Adalberto S.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Geological Survey), Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120172435 (E.E.O.C. Nov. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adalberto S.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Geological Survey),
Agency.

Appeal No. 0120172435

Hearing No. 570-2014-00475X

Agency Nos. DOIUSGS130102, DOIUSGS130190, and DOIUSGS1402282

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 1, 2017
final order concerning three equal employment opportunity (EEO) complaints claiming
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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Financial Analyst, 0343, GS-13 at the
Agency’s Office of Accounting and Financial Management ("OAF"), Office of Administration
and Enterprise ("AEI") at the Denver Federal Center in Denver, Colorado.

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 Complainant filed three separate complaints which we will address below.
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On January 8, 2013, March 22, 2013, and May 7, 2014, Complainant filed three separate formal
EEO complaints. Complainant claimed that he was discriminated against and subjected to a
hostile work environment based on sex (male), disability (physical), age (YOB: 1964), and in
reprisal for prior protected EEO activity.

The three formal complaints consisted of the following matters:

Claim 1 (Agency No. DOIUSGS130102): Whether Complainant was discriminated against and
subjected to a hostile work environment (non-sexual), based on age (DOB: 6-14-1964), sex
(male), and in reprisal for prior EEO activity when:

1. on September 9, 2012, Complainant’s reassignment to the Office of Accounting and
Financial management went into effect, and Complainant was not provided guidance
about his job assignment or given the location of files;

2. on October 30, 2012, Complainant received a hostile e-mail message from his
supervisor (“S1”) in response to Complainant’s request for guidance about his job
reassignment and clearly defined duties;

3. on or around December 20, 2012, S1 denied Complainant’s request for “use or lose”
leave;

4. on January 10, 2013, and continuing, S1 has excluded Complainant from working on
any meaningful projects;

5. on June 24, 2013, and continuing, S1 did not issue Complainant a new performance
appraisal plan when Complainant moved into a new position to support the Office of
Management Services (“OMS”) Policy and Operations Branch; and

6. on or about July 31, 2013, S1 did not issue Complainant a mid-year performance
review or a close-out performance appraisal.

Claim 2 (Agency No. DOIUSGS130190): Whether Complainant was discriminated against
based on age (DOB: 6-14-1964) and sex (male), when:

on or about January 4, 2013, Complainant was not interviewed or selected for the
position of Administrative Officer, Vacancy Number PAC-2013-0007.

Claim 3 (Agency No. DOIUSGS140228): Whether Complainant was discriminated against and
subjected to a hostile work environment (non-sexual) based on age (DOB: 6-14-1964), sex
(male), disability (physical), and in reprisal for prior EEO activity when:

1. on or about March 30, 2014, Complainant became aware that he did not receive a
FY 2014 Employee Performance Appraisal Plan (“EPAP”);
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2. on or about June 10, 2014, Complainant’s second line supervisor (“S2”) and the
Acting Associate Director for Administration and Human Capital did not respond
to Complainant’s June 9, 2014 request for a list of emails Complainant had sent to
S1, which S1 said were never received;

3. as of June 12, 2014, Complainant did not receive his progress review as required;

4. on or about June 23, 2014, S1 refused to provide the information concerning
Complainant’s FY13 Performance Appraisal;

5. on or about July 16, 2014, S1 stated that; a) she could change Complainant’s
duties related to cleaning up certain prior year accounts without consulting him;
b) she could easily assign Complainant’s duties to everyone else in her office and
she felt like throwing his FY2014 critical elements in his face;

6. on or about July 3, 2014, Complainant’s request for reasonable accommodation
was denied when; (a) S1 took certain elements of the DOI Medical Officer’s
report out of context and continued to place Complainant in a hazardous work
environment; and (b) Complainant was informed that by Monday, July 21, 2014
the bulbs would be disabled on both sides of his work station for a length of six
feet and HEPA filter will be installed with coverage of 750 square feet; and

7. on September 2, 2014, Complainant became aware of his non-selection for the
position of Supervisory Financial Specialist, GS-0501-14, job vacancy number
ATL-2014-0824.

The three formal complaints were accepted for investigation. After the investigations, the
Agency provided Complainant with a copy of the reports of investigation and notices of his right
to request a hearing before an Equal Employment Opportunity Commission Administrative
Judge (AJ).3 On January 22, 2014, Complainant request an AJ hearing regarding Claims 1 and
2. On January 4, 2015, Complainant requested an AJ hearing regarding Claim 3. On May 20,
2015, the AJ granted the parties’ Joint Motion to Consolidate Claim 3 with the two other claims.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 3,
2015 Motion for Summary Judgement, and issued a decision without a hearing in favor of the
Agency on April 27, 2017.

On June 1, 2017, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

3 We note that the report of investigation for claims 1 and 2 was submitted on December 26,
2013. The report of investigation for claim 3 was submitted on November 19, 2014.
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The instant appeal followed. On appeal, Complainant’s arguments mainly focus on his
dissatisfaction with the processing of his appeal by the Administrative Judge. Complainant’s
appeal does not appear to dispute the merits of the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact
is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has been adequately
developed for summary disposition.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Complainant does
not assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the
AJ’s decision on appeal.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disperate Treatment: Claims 1 and 3

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail,
he or she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

We find that the AJ's determination, that the Agency articulated legitimate non-discriminatory
reasons for its actions, was proper. Regarding claim 1, sub-issue 1, Complainant’s supervisor
(“S1”) (YOB: 1961, female) explained that Complainant was reassigned because Complainant’s
cost center closed due to an Agency realignment. S1 further explained that Complainant was
given access to the files, and the position description outlined Complainant’s major duties,
supervisory controls, and guidelines. S1 also stated that Complainant’s reassignment
assignments (checking reimbursable agreements and reviewing expense templates for errors)
were duties Complainant had in his prior positions.

Regarding claim 1, sub-issue 2, S1 stated that there was not anything stated in her email to
suggest that she was putting Complainant in a hostile work environment. S1 explained that she
addressed Complainant’s questions in person in November 2012, and she did not receive any
further inquires about these issues from Complainant.

Regarding claim 1, sub-issue 3, S1 explained that the human resources department sent out an
email notifying everyone that November 17, 2012 was the deadline to submit “use or lose” leave
requests. S1 further explained that she did not receive a leave request from Complainant by this
deadline. However, S1 explained that because Complainant was “denied approval due to
business need,” Complainant could request restoration of his leave. S1 stated that she is working
with the human resources representative to restore Complainant’s leave.

Regarding claim 1, sub-issue 4, S1 explained that Complainant never expressed a concern to her
that he was being excluded from meaningful work. S1 further explained that Complainant has an
opportunity “to do more work in his position” with a transition to a new position.

Regarding claim 1, sub-issue 5, S1 explained that the same position description was used for his
new position and the same skill set Complainant used in his prior position were required for his
new positon. As a result, S1 explained that there was no need for a new personnel action.

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Regarding claim 1, sub-issue 6, S1 explained that there was not enough data available on
Complainant’s project to issue him an “equitable review.” S1 further explained that she
completed Complainant’s mid-year discussion for fiscal year 2013 on October 31st because
Complainant “had been working under the realigned duties for greater than 90 days,” and S1
could then “measure [Complainant] on expectations specific to those duties.”

Regarding claim 3, sub-issue 1, S1 explained that Complainant received his fiscal year 2014
EPAP on April 30, 2014. S1 further explained that the entire branch also received fiscal year
2014 EPAPs on April 30, 2014.

The record includes a copy of Complainant’s fiscal year 2014 EPAP indicating that it was signed
by S1 on April 30, 2014, but Complainant refused to sign. The record also includes a copy of an
April 30, 2014 email issued by S1 to her staff indicating that she would issue all EPAPs out that
day.

Regarding claim 3, sub-issue 2, Complainant’s second line supervisor (“S2”) (YOB: 1960,
female) stated that she did not respond to Complainant’s request because she did not have copies
of these email and she did not know to what emails Complainant was referring.

Regarding claim 3, sub-issue 3, S1 explained that Complainant received a face-to-face progress
review on July 16, 2014. S1 further explained that the entire branch also received progress
reviews on July 16, 2014. S1 stated that Complainant’s progress review was conducted 77 days
from the start of his performance plan and 75 days from the end of Complainant’s performance
period.

Regarding claim 3, sub-issue 4, S1 explained that Complainant specifically requested
information related to his performance while working on a project identified as the Oil Spill
project. S1 further explained that she did not provide this information to Complainant because
the Oil Spill project would not be included on Complainant’s fiscal year 2013 performance
appraisal. S1 also stated that Complainant’s work on this project was “minimally satisfactory”
and S1 chose not to include it.

Regarding claim 3, sub-issue 5, Complainant stated, while being deposed by Agency Counsel,
that his supervisor never made this statement.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful
discrimination based on his age, sex, disability, or reprisal.

Disperate Treatment: Non-Selection, Claim 2 and Claim 3, sub-issue 7

Regarding claim 2, the selecting official (“SO”) (YOB: 1952, male) stated that he reviewed all
qualified applications that human resources referred for the Administrative Officer position
vacancy.
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The SO also stated that he and two other panel members reviewed 120 applications, and they
narrowed the applications down to four candidates (two males and two females) for interviews.
The SO explained that specific experience as an administrative officer in a USGS coast center
was a “determining factor” and Complainant did not have this experience. The SO further
explained that the Selectee had experience as administrative officer in a USGS coast center and
had “excelled” in this position.

Panel member (“PM”) (YOB: 1969, male) stated that he reviewed the applications and focused
on candidates with administrative officer experience.

The record includes a copy of Complainant’s application indicating that Complainant had
worked as a Program Analyst since 2002. The record also includes a copy of the Selectee’s
application indicating that she had been an Administrative Officer since 1997.

Regarding claim 3, sub-issue 7, S2 stated that she was the selecting official for the Supervisory
Financial Specialist position vacancy. S2 stated that all candidates, including Complainant,
interviewed were asked the same questions. S2 explained that there were other “better qualified”
candidates for the position who had (1) worked within the Funds Management Branch for several
years; (2) routinely reviewed reimbursable agreements and cost center accounts; and (3) three
applicants had recent temporary experience working in the position. S2 further explained that
Complainant provided examples of his prior work experience with the Department of the Navy
instead of examples of his work experiences with the Agency and Complainant did not focus on
customer service which S2 determined was “an important function of this position.”

Interview Panel Member (“PM2”) (YOB: 1963, male) stated that Complainant ranked 6 out of 7
candidates. PM2 further stated that the Selectee was “currently a team lead in that office [and]
was acting in the position.” PM2 explained that the Selectee “is an excellent customer service
orientated person.”

Interview Panel Member (“PM3”) (YOB: 1975, male) stated that other candidates had “more
technical and leadership experience than [Complainant].” PM3 explained that Complainant was
ranked in the lower half of the interviewed candidates. PM3 further explained that the Selectee
was the team lead and “has held various position in financial management.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful
discrimination based on his age, sex, disability, or reprisal

Reasonable Accommodation: Claim 3, sub-issue 6

To establish that she was denied a reasonable accommodation, Complainant must show that: (1)
she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide her with a reasonable accommodation.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct.
17, 2002). A qualified person with a disability is an individual who can perform the essential
functions of the position with or without an accommodation. We presume, without so finding,
that Complainant is a “qualified individual with a disability.”

The record reflects that Complainant requested a reasonable accommodation on April 24, 2014
for a change in his work station location. In the request, Complainant explained that (1) the
height of his work station aggravated his lower back and shoulders; (2) the florescent light bulbs
placed an “incredible strain on his eyes;” and (3) environmental pollutants (lotions, perfumes,
hair sprays, and other odors from his co-workers) put his breathing and health in jeopardy.

The record contains a letter, dated May 14, 2014, from Complainant’s physician indicating that
Complainant has a history of moderate to severe asthma and migraine headaches. The physician
further indicated that Complainant’s conditions are “triggered and exacerbated by exposure to
airborne irritant such as cigarette smoke, perfumes, cleaning supplies and fluorescent lights.”

The Agency’s Medical Officer’s report, dated June 5, 2014, determined that the medical
documentation provided supported that Complainant had a disability, and the report provided the
Agency with a list of alternative effective accommodations which included the following:

o locating Complainant in a workspace away from fluorescent lighting, perfumes,
and cleaning supplies;

o providing Complainant alternative lighting (such as a desk lamp) and turning off
fluorescent lighting in his workspace;

o providing environmental control measures (such as air cleaners with HEPA
filters) to limit Complainant’s exposure to areas within the building in which he is
working.

On June 18, 2014, S1 offered to provide Complainant two alternative reasonable accommodation
which consisted of the following proposals: (1) alternative lighting (such as a desk lamp) and
turning off fluorescent lighting in his workspace; and (2) environmental control measures (such
as air cleaners with HEPA filters) to limit exposure to areas within the building near
Complainant’s workspace.

The record indicates that Complainant rejected the reasonable accommodation offer on June 23,
2014. The record further indicates that on July 1, 2014, S1 rejected Complainant’s reasonable
accommodation request to be relocated from a cubicle to an office where he could adjust the
lighting and reduce the level of air pollutants. However, on July 30, 2014, S1 approved
Complainant for a full-time telework schedule as an alternative. The record indicates that
Complainant responded that that his “issue was not to telework 5 days a week,” and requested to
return to the office one or twice a week in a “totally carpet/fabric free environment.”
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The record supports that Complainant was offered another alternative after Complainant rejected
the first reasonable accommodation offer. Based on this evidence, we find that Complainant has
not shown that the Agency failed to provide him a reasonable accommodation.

Hostile Work Environment: Claims 1 and 3

To the extent that Complainant alleged that the matters discussed above in claims 1 and 3 were
also designed to subject him to discriminatory harassment, Complainant must establish that he
was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of his protected basis – in this case, his sex,
age, and reprisal for prior EEO activity. Only if Complainant establishes both of those elements
– hostility and motive – will the question of Agency liability present itself. Here, as we have
already concluded, Complainant simply has provided inadequate evidence to support his claim
that his treatment was the result of his sex, age, disability, and reprisal for prior EEO activity. A
case of harassment is precluded based on our findings that Complainant failed to establish that
any of the actions taken by the agency were motivated by his protected bases. See Oakley v.
U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

The Administrative Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that discrimination occurred.
Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is
AFFIRMED.

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.
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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 (S0610)
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 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. 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.
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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

November 15, 2018
Date