0120142662
12-28-2016
Virginia K.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Virginia K.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120142662
Agency Nos. IRS-12-0399-F & IRS-12-0706-F
DECISION
On July 21, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated June 19, 2014, 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. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent, GS-12, at the Agency's Small Business/Self Employed Division - Examination in Laguna Niguel, California.
On June 22, 2012, Complainant filed EEO complaint IRS-12-0399-F (Complaint 1) alleging that she was disparately treated and/or harassed based on reprisal for prior protected EEO activity under Title VII when:
1. She was issued an unnecessary memorandum dated January 27, 2012, by her Group Manager (her first line supervisor - S1), reflecting that her application for sick leave was changed to specify that it was taken under the Family and Medical Leave Act (FMLA);
2. S1 issued her an unwarranted Examination Technical Time Report (ETTR) (4502 Review) recordation dated January 31, 2012;
3. She was issued a memorandum dated February 7, 2012, by S1 indicating that she did not follow proper procedures in estimating her total anticipated monthly travel costs for January and February 2012 (two monthly "GovTrip Authorizations"), and directing her to take certain action on these two travel authorizations;
4. S1 gave her a routing slip dated February 8, 2012, regarding an Examination Request - Examination Returns Control System (ERCS) Users Form 5345-D because she erroneously did not specify the Large, Unusual, and Questionable (LUQ) matter that warranted opening an audit year on the taxpayer;
5. She was issued a memorandum dated March 1, 2012, by S1 indicating that she failed to sign up for one of the available dates for a 4502 Review, that management had the right to direct employees on their flexiplace day to report to the office for a meeting and future failure to do so may result in her removal from the Flexiplace program;
6. On March 8, 2012, S1 issued her an unnecessary memorandum pointing out an error she made in requesting one hour of credit time;
7. On March 13, 2012, S1 issued her a routing slip stating that for the month of 2012, her Integrated Data Retrieval System (IDRS) usage report reflected three inactivity sign offs, and to ensure properly signing (logging) off in the future;
8. On or around April 11, 2012, S1 removed a case file from her work area without first advising her of this;
9. On May 10, 2012, she was issued an annual appraisal covering the period of May 1, 2011 to April 30, 2012, with an overall rating of Unacceptable. The rating official was S1, and the reviewing official was Complainant's second line supervisor (S3 - located in a different office);
10. S1 issued her an untimely 4502 recordation dated May 18, 2012, indicating performance failure for a review which actually occurred on April 24, 2012;
11. On May 23, 2012, S1 issued her a memorandum suspending her from the Flexiplace Program because she was rated less than fully successful on her annual appraisal;
12. Effective June 4, 2012, she was reassigned to a different Group Manager (her new first line supervisor - S2), but her workspace was not similarly moved;
13. On June 6, 2012, S2 issued her a counseling memo for failure to get prior managerial approval for leave she took on June 5, 2012; and
14. On June 6, 2012, S2 placed her on a Performance Improvement Plan (PIP).
On October 4, 2012, Complainant filed complaint IRS-12-0706-F, as amended (Complaint 2) alleging that she was disparately treated and/or harassed, and as applicable denied reasonable accommodation, based on reprisal for prior EEO activity under Title VII and the Rehabilitation Act and her disability (work related anxiety and stress) when:
15. From June 6, 2012, onward, the Agency failed to appropriately engage in the interactive process and denied her reasonable accommodation;
16. On June 26, July 10, July 19, 2012, S2 found in these ETTR (4502 Reviews) that her performance failed and issued two more ETTR (4502 Reviews) on August 6, and August 22, 2012;
17. On August 6, 2012, S2 denied her request for annual leave from August 20 to 27, 2012;
18. On August 27, 2012, S2 issued Complainant a failed in-process review;
19. S2 issued her two failed in-process reviews dated August 31, 2012;
20. On November 6, 2012, S2 issued Complainant a closed case review failing her in a number of areas;
21. On November 7, 2012, S2 denied her request to have a union steward present in a meeting;
22. On November 27, 2012, the Agency proposed her termination;
23. On January 8, 2013 and February 5, 2013, S2 denied her request for access to the Enterprise Remote Access Project (ERAP)(a virtual private network application);
24. S2 gave her a recordation of an ETTR (4502 Review) dated January 22, 2013, failing her on all critical elements and standards rated; and
25. S2 required her to check in and out with him when dealing with her EEO complaint.
Complainant also alleged that she was denied an appropriate amount of official time to complete her declarations in this case.
While the Agency separately investigated complaints 1 and 2, during the investigations it joined the complaints. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation (ROI 1 and 2), and one notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued the FAD pursuant to 29 C.F.R. � 1614.110(b).
In its FAD, the Agency incorporated its prior dismissal of various issues/incidents, some of which were dismissed prior to the start of the investigation, and some before Complainant received her notice of a right to a hearing. The Agency dismissed issues/incidents 3, 5 - 7, 9 - 11, 13, 14, 16 - 22, and 25 on the ground that Complainant elected to raise these claims in a negotiated grievance procedure. 29 C.F.R. � 1614.107(a)(4). It investigated all the dismissed issues, mostly as background evidence on Complainant's harassment claim. Citing Commission case law, the Agency processed Complainant's allegation that she was denied a reasonable amount of official time as a violation of EEOC regulations, not as a claim of discrimination. It found that Complainant was granted a reasonable amount of official time. The Agency found no discrimination on the remaining claims. In doing so, the Agency credited managements' explanations of why things occurred, and found no pretext.
On appeal, Complainant argues that the Agency improperly dismissed her claims and that she was discriminated against. In opposition to the appeal, the Agency asks us to affirm its FAD.
ANALYSIS AND FINDINGS
Procedural Dismissals
EEOC Regulation 29 C.F.R. �1614.301 requires that where a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in the negotiated grievance procedure, an election must be made to proceed under either the negotiated grievance procedure or the EEO complaint procedure (part 1614). Under the regulation, an election is indicated by the filing of a written complaint or timely grievance, whichever is done first. It also provides that an aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
As an employee of the Department of the Treasury, Complainant is employed by an agency subject to 5 U.S.C. 7121(d). Also, the record shows that she was covered by a collective bargaining agreement that permitted allegations of discrimination to be raised in the negotiated grievance procedure. RO1 1, Tabs 35 & 36 at 490, 497 (page numbers refer to Bates numbers). The union filed grievances in the negotiated grievance procedure - writing in them that they were filed by and on behalf of Complainant. Some grievances were filed on February 29, 2012 (issue 3), March 21, 2012 (issues 5 - 7), May 14, 2012 (issue 9), and June 12, 2012 (issues 10, 11, 13, 14). On June 22, 2012, Complainant subsequently filed Complaint 1 on these issues. Accordingly, we affirm the Agency's dismissal of issues 3, 5 - 7, 9, and 11 and 14 pursuant to 29 C.F.R. � 1614.107(a)(4). We will rule on issues 10 and 13 below.
On issue 13 (June 6, 2012 counseling memo regarding leave), the record reflects that in her Step 3 response to Complainant's June 12, 2012, grievance, Complainant's third line supervisor (S4) determined that this matter was not covered by the collective bargaining agreement because it was not discipline, albeit she also found that the memo was proper. ROI 2, Tab 34.4, 484. Because the counseling memo was not covered by the collective bargaining agreement, we find 29 C.F.R. � 1614.107(a)(4) does not apply. But since the Agency's EEO investigation of issue 13 was adequate, we make a determination on the merits of issue 13 and rule on whether Complainant proved discrimination.
Additional grievances were filed on August 31, 2012 (issues 16, 17) - an amendment to the June 12, 2012 grievance; September 24, 2012 (issue 19), and November 28, 2012 (issues 20, 21, 25) - an amendment to the September 24, 2012 grievance.2 On issues 16, 17 and 19, Complainant subsequently filed Complaint 2 on October 4, 2012, which she amended on February 11, 2013, to include issues 20, 21, and 25, after she filed her amended grievance thereon. ROI 2, Tab 3.1, at 106. Accordingly, we affirm the Agency's dismissal of issues 17, 21, and 25. We will address the Agency's dismissal of issues 16, 18, 19, 20, and 22 below.
Complainant was terminated effective April 17, 2013, and invoked arbitration thereon on April 19, 2013, under the collective bargaining agreement. Citing Commission precedent, the Agency dismissed issue 22 (the proposed removal) on the ground that it merged with the removal decision, which was in arbitration. We find this dismissal was proper, and it is affirmed. Dixon v. Department of Commerce, EEOC Appeal No. 0120083483 (Sep. 19, 2008).3
In the grievance procedure on issues 10, 16, 19 and 20, the Agency found that the collective bargaining agreement does not cover 4502, in-process, and closed case reviews (issue 18 was a closed case review). ROI 1, Tab 34.4, at 483 - 484; ROI 2, Tabs 31.3, 32.1, 32.3, at 456, 467, 474. Nevertheless, we affirm the Agency's dismissal of these issues, for the reasons explained below.
In Complainant's May 10, 2012 annual performance appraisal, S1 wrote that Complainant failed to follow her priorities or activities as she planned during ETTR (4502) reviews. ROI 1, Tab 24, at 381. In Complainant's subsequent PIP, S2 found that Complainant failed to effectively plan and prioritize her work as noted in the review (in issue 10). RO1 1, Tab 27, at 428. The review in issue 10 took place before Complainant's annual performance appraisal.
Following the PIP, S2 issued Complainant's ETTR (4502 Reviews) on June 26, July 10, and July 19, 2012 (part of issue 16), and wrote therein that when giving Complainant the PIP he explained to her what she needed to do to perform successfully and that he would assist her, and in each of these reviews he extended the scheduled completion date of the PIP (originally scheduled for 60 days ending on August 6, 2012) to take into account her absences. When asked about the reviews issued on June 26, July 10, July 19, August 6, 22, 27, and 31 (issues 16, 18, and 19), S2 stated that during the PIP he held ETTR (4502) meetings with Complainant every two weeks, as he stated he would in the PIP letter. He added that he also gave Complainant three case reviews at the end of the PIP period, all of which she failed because her work was unsatisfactory. ROI 2, Tab 5, at 204. S2 stated that he indicated Complainant's performance was unacceptable in the evaluations he prepared for her during the PIP, and at the end of the PIP he found her performance was unacceptable. Id., at 205.
On November 27, 2012, S3 proposed removing Complainant following the conclusion of the PIP. She explained that Complainant failed to perform at the minimum level required for retention as demonstrated by the instances of unacceptable performance documented by S2, and she relied on his documentation. Tab 6, at 232 - 233. By letter dated April 5, 2013, the Agency sustained the proposed removal. We find that the reviews in issues 10, 16, 18, and 19, were part and parcel of the PIP and removal process. Complainant elected to grieve her May 10, 2012 annual performance appraisal, PIP and removal, and we find issues 10, 16, 18, and 19 were covered by those grievances. Also, given the timing of the proposed removal, we find that it is more likely than not that Complainant's November 6, 2012, close case review (issue 20) was also part and parcel of the removal process, and hence covered by the above grievances.
Merits Determinations
Disparate Treatment and Harassment
To prevail on her disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
In a memorandum to Complainant dated January 27, 2012, S1 wrote that she submitted an application for sick leave for January 25, 2012, and before taking the leave left a voicemail that she wanted it to be under the FMLA. S1 notified Complainant in writing that she made the change Complainant requested (Incident 1). Complainant does not contest this. Rather she alleges that management harassed her by giving her a barrage of formal memorandums, many negative. In her report, the EEO Counselor relayed that S3 said that Complainant asked S1 to put things in writing to her, and when Complainant was questioned on why she did not do something she would say S1 did not tell her, even though an email went out to the group. ROI 1, Tab 2, at 43.
S1 issued Complainant an ETTR (4502 Review) on January 31, 2012, failing her on every critical element and standard rated (Incident 2). ROI 1, Tab 2. In detail and with examples S1 wrote about numerous performance problems, e.g., not opening cases within 30 days of assignment, not keeping her outlook calendar current, arriving for an appointment at a taxpayer's representative's home office without good reason 20 minutes late and according to the representative not calling ahead, spending excessive time on non-case related work, not timely reviewing documents, charging more time than commensurate with the nature and complexity of the work, charging time for training that was unnecessary since the reason therefore occurred years before and she completed the training then, charging time to the wrong activity codes, and not keeping cases active. In her report, the EEO counselor wrote that Complainant relayed that rather than ask her for an explanation, S1 just writes her up. But in the review, S1 wrote about a number of instances of her discussing with Complainant her performance. In her report, the EEO counselor wrote that S1 said that the review speaks for itself and was based on Complainant's performance. ROI 1, Tab 2, at 42.
S1 gave Complainant a routing slip dated February 8, 2012, writing that on a form requesting a taxpayer be audited she did not specify the Large, Unusual and Questionable (LUQ) matter warranting the audit, and S1 previously requested this type of information on January 26, 2012, for another taxpayer (Incident 4). Complainant does not contest this. Rather she contends that it was unnecessary for S1 to issue her a formal routing slip - S1could have just retuned the form with the error that needed to be corrected, which would be the normal practice at the Agency. S3 countered that managers typically provide some type of written instruction using methods such as routing slips, templates, and quicknotes when retuning casework to agents where errors have been found to make things clear. ROI 1, Tab 5, at 152.
On or around April 11, 2012, S1 removed a case file from Complainant's work area without advising her of this (Incident 8). S1 explained that she did so because she received correspondence from a taxpayer or representative and Complainant was out of the office. ROI 1, Tab 6, at 173.
Effective June 4, 2012, Complainant was reassigned to S2's group, but her workspace was not similarly moved (Incident 12). She contended that in the past, internal revenue agents were physically grouped with their managers. ROI 1, Tab 4, at 130. S3 explained that about five years earlier, when groups were relocated to Laguna Niguel, an effort was made to define workstation locations, but this proved impractical due to the constant moving of revenue agents. She stated that Complainant's workspace was already close to S2's office. ROI 1, Tab 5, at 156. In his statement S2 corroborated S3's account, and added that when Complainant was assigned to his group, S4 said it would not be an efficient use of Complainant's time to relocate her cubicle. ROI 1, Tab 7, at 182. One of Complainant's co-workers stated that Complainant's workspace was already close to S2's office, and revenue agents are not required to be physically grouped with their supervisor. ROI 1, Tab 10, at 155 - 156.
S2 gave Complainant a counseling memo dated June 6, 2012, for failure to get managerial approval for leave she took on June 5, 2012 (Incident 13). Complainant stated that on June 4, 2012, she left a voicemail for S2 to put her down for leave for the next day. ROI 1, Tab 4, at 130. S2 explained that late in the evening after he left for the day Complainant left a message to put her down for annual leave the next day. He stated that annual leave must be preapproved by the supervisor, and by phoning in after business hours Complainant did not give him an opportunity to approve or not approve the leave so he gave Complainant the (counseling) memo reminding her of the need to obtain preapproval for annual leave. ROI 1, Tab 7, at 182.
On January 8, 2013 and February 5, 2013, S2 denied Complainant's request for access to the Enterprise Remote Access Project (ERAP)(a virtual private network application)(Incident 23). This computer application allows those who are on flexiplace to telework. Complainant wrote that when she asked S2 why her request to reinstall ERAP was denied, he explained that she did not need it because she was not working at home. In accordance with Agency policy, Complainant's flexiplace was revoked after she was rated less than fully successful on her May 10, 2012 annual appraisal. S2 stated that since Complainant was not eligible to work at home, she had no business purpose for ERAP. S2 wrote that he explained to Complainant that when meeting with taxpayers she should be interacting with them and reviewing their records, not using ERAP. He added Complainant only had one or two field appointments while working for him. ROI 2, Tab 5, at 206, 2011.
S2 issued Complainant an ETTR (4502 Review) on January 22, 2013, failing her on every critical element and standard rated (Incident 24). ROI 1, Tab 17. In detail and with examples S2 wrote about numerous performance problems, i.e., not working cases in a timely fashion and letting them go essentially inactive, charging lots of time to cases with little evidence of work on them, not keeping taxpayers appraised of the status of their audits and not giving them reports, and not exhibiting a sense of urgency to close out cases where the statute of limitations is approaching. Complainant suggested that the review was not fair or objective, and stated no other internal revenue agency has received so many recordations and memorandums. ROI 2, Tab 4, at 180. S2 stated this review was not unwarranted, and Complainant stated that when she challenged S2, he stood by the recordation.
Complainant stated that she was disparately treated and harassed in part by the sheer number of recordations of 4502 Reviews she was given - versus the reviews being only oral. These reviews were given to revenue agents monthly. ROI 1, Tab 4, at 128, Tab 6, at 174. S1 stated that recordations of the reviews were given periodically to every revenue agent. ROI 1, Tab 6, at 174. In her December 2013 declaration, S3 stated that it was not unusual to receive a recordation. A reading of the declarations of Complainant's revenue agent co-workers reveals that before around fiscal year 2013, it was unusual to receive a recordation of a 4502 review, and thereafter it became routine. ROI 1, Tab 9, at 280, Tab 10 at 290 - 291. Nevertheless, we find that Complainant failed to show that she was disparately treated or harassed by the volume of recordation of 4502 Reviews she received. Part of the PIP process was to provide Complainant written feedback, with status meetings every two weeks. ROI 1, Tab 27, at 434. A number of her review recordations were given in connection with the PIP. Further, given the Agency's negative assessment of Complainant's performance, it would behoove it to put her on written notice thereof.
While Complainant suggests that she disagrees with the Agency's assessment of her performance, she has not shown that its assessment was discriminatory. As background to Complainant's harassment complaint, the Agency investigated her May 10, 2012, annual performance appraisal and placement on a PIP on June 6, 2012. A review of these documents reflects not only Complainant's failings with timeliness and productivity, but also errors indicating a failure to grasp tax law and basic accounting principles, doing irrelevant research, failing to tailor interview questions to the taxpayer and specific audit issues, failing to write up a summary of an initial interview with a taxpayer until months later when it preferably is done the same day, failing to recognize when she had enough information on cases, and not backing up her inventory weekly, as required, to ensure the most recent data was available on the server. S1 stood by the appraisal, and S2 stood by the PIP.
Complainant also contends that she was disparately treated and harassed in part by the volume of memorandums she was given, versus being advised of things orally. She also disputes the substance of some of them. When including the background issues, the record shows that from January to June 2012, Complainant frequently received written communications in the form of memorandums and routing slips, especially from S1 on her errors or alleged problems. We find that the substance of the memorandums and routing slips accepted by the Agency as active issues were correct for the reasons given by management recounted above, which Complainant sometimes conceded. Further, our review of the investigation on the background memoranda and routing slip incidents indicated that their substance was also accurate. For example on incident 7, S1 persuasively explained that she received a usage report from Security that in February 2012, the IDRS system automatically signed Complainant off three times due to inactivity. She explained that this happens after the user has been inactive for 120 minutes, that if the failure to sign off level is high her employees receive a routing slip, and failure to properly log off is a breach of security. ROI 1, Tab 2, at 43, Tab 23, Tab 24 at 378.
We find that Complainant failed to show that she was disparately treated or harassed by the volume of memorandums and routing slips she received. For example, incident 1 was merely informational in nature and contained nothing in anyway derogatory. Suspending Complainant from Flexiplace is serious, so a written notification memorandum was warranted (incident 11). Likewise, the Agency considered repeatedly failing to log off from IDRS a security breach, and S1 relayed that if Security gave her a report that someone's failure to log off rate was high, they received a routing slip (incident 7). S1 credibly relayed that three weeks before by email and five days before in person prior to giving Complainant a memorandum (incident 3), she asked Complainant to correct two travel authorization forms in accordance with new requirements, but she did not do so. Given this, formal written communication was warranted, and S1 relayed others were written up for making errors on the form. ROI 1, Tab 2, at 42, Tab 20. It is apparent that S2 sought to communicate to Complainant the seriousness of her violating leave requesting procedure, so it was proper for him to use a memorandum to do this (incident 13), and the record does not show this was disparate treatment. The above accounts for a number of the writings. Further, S3 relayed that Complainant asked S1 to put things in writing to her, and when Complainant was questioned on why she did not do something she would say S1 did not tell her, even though an email went out to the group. This was another reason to direct formal memoranda and routing slips to Complainant, and why doing so was not disparate treatment or harassment.
Regarding issues 2, 8, 12, 23, and 24, the Agency articulated legitimate, nondiscriminatory reasons for these actions as recounted above, and Complainant failed to show they were based on her disability and/or reprisal or show pretext. Complainant has failed to show that she was disparately treated or harassed.
Official Time
In February 2013, Complainant requested 80 hours of official time to complete her initial two declarations on Complaints 1 and 2. S2 asked the EEO investigator for guidance on the approximate time needed for this. After the investigator responded that Complainant needed a maximum of 6 - 8 hours to complete the declarations, on February 12, 2013, S2 granted Complainant six hours of official time. ROI 2, Tab 35. To develop the record on this matter the EEO investigator asked Complainant about her official time claim, and she did not respond.
Agencies shall afford complainants a reasonable amount of official time to allow a complete presentation of the relevant information associated with their complaint and to respond to agency requests for information. 29 C.F.R. � 1614.605. The actual number of hours to which a complainant is entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the agency and the agency's need to have its employees available to perform their normal duties on a regular basis. Most of the time spent by complainants during the processing of a typical complaint is spent in meetings and hearings with agency officials or with the Commission Administrative Judges. Whatever time is spent in such meetings and hearings is automatically deemed reasonable. Because investigations are conducted by agency or Commission personnel, the above regulation does not envision large amounts of official time for preparation purposes. Consequently, "reasonable," with respect to preparation time (as opposed to time actually spent in meetings and hearings), is generally defined in terms of hours, not in terms of days, weeks, or months, albeit what is reasonable depends on the individual circumstances of each complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 6 � VII.C, at 6-16 - 6-18 (as revised, Aug. 5, 2015).
For the two declarations, the investigator solicited responses from Complainant on a total of 80 questions. Some questions were for duplicate information, i.e., Complainant's name, position held, the identity of her supervisors, and her past EEO activity. Complainant was able to answer a number of questions with one word answers or short responses. Nevertheless, there were a large volume of questions. A number of them solicited information in detail, and some would likely require Complainant to gather and review documents. At the same time, we must consider the mission of the agency and its need to have its employees available to perform their normal duties on a regular basis. At this time, Complainant was behind on time sensitive work, and the statute of limitations was approaching on three of her cases. ROI 2, Tab 17. A June 2012 document reveals Complainant worked part time - 24 hours a week - which to some degree affects the amount of official time that is reasonable. Also, Complainant had recent grievance activity, which likely took time away from work. Given all this, we find that a reasonable amount of official time to have awarded was 15 hours. We will order relief below.
Reasonable Accommodation
By March 2012, Complainant requested as a reasonable accommodation to be transferred out of S1's group. In making this request to an Agency reasonable accommodation coordinator, she communicated that her medical condition was triggered by the hostile work environment in S1's group. ROI 2, Tab 13. In response to a question in her declaration about what reasonable accommodation she sought, Complainant wrote to be transferred from S1's group. ROI 2, Tab. 4, at 160. She contended that without engaging in an interactive process, the Agency unilaterally transferred her to S2's group. ROI 2, Tab 4.1, at 174 - 175. Complainant stated that the union explained she was moved to give her a fresh start, but the first day she reported to S2 she was given her PIP. ROI 2, Tab 4, at 159 - 160. After the above declaration the EEO investigator sent Complainant a list of questions for a supplemental declaration. The investigator wrote therein that it appeared the accommodation she sought relative to this claim was to move from S1's group, and asked if this was accurate. Complainant did not respond to this list of questions.
By email to Complainant prior to her transfer to S2's group, S3 denied her reasonable accommodation request to be transferred from S1's group on the ground that it was ineffective/inappropriate. She asked Complainant if she had any effective/appropriate alternatives. ROI 2, Tab 2, 66, Tab 13. Complainant's attorney responded in part by arguing that the Agency has hundreds of vacancies, and at the very least there remained the option of moving Complainant to a new group supervisor within the same office. ROI Tab 2, at 65. S3 stated that Complainant was later moved to S2's group, but not because of her accommodation request. ROI 2, Tab 6, at 230. S4 recalled the reason was Complainant believed S1 was harassing her, and the move was made to alleviate that.
We disagree that the Agency failed to engage in an interactive process. When S3 rejected Complainant's accommodation request to be transferred from S1's group, she asked Complainant if she had any alternatives. Complainant's attorney responded, in essence, that this was the accommodation Complainant sought. As we note below, an Agency is not required to change a complainant's supervisor as a form of reasonable accommodation. Moreover, the interactive process is not an end in itself; rather, a complainant must show that an inadequate interactive process resulted in an agency's failure to provide a reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sep. 13, 2002).
An Agency is not required to change a complainant's supervisor as a form of reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 33 (as revised Oct. 17, 2002). The record does not show that Complainant sought alternative accommodation.
On appeal, Complainant makes no arguments regarding the denial of reasonable accommodation. But she submits documentation that in response to being issued the PIP, she contended that a medical condition contributed to her performance problems. She submits an August 2012 assessment by a Department of Health & Human Services Occupational Medical Consultant that medical documentation Complainant provided in connection with her FMLA request indicated that she had worsening depression with negative impacts on her energy, concentration, ability to organize, sense of confidence, and memory.
The EEO investigator advised Complainant that she failed to submit medical documentation to support her disability claim, invited her to do so, but she did not do so. The record below did not include the referenced documentation Complainant submits on appeal. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. EEO MD-110, Chap. 9 � VI.A.3, at 9-16. Complainant has not done this. Moreover, Complainant still does not identify any accommodation she sought, other than switching supervisors. We note that the Agency did extend Complainant's PIP a number of times to allow her to take leave. Complainant has failed to prove discrimination.
CONCLUSION
The Agency's finding of no discrimination is AFFIRMED. The Agency's determination on the proper award of official time is MODIFIED. The Agency shall comply with the order below.
ORDER
The Agency shall retroactively - to February 2012 - add nine hours of administrative leave to Complainant's leave balance, without benefits. Since Complainant separated from the Agency in April 2013, the Agency shall pay her the cash value of this leave within 90 calendar days after this decision is issued, without interest, zeroing out the administrative leave. The Agency is not required to compensate Complainant for the tax consequences of this payment.
The Agency shall send evidence of compliance to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
December 28, 2016
__________________
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 Issue 18 regards Complainant being given a failed in-process case review on August 27, 2012. In her prior amended grievance filed on August 31, 2012, Complainant included an in-process review dated August 28, 2012. In dismissing issue 18, the Agency found that Complainant previously filed a grievance on the matter. We were unable to verify if the above were the same in-process review, albeit Complainant does not contest she raised issue 18 in the grievance process.
3 The Agency in its FAD, citing to its final Accept/Dismiss letter dated February 10, 2014 on Complaint 2, listed the removal as a background issue. But in this Accept/Dismiss letter, the Agency actually wrote that Complainant did not raise the removal in the EEO process. ROI 2, Tab. 3, at 93. Therein, the Agency dismissed the proposed removal because it merged into the removal, which was in arbitration. In none of her amendments to Complaint 2 in the record did Complainant raise her removal and on appeal, Complainant, represented by counsel, does not contend that she filed an EEO complaint on her removal before invoking arbitration thereon.
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