complainant submit medical documentation regarding her restrictions was job related and consistent with business necessity.
It appears that the Agency did not require Complainant to provide 30-day updates after she submitted the May 7, 2014, doctor's note. Nonetheless, we remind the Agency that all disability-related inquiries and medical examinations of employees must be job related and consistent with business necessity. Requiring all employees who have medical restrictions to submit medical information every 30 days may result in a situation where a particular inquiry does not meet this standard. For example, it is unlikely that it would be job related and consistent with business necessity to require such frequent updates from an employee whose disability resulted in permanent restrictions. In that situation, continued requests for medical documentation could constitute retaliation. See Enforcement Guidance on Employee Inquiries and Examinations at Question 11. We strongly encourage the Agency to ensure that all supervisors and managers are aware of their responsibilities under the Rehabilitation Act and that they adhere to the Act's requirements.
Disparate Treatment
To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Viewing the evidence in the light most favorable to Complainant, we find that the evidence does not establish prima facie cases of discrimination based on disability and reprisal for prior protected EEO activity. The evidence does not create an inference of discrimination. Although Complainant asserts that the Agency treated her less favorably than it treated similarly situated employees, the record does not support that assertion. Instead, the evidence of record establishes that the opposite is true. As the AJ noted, S2 asked many other employees to provide medical documentation. Further, as the AJ also noted, S1 and S2 were not aware of Complainant's EEO activity until after she contacted an EEO Counselor about the instant complaint. Although S1 was aware of the EEO activity when she asked Complainant about completing her route in October 2014 and January 2015, there is no evidence that she made the inquiries for retaliatory reasons. Again, as the AJ explained, Complainant's bare assertion that S1 is "vindictive" does not establish discriminatory or retaliatory animus.
Harassment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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 employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her disability or prior EEO activity. A finding of discriminatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected her to a hostile work environment based on disability or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this complaint presented no genuine issues of material fact, such that summary judgment was appropriate, and that Complainant has not established that the Agency discriminated against her as alleged. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__7/19/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Initially, Complainant alleged that the Agency discriminated against her based on disability and reprisal when it (1) changed her start time from 7:30 a.m. to 8:00 a.m. and (2) required her to submit medical documentation every 30 days. The Agency dismissed the complaint on the grounds that Claim (1) was untimely and Claims (1) and (2) failed to state a claim. On appeal, the Commission affirmed the dismissal of Claim (1) but reversed the dismissal of Claim (2) and remanded the claim to the Agency for processing. EEOC Appeal No. 0120150074 (Feb. 13, 2015).
3 As the Agency notes, Complainant may not raise new matters on appeal. To the extent that Complainant wishes to pursue new claims of discrimination, she must bring the matters to the attention of an EEO Counselor. For timeliness purposes, the date of initial EEO Counselor contact will be deemed to be the date on which the instant appeal was filed, unless Complainant can show that she initiated counseling on the claims at an earlier date.
4 Although Complainant has asserted that she did not request reasonable accommodation, she has acknowledged that she had medical restrictions and asked to be removed from the overtime-desired list. A request for an adjustment or change at work for a reason related to a medical condition constitutes a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1.
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