Felton M.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

Jul 26, 2018

0120161674 (E.E.O.C. Jul. 26, 2018)

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

Felton M.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.

Appeal No. 0120161674

Agency No. 2015-26236-FAA-05

DECISION

On April 20, 2016, 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
March 21, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Aviation Safety
Inspector/Training Center Program Manager (TCPM), GS-1825-14, in the Agency’s Southwest
Certificate Management Office-142 (CMO-142), Training Center Unit (TCU) B located in Irving,
Texas. Complainant’s first level supervisor was the Supervisory Aviation Safety Inspector for
TCU B (S1). Complainant’s second level supervisor was the Office Manager for the Southwest
CMO-142 (S2).

On June 10, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (African-

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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American), national origin (Turks and Caicos), religion (Christian - Judah One Ministries), color
(black), and in reprisal for protected EEO activity.

The Agency issued an acceptance letter dated July 9, 2015 accepting Complainant’s claim that he
was subjected to discrimination based on race, color, national origin, religion, and in reprisal for
protected activity when he was subjected to a hostile work environment since 2013 containing
discrete personnel actions and/or acts of harassment identified as (a) – (q). The Agency informed
Complainant, through his attorney, if he disagreed with the claims as identified by the Agency, he
should contact the Agency within five calendar days of his receipt of this letter. On July 18, 2015,
Complainant’s attorney responded by challenging the wording of claim (o) and by alleging another
incident occurring on May 4, 2015, was not included in the acceptance letter. Thereafter, the
Agency issued a revised acceptance letter dated July 27, 2015, changing the wording of claim (o)
and adding claim (r). The July 27, 2015 acceptance letter noted Complainant claimed he was
discriminated against based on his race (Black), color (black), national origin (Turks and Caicos),
religion (Christian - Judah One Ministries) and/or in reprisal for his participation in protected
activity when he was subjected to a hostile work environment since 2013. The Agency noted the
examples of a hostile work environment included the following discrete personnel actions and/or
acts of harassment:

a. Since March 2013, Complainant’s requests for glare covers for his computer
monitors have been denied;
b. on July 16, 2013, Person A implemented an unofficial policy that Complainant
cannot leave the office for any reason;
c. immediately after the OCA Process was implemented in September 2013,
Complainant was harassed by Person A and the Office Manager in team meetings
when he was publicly chastised, berated, pointed at, subjected to on the spot
rigorous questioning about his training centers, and required to recite statistics from
memory;
d. on November 5, 2013, Complainant was accused of changing policies for his
training center without following procedure; on April 9, 2015, Complainant was
accused of violating office policy by hand delivering a letter to his training center
without the required signoffs;
e. although upper management is aware that Complainant oversees the largest training
center, upper management has ignored his detailed oral and written requests to
provide adequate support for the workload; consequently, he has had to work longer
days, skip lunch breaks, and work at home without compensation, all with the
knowledge of upper management; on April 13, 2015, Complainant’s supervisor
denied his request for an inspector to inspect one of his training centers, falsely
stating he did not secure the proper approval for obtaining assistance;
f. upper management has cancelled Complainant’s planned meeting and training
sessions at the last minute, even after being made aware of the significant
manpower, time and effort he expended to organize the events with the training
center; on April 9, 2015, upper management contacted Complainant in the morning
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and directed him to reschedule a planned site meeting with the training center that
was set to occur that afternoon; this happened again on April 30, 2015;
g. upper management refused to provide Complainant’s requests to visit his training
centers or to provide him with more inspectors to assist, yet Complainant is held
accountable for the oversight and assessments of his training center;
h. upper management has pulled employees from Complainant’s training centers,
leaving him with no coverage and sabotaging his efforts to perform his job
effectively;
i. upper management has held secret meetings with Complainant’s training center
operator and took a TCPM from another certificate to a meeting with executives
from Complainant’s training center without inviting Complainant;
j. when Complainant’s training centers were audited, all TCPMs and other
management officials were invited as a way to publicly humiliate, intimidate and
harass Complainant;
k. although for safety reasons Complainant disapproved the choice of the inspector
assigned by the Office Manager to conduct observations on a complex aircraft of
one of Complainant’s training centers in March 2015, nothing was done to remedy
the situation;
l. on April 13, 2015, during a meeting with a FTPM, Complainant’s supervisor
belittled, demeaned, intimidated, harassed, threatened and accused Complainant of
getting inspectors to assist him in violation of guidelines; Complainant was so upset
by this meeting that he used personal leave later that day;
m. Complainant’s supervisor denied his request to use a particular inspector to conduct
a facilities inspection overseas even though the inspector was already at that
training center teaching a class;
n. on March 26, 2015, Complainant’s supervisor denied his telework request; on April
13, 2015, his supervisor denied his request to work a 12-hour telework shift unless
he provided a detailed list of how he intended to spend the hours;
o. in early 2015, upper management assigned a particular FTPM (Fleet Training
Program Manager) to assist Complainant despite his objections to working with
this individual because he accused Complainant of having sex with Complainant’s
step-daughter and made remarks about Jews; yet, on April 7, 2015, Complainant’s
supervisor demanded that Complainant report all of his activities to this individual,
effectively placing this individual in a supervisory role over Complainant;
p. Complainant’s supervisor requires that Complainant provide advance notice of his
schedule and then send her a separate email with his work schedule;
q. upper management has made no effort to accommodate his religious observations,
requirements, and practices;
r. on May 4, 2015, upper management designated themselves as the RMO
(responsible management official) during the informal complaint process, knowing
there was a conflict of interest, in that they were named parties in the complaint;
upon information and belief, this was done in retaliation to dissuade Complainant
from filing a formal complaint.

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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 Agency’s decision defined Complainant’s complaint as alleging discrimination based on race
(Black), color (black), national origin (Turks and Caicos), religion (Christian - Judah One
Ministries), and in reprisal (for opposing discriminatory treatment in 2013 and 2014) when:

A. His March 8, 2013, request for glare screen covers for his computer monitor was
denied.
B. On May 4, 2015, management opted to participate in the Alternative Dispute
Resolution (ADR) process.
C. He received no response to his January 14, 2015 request for religious
accommodation.
D. On March 26, 2015, his Supervisor denied his telework request and, on April 13,
2015, his Supervisor denied his request to work a 12-hour telework shift unless he
provided a detailed list of how he intended to spend the hours.
E. Management subjected him to a hostile work environment when:
1. On March 27, 2015, an inspector that he did not select was approved to
conduct observations of an aircraft at one of the overseas facilities he
oversaw.
2. On April 6, 2015, his Supervisor required that he provide advance notice of
his schedule and then send her a separate email with his work schedule.
3. On April 9, 2015, he was accused of violating office policy by hand-
delivering a letter to his training center without the required signatures.
4. On April 9, 2015, upper management contacted him in the morning and
directed him to reschedule a planned site meeting with the training center
that was set to occur that afternoon; this happened again on April 30, 2015.
5. On April 13, 2015, his Supervisor denied his request to use a particular
inspector to conduct a facilities inspection overseas even though the
inspector was already at that training center teaching a class.
6. On April 13, 2015, during a meeting, his Supervisor belittled, demeaned,
intimidated, harassed, threatened and accused him of getting inspectors to
assist him in violation of guidelines.

The Agency dismissed claim (A) for untimely EEO Counselor contact. The Agency noted that the
EEO Counselor’s Report identified the date of the claim as March 8, 2015; however, the Agency
stated this was an error. The Agency found the alleged incident occurred on March 8, 2013. The
Agency noted Complainant did not initiate EEO Counselor contact until April 15, 2015, more than
two years later. The Agency stated Complainant was aware of the Agency’s denial of anti-glare
screens on March 8, 2013. The Agency claimed that any subsequent request made by Complainant
for anti-glare screens was an appeal of management’s decision which he was aware of on March
8, 2013.
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Further, the Agency noted it was unsure whether Complainant was alleging a denial of reasonable
accommodation with regard to claim (A). The Agency stated Complainant did not allege a
physical or mental disability on his formal complaint and did not identify an impairment. The
Agency argued that even if the claim was a denial of reasonable accommodation, it would be
untimely raised with an EEO Counselor.

The Agency also dismissed claim (B) for failure to state a claim. The Agency noted that
Complainant claimed that on May 4, 2015, upper management should not have been involved in
the ADR process. The Agency stated that such an allegation fails to state a proper claim of
employment discrimination.

The Agency’s decision did not identify all of the incidents listed in its July 27, 2015 acceptance
letter. Apart from the claim for glare screens and the claim regarding ADR, the Agency did not
dismiss any other claims on procedural grounds in its final decision. The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

On appeal, Complainant states the Agency failed to consider all accepted claims (claims (a) – (r))
in addressing his hostile work environment claim. Complainant states the claims alleged were
frequent, severe, and long running since 2013, and that the retaliatory conduct occurred
immediately after the Organizational Climate Assessment (OCA) process.

Complainant claims the Agency denied or ignored his request for a reasonable accommodation.
Complainant states that he spent long hours at his computer and suffered eye-strain as a result. He
states his optometrist recommended that he use glare screens for his computer monitor to alleviate
the eye strain. He claims management denied or ignored all his request for glare screens despite
the reasonable accommodation process they should have followed.

Complainant argues the Agency mischaracterized his claim for religious accommodation as a
request for a legal opinion. Complainant notes the Agency’s final decision states there was no
request made; however, Complainant argues, this is belied by the email request which was clearly
sent to S1.

ANALYSIS AND FINDINGS

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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At the outset, we address Complainant’s contention that the Agency did not address all the claims
identified in his complaint. Upon review, we find the Agency should have considered all the
claims (a) – (r) originally identified in its July 27, 2015 acceptance letter as part of Complainant’s
claim that he was subjected to a hostile work environment beginning in 2013. We note that claims
(a) – (r) were all accepted and investigated by the Agency; thus, we find the record to be fully
developed on these claims. The Commission will consider all of the claims (a) – (r) in our decision.

Glare screens

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the complainant can establish that Complainant was not aware of the time
limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

Regarding claim (a), we find the Agency properly dismissed this claim as a discrete incident on
the grounds of untimely EEO Counselor contact. The record reveals that on March 8, 2013,
Complainant sent his request for glare screens to S1 and cc’d the Administrative Officer (AO).
On May 2, 2013, Complainant sent an email message to S2 asking him to “reconsider” the March
8, 2013 denial of his request for anti-glare screens for his monitors. Subsequently on October 30,
2013, after seeing an email from the AO asking about supplies, Complainant emailed S1 stated he
“would like to once again ask for screen protectors for his monitors.” On February 4, 2014,
Complainant emails S1 asking, “Is it possible for the office to reconsider getting a glare cover for
my second monitor when [the AO] makes his next round of office purchases?” On February 5,
2014, S1 responds that she can check into it.

We note Complainant made his first request for glare screens for his monitors in March 2013.
While he did obtain one glare screen from S1, he still did not have the second glare screen when
he initiated EEO Counselor contact on April 15, 2015, two-years after his initial request. Even
when considering S1’s February 5, 2014 statement that she would look into obtaining the second
glare screen, we note Complainant’s EEO contact is still a year after that comment. The record
contains no evidence Complainant made a request for a glare screen within 45 days of his EEO
Counselor contact. In the present case, we find Complainant should have reasonably suspected
discrimination more than 45 days before his EEO Counselor contact. Thus, we find the Agency
properly dismissed claim (a) for untimely EEO Counselor contact.

Further, we find Complainant’s claim that he was denied a glare screen did not constitute a request
for a reasonable accommodation. Specifically, we note that Complainant never claimed he was
disabled in his formal complaint. The complaint was not defined as alleging a Rehabilitation Act
violation.
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Complainant did not challenge the definition of the bases of his complaint when the Agency
framed his claim in its acceptance letter despite giving him a chance to do so. Complainant does
assert he has vision issues, but he never says he is disabled or that he cannot perform his job
without an accommodation. Further, we note there is no indication Complainant contacted a
reasonable accommodation coordinator to request an accommodation.

ADR

Next, we address Complainant’s claim that on May 4, 2015 upper management designated
themselves as the RMOs (including S1 and S2) during the informal complaint process. The
Commission finds that with respect to the issue of mediation, the matter fails to state a claim under
the EEOC regulations because complainant failed to show that he suffered harm or loss with
respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission,
citing EEO Management Directive 29 C.F.R. Part 1614 (EEO-MD 110) (rev. Aug. 5, 2015), Ch.
3, III(H), explained that, “Nothing said or done during attempts to resolve the complaint through
EEO ADR can be made the subject of an EEO complaint. Likewise, an agency’s decision not to
offer EEO ADR for a particular case, or an agency’s failure to provide a neutral, cannot be made
the subject of an EEO complaint.” Arica C. v. Department of Agriculture, EEOC Appeal No.
0120160950 (Oct. 3, 2016). There is no general prohibition on responsible management officials
(or agency officials directly involved in the case) being present during ADR. EEO Management
Directive at Chapter 1 (V). Moreover, we find the alleged Agency actions were not of a type
reasonably likely to deter complainant or others from engaging in protected activity.

Religious accommodation

Under Title VII, employers are required to accommodate the religious practices of their employees
unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j);
29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of
discrimination based on religious accommodation requires complainant to demonstrate that: (1) he
or she has a bona fide religious belief, the practice of which conflict with their employment, (2) he
or she informed the agency of this belief and conflict, and (3) the agency nevertheless enforced its
requirement against complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993);
Turpen v Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).

Once a complainant establishes a prima facie case, the agency must show that it made a good faith
effort to reasonably accommodate complainant’s religious beliefs and, if such proof fails, the
agency must show that the alternative means of accommodation offered by complainant could not
be granted without imposing an undue hardship on the agency’s operation. See Tiano v. Dillard
Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897,
902 (7th Cir. 1978); Complainant v. United States Postal Service, EEOC Request No. 05890532
(October 25, 1989). Pursuant to 29 C.F.R. § 1605.2(a)-(e), the Commission’s “Guidelines on
Discrimination Because of Religion” (the Guidelines), alternatives for accommodating an
employee’s religious practices include, but are not limited to, voluntary substitutes and swaps,
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flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a
defense until the employer claims it as a defense to its duty to accommodate. Ansonia Board of
Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer
must demonstrate that an accommodation would require more than a de minimis cost. Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).

On appeal, Complainant argues the Agency mischaracterized his claim for religious
accommodation as a request for a legal opinion. Complainant notes the Agency’s final decision
states there was no request made; however, he states this is belied by the email request which was
clearly sent to S1.

At the outset, we find no support for Complainant’s contention that the Agency mischaracterized
his religious accommodation claim. We note that in his affidavit, Complainant explained that he
was a Christian and a member of Judah One Ministries. He stated that on January 14, 2015, he
wrote a memo for S1 and S2 to send to Legal Counsel to gain authorization for him to pilot an
aircraft for one of the Judah One ministry trips. Complainant stated as of the filing of his EEO
complaint, S2 still has not sent his memo to Legal Counsel for their review. Complainant stated
his religious beliefs and practices require missionary work and stewardship to the ministry.
Complainant stated he requested approval from S1 to attend required training at one of the training
centers to which the Office has oversight but to which he has no duties and responsibilities so that
he can carry out his missionary work and stewardship.

S1 stated she did not recall a request for observation of a religious event from Complainant or a
request for an accommodation of a religious practice. S2 stated Complainant never gave him a
request for a religious accommodation.

The record contains a January 14, 2015 email from Complainant to S1 stating “[Complainant] of
the 142 Certification Management Office (CMO) is affiliated with Judah One Ministries, a non-
profit organization in Fort Worth Texas, and the ministry plans to use him as a support crew
member for their MD-80 airplanes as part of his stewardship to that ministry.” The email noted
Complainant will need to take the initial type rating course during the first quarter of 2015 at a 14
CFR 142 training center to be qualified in the MD-80. The email stated the ministry would first
try to use Higher Power Aviation as the training provider and noted, “This office has oversight of
Higher Power Aviation. [Complainant’s] duties and responsibilities in this office however have
no affiliation with Higher Power’s operation.” Further, the email stated “This memo seeks
concurrence for [Complainant] to attend MD-80 training.”

In the present case, we find Complainant did not establish a prima facie case of discrimination
based on religious accommodation. Assuming Complainant has a bona fide religious belief, we
note he did not show that he informed the Agency that the practice of his bona fide religious belief
conflicted with his employment or that he informed the Agency of this belief and conflict, and that
the Agency nevertheless enforced its requirement against Complainant.
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The record reveals Complainant was asserting that his supervisors’ purported inaction in
forwarding his request to the legal department constituted a failure to accommodate his religious
beliefs. However, we find this does not constitute a request for a religious accommodation.

Denial of telework

Complainant claimed that in March 2015, he electronically requested telework a week prior to the
date he wanted to telework. He stated S1 scheduled a meeting to take place on March 26, 2015,
and then denied his request to telework that day. Complainant also stated that on April 13, 2015,
during a meeting with S1, Person A (ASI/FTPM), and Complainant, S1 stated she could not
approve 12 hours of telework for Complainant without him telling her what he planned to do for
those 12 hours as she needed to be able to tell S2 what Complainant was doing during his time
away from the office. Complainant stated the availability of telework for other similarly situated
employees was not arbitrarily denied or subject to such oversight and increased reporting.

S1 stated that telework is at the discretion of management. S1 stated she requested data from the
Agency’s telework request site and was not able to find a rejected request from March 26, 2015.
S1 stated that Complainant’s request for 12 hours of telework was denied in Sharepoint and that
she called him to make sure that he understood the thought process. S1 stated she told Complainant
that the need for 12 hours was outside the normal request, but that if there was a need then she can
work around it, however it required a discussion. S1 explained the general rule was not to exceed
10 hours of telework unless management was aware of extenuating circumstances and then they
will gladly work with the inspectors.

The record contains a list of the dates telework was approved or disapproved for Complainant
during the relevant time frame. The record shows that Complainant’s request created on March
23, 2015, for ad hoc telework on March 26, 2016 from 6:00 a.m. to 4:00 p.m. was denied by S1.

In his affidavit, S2 stated that with regard to a request about a 12-hour shift in April, Complainant
was on a maxi-flex schedule and was required to provide his supervisor with a weekly schedule
detailing how he planned to allocate his work hours. S2 explained that 12 hours would be an
extended work schedule and it was within the supervisor’s authority to ask what Complainant
intended to accomplish during that time period prior to approving the schedule.

Upon review, we note the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Agency noted that Complainant asserted that S1 did not approve his telework request because
she had scheduled a meeting to take place on March 26, 2015. The Agency argued that taking
Complainant’s assertion as true, S1 denied his request to telework because she wanted him to
attend the meeting.

Regarding the April 13, 2015 date, both S1 and S2 stated that 12 hours constituted an extended
work schedule. The Agency noted S1 was following the general rule that an employee should not
exceed 10 hours of telework per day unless management was aware of extenuating circumstances
which warranted additional hours.
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The Agency also noted the HRPM Summary of Work Schedules showed that even though
employees choose the hours and days worked outside the core hours, management should be
involved in setting parameters for notification or approval when there are departures from the
normal start and stop times or off days. The Agency noted managers require an employee to
submit a proposed schedule for approval prior to the start of the pay period.

Upon review, we find Complainant failed to establish by a preponderance of evidence that the
Agency’s denial of his telework requests was based on discriminatory animus.

Hostile work environment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore
Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working
environment exists “when the workplace is permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”
Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No.
05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10,
1996).

An alteration to an employee’s working conditions exists if a tangible, discrete employment action
is taken, e.g., hiring, firing, transfer, promotion, nonselection, or the Agency’s actions were
sufficiently severe and/or pervasive to create a hostile work environment. The harasser’s conduct
is evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

As noted above, the Commission considers all of the incidents listed in the Agency’s July 27, 2015
acceptance letter as part of Complainant’s hostile work environment claim. Complainant
complained about the interaction between himself and his management team, specifically S1 and
S2. The record reveals that Complainant had the heaviest workload of any Aviation Safety
Inspector in the Office, that resources were lacking in the office, and that Complainant was on
occasion outspoken if he disagreed with management’s decisions.

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The Agency concluded that Complainant failed to establish a claim of harassment because he failed
to show that that he was subjected to severe or pervasive treatment such as to create an unlawful
work environment on any basis. Moreover, the Agency determined that the evidence did not show
that the actions taken were based on any prohibited EEO factors. In the present case, the incidents
complained of do not establish an environment where the workplace was permeated with
intimidation, ridicule, and insult, but instead the incidents identified involved common interactions
that occurred between first and second level supervisors and a subordinate employee in the
workplace. The evidence shows that much of what Complainant took issue with is his
dissatisfaction with his office’s management style.

Upon review, we agree with the Agency’s findings in the final decision that the incidents,
considered together and taken as a whole, do not rise to the level of a discriminatorily hostile
workplace. Moreover, we find Complainant failed to show by a preponderance of evidence that
the Agency’s actions were based on discrimination.

CONCLUSION

Accordingly, the Agency’s final decision 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. 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.
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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. 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

July 26, 2018
Date