U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Mark Green, Administrator, Agency for International Development, Agency. Appeal No. 0120161608 Agency No. EOP10010 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's September 25, 2015, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Agency's FAD, which found that Complainant was not subjected to sex (pregnancy) or reprisal discrimination is REVERSED. The complaint is REMANDED for compliance. ISSUES PRESENTED Was the Agency correct in concluding that Complainant did not prove by a preponderance of the evidence that she was subjected to sex (pregnancy) and reprisal discrimination? BACKGROUND At the time of events giving rise to this complaint, Complainant was a Senior Fellow at the Agency's Democracy and Governance Office, Rule of Law Division in Washington, D.C. The Division Chief (S1) was Complainant's immediate supervisor, the Office Director (S2) was Complainant's second-level supervisor; co-workers included a Democracy Specialist (E1), the Senior Rule of Law/Human Rights Advisor (E2), and the Senior Advisor for Media Development. Affidavit (E3). Complainant worked at the Agency through a World Learning Organization fellowship for approximately a year and a half, since March 2009. ROI, p. 226. Complainant's original fellowship was for the period March 2009 through March 2010. Id. Complainant worked through January 2010 without any reported issues regarding performance or conduct. ROI, p. 4. On or about January 27, 2010, Complainant informed S1 that she was pregnant. ROI, p. 4. According to Complainant, S1's reaction was negative and he commented that Complainant's pregnancy would be difficult for her and difficult on the office when she needed to take time off. ROI, p. 64. S1 also allegedly commented that Complainant would not receive special treatment just because she was a single mother. ROI, p. 64. Complainant informed co-workers about S1's comments regarding her pregnancy, and they attested to Complainant being extremely upset by the comments. See, e.g., Senior Rule of Law/Human Rights Advisor (E2) Affidavit, ROI, p. 211 (stating that Complainant told her that S1 stated "it was the worst possible time for this"); Senior Advisor for Media Development Affidavit (E3), ROI, p. 220 (stating that Complainant told him that S1 commented that Complainant should not expect any special treatment from him). Immediately following Complainant's report of her pregnancy, S1 began to scrutinize Complainant's telework requests and her hours while teleworking. For example, at the end of January into early February, Complainant's father who resided in Florida became ill and doctors predicted that he would not live beyond a few days. ROI, p. 66-67. Complainant requested to telework to spend some time near him; however, after approximately one week, S1 stated that "working virtually was not ideal" and that they needed Complainant back at the office. ROI, p. 66. S1 acknowledged that Complainant was "being responsive" during the telework period. Id. S1 also contacted World Learning, Complainant's fellowship organization, and expressed concern that Complainant was underreporting leave she was taking while she was teleworking from Florida. Complainant's Affidavit, ROI, p. 47. Subsequently, on February 4, 2010, S2 sent out guidance regarding telework procedures to all employees due to impending inclement weather the following day. ROI, p. 121. These instructions stated that employees should e-mail their supervisor stating whether they will be teleworking or using leave, along with a list of projects they will be working on during the day. Id. Complainant confirmed that these were the procedures she needed to follow while teleworking at any time. ROI, p. 120. However, when Complainant teleworked and sent lists of what she planned on completing and what she did complete, they were insufficient for S1. See, e.g., ROI, p. 126-127. Complainant was instead asked to provide extremely detailed narratives of what she worked on, and even then, they did not meet requirements imposed by S1. Id. E2, for example, recalled that S1 critiqued every item on Complainant's lists of tasks, including asking her why she spent time on an article he previously suggested that she read. ROI, p. 212. The record established that another fellow working almost full-time remotely was not subjected to the same telework reporting requirements. FAD, p. 16; see also, S1's Dep., at 113-118.2 Complainant was also not granted telework privileges for weekly periods as one request reveals. Rather, S1 considered the requests on a day-to-day basis. ROI, p. 124. In March 2010, S1 asked Complainant to take leave for days he knew she worked from home, which included March 24 through March 26, 2010. ROI, p. 51-52. Complainant explained that S1 had initially approved 4 hours of telework, but that she worked well beyond 8-hours daily and worked with S1 via e-mails on the days in question. Id. On March 25, 2010, for example, e-mail records indicate that Complainant worked beyond the 6.5 hours S1 allowed Complainant to be paid for. ROI, p. 149. On April 16, 2010, S1 removed Alternate Work Schedule (AWS) privileges from everyone in the office. Only three individuals were affected by this change because they were the only ones who utilized an AWS day. Complainant's Brief, p. 12. They all had recently complained about S1 to management, and engaged in mediation with S1 on April 15, 2010. ROI, p. 193, 201. E1's e-mail to management following the meeting highlighted that the employees - Complainant, E1, and another employee - complained about several issues with S1, including his comments regarding Complainant's pregnancy, and allegations of harassment and reprisal against the other employees. ROI, p. 202. One manager's only response to the message was that she would speak to S2. ROI, p. 201. On June 10, 2010, Complainant sought EEO counseling on allegations of pregnancy discrimination. S1 and S2 were contacted by the EEO Counselor on June 30, 2010. ROI, p. 13. Complainant left for maternity leave in July 2010 and was under the impression that her fellowship would be renewed through March 2011, but while she was on leave in September 2010, she was notified that she needed to retrieve her belongings from the office. ROI, p. 55. Complainant planned on returning from maternity leave in October 2010. ROI, p. 55. E2 explained that she had been on a fellowship through World Learning since 2007, and it was renewed yearly. ROI, p. 213-14. Complainant's was the only fellowship that was not renewed in 2010, which would have extended her through another year to March 29, 2011. ROI, p. 214. Complainant asserted that she may be the only fellow "in history" that was not renewed. ROI, p. 55. S1 did not provide a reason to the EEO investigator for not extending Complainant's fellowship through 2011. The Agency's FAD referenced depositions and an April 2012 affidavit from S2 to conclude that Complainant's fellowship was not renewed because of "budgetary concerns" and a "management decision." FAD, p. 26. Complainant's July 23, 2010, formal EEO complaint alleges that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when: 1. Beginning January 7, 2010, Complainant's supervisor (S1) made disparaging remarks about her pregnancy, subjected her to increased scrutiny and reporting requirements regarding her work productivity, and publicly berated her in front of other colleagues; 2. Beginning March 2, 2010, Complainant's time/leave was called into question and on June 8, 2010, Complainant was required to apply her leave retroactively to days/times her supervisor knew she worked; 3. On April 16, 2010, Complainant's duty hours were changed because of her supervisor terminating her AWS after she responded to questions involving a complaint filed against him; 4. On or about September 22, 2010, Complainant was notified that her fellowship would not be extended. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (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 FAD pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to the alleged discrimination. This is the subject of the present appeal. CONTENTIONS ON APPEAL I. Complainant's Contentions on Appeal Complainant contends the following on appeal that: (1) S1 berated and lectured her regarding her pregnancy and about its effects on the office; (2) her reports regarding the comments were not taken seriously by S2; (3) after Complainant informed S1 about her pregnancy and after she reported his comments, her duties were changed in that she was instructed to perform only Administrative Officer work; (4) S1 purposely changed her duties to working in an area that would no longer be necessary; (5) management separated the three employees who complained about S1's harassment; (6) management initially stated that all fellowships would be extended but that management decided not to extend her fellowship shortly after she reported S1's discriminatory statements; (7) she never knew that her fellowship would not be renewed when she left on maternity leave and found out 6 weeks into her maternity leave when she was told to pick up her things; (8) management did not articulate adequate reasons for not extending the fellowship. II. Agency's Contentions on Appeal The Agency requests that the FAD which found no discrimination be upheld. Also, the Agency contends that evidence reflects that S2 decided not to extend Complainant's fellowship before she reported S1's comments. Agency Brief, p. 2.3 ANALYSIS AND FINDINGS The following addresses whether Complainant established that she was subjected to pregnancy and reprisal discrimination. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment sex and reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he 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 of discrimination based upon sex is generally established by showing the following elements: (1) the complainant was a member of a protected class; (2) the complainant was the object of an adverse employment action; and (3) the complainant was treated differently than similarly situated employees outside her/his protected class, or there is some other evidentiary link between membership in the protected class and the adverse action. Ward v. U.S. Postal Service, EEOC Request No. 05920219 (June 11, 1992); Saenz v. Dep't of Navy, EEOC Request No. 05950927 (Jan. 9, 1998); see Leftwich v. U.S. Steel Corporation, 470 F.Supp. 758, 764 (1979). 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). I. Prima Facie Case Complainant established that she belonged to a protected class upon informing her manager that she was pregnant around January 27, 2010. Complainant was subjected to adverse action when she was excessively monitored and denied telework and when her fellowship was not renewed. Employees outside of Complainant's protected class were treated differently in that none were monitored to the same degree as Complainant, and all fellowships were renewed except for Complainant's fellowship. This establishes a prima facie case of pregnancy discrimination. Complainant engaged in protected activity for the first time on March 3, 2010, when she informed S2 about the inappropriate nature of S1's comments regarding her pregnancy. Complainant engaged in additional protected activity on June 10, 2010 when she contacted an EEO Counselor alleging sex discrimination. Management was aware of Complainant's protected activity as evinced by the fact that Complainant spoke directly to S2. Complainant was subjected to adverse treatment including when her fellowship was not renewed beyond September 2010 and when her AWS day was taken away. Nexus is established because of the proximity of time between Complainant's EEO activity and the start of adverse treatment, culminating in non-renewal of her fellowship in September 2010, while she was on maternity leave. Therefore, Complainant also established a prima facie case of reprisal discrimination. II. Agency's Legitimate, Nondiscriminatory, Reasons To successfully articulate a legitimate, nondiscriminatory, reason, "the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for" the adverse action. Burdine, 450 U.S. at 255 (Noting that: "An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel"). The legitimate, nondiscriminatory, reason must be "clear" and "reasonably specific." Id. at 258. Management attempted to state legitimate, nondiscriminatory, reasons for the alleged adverse actions. S1 stated that increased scrutiny of Complainant's teleworking "was directly tied to performance issues." ROI, p. 112. Regarding removal of Complainant's AWS day, S1 stated that AWS days were taken away from the entire department because of his concerns regarding accountability. ROI, p. 114. S1 stated that he spoke to the Agency's Human Resources division and Complainant's fellowship organization prior to disallowing an AWS day. According to the Agency's FAD, by restricting and monitoring Complainant's telework, and removing AWS privileges, S1 was trying to establish a blanket policy that applied to the entire division. S1 stated that he called Complainant's March 2010 leave into question because she did not sufficiently account for her time. Regarding Complainant's fellowship non-renewal, the Agency's legitimate, nondiscriminatory, reasons are not clear and do not appear to be supported by the investigative record submitted by the Agency. S1 stated in his deposition that the decision was based on performance issues, and that it was made by the office's Director and Deputy Director.4 However, the Agency does not point to areas in the record illustrating that Complainant was not performing well, or where S1 said in the ROI that that the fellowship was not renewed due to performance. Further, the Agency's conclusion in the FAD that the decision was based on budgetary issues and a management decision was baseless and not specific enough to be understandable, much less enabling Complainant to respond. For example, the FAD invokes a March 2012 affidavit from a previous fellow which purportedly supports the proposition that the scope of work he performed, alleged to be like Complainant's work, should not be done. FAD, p. 26.5 III. Pretext Complainant demonstrated that the Agency's legitimate, nondiscriminatory, reasons were pretext for several reasons. While S1 states that he had concerns regarding accountability, evidence reveals that shortly after Complainant informed S1 of her pregnancy, he began to immediately scrutinize Complainant's activities while she teleworked. Pursuant to that scrutiny was the requirement that Complainant submit a summary of what she planned to work on each day she was requesting telework. However, the evidence reveals that while Complainant submitted extensive narratives about what she planned and accomplished, S1 still had issues with the reports and would ask for further information. S1's requests were cumbersome to the degree that they could not be reasonably satisfied. See, e.g., ROI, p. 123-131. Even when Complainant clearly met the reporting requirements, she was accused of not meeting them. Specifically, regarding accountability while teleworking between March 24-26, 2010, Complainant established that S1 knew that she worked more than 8 hours a day, but he still asked her to take leave and did not approve all of her work hours. This is demonstrated via correspondence between Complainant and S1 regarding the extent of work on the dates in question. Next, while S1 removed AWS days for the entire division, the evidence reveals that only Complainant and other employees with EEO activity were affected. S1 also left open the possibility that he could approve AWS days on an individual basis, but when Complainant asked for an AWS day, S1 denied it, citing lack of coverage for Complainant. Further, when Complainant asked what information S1 had to overcome the presumption that she would not be able to fulfill her duties while taking an AWS day, S1 did not have a response to her request. ROI, p. 164. Rather, S1's response was speculative and concluded that while AWS has not affected Complainant's productivity, his decision was based on whether work requirements would be met. ROI, p. 164. E-mails and other documents produced, along with testimony from Complainant's co-workers, establish that there would not have been an issue with Complainant having an AWS day and that Complainant's work requirements were being met. Further, S1 also stated that AWS was being removed over concerns regarding accountability, but Complainant demonstrated that she was responsive and accountable for work while using workplace flexibilities. Finally, Complainant was able to demonstrate pretext on the Agency's reasons for nonrenewal of fellowship, even though the Agency did not properly state legitimate, nondiscriminatory, reasons. Regarding S1's assertion that Complainant had performance issues, there are actually no documented instances of a performance issue with Complainant's work. Rather, the documents reveal that S1 suspected that Complainant was underreporting her leave on days she teleworked, and proceeded to contact Human Resources and her fellowship organization inquiring about what actions can be taken. However, there is no evidence that Complainant failed to turn in an assignment or performed poorly in any of her work. Additionally, management offered inconsistent explanations regarding why Complainant's fellowship was not renewed beyond 2010. S2 stated that there was no other reason than the office's needs being different that Complainant's fellowship was not renewed beyond a six-month time frame. Taft Dep., 139. Also, testimony provided from a co-worker, E1, tends to establish that there were no issues with Complainant's performance. E1 stated that she worked with Complainant on several assignments and found S1's statement to be wholly inaccurate. ROI, p. 194. Therefore, we find that Complainant has established by a preponderance of the evidence that she was subjected to sex (pregnancy) and reprisal discrimination. 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 subjected to sex or reprisal discrimination is REVERSED. The complaint is REMANDED for compliance 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, to the extent that it has not already done so: 1. Provide Complainant with a six-month Democracy Fellowship through World Learning, or a similar position, with the opportunity to extend on a yearly basis similar to other democracy fellows.6 2. Conduct a supplemental investigation into compensatory damages for harm caused by the pregnancy and reprisal discrimination within 90 (ninety) calendar days of the date this decision is issued. 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. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 30 (thirty) calendar days of the date the Agency determines the amount it believes to be due, and issue a final agency decision on the issue of compensatory damages; 3. Provide eight (8) hours of training to the responsible management officials, S1 and S2, on an employer's obligation not to engage in pregnancy or reprisal discrimination; 4. Consider taking appropriate disciplinary action against the responsible management officials, S1 and S2. 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); 5. Post at the Democracy and Governance Office, Rule of Law Division in Washington, DC, copies of the notice discussed below; The Agency shall provide a report of its compliance with this Order to the Compliance Officer referenced below. POSTING ORDER (G0617) The Agency is ordered to post at the Democracy and Governance Office, Rule of Law Division in Washington, DC, 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 (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 this decision becoming final. 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 (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 July 17, 2018 __________________ 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 The investigator made the decision not to interview the fellow, who was no longer with the Agency, on the basis that the employee's position was different from Complainant's. ROI, p. 15. This employee teleworked full-time, except for one week per month. ROI, p. 15. The investigator explained that the arrangement was agreed upon prior to initiation of the fellowship, making the position different from Complainant's position. Id. However, there is no indication that this employee was monitored while teleworking to the degree that Complainant was, while both were subject to the same telework policy. 3 The Agency points to S1's testimony that she "knew before the mediation started" that Complainant would be renewed for 6 months. This does not indicate that S1 knew that Complainant would not be renewed at the time when others were renewed. However, when the World Learning agreement was subsequently extended, the Agency did not extend Complainant's fellowship for the full year. 4 The depositions were not submitted as part of the ROI, but Complainant submitted them on appeal. 5 It is unclear why testimony from this fellow was sought in April 2012, but it does not appear in the record the Agency produced. It is the Agency's obligation to submit the complete complaint file and other information on appeal. 29 C.F.R § 1614.403(e) ("The Agency must submit the complaint file to the Office of Federal Operations within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency"). 6 This order considers the fact that while the fellowships are for one-year periods, they are usually renewed. Complainant's fellowship was the only one that was not renewed for a full year. In March 2010, Complainant was only renewed for 6 months through September 2010, and then the Agency declined to renew the fellowship through March 2011 after the underlying agreement with World Learning was extended. ROI, p. 214. Therefore, Complainant is provided relief consistent with the 6 months remaining in the fellowship year. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-1608 12 0120161608