Hui E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019000623 (E.E.O.C. Dec. 18, 2019)

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

Hui E.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 2019000623

Agency No. 1F942000518

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 August 22, 2018,
final decision concerning an equal employment opportunity (EEO) complaint 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Postal Support Employee (“PSE”) Mail
Processing Clerk at the Agency’s San Francisco Network Distribution Center in Richmond,
California.2

On February 10, 2018, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected him to discriminatory harassment based on race (African-American), sex

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 The record reflects that a PSE is a flexible position and PSEs can be moved to different
facilities and different work hours.
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(male), color (black), disability (schizophrenia), and in reprisal for prior protected EEO activity
when:

1. from June 2017 through November 2017, Complainant was sexually harassed by
a co-worker (“CW1”) and management did not take appropriate action when he
notified them of the harassment;

2. since August 31, 2017, and continuing, Complainant was denied a reasonable
accommodation when his request to be moved to Tour 2 was not granted; and

3. on November 21, 2017, Complainant was harassed by the Manager of
Distribution Operations (“MDO”) after Complainant asked another employee
(“CW2”) if the employee spoke English; and

Complainant also alleged he was subjected to discriminatory harassment based on race (African-
American), color (black), and in reprisal for prior protected EEO activity when:

4. on January 18, 2018, Complainant’s work schedule was changed and he was
assigned to work in harder areas;3

5. on approximately December 10, 2017, Complainant received a “write-up letter”4
for clocking in at a different time; and

6. on February 4, 2018, Complainant was sent home after an incident with a co-
worker (“CW3”).

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
did not respond.

On August 22, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed.

3 Complainant clarified in his affidavit that his work schedule was changed from January 18,
2018 until May 2, 2018.

4 Complainant clarified in his affidavit that he received a letter “approximately on 12/10/18.”

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ANALYSIS AND FINDINGS

Reasonable Accommodation – Claim 2

Under the Commission's regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p).

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”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide him with a reasonable accommodation. 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.

Complainant testified that he was diagnosed with schizophrenic depression with psychotic
features in January 2007. Complainant explained that this medical condition is permanent, it
restricts him from working late nights, and it prevents him from driving at night. We presume
for purposes of analysis only and without so finding, that Complainant is an individual with a
disability within the meaning of the Rehabilitation Act.

Complainant further explained that management denied his reasonable accommodations
requested on August 31, 2017, November 27, 2017, and December 28, 2017.

A reasonable accommodation request dated August 31, 2017 indicates that Complainant
requested to be removed from Tour 3 (night shift) and to be assigned to Tour 2 (9:30 am - 6 pm)
due to his disability. Complainant stated on the form that given all of the medications he is
taking, being assigned to Tour 2 would help him because he cannot drive at night because of his
disability.

Complainant attached three documents to his August 31, 2017 reasonable accommodation
request. A January 17, 2014 assessment indicating that he was diagnosed with schizoaffective
disorder, panic disorder, and had learning disabilities and his prognosis was permanent. The
assessment further indicated that Complainant “has qualified for permanent disability for SSI.”
A March 20, 2016 letter indicated that Complainant was voluntarily discharged from a wellness
medication clinic and was diagnosed with major depressive disorder with psychotic features. A
June 13, 2016 client service plan outlined Complainant’s goals in treating his symptoms of
depression, sadness, low energy, low motivation, hopelessness, panic and anxiety attacks, and
visual and auditory hallucinations.

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On an August 31, 2017 routing slip, Complainant requested to be removed from Tour 3 and be
assigned to Tour 2 as a reasonable accommodation. Complainant stated on the slip that his
schizophrenia made him nervous and paranoid to drive at night. Complainant further stated that
it was hard for him to see at night and it is not safe for him to drive home after work in the dark.

On a routing slip dated November 27, 2017, and another on January 20, 2018, Complainant
requested to continue reporting to work from 3:30 pm to 12:00 am, instead of from 6:00 pm to
2:00 am, until his prior accommodation request to be assigned to Tour 2 was fulfilled.
Complainant stated that his disability made it difficult for him to drive at night and leave work at
his normal Tour 3 shift time of 2:00 am. Complainant explained that he had difficulty driving
during the rain and fog and he notes that the weather is “very foggy” at 2:00 am.

On a December 28, 2017 routing slip, Complainant requested continuation of Fridays and
Saturdays designated as his off days. Complainant explained that he had these two days off for
the past three months and used these days for doctor and social worker appointments as part of
his reasonable accommodation request.

The staff schedule for December 2017 indicates that Complainant had Fridays and Saturdays
scheduled as his off-day from December 9, 2017 through December 29, 2017.

A physician’s note dated May 1, 2018, from Complainant’s physician indicated that Complainant
has been diagnosed with schizoaffective disorder and trauma-related symptoms from a motor-
vehicle accident he sustained in his early twenties. The note further indicated that Complainant
has “records available from his previous providers to back up this assessment.” The physician
explained that driving and working at night “appears to exacerbate” Complainant’s trauma
related symptoms and contributed to poor sleep which contributed to increased depression. For
these reasons, Complainant’s physician recommended that he be assigned a day shift instead of a
night shift.

The MDO testified that Complainant is a PSE Clerk and his job duties are keying, processing,
and dispatching mail within a 6 to 8-hour work day. The MDO further testified that after
Complainant requested to be assigned Tour 2, he was scheduled for a meeting with the District
Reasonable Accommodation Committee (“DRAC”) to assess whether Complainant’s request
could be accommodated. The MDO explained that at the time of the DRAC meeting,
Complainant had not provided updated medical documentation regarding his condition. The
MDO testified that as of March 30, 2018,5 Complainant had not provided any new medical
documentation.

The MDO explained that all PSEs assigned to Tour 2 had more seniority than Complainant and
no Tour 2 PSEs volunteered to switch tours with Complainant after the MDO inquired about a
potential switch.

5 The record indicates that the MDO completed her affidavit on March 30, 3018.

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The MDO also explained that there was no need for an additional clerk in Tour 2 because of the
workload, but clerks were needed in Tours 1 and 3. However, the MDO explained that she
accommodated Complainant by allowing him to begin his work schedule at 3:30 pm instead of at
6:00 pm with the condition that he work in the APBS unit.6 The MDO stated that Complainant
agreed to work in the APBS unit with CW17 as long as CW1 did not bother him. But, the MDO
explained that Complainant was removed from the APBS unit and assigned to Secondary after
Complainant “exhibit[ed] unacceptable conduct towards other employees” and accused CW1 of
turning the APBS employees against him. Because Complainant was returned to Secondary, the
MDO stated that Complainant was required to report to work from 6:00 pm to 2:30 am with the
other employees and no longer could work from 3:30 pm to 12:00 am. The MDO noted that
both shifts involved the employee having to drive at night.

The Plant Manager testified that Complainant’s request to be assigned to Tour 2 was denied
because there were no positions available on Tour 2, no Tour 2 clerks wanted to switch to Tour
3, and the majority of the workload was on Tour 3.

The DRAC Chairperson testified that Complainant was asked to submit recent medical
documentation supporting his reasonable accommodation request. Complainant, however, did
not submit this documentation at the DRAC meeting. The DRAC Chairperson clarified that he
was not responsible for accepting or denying an accommodation request. Rather, he was
responsible for preparing the information to provide to management to make a decision on the
accommodation request.

Our review of the record supports that Complainant did not submit recent medical
documentation specifying how his diagnosis limited his ability to complete the functions of his
position until May 1, 2018. The medical documentation Complainant submitted before May 1,
2018 was more than one year old and it did not specify what accommodations Complainant
needed to complete his work assignments. We acknowledge that the Agency did not provide
Complainant an assignment in Tour 2. Nevertheless, the Agency still provided Complainant
alternative accommodations. Although protected individuals are entitled to reasonable
accommodation under the Rehabilitation Act, they are not necessarily entitled to their
accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(October 17, 2002) (“Guidance”), Question 9.

Here, the record supports a finding that the management officials did not transfer Complainant to
Tour 2 because there were no vacancies in Tour 2, no other clerks in Tour 2 wanted to switch
tours with Complainant, and the Tour 2 workload did not warrant the resources of another clerk.

6 The acronym for this unit was not defined in the record.

7 The record indicates that CW1 was a Parcel Post Distribution Machine Operator in the APBS
unit and was also Complainant’s union steward.
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However, management engaged in the interactive process by having Complainant participate in a
DRAC meeting to assess his need for an accommodation, but Complainant did not provide any
recent medical documentation to complete the inquiry into his needs. As of the date of the
MDO’s affidavit, March 30, 2018, Complainant still had not provided any new documentation.
The physician note, explaining Complainant’s conditions and accommodation needs, is dated
May 1, 2018. Nevertheless, the Complainant requested, and the Agency permitted Complainant
to work from 3:30 pm to 12:00 am instead of his normal tour hours of 6:00 pm to 2:00 am from
November 2017 through January 2018.8 The Agency also gave Complainant Fridays and
Saturdays off during December 2017 to attend doctor and social worker appointments. We note
that all of these alternative accommodations were provided before Complainant provided
necessary documentation to support his need for these accommodations. In sum, we conclude
that Complainant has not established a violation of the Rehabilitation Act

Disparate Treatment – Claims 5 and 6

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 complainant to prevail, she
must first establish a prima facie 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, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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).

As previously discussed, we presume that Complainant is an individual with a disability.

8 We note that Complainant’s request to work from 3:30 pm to 12:00 am would still have
resulted in him driving home from work in the dark.
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Regarding claim 5, Complainant’s Acting Supervisor testified that she issued Complainant a
Letter of Warning because Complainant was not following instructions and “always need[ed]
babysitting.” The Acting Supervisor explained that she provided Complainant an investigative
interview regarding the manner.

The record includes a copy of Complainant’s December 20, 2017, investigative interview which
indicates that Complainant reported to work on December 18, 19, and 2017, before the start time
of his tour of duty. Complainant explained, in the interview, that he thought “he could come in
and make up for [his] sixth day” even though he acknowledged that he knew his official report
time.

A copy of a December 27, 2017 Letter of Warning indicates that Complainant was charged with
“Failure to Follow Instructions/Reporting out of Schedule/Unauthorized Overtime.” The Letter
states that Complainant registered improper clock times on December 19, 2017 and December
20, 2017.

Regarding claim 6, Complainant testified that an employee felt threatened when he “yelled
‘yes’” while watching the super bowl game with his headphones on. Complainant explained that
because the employee felt threatened, he was sent home.

The MDO explained that the Acting MDO (“AMDO”) informed him that she wanted to send
Complainant home because he was “exhibiting hostile and threatening behavior.” The MDO
further explained that she agreed with this decision because “multiple employees were
complaining and uneasy about his behavior.” However, the MDO stated that she informed the
AMDO to instruct Complainant to return to work the following day to address his behavior. The
MDO also stated that Complainant was not given a letter when he was sent home because, as a
flexible employee, Complainant is only guaranteed to work four hours if he is on the schedule
and his schedule is based on workload.

The ADMO testified that she followed the MDO’s instructions to send Complainant home. The
ADMO stated that she informed Complainant that an employee “felt threatened by his gestures
and remarks.” The ADMO denied giving Complainant written notification. Rather, the ADMO
stated that she instructed Complainant not to intimidate others.

The record includes several routing slips from co-workers describing Complainant’s behavior on
February 4, 2018. The routing slips describe Complainant as aggressive and standing with a
balled fist as though he intended to hit an employee.

The record also includes a 14-Day Notice of Suspension, dated February 18, 2018, issued to
Complainant. The Notice indicates that Complainant was suspended for “unacceptable conduct”
on February 4, 2018 where he was “observed walking about with [his] fist balled up towards
another employee and speaking loudly and asking why certain employees were working in the
Secondary Unit.” The Notice acknowledges that Complainant indicated that he became loud and
angry because he was listening to the Super Bowl with his headset.
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The Notice further acknowledges that Complainant believed that CW1 had turned all the APBS
employees against him because he had filed a sexual harassment claim against her. However,
the Notice also indicates that several witness statements state that Complainant was staring at
employees, he was “angry and walking around with [his] fist balled up,” and his behavior made
employees feel “uncomfortable.” The Notice further indicates that Complainant continued to
exhibit this behavior after being questioned by his supervisor.

After careful consideration of the record, we conclude that 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
Complainant’s race, color, and reprisal for prior protected EEO activity.

Harassment (non-sexual) – Claims 3 and 4

To establish a claim of discriminatory environment harassment, Complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, 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 a protected basis – in this case, his race, sex, color, disability, and reprisal for prior
protected EEO activity. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.

Claims 3 and 4 fail to show that the Agency subjected Complainant to discriminatory
harassment.

Regarding claim 3, Complainant testified that he asked CW2 if he spoke English after CW2 did
not respond to his request to use his cell phone charger.

The MDO stated that CW2 and Complainant submitted statements regarding the incident. The
MDO explained that CW2’s statement indicated that he did not respond to Complainant’s
question because he has lost his voice and could not speak. The MDO further explained, that
Complainant indicated in his statement that he was unaware that CW2 had lost his voice and
thought that CW2 was ignoring him. The MDO also explained that she informed Complainant
that his conduct was offensive to CW2 and she instructed Complainant to stay away from CW2
and refrain from other offensive behavior.
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The MDO stated that Complainant informed her that he says things that he did not mean to say
because he had stopped taking his medication and “he did not know it was offensive asking
another employee if they could speak English.” The MDO clarified that Complainant never
received corrective action for this incident.

In his November 18, 2017 statement, CW2 explains that he was sick with the flu and he had lost
his voice. CW2 further explains that Complainant made the following offensive statement: “you
don’t know English, we’re [sic] you even born here. F—king immigrant, why don’t you speak
English properly. . . .”

In his November 17 and 21, 2017 statements, Complainant acknowledges that he asked CW2
whether he spoke English after CW2 responded with “hand gestures” to Complainant’s request
to use CW2’s phone charger. Complainant further explains that he did not mean to offend CW2
and attributed his “outburst” to his disability. Complainant states that he had not taken his
medication for the past three months and, as a result, he became very anxious.

Regarding claim 4, Complainant testified that his schedule was changed from January 18, 2018
until May 2, 2018. Specifically, Complainant states that he was required to report to work from
6:00 pm to 2:30 am instead of reporting to work from 3:30 pm to 12:00 am after management
moved him from APBS and assigned him to Secondary.

The MDO denied that Complainant’s work schedule was changed or that he was assigned to
work on harder cases. The MDO explained that Complainant is a flexible employee and he has
no set assignments or schedule. Because Complainant is a flexible employee, the MDO
explained that Complainant is placed “according to the needs of the Service.” As previously
discussed, the MDO acknowledged that she allowed Complainant to work from 3:30 pm to 12:00
am while he was in the APBS unit. However, Complainant was removed from this unit and
placed in Secondary, where he was required to work from 6:00 pm to 2:30 am, because of his
“unacceptable conduct” towards APBS employees and because of his accusation that CW1 had
turned all APBS employees against him.

Considering these allegations, even if true, Complainant has not shown evidence that
considerations of his race, sex, color, disability, or retaliatory animus motivated management’s
actions towards Complainant. The MDO denied taking any corrective action against
Complainant after Complainant asked CW2 whether he spoke English. The MDO investigated
the incident by taking statements from Complainant and CW2. The MOD informed
Complainant that his actions were offensive to CW2 and she instructed Complainant to stay
away from CW2 and to refrain from other offensive behavior. Additionally, the MDO denied
changing Complainant’s schedule or assigning Complainant difficult cases. The MDO explained
that Complainant has no set assignments or schedule. As a flexible employee, he is placed
according to the needs of the Agency. Moreover, the record supports a finding that
Complainant’s unacceptable conduct required that he be removed from the APBS unit to
Secondary which resulted in him having to work from 6:00 pm to 2:30 am.

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These incidents Complainant alleges are not sufficiently severe or pervasive as to constitute
hostile work environment/harassment under Commission regulation. The incidents involved are
of a type that typically arise out of workplace conflicts or communications. However, EEO laws
are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review
of the record, including Complainant's contentions on appeal, we find that Complainant failed to
demonstrate that the Agency discriminated against him as alleged.

Harassment (sexual) – Claim 1

To establish a case of sexual harassment creating a hostile work environment, Complainant must
show, by a preponderance of the evidence, that: (1) he belongs to a protected class; (2) he was
subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the
harassment affected a term or condition of employment, either unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Here, we agree with the Agency’s determination that the record fails to support that Complainant
was subjected to sexual harassment.

Regarding claim 1, the MDO testified that she conducted an investigation after the Plant Manger
informed her of this issue. During the investigation, the MDO stated that Complainant indicated
that he never told the CW1 that she was making him uncomfortable or that her actions were not
well received. The MDO further stated that Complainant acknowledged that “he would
reciprocate hugs” with CW1. The MDO explained that Complainant requested that CW1
receive training and remain away from him.

The MDO further explained that Complainant did not notify management of the alleged
harassment until he wrote his November 2017 letter, but Complainant indicated that he notified
another co-worker (“CW4”)9 of the alleged harassment. However, the MDO stated that, when
she interviewed CW4, CW4 denied that Complainant ever informed her that he was being
sexually harassed and only indicated that Complainant told her that CW1 kissed him on the neck
and asked to move in with him.

9 CW4 testified that she was a Mail Handler who served as an Acting Supervisor in
Complainant’s unit a “few times approximately in June 2017,” but CW4 explained that she was
not involved in conducting an investigation into Complainant’s sexual harassment claims
because she was not Complainant’s supervisor.
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Because Complainant had no witnesses to support his allegation and because CW1 denied all
allegations, the MDO explained that she did not discipline CW1. The MDO clarified that she
instructed CW1 to stay away from Complainant and CW1 agreed to do so.

CW4 testified that she was “walking through [Complainant’s] unit” and Complainant told her
“about the situation.” However, CW4 denied that Complainant told her or management about
his concerns regarding harassment or a hostile work environment.

A copy of Complainant’s November 7, 2017 letter, addressed to the Plant Manager, states that
Complainant alleged that CW1 sexually harassed him when she asked him to move into his
home, when she wore “offensive clothing that is see through,” and when she hugged and kissed
him on the side of his neck. Complainant further indicates in the letter that CW1 used her
position as Shop Steward to “pressure [him] into letting her move into [his] home.”

The record includes a copy of Complainant’s November 16, 2017 interview questions and
answers where Complainant requests that CW1 receive additional Shop Steward training and
Complainant requests that CW1 stay away from him.

The record includes a copy of CW1’s November 16, 2017 interview questions and answers.
CW1 denies touching or asking Complainant anything and she denied all allegations. CW1
explained that she had “no interaction” with Complainant during the brief time he was assigned
to her unit (APBS). CW1 further explained that she interacted with Complainant when her
supervisor called her to represent Complainant during a few just cause interviews regarding
issues Complainant had with following the Agency’s clock-in procedures and dress code policy
as well as his difficulty with following instructions from his supervisor. CW1 stated that she
believed that Complainant claimed that she harassed him “to get attention” because he knew that
he was “getting into more and more trouble,” and the harassment claim would “focus attention
on [her] and not him.”

We acknowledge that the record includes statements from CW1 denying that she sexually
harassed Complainant. These statements directly conflict with Complainant’s testimony that
CW1 sexually harassed him. Here, however, Complainant effectively waived his right to have
this matter considered before an EEOC AJ when he failed to respond to a notice informing him
of his right to request a hearing. If Complainant had responded and requested a hearing, then the
AJ may have developed the record more through discovery and cross-examination of witness.
Moreover, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left
with Complainant’s version of events and that of CW1 which are completely at odds. As such,
the evidence of record was at best, in equipoise. See Complainant v. Dep't of Health and Human
Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec.,
EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No.
0120102187 (Aug. 23, 2012).

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However, even if true as alleged, Complainant has failed to demonstrate that these incidents
subjected him to discriminatory sexual harassment. Aside from Complainant’s testimony, there
are no other witnesses to collaborate Complainant’s statements. The record reflects that
management officials responded to Complainant’s complaint and conducted an investigation
after Complainant submitted his November 7, 2017 letter informing management of the alleged
incidents. The record further reflects that the MDO instructed CW1 to stay away from
Complainant which was one remedy Complainant sought. Additionally, the record indicates that
Complainant informed the MDO, during the investigation, that he reciprocated CW2’s hugs and
did not inform her that her actions were unwelcomed. Therefore, Complainant has failed to
establish that the Agency subjected him to discriminatory sexual harassment.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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

December 18, 2019
Date