U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle W.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal Nos. 0120162671, 0120162672, 0120162673 Agency Nos. BOP-2014-0591, BOP-2013-0785, BOP-2014-0021 DECISION Complainant filed three timely appeals2 with the Commission concerning her equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission affirms final agency decision (FAD) No. BOP-2013-0785, but reverses FAD Nos. BOP-2014-0591 and BOP-2014-0021. ISSUES PRESENTED The issues presented are: 1) whether the Agency properly found that Complainant was not denied a reasonable accommodation for her disability; 2) whether the Agency violated the Rehabilitation Act in ordering Complainant to report for a Fitness-For-Duty Exam (FFDE); and 3) whether the Agency subjected Complainant to reprisal by lowering her performance appraisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Warden's Secretary, GS-8, at the Agency's Edgefield Federal Correctional Institution (FCI) in South Carolina. Report of Investigation, No. BOP-2014-0591 (ROI 1), at 8. Complainant's duties as the Warden's secretary included answering the telephone, greeting visitors, arranging meetings, coordinating travel plans, ordering office supplies, proof reading documentation, and tracking deadlines, among other things. ROI, No. BOP-2013-0785 (ROI 2), at 55. Complainant believed that new carpet recently installed in the Warden's Office area caused her to experience airway disease/extrinsic asthma. As a result, from November 3, 2011, through February 20, 2012, Complainant reportedly went to a total of 12 doctor visits. Therein, Complainant visited a Pulmonologist and an Allergist. Id. at 145. Complainant averred that she was unable to enter the FCI building in the Warden's Office area because whenever she entered the building, it triggered an asthma attack. Complainant further stated that her Pulmonologist recommended that she completely avoid the area. Id. at 147. After Complainant complained about the carpet, the Environmental Safety and Compliance Administrator tested the carpet for formaldehyde exposure with an additional air sampling and a test for organic compounds. All three tests, however, reportedly came back normal, according to the Warden. Id. at 169. Notwithstanding the above, due to her condition, in February 2012, the Agency assigned Complainant away from the FCI to the Satellite Prison Camp on a Temporary Alternative Duty Assignment (TAD), performing her duties as the Warden's Secretary from that location. Id. at 57. The TAD positon, however, could not be made permanent because according to Agency guidelines, such a position is only good for one year. Id. at 128. Nevertheless, management allowed Complainant to stay in the TAD position for two years, and Complainant received an extension to remain in the position further thereafter. On November 8, 2012, Complainant asked the Warden to create the position of Administrator Coordinator at the Agency's Satellite Prison Camp, so she could remain at that location permanently. Id. at 52-53. However, on December 18, 2012, the Human Resource Manager (HRM) met with Complainant at the Satellite Prison Camp, explaining that the Agency could not create the new position as Complainant requested. Id. Later, on April 25, 2013, the Agency provided Complainant with a memorandum, which stated that since February 2012, she has not been able to perform the essential functions of her Warden's Secretary position. Id. at 73-74. The memorandum also asked Complainant to complete the enclosed "DOJ Form 100 A," so the Agency could assist Complainant in finding another position. Id. Complainant however averred that there were no vacancies at the Satellite Prison Camp where she worked. Id. at 55. The HRM, like Complainant, stated there were no vacant positions at Complainant's grade-level that she could be permanently reassigned to at the Satellite Prison Camp. Id. at 205-206. Therefore, in June 2013, the HRM asked Complainant the type of positon she would be interested in and identified approximately 38 job vacancies for Complainant through USAJobs.com. Id. at 57. The positions were located in Washington, DC, Mississippi, Florida, New York, and other locations throughout the country. Id. Complainant however wished to remain in her current geographical location, and did not follow through with the HRM on any of the identified positions. As a result, Complainant remained in the TAD position. On June 28, 2013, the Agency sent a letter to Complainant's doctor, asking for a series of information, including her diagnosis, expected recovery, and the impact her condition has on her duties of her position. ROI, No. BOP-2014-0021 (ROI 3), at 99. On August 5, 2013, the HRM emailed Complainant, asking Complainant why her doctor did not respond to the June 28, 2013, letter, and that the Agency needed a response by close of business August 6, 2013. Id. at 106. Therein, Complainant responded that the earliest available appointment her doctor had was September 20, 2013. Id. On August 8, 2013, the HRM sent Complainant another email, stating that since Complainant's doctor is delaying the process of providing feedback, she most likely would be scheduled for a Fitness-For-Duty Examination (FFDE), which could result in the removal of her from her position. Id. at 108-109. Thereafter, on September 3, 2013, Complainant received a letter from the Associate Warden instructing her to report for a FFDE. Id. at 57-58. The letter directed Complainant to report for the exam on September 5, 2013, at an address in Atlanta, Georgia, approximately 160 miles away from the Edgefield FCI. Id. According to Complainant, upon arriving to the doctor's office for the FFDE, she observed there was a large "For Sale" sign on the property and no cars in the parking lot. Id. at 46. Complainant stated that the building was deserted with no other patients except for her, and she saw no functional medical equipment there in the office. Id. at 48. Complainant stated that after the exam was conducted she found out that the building had been deserted for six months and that the doctor had no longer been practicing medicine at that building. Id. Complainant averred that she thereafter filed a formal complaint against the doctor with the Composite Board of Medical Examiners and the complaint was accepted for investigation. Id. at 49. A while later, in February 2014, the Agency received the results from the doctor regarding the FFDE. Id. at 153. Therein, the doctor recommended that Complainant could return to her full duties in the Warden's Office if she would just follow her normal doctor's protocols for treating bronchitis. Id. Subsequently, on April 17, 2014, Complainant's then Supervisor issued Complainant her annual performance rating of "Achieved Results." ROI 1, at 144. However, according to Complainant, she has received "Outstanding" ratings every year since 2009 when she became the Warden's Secretary. Id. The Supervisor thereafter met with Complainant to explain why she received the rating: I went to explain to [Complainant] that due to the position that she was currently in, which was a TAD assignment, a Temporary Duty Assignment due to a situation that she was in, not being able to currently fulfill her duties as the Warden's secretary, in the Warden's office, that the standards that she was to fulfill she could not fulfill because she was not --- physically in the Warden's office. Id. at 87. The Supervisor averred that she issued Complainant the rating based on a conversation with the Warden, as Complainant could not fulfill some of her duties because she was no longer physically located in the Warden's Office. The supervisor explained: [The] Warden . . . and I had a conversation about how I --- what I needed to put down on the rating. The bottom line is that he is her supervisor. [Complainant's] the Warden's Secretary. What rating he chose to give her is his right to do so. Id. at 90. The Supervisor further averred that Complainant "was still being evaluated as the Warden's Secretary, not based on the standards of her TAD assignment." Id. at 88-89. The Supervisor discussed with Complainant her feeing that she should not have been rated on duties of a Warden's Secretary, as she was no longer performing all those duties. Also, the Warden himself stated, Unfortunately for [Complainant], with her situation of not actually being able to serve functionally as the warden's secretary, it sort of took her out of the arena of being able to exceed the normal performance of a Warden's secretary because she really wasn't doing too much of the position at all. Id. at 108. Complainant filed EEO complaints on July 16, 2013, November 12, 2013, and May 12, 2014, respectively, alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when: 1. On April 30, 2013, her request for a reasonable accommodation was denied; 2. On September 3, 2013, she received a letter ordering her to report to a FFDE on September 5, 2013; and 3. On April 17, 2014, she received an unfavorable performance rating. Following the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing for each complaint, and the AJ assigned to the case consolidated Complainant's three complaints. Complainant however subsequently withdrew his request for a hearing, and the Agency issued a separate FAD for each complaint. With respect to Complainant's first claim, the Agency found that Complainant did not show that she was denied a reasonable accommodation, as alleged. In so finding, the Agency noted that Complainant refused to consider any accommodation other than the creation of a permanent TAD position at the Agency's Satellite Camp. The Agency noted that the HRM provided Complainant with many positions through "USAJobs" that she could have worked. The Agency observed that Complainant wanted it to create a non-existent position as an accommodation. The Agency noted that Complainant alternatively wished to permanently stay in her temporary duty assignment at the Camp where she was not able to complete several core duties. The Agency therefore found that it did not violate the Rehabilitation Act, as alleged. In addressing Complainant's second claim, the Agency noted that the doctor chosen for the FFDE was board certified in internal, pulmonary sleep, and critical care medicine. The Agency further noted that the Agency accommodated Complainant's condition for over a year by allowing her to work in the TAD position outside the Warden's Office. The Agency observed that the FFDE was ordered after Complainant's doctor stated that the requested information could not be provided until the end of September 2013. The Agency found that its action in ordering the FFDE was necessary to allow the parties to reach a decision on whether Complainant could return to her Warden's Secretary duties in the Warden's Office. The Agency therefore found that its decision in ordering the FFDE was not motivated by retaliatory animus. With respect to claim 3, the Agency noted that the Rating Official (also identified as the Supervisor herein) used Complainant's position description in formulating her yearly rating. The Agency noted that Complainant was not positively rated on several factors because she could not perform all her duties as the Warden's secretary from her TAD position. The Agency found no evidence that the Rating Official was motivated by retaliatory animus. CONTENTIONS ON APPEAL Complainant's Brief on Appeal On appeal, Complainant submits a declaration that a new warden was appointed to FCI Edgefield in July 2016. Complainant avers the new Warden asked her what it would take to get her back to work, and she said she could return if the carpet in the Warden's Office is removed. According to Complainant, the new Warden told her that this "sounded like an easy enough reasonable accommodation." Complainant contends that the new Warden then told her that she would leave the floors concrete, and she would be returning all Warden's secretary duties back to her at the Satellite Camp until the floors were finished. Complainant states that she resumed all Warden Secretary duties on July 29, 2016, and has been performing her duties from the Satellite Camp since that date. Complainant argues that the fact that the new Warden was able to accommodate her is evidence that the Agency had no legitimate reasons for failing to accommodate her previously, requiring the FFDE, and issuing her the lower performance rating. Agency's Response In response, the Agency contends, in pertinent part, that Complainant's declaration is an impermissible attempt to supplement the record on appeal. The Agency argues that Complainant's declaration should be considered as new evidence, which the Commission generally does not accept on appeal. The Agency further argues that Complainant did not show that she is a "qualified individual with a disability," as she allegedly stated that her condition does not limit any major life activity. The Agency also contends that Complainant did not show that she was able to perform the essential functions of her Warden's Secretary position while located at the Satellite Prison Camp. The Agency maintains that it accommodated Complainant in numerous ways, including assigning Complainant to the TAD position, providing her with an air purifying system, and identifying other positions, among other things. The Agency further maintains that the FFDE was clearly not motivated by retaliatory animus, as management contemplated the FFDE before Complainant filed her first complaint. The Agency also argues that there is no evidence that the Rating Official was aware of Complainant's EEO activity. The Agency states that although the Warden was consulted by the Rating Official, and he was aware of Complainant's protected activity, he denied any motivation to retaliate against Complainant. The Agency contends that the Warden simply agreed with the Rating Official's observation that Complainant was not performing the essential functions of her Warden's Secretary position. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Reasonable Accommodation (Claim 1) In order to establish that Complainant was denied a reasonable accommodation, Complainant 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, No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(c) and (p). 'The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience. education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m). Assuming, without finding, that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not established that she was denied a reasonable accommodation, as alleged. In so finding, we note that on November 8, 2012, Complainant asked the Warden to create the position of Administrator Coordinator at the Agency's Satellite prison camp, so she could remain at that location permanently. However, an agency does not have to create a new position for an employee as a reasonable accommodation if there is no vacant position available. See Saul v. U.S. Postal Service, EEOC Appeal No. 01970693 (May 10, 2001). Nevertheless, there is no dispute that the Agency did allow Complainant to remain in her TAD position at the Satellite prison camp indefinitely. We note that while individuals with disabilities are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). In addition, the Agency provided Complainant with an air purifying system and conducted environmental tests of her work area. Moreover, while the HRM identified other vacant positions for Complainant outside her geographical area, there is no dispute that there were no positions available at the Agency's Satellite prison camp where she wished to remain. As such, we find that Complainant has not shown that she was denied a reasonable accommodation, as alleged. Fitness-For-Duty Exam (Claim 2) We find that the Agency erred in its analysis of claim 2. Specifically, a fitness for duty examination may be ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 at Q.5, (July 27, 2000). Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with his ability to perform essential job functions or will result in direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. See Cerge v. Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007). In the instant case, we find that the FFDE violated the Rehabilitation Act's prohibition against disability-related inquiries which are not "job-related and consistent with business necessity." We note that prior to its request that Complainant submit to the FFDE, the Agency had already received extensive medical documentation from Complainant, which noted that she could not work in the FCI building and the Warden's Office due to her medical condition. Specifically, we note that Complainant visited a Pulmonologist on March 26, 2012, who diagnosed Complainant with "Occupational Asthma." ROI 2, at 63-64. The Pulmonologist informed Complainant that she developed a hypersensitivity to the carpet in the Warden's area, and classified the FCI as a "sick building" for her. Id. There is no dispute that this medical documentation was provided to management officials, including the HRM and the Warden. Id. at 191. Complainant further provided an e-mail dated July 10, 2012, to the Agency that her Pulmonologist recommended that she completely avoid the Warden's area. Id. at 64. We note that based on Complainant's medical documentation, the Agency accommodated Complainant's medical condition with the TAD position and an air purifying system, among other accommodations. In addition, in email to Complainant dated August 8, 2013, the HRM implied that the reason for the FFDE would be to determine if Complainant could return to the Warden's Office without any restrictions. ROI 3, at 108. However, the carpet still remained in the Warden's Office and, as noted above, Complainant had already provided medical documentation explaining her medical situation. As such, the record clearly reflects that the Agency initiated the FFDE because it did not believe Complainant or her Pulmonologist's assertion that Complainant was unable to perform her duties from the Warden's Office due to her condition. See Cofield-Gipson v. Dep't of Justice, EEOC Appeal No. 0120073270 (July 9, 2010) (citing Bernal v. U.S. Postal Serv., EEOC Appeal No. 0720080038 (June 17, 2008) (agency violated the Rehabilitation Act when it requested medical information where it did not believe that complainant's medical condition impaired his ability to perform essential functions of his position); Arnold C. v. U.S. Postal Serv., EEOC Appeal No. 0120093856 (Nov. 3, 2015) (FFDE not consistent with business necessity when the agency already had sufficient medical information from complainant to show that he was unable to carry out his duties due to his condition). The Agency has failed to meet its burden of proof. We conclude that the Agency did not demonstrate that the FFDE that Complainant was required to undergo was job-related or consistent with business necessity. Therefore, we find that the Agency has violated the Rehabilitation Act. Performance Rating (Claim 3) We note that the Agency only addressed whether Complainant was subjected to discrimination in retaliation for her prior EEO complaints. However, we find that a fair reading of Complainant's complaint reflects that Complainant is alleging discrimination on the basis of reprisal for requesting reasonable accommodation. Here, in the absence of direct evidence of discrimination, the allocation of burdens of proof in a disparate-treatment claim follows the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). The Commission has stated that the anti-reprisal provision of Title VII protects not only those who participate in the EEO process, but also those who oppose discriminatory employment practices. The Commission has recognized that requesting reasonable accommodation for a disability constitutes protected opposition activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004 (Aug. 25, 2016) at II(A)(2). "A variety of activities has been found to constitute opposition . . . Because the enforcement of Title VII depends on the willingness of employees to oppose unlawful employment practices or policies, courts have interpreted section 704(a) of Title VII as intending to provide "exceptionally broad protection to those who oppose such practices." Stevens v. Dep't of Justice, EEOC Appeal No. 0120123074 (Jan. 7, 2013) (citations omitted). In the instant case, Complainant engaged in protected activity when she requested reasonable accommodation by asking to be reassigned from the FCI building. Complainant was subjected to adverse treatment when the Agency provided her with the lower performance rating due to her reassignment. The record also reflects that Complainant's lowered performance rating was directly related to her reasonable accommodation. Therefore, we find that Complainant has established a prima facie case of reprisal. Because we find that Complainant established a prima facie case of reprisal, we now turn to the Agency's burden to articulate a legitimate, nondiscriminatory reason for its actions. We note that the Supervisor averred that she issued Complainant the lowered rating based on a conversation with the Warden, as Complainant could not fulfill some of her duties because she was no longer physically located in the Warden's Office. Upon review, we find that Complainant has established that the Agency's reasons were pretext for discrimination. In so finding, we note that the supervisor admitted that the reason for Complainant's lowered appraisal was because Complainant could not perform all her Warden Secretary duties from the Satellite Camp.3 However, the record reflects that Complainant was reassigned to the Satellite Camp as a reasonable accommodation for her condition.4 The Commission has held that an agency may not punish a complainant for requesting or using reasonable accommodation. See Watkins v. U.S. Postal Serv., EEOC Appeal No. 0120092749 (June 29, 2012) (citing Enforcement Guidance on Reasonable Accommodation at Question 19); By lowering Complainant's performance rating, the Agency penalized Complainant for being placed into a position that was given to her as an accommodation. Accordingly, we find that the Agency discriminated against Complainant on the basis of reprisal when it provided her with the lowered performance rating because she could not perform all her Secretary duties after the Agency reassigned her as an accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS FAD No. BOP-2013-0785, but REVERSES FAD Nos. BOP-2014-0591 and BOP-2014-0021. ORDER The Agency is ordered to take the following remedial actions within 120 days from the date this decision is issued: 1. The Agency shall retroactively raise Complainant's yearly performance rating, which Complainant received on April 17, 2014, to a rating of Outstanding. 2. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow Complainant to present evidence in support of a compensatory damages claim. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issue of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 3. The Agency shall provide appropriate remedial EEO training to the responsible management officials identified in this decision as the Warden, Associate Warden, the HRM, and the Rating Official for the performance appraisal. The training must include at least four (4) hours of in-person or interactive training on an Agency's obligations under the Rehabilitation Act and the ant-retaliation provisions. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall consider taking disciplinary action against the responsible management officials identified. 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). The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Federal Correctional Institution in Edgefield, South Carolina, 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 5-15-18 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 In the interest of economy, the Commission exercises its discretion to consolidate Complainant's appeals. See 29 C.F.R. § 1614.606. 3 We note that the record reflects that Complainant had previously received outstanding performance ratings prior to her request for accommodation. 4 The supervisor attested that she provided Complainant with the rating at the direction of the Warden. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162672 14 0120162671 0120162672 0120162673