Alfonso T.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120171095 (E.E.O.C. Nov. 7, 2018)

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

Alfonso T.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120171095

Agency No. CRC-16-05-034

DECISION

On January 14, 2017, 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
December 16, 2016, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

The issue presented in this case is whether the Agency’s final decision (FAD), erred in finding that
Complainant was not subjected to discrimination and/or discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Claims
Examiner, GS-12 at the Agency’s Office of Workers Compensation Programs, Division of Energy
Employees Occupational Illness Compensation in Cleveland, Ohio. On December 23, 2015,
Complainant filed an EEO complaint alleging that the Agency discriminated against him and
subjected him to harassment based on reprisal for prior protected EEO activity when:

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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1. In August 2015, management increased his work assignments in a method that was
disproportionate to the work assignment distribution of similarly situated
employees;
2. On August 17, 2015, management did not reassign his work assignments to other
team members while he was on annual leave and did not adhere to the standard
method of reassigning work assignments when similarly situated employees utilize
annual leave;
3. On August 25, 2015, management did not select him to participate in the Agency’s
annual leadership training;
4. In September 2015, management did not grant him a time-off award although he
performed comparable work to similarly situated employees who received time off
awards;
5. On November 4, 2015, management installed light bulbs above his cubicle,
although throughout his tenure he submitted prior informal notice to management
that the brightness from the light bulbs affected his undisclosed medical issues; and
6. On November 17, 2015, management denied him a quality step increase (QSl)
promotion for receiving an “Exemplary” on his annual performance rating.

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. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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 or harassment as alleged. Specifically, the FAD
found that assuming arguendo that Complainant established a prima facie case of reprisal
discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, with regard to claim no. 1, Complainant was assigned extra work as a result of an
employee retiring. Regarding claim no. 2, management explained that while Complainant was on
vacation, the essential functions of his duty was handled by his supervisor but his entire work load
was not reassigned. Management indicated that this was what was usually done when an employee
went on vacation. With regard to claim no. 3, Complainant was not selected for the Leadership
Training program because he did not apply for the program and because he did not have an IDP.

Further, regarding claim no. 4, management explained that Complainant did not receive a time-off
award when he alleged that he performed comparable work to a similar employee because
management was not aware that Complainant performed such duties. Regarding claim no. 5,
replacing a light bulb in Complainant’s cubicle, management indicated that Complainant was due
to move out of the cubicle on the day that the light bulb was changed. Management explained that
the new tenant requested that the light bulb be repaired and a work order was submitted. Building
facilities, however, responded right away so the light bulb was changed. Management indicated
that it was on for only the last couple of hours that Complainant was in the cubicle. Complainant
maintained that the light gave him headaches but management maintained that they were not aware
of his medical issue. Finally, with regard to claim no. 6, management explained that it got approval
to give 17 QSIs.
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They were instructed that they were to use a systematic approach to select the employees that
received the QSIs. They were to give QSIs to those whom had not recently received one.
Complainant had received a QSI in 2011, while those who received the QSIs at issue here, had not
received any since 2009. Management explained that 42 other employees that were rated
“Exemplary” also did not receive QSIs. The Agency found that Complainant offered no proof that
the Agency’s nondiscriminatory reasons were pretext for discrimination.

With regard to Complainant’s claim of harassment, the Agency maintained that Complainant did
not show that discriminatory animus was involved with any of the above incidents. Moreover, the
incidents complained of were work related issues that involved work assignments, training, and
awards. The Agency also found that Complainant did not show that the incidents were severe or
pervasive enough to establish a hostile work environment.

CONTENTIONS ON APPEAL

Complainant did not file a brief on appeal.

The Agency requests that its FAD be affirmed because Complainant did not demonstrate that he
was subjected to discrimination and or harassment.

ANALYSIS AND FINDINGS

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”).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo that Complainant
established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory
reasons for its actions, and Complainant did not demonstrate that the Agency’s reasons were
pretext for discrimination or that discriminatory animus was involved. Further, we find that the
incidents complained of were not severe or pervasive enough to establish a hostile work
environment.2 We find the preponderance of the evidence does not support Complainant’s claim
that he was subjected to discrimination or harassment.

2 Moreover, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S.
17 (1993) that Complainant’s claim of a hostile work environment must fail. See Enforcement
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CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant was not subjected to
discrimination and/or harassment.

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).

Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding
of a hostile work environment is precluded by our determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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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. 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 7, 2018
Date