U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alejandrina L.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency. Appeal No. 0120152145 Agency No. DOSF029414 DECISION On May 31, 2015, Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's May 1, 2015, final decision (FAD) 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 Agency's FAD which found that Complainant was not denied a reasonable accommodation or subjected to reprisal discrimination is REVERSED. The complaint is REMANDED for compliance. ISSUES PRESENTED Did Complainant prove by a preponderance of the evidence that she was denied a reasonable accommodation and subjected to reprisal discrimination? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Management Analyst at the Bureau of International Narcotics & Law Enforcement Affairs, Office of Resource Management, Budget Execution Division in Washington, DC. Report of Investigation (ROI), p. 8. She had been working in this position for approximately two years, since November 2012. ROI, p. 69. Complainant suffered from mixed connective tissue disease,2 which manifests with features of systemic lupus erythematosis and inflammatory myositis. ROI, p. 103. Complainant's systemic lupus "features" include "inflammatory arthritis, Raynaud's phenomenon, fatigue, and cognitive impairment (commonly referred to as 'lupus fog')." ROI, p. 103. Complainant's condition is chronic and incurable. ROI, p. 101, 103. Complainant's doctors were working toward remission of the disease. ROI, p. 103. Complainant experienced symptoms such as pain in her hands, wrists, knees, shoulders and other joints. Id. Complainant experienced "debilitating fatigue" making it extremely difficult for her to do routine things such as her basic hygiene routine. ROI, p. 72. Stress and physical exertion can cause a flare-up of her disease. ROI, p. 73, 103. Specifically, her physician explained that her minimum daily commute of approximately two hours and twenty minutes was expected to "exacerbate many manifestations of her underlying [mixed connective tissue disease]...due to the physical and emotional stresses involved with this extensive travel." ROI, p. 103. The physician recommended that Complainant be allowed "to work at home 2 days a week." ROI, p. 99. On February 21, 2014, Complainant approached the Agency's Disability/Reasonable Accommodation Division (DRAD) regarding approval of two days of telework from her home. ROI, p. 76. At the time, Complainant had been teleworking under the Agency's administrative telework allowance of one day a week. Id. Complainant submitted a completed application, consisting of medical documentation substantiating the need for her accommodation on March 11, 2014. Id. While Complainant's accommodation request was pending, Complainant's function was realigned in March 2014 pursuant to the creation of a "new team" which Complainant was reassigned to. ROI, p. 206. Complainant's reasonable accommodation request was delayed because "Complainant did not have valid work requirements established prior to her application for reasonable accommodation." ROI, p. 42. Management explained that new work commitments were created for each member of the team. ROI, p. 206. Complainant was presented with her new work commitments in April 2014. Id. These work commitments included the phrases "face to face" and "physically available." ROI, p. 211. Complainant took issue with the inclusion of these phrases in her work commitments because she believed this would directly impact her request for the accommodation of telework. ROI, p. 79-80. Additionally, management appears to have ceased allowing telework for members of this new team until the end of the 2014 fiscal year. Complaint File, p. 69; S2's Apr. 15, 2014 E-mail, Complainant's Brief, p. 54. The Executive Director (S5) was made aware of Complainant's issues with the new work commitments, and while he investigated the necessity of these inclusions, it was decided that the commitments were flexible enough to allow for part-time telework. ROI, p. 263. The record reflects that at least two other team members had the same inclusions in their work commitments. ROI, p. 219-232.3 On April 11, 2014, after extensive communications between Complainant, DRAD-- specifically the Division Chief (S1), and Complainant's management team, mainly the Deputy Executive Director for Resource Management (S2) and the Supervisory Financial Management Analyst (S3), DRAD informed Complainant that they were not granting her request for a second day of telework, but that she would be permitted to continue her one day a week administrative telework until May 2014. ROI, p. 193-194. The decision e-mail from S1 informed Complainant that her accommodation request would be revisited at the end of June 2014 to possibly permit a second day of situational telework. ROI, p. 193-4. Following the denial, Complainant e-mailed S1 copying another DRAD member (S4) on June 27, 2014 asking for the request to be considered again. ROI, p. 193. S4 responded that Complainant must submit "new medical documentation" to DRAD, without further explication of what this documentation should contain. ROI, p. 192-3. The matter resolved on July 9, 2014 when S4 e-mail Complainant stating that she had been approved for two days of telework, one core day which Complainant already had pursuant to the administrative telework policy, and one situational telework day. ROI, 189-190. The parameters of the situational telework day were not established. Complainant alleges that, as a result, when she requested telework on August 4, 2014 due to traffic issues predicted to cause an extended commute, she was told by S2 that her options were either to take leave or come into work. Complainant's Brief, p. 235. On January 7, 2015, Complainant filed an EEO complaint alleging that the Agency denied her a reasonable accommodation; and discriminated against her on the bases of disability (mixed connective tissue disease) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when management altered her work commitments to include requirements that are not required of other similarly situated Financial Management Analysts. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency denied her a reasonable accommodation or subjected her to reprisal discrimination. CONTENTIONS ON APPEAL Complainant argues that she requested a reasonable accommodation of telework to prevent her symptoms from worsening. She also contends that the Agency reprised against her by including a face-to-face element in her work commitments after she requested accommodation. Complainant submits additional documents on appeal. The Agency did not offer contentions on appeal. STANDARD OF REVIEW The Agency's final action is reviewed de novo. 29 C.F.R. § 1614.405(a). ANALYSIS AND FINDINGS The Agency concluded that Complainant did not prove by a preponderance of the evidence that she was denied a reasonable accommodation or subjected to reprisal discrimination. I. COMPLAINANT DEMONSTRATED THAT SHE WAS DENIED A REASONABLE ACCOMMODATION BECAUSE SHE IS A QUALIFIED INDIVIDUAL WITH A DISABILITY AND THE AGENCY DID NOT DEMONSTRATE THAT ALLOWING HER TO TELEWORK TWO DAYS A WEEK WOULD HAVE PRESENTED AN UNDUE HARDSHIP To establish that Complainant was denied a reasonable accommodation, she must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). a. Complainant Is A Qualified Individual With A Disability Complainant is disabled if she has a "physical impairment" that "substantially limits" one or more "major life activities." 29 C.F.R. § 1630.2(g)(1). A "physical impairment" can be any physiological disorder, condition, or anatomical loss affecting one or more body systems such as the immune or musculoskeletal systems. 29 C.F.R. § 1630.2(h)(1) (providing full list of physical impairments). "An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ii). "Major life activities" are "functions such as caring for oneself, performing manual tasks, and walking." 29 C.F.R. § 1630.2(i). Complainant established that she is an individual with a disability because she suffers from mixed connective tissue disease, which manifests with features of systemic lupus erythematosis and inflammatory myositis. According to her doctor's submissions and her own testimony, Complainant's symptoms are severe and include pain in her hands, wrists, knees, shoulders and other joints, and extreme fatigue. As a result of her disease and symptoms, she is substantially limited in major life activities, such as performing basic hygiene as part of her morning routine. The Agency does not dispute that Complainant is an individual with a disability. Further, Complainant was able to perform the essential functions of her job with a reasonable accommodation of telecommuting; and while she can perform essential job functions without accommodation, it causes difficulty. b. Agency Failed to Provide A Reasonable Accommodation A federal agency must "make reasonable accommodation for the known physical or mental limitations" of a qualified employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. 29 C.F.R. § 1630.9(a). Reasonable accommodation means, "modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 C.F.R. § 1630.2(o)(1)(iii). The request need not be in writing or use the magic words of "reasonable accommodation." The employee need only inform the agency that she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24. 2006). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation, Requesting Reasonable Accommodation, Q5; see, also, Abeijon v. Dept. of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). An employer cannot ask for documentation in support of a request for reasonable accommodation when: "(1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested." See Enforcement Guidance on Reasonable Accommodation, Requesting Reasonable Accommodation, Q8. Where a discriminatory practice involves the provision of a reasonable accommodation, compensatory damages may not be awarded where the employer demonstrates good faith efforts to make a reasonable accommodation. 42 U.S.C. § 1981a(a) (3). Complainant identified a reasonable accommodation of telecommuting two days a week, and fully complied with Agency procedures by submitting the request along with medical documentation through DRAD. Complainant's documentation was clear that telecommuting was the requested accommodation in order to prevent exacerbation of Complainant's mixed connective tissue disease, and to ease symptoms Complainant was experiencing. Complainant's commute was expected to exacerbate her illness "due to physical and emotional stresses involved with this extensive travel." ROI, p. 103. Documentation reflected a medical recommendation that she be allowed to telework two days a week, and the reasons for that conclusion. ROI, p. 99, 100, 101, 103. Rather than providing the requested accommodation, the Agency at first denied the request, concluding that it would designate the one day a week Complainant was already teleworking pursuant to administrative policy as a reasonable accommodation. Months later, after Complainant kept pursuing her accommodation request, she was allowed situational telework for an additional day each week. This was not an effective accommodation because it did not address Complainant's need for consistent telework two days a week in order to address her symptoms and to prevent exacerbation of her ailment. The record reveals that Complainant's managers did not want to grant an additional day of telework to Complainant because they did not believe there was sufficient work for her to do while teleworking. However, there is no apparent basis shown for this claim, and there is no indication pursuant to Complainant's Financial Management Analyst position description that her job is not conducive to telework. Therefore, Complainant is a qualified individual with a disability who requested and identified a reasonable accommodation, which the Agency denied. The Agency did not demonstrate that the accommodation would present an undue hardship. Further, there are significant issues with the manner in which the Agency engaged in the interactive process. First, the record reveals that less than three months after denying her initial request for accommodation, S4 sought further medical documentation from Complainant after Complainant asked for reconsideration of the denial. This request for documentation was made despite the fact that DRAD already had documentation in its possession substantiating the need for the requested telework accommodation. This fact, coupled with the delay in the reasonable accommodation process associated with assigning Complainant to a new team and generating new work commitments for her which included provisions about being physically present, lead to the conclusion that the Agency did not make a good faith effort to engage in the interactive process and accommodate Complainant. Therefore, Complainant proved by a preponderance of the evidence that she was denied a reasonable accommodation. Also, the circumstances of the denial indicate that the Agency did not make a good faith effort to provide reasonable accommodation, therefore, Complainant is entitled to compensatory damages as part of her relief. II. COMPLAINANT ESTABLISHED THAT SHE WAS SUBJECTED TO REPRISAL DISCRIMINATION BECAUSE SHE DEMONSTRATED THAT THE AGENCY'S LEGITIMATE NONDISCRIMINATORY REASONS FOR INCLUDING "FACE TO FACE" AND "PHYSICALLY PRESENT" AS ELEMENTS IN HER WORK COMMITMENTS WERE PRETEXTUAL The Agency concluded that Complainant did not prove by a preponderance of the evidence that she was subjected to reprisal discrimination when management included "face to face" and "physically available" as elements in her work commitments. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). a. Prima Facie Case Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, 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). Reprisal claims are afforded a broad view of coverage and are "not limited to discriminatory actions that affect the terms and conditions of employment." Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 64 (2006). Rather, a complainant "must show that a reasonable employee would have found the challenged action materially adverse," that is, one that "might have 'dissuaded a reasonable worker'" from engaging in protected activity. Id. at 68. "A request for reasonable accommodation is a form of protected activity." Walters v. Pension Benefit Guarantee Corporation, EEOC Appeal No. 0220080001 (Nov. 18, 2010); Keller v. U.S. Postal Serv., EEOC Appeal No. 01A03119 (Apr. 25, 2003). Federal employees are protected from "retaliation" in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the Rehabilitation Act. 29 U.S.C § 791; see also, Americans with Disabilities Act of 1990 (ADA), as amended, Section 503, 42 U.S.C.A. § 12203. Complainant engaged in protected conduct by requesting the reasonable accommodation of telework at the end of February/early March 2014. Members of DRAD and her managers, including S2, S3 and S5 were aware of Complainant's request for reasonable accommodation. Complainant was subjected to materially adverse treatment in having her work commitments changed to include "face to face" interaction and being "physically available." Also, while Complainant does not specifically assert this point, her reassignment to a new team or subgroup prompting the new work commitments similarly constitutes a materially adverse action. This is because the reassignment and the revised work commitments occurred shortly after Complainant's request for an accommodation to allow her to work from home so that she would not exacerbate her ailment. These changes could have amounted to Complainant not being able to work, and viewed in the context of the extensive discussions pursuant to her accommodation request, they seemed to run in direct contravention of the accommodation request. This is especially true given the fact that telework was initially prohibited for members of the newly created team when Complainant was previously allowed to partake in the administrative policy of allowing employees to telework one day a week. The accommodation request therefore not only prompted a change in work commitments, but threatened to remove the critical work place flexibility of one day a week telecommuting which Complainant was partaking in. Further, the new assignment and commitments were clearly less favorable to Complainant because they seemed to contravene the ability to engage in part-time telecommuting. See, e.g., White, 548 U.S. at 70 (finding that reassignment to a position with less desirable duties could constitute a materially adverse action). The circumstances Complainant experienced would dissuade a reasonable employee from engaging in protected activity and therefore constitute a materially adverse action.4 Next, Complainant established nexus because of the extremely close temporal proximity between her request for reasonable accommodation and the change in her work commitments. Complainant appears to have been reassigned to the newly created team in March 2014, the same month that she requested accommodation with DRAD, and she received her new work commitments the following month, in April 2014. See, e.g., Morris v. U.S. Postal Serv., EEOC Appeal No. 01A51604 (June 14, 2005) (finding that temporal proximity of approximately one month between adverse action and protected conduct was sufficient to raise an inference of retaliation). Therefore, Complainant established a prima facie case of reprisal. b. Agency's Legitimate, Nondiscriminatory, Reasons and Complainant's Showing Of Pretext Complainant may demonstrate pretext in one of two ways, either directly, by showing that a discriminatory reason more likely motivated the agency, or indirectly, by showing that the agency's proffered explanation is unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Management stated that Complainant's new work commitments included elements of "face to face" interaction and being physically available because these commitments were "consistent with the goals" of the new sub group. ROI, p. 263. Specifically, management wanted the team to focus on "good customer service, anticipated personal interaction, and wanted the team to be available for hands on training." ROI, p. 263. Therefore, the Agency stated legitimate, nondiscriminatory, reasons for the changes to the work commitments. Complainant was able to demonstrate pretext for several reasons which amount to a showing that the Agency's legitimate, nondiscriminatory reasons were unworthy of credence. First, we note that DRAD waited on new work commitments to be generated in order to reach a decision on Complainant's reasonable accommodation request. While DRAD's communication with management regarding Complainant's reasonable accommodation would have otherwise been a normal part of the interactive process, the extensive communications and negotiations with management, coupled with an explicit hold on the reasonable accommodation request due to the generation of new work commitments, compels the likelihood of discriminatory motives at play. Second, the extremely close temporal proximity between Complainant's accommodation request and her reassignment and new work commitments contribute to a showing that the Agency's explanation was unworthy of credence. Next, management's sudden insistence that Complainant, who had been working in her position for approximately two years, cease all telework is suspicious, given the somewhat vague reasons offered for the new work commitments, mainly good customer service and availability for training. S2's initial bar on telework and the Agency's refusal to grant a second core day of telework are also inconsistent with S5's conclusion that the work commitments were flexible enough to allow for part-time telework, when in fact they were operating in practice to prohibit telework altogether. Finally, even though other employees were subject to the new work commitments, it appears that Complainant was the only one impacted by the reassignment and commitments which evinced a clear disapproval of telework. Miller v. U.S. Postal Serv., EEOC Appeal No. 01A51723 (June 13, 2006) (upholding administrative judge's finding of reprisal where "agency's policy of only permitting 1.5 hours of blood donor leave only affected complainant because he was the only employee to regularly donate blood"). While Complainant's reassignment, revised work commitments, and the circumstances surrounding a temporary bar on telework may have been valid workplace decisions in a different context, the circumstances of this case indicate that the actions were taken in reprisal for Complainant's request for reasonable accommodation. Therefore, the Agency was incorrect to conclude that Complainant did not prove by a preponderance of the evidence that she was subjected to reprisal when her work commitments were revised to include the terms "face to face" an "physically available." CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD which found that Complainant was not denied a reasonable accommodation or subjected to reprisal discrimination is REVERSED. The complaint is REMANDED for compliance consistent with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. If Complainant still occupies the Financial Management Position, or a similar position, provide Complainant with the option to telework two days a week. If Complainant is occupying a different position, the Agency should engage in an interactive process with Complainant to determine whether there is need for any reasonable accommodation. 2. Provide training to the Agency personnel responsible for the denial of reasonable accommodation and reprisal, mainly, members of the Disability/Reasonable Accommodation Division (DRAD) and Complainant's managers, placing special emphasis on an employer's obligation to provide reasonable accommodation to qualified individuals with disabilities and not to engage in reprisal. 3. Conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below. 4. Award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. § 1614.501(c) to compensate Complainant for days she was not able to work as a result of the denial of accommodation. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 5. Restore or compensate Complainant for any leave that Complainant was compelled to take as a result of the denial of reasonable accommodation, which includes compensation for any leave without pay Complainant was compelled to take. Within twenty (20) calendar days of the date this decision is issued, Complainant must submit to the Agency a statement of what leave was taken as a result of the denial of accommodation, and submit documents to substantiate that such leave was taken as a result of the denial of accommodation. 6. The Agency shall consider taking appropriate disciplinary action against the Agency officials involved in the discrimination, mainly the DRAD members involved in this complaint and S2, S3 and S5. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 7. Post copies of the Notice discussed below at the Budget Execution Division in Washington, DC. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that all of the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Bureau of International Narcotics & Law Enforcement Affairs, Office of Resource Management, Budget Execution Division facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 11-16-2017 __________________ 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 "Mixed connective tissue disease features signs and symptoms of a combination of disorders;" "for this reason [it] is sometimes referred to as an overlap disease." ROI, p. 6, at FN 1. 3 It is not clear from the record whether all team members had the same "face to face" and "physically available" inclusions given that work commitments of only two other employees (excluding S3's commitments) were produced. Complainant states that she spoke to members of her team who reported not having these elements as part of her work commitments, however, no team members were interviewed as part of the investigation. 4 The White court contemplated a context specific inquiry into whether an action was materially adverse. White, 548 U.S. at 69. The court observed, "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an "act that would be immaterial in some situations is material in others." Id. (citations omitted). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2145 2 0120152145