EEOC Appeal 2025002911

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.

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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.

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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”).

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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