2025002911•EEOC Appeal 2025002911
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Diego A.,1 Complainant, v. Kelly Loeffler, Administrator, Small Business Administration, Agency. Appeal No. 2025002911 Agency No. SBA - 24-011 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision concerning his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lender Relations Specialist, GS-12, at the Agency’s Connecticut District Office facility in Hartford, Connecticut. 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.
2025002911 2 Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 4, 2024, he received a Letter of Warning; 2. On March 21, 2024, he was denied a reasonable accommodation; and 3. Beginning on August 8, 2024, he was subjected to a hostile work environment. Examples include but are not limited to a directive to revise a report and a Letter of Warning.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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 failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that he presented compelling circumstantial and temporal evidence supporting a finding that the Agency’s explanations for its actions were pretextual. He argues, among other things, that the Agency provided no support for its conclusion that his first-line supervisor did not know of his prior EEO activity and that, in any case, this lack of knowledge does not foreclose a finding of retaliation given the temporal proximity between his 2023 EEO activity and the January and August 2024 Letters of Warnings. He further notes that the Agency improperly failed to consider the cumulative impact of the incidents to 2 Complainant filed an EEO complaint on February 3, 2024, raising other issues and bases than those listed above. However, the record establishes that the claims and basis listed here are those that were eventually accepted for investigation, after amendment, on November 4, 2024. Moreover, in his statement in support of his appeal, Complainant does not dispute that the claims listed above were those he intended to raise, although he does argue that his failure to accommodate claim arises under the Rehabilitation Act.
2025002911 3 which he was subjected and asserts that the Agency’s attempt at an “affirmative defense,” i.e., that his supervisor was unaware of his prior EEO activity, is only available in a harassment case when there are no tangible employment actions. In terms of the Agency’s explanation for the January 2024 Letter of Warning, he argues, among other things, that he had clearly indicated on his calendar that he would be on leave on the date that he was asked to attend an event and that his supervisor knew he could not drive at night. He also alleges that his supervisor downgraded his performance without explanation, providing further evidence of ongoing retaliation and discriminatory animus. Turning to his claim that he was denied a reasonable accommodation, he asserts that he provided sufficient medical evidence to establish that his impairments significantly limited his ability to have extensive travel, prolonged sitting, and physical labor and that his request for telework was consistent with medical guidance. He also asserted that he had performed his duties remotely for years and that the “sudden denial of this accommodation” after he engaged in EEO activity, is a strong indicator of reprisal. Finally, he makes a number of arguments concerning the Agency’s failure to engage in the interactive process, the availability of telework as a reasonable accommodation, and the Agency’s failure to establish undue hardship. These arguments will be addressed below, where relevant. In response, the Agency essentially reiterates arguments made in its final decision (FAD) and asks that it be affirmed. 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”).
2025002911 4 ANALYSIS Denial of Reasonable Accommodation We first note that despite the fact that Complainant alleged that the Agency’s denial of his request for accommodation was motivated by his prior EEO activity, any allegation of denial of reasonable accommodation for a disability raises a claim under the Rehabilitation Act and should be analyzed as such. We will therefore first focus on Complainant’s claim that he was denied a reasonable accommodation in violation of the Rehabilitation Act’s requirement that employers provide accommodations to individuals with disabilities, before addressing the question of whether any such denial was motivated by his prior EEO activity. An agency is required to make reasonable accommodations to the known physical and mental limitations of an individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), (p). In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” as defined by 29 C.F.R. § 1630.2(m); 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, EEOC Notice No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Enforcement Guidance). Here, even assuming Complainant is a qualified individual with a disability, he failed to establish that the Agency unlawfully failed to provide a reasonable accommodation. The record establishes that on January 23, 2024, Complainant requested telework from home as a reasonable accommodation.3 After engaging in an interactive 3 After a de novo review of the record, we are unable to locate a copy of Complainant’s SBA Form 2431-1 through which he requested accommodation on or around January 23, 2024. The record does include the Agency’s description of this request: “Telecommute at home due to multiple injuries in auto accident that caused permanent and consequential limitations,” as well as what appears to be Complainant’s cover letter that went along with the form describing his “permanent and consequential limitations” and quoting a doctor’s letter which stated that it would help Complainant manage his pain if he could telework. It is
2025002911 5 process involving the submission of medical evidence and reviews of his request by his first-line supervisor (S1), his second-line supervisor (S2), HR personnel, and Federal Occupation Health (FOH) personnel, his request for telework (beyond what was already permitted under the office telework policy) was denied. The Agency asserted that granting this accommodation would require the removal (or reallocation to other staff members) of essential functions including face-to-face lender visits; conducting and participating in training sessions; and “consultative and customer interactions with lenders (one-on-one) including meetings and lender office drop-in visitors . . . which cannot be accomplished via telework.” The Agency further explained that the Connecticut District Office was small and that Complainant was the only Lender Relations Specialist in the office, which needed to be staffed five days a week. The Agency also asserted that granting this accommodation would require the reduction of performance standards. Although Complainant argued that the fact that he had been teleworking for years established that he could perform all of his essential functions remotely, he did not assert that he previously was allowed to work from home 100% of the time, nor did the Agency assert that his essential functions required him to be in the office and/or in the field in-person 100% of the time. Instead, the record establishes that Complainant for numerous years was permitted to telework for at least several days per pay period and that at the time he requested full-time telework, he, along with everyone in the office, was only required to be in the office four days per pay period.4 clear from the record that the Agency took this to be a request for full-time telework. In his communications with the Agency during the interactive process, Complainant did not indicate that his request was for something other than full- time telework, although in his request for reconsideration of the initial denial, he indicated that he had been attending staff meetings on Wednesdays when in-person attendance was required and that he had provided coverage in the office when requested. On appeal, he describes his request as “telework with on-site availability as needed.” 4 The general requirement was that employees be in the office four days per pay period, with the caveat that two of those days could be spent out in the field completing in-person requirements.
2025002911 6 In these circumstances, we find the record supports management's contention that at least some of Complainant's essential functions required him to be on-site at the facility or at a location in the field and that Complainant’s request for telework beyond the normal telework policy would have required the reallocation of these functions to other staff members. As the Agency noted, an employer never has to reallocate essential functions as a reasonable accommodation. See Reasonable Accommodation Enforcement Guidance, at text above Question 16. The Agency therefore did not violate the Rehabilitation Act when it refused to grant Complainant’s request for full-time telework. Claims 1 and 2: Retaliation Turning next to Complainant’s claims that he was subjected to retaliation when he received a Letter of Warning and was denied a reasonable accommodation, to prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 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, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). To establish a prima facie case of retaliation, a complainant must demonstrate that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he 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). Complainant failed to establish a prima facie case of retaliation concerning the January 4, 2024, Letter of Warning (LOW) because he failed to establish a nexus between his prior protected activity and the LOW.
2025002911 7 Although the record establishes that certain management officials, such as his second-line supervisor (S2), were aware of his prior EEO activity, he offered no evidence to suggest that S1, the management official who was responsible for issuing the LOW, was aware of this activity at the time the LOW was issued. S1 denied that she was aware of it and other than arguing on appeal that this claim was “unsupported,” Complainant offered nothing beyond speculation to suggest she was aware of his prior EEO activity or issued the LOW because of it. In fact, he instead argues that temporal proximity is sufficient to infer causation when it is “very close.” Even assuming that “very close” temporal proximity can, at times, be sufficient to establish a nexus between an Agency’s adverse treatment and prior EEO activity, this is not the case when the management official responsible for the adverse treatment was unaware of the prior EEO activity when the treatment occurred. In terms of Complainant’s claim that his denial of reasonable accommodation was motivated by his prior EEO activity, we have already determined, as explained in detail above, that the Agency did not unlawfully fail to provide Complainant with a reasonable accommodation. Claim 3: Harassment To prevail on a claim of retaliatory harassment, a complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a complaint of discrimination because he has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces and that the conduct was motivated by prior protected EEO activity. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, §§ II(B)(3), (C), & n. 137 (Aug. 25, 2016). Here, even assuming the conduct in question was sufficient to dissuade a reasonable person from engaging in EEO activity, Complainant failed to establish that the conduct in question was motivated by his prior EEO activity. We have already determined that Complainant failed to establish that the LOW dated January 4, 2024, or the denial of reasonable accommodation were motivated by his prior EEO activity.
2025002911 8 The remaining incidents he described as creating a hostile work environment are a second LOW dated August 23, 2024, a directive to revise a report, and a lower performance rating than previous years. The August 2024 LOW described in detail the reasons for its issuance, including that S2 had to tell Complainant to pay attention during a TEAMS meeting in which he was writing emails, behavior which he had previously been warned about; that he currently was failing to bring content to share at the bi-weekly Lender Relations Meetings, despite the critical position in lending he held; and that he initially refused to participate in a mandatory training and refused to allow S1 to explain her position about that refusal without interruption. Although Complainant asserted that this explanation amounted to a claim that he was not “adequately prepared” for a staff meeting, which he alleged was unsupported by performance records, the LOW on its face described multiple reasons for its issuance and Complainant’s mere speculation that, in fact, it was based on his prior EEO activity does not suffice to establish that this was the case. In terms of Complainant’s claim that he was directed to revise a report, S1 explained that Complainant was responsible for drafting lender volume reports every month and that his drafts consistently required revisions. She further noted that in one particular case, he failed to use a specific template for the report, which resulted in a number of emails concerning his lack of understanding about template requirements, and that it was standard practice for supervisors to request revisions, as necessary. Complainant did not provide any evidence, beyond his speculation, to suggest that he told to revise a report due to his prior EEO activity. Although not listed in Claim 3 itself, the record establishes that Complainant also believed that the downgrade of his performance rating to a 3 (“Meets Expectations”) from a 4 (“Exceeds Expectations”) following S1’s appointment as Deputy District Director (and his supervisor), was one of the incidents that created a hostile work environment. The FAD addresses this incident only in describing Complainant’s claim. However, a de novo review of the record reveals that after receiving his FY 2023 performance rating, Complainant believed that he should have been given a 4 in technical proficiency rather than a 3. In rating him “Meets Expectations” in this element, S1 indicated that Complainant applied all relevant knowledge to work practices, policies, and procedures, and understood the Agency’s mission, functions, and services, but also that he would benefit from more training when using TEAMS to conduct webinars.
2025002911 9 She noted that “there have been many faults conducted during [Complainant’s] webinars due to [his] aptitude” and that this had been brought to his attention several times during the fiscal year. She further noted that the ability to conduct webinars via TEAMS was an important job skill and that the Agency provided ongoing learning and development opportunities that Complainant should take advantage of. The record includes a specific example illustrating the difficulties Complainant had with the technology when conducting a webinar in July 2023. Although Complainant, in response, listed his reasons for believing his rating should have been given a 4, he did not dispute that he had difficulty with using TEAMS to conduct webinars. Moreover, S1 provided specific rebuttals to Complainant’s arguments that he deserved a higher rating; i.e., although Complainant asserted that he assisted lenders to fix validation error codes, S1 indicated that this work was primarily done by loan analysts in the Agency’s Office of Capital Access who responded directly to lenders in writing; while Complainant asserted that he initiated a Lender Match training to enroll Connecticut lenders in the Agency’s Lender March Platform, S1 explained that the Lender Match initiative was a directive that came from the district director and that while it has received tremendous results, Complainant did not take the lead but merely followed directions after many discussions. Moreover, even assuming that Complainant’s rating of his own performance was more accurate than S1’s, he provided no evidence to suggest that his rating was based on his prior EEO activity rather than on S1’s view that he needed to improve his technical proficiency in order to receive a rating higher than “Meets Expectations.” Complainant’s assertion on appeal that the Agency improperly failed to consider the cumulative impact of the incidents he raised, even if true, does not establish that he was subjected to retaliatory harassment given that he failed to establish by a preponderance of the evidence that any of the incidents were motivated by his prior EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we therefore find that Complainant failed to establish by a preponderance of the evidence that he was subjected to discrimination as alleged. The Agency’s final decision is therefore AFFIRMED.
2025002911 10 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFS receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required.
2025002911 11 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
2025002911 12 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: T. Gimbrere __________ Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector September 23, 2026 Date
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