James T.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Jun 7, 2018

0120162232 (E.E.O.C. Jun. 7, 2018)

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

James T.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120162232

Agency No. DOI-OS-15-0793

DECISION

On June 24, 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
May 24, 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., 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as the Interior Business Center (IBC) Director, ES-0340-00 at the Agency’s
Headquarters in Washington, D.C. In an EEO complaint filed on September 1, 2015, and
subsequently amended, Complainant set forth the following claims of employment discrimination:

1. Since May 31, 2015, the Agency failed to provide Complainant with a reasonable
accommodation for his disabilities (post-traumatic stress disorder – PTSD, sleep apnea,

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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teeth-grinding cervical spondylosis2, hypertension, hypertensive heart disease, iritis3,
hyperthyroidism, irritable bowel syndrome, decreased urinary flow, pseudofolliculitis
barbae4, and erectile dysfunction);

2. Complainant was discriminated against because of his race (African-American), color
(Black), sex (male), religion (Protestant), age (58), disabilities (PTSD, sleep apnea,
grinding of teeth, cervical spondylosis, hypertensive, hypertensive heart disease, iritis,
hyperthyroidism, irritable bowel syndrome, decreased urinary flow, pseudofolliculitis
barbae, and erectile dysfunction), and reprisal (prior EEO activity) when:

A. on June 12, 2015, Management directed him to a detail assignment as Deputy Director
of the Office of Strategic Employee and Organizational Development (OSEOD),
effective June 18, 2015, resulting in a constructive demotion; and

B. on June 12, 2015, he was placed on five days of administrative leave until the start of
his detail.

3. On unspecified dates, he was subjected to a hostile work environment characterized by, but
not limited to inappropriate and derogatory comments about his character and reputation,
and false statements.

4. On September 27, 2015, he was constructively discharged from his position as Director of
the IBC.

Complainant identified his first-line supervisor, the Assistant Deputy Assistant Secretary for
Technology, Information, and Business Services (S1); his second-line supervisor, the Deputy
Assistant Secretary for Management, Policy, and Budget (S2), and other senior executives as the
responsible management officials. The Agency conducted its investigation and thereafter provided
Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing
before an EEOC Administrative Judge (AJ). On March 25, 2016, Complainant requested a final
decision without a hearing. In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

2 Cervical Spondylosis refers to a common age-related condition in which the vertebrae in the back
of the neck gradually form bone spurs while the shock-absorbing discs slowly shrink.
https://medical-dictionary.thefreedictionary.com/cervical+spondylosis.

3 Iritis is defined as inflammation of the iris. https://medical-
dictionary.thefreedictionary.com/iritis.

4 Pseudofolliculitis barbae is defined as inflammation of beard follicles that occurs when tightly
coiled hairs become ingrown. See https://medical-dictionary.thefreedictionary.com/
pseudofolliculitis+barbae.
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Denial of Reasonable Accommodation

Complainant averred that he had been experiencing the symptoms of PTSD, sleep apnea, grinding
of teeth, cervical spondylosis, hypertension, hypertensive heart disease, iritis, hyperthyroidism,
irritable bowel syndrome, decreased urinary flow, pseudofolliculitis barbae, and erectile
dysfunction. IR 218-20, 222-23. He stated that he made management aware of his conditions in
a letter dated May 31, 2015. IR 186, 190. When asked what limitations he had on his major life
activities, he listed that he suffered from intimacy problems, sleepless nights, inability to perform
self-hygiene, clean his house, or dealing with his family. He stated that he had been experiencing
panic attacks which prevented him from getting out of the house or maintaining normal
relationships with family and friends. IR 188, 190. He averred that he was seeing a psychologist
weekly and a psychiatrist as needed for maintenance mediation. IR 188. When asked what specific
accommodation he desired, Complainant stated that he requested to be allowed to telework for two
or three days per week in order to have a reprieve from the stress of being exposed to a hostile
work environment on a daily basis. IR 207. When asked how the requested accommodation would
enable him to perform the essential functions of his position, Complainant replied that being
allowed to telework would have alleviated the stress that had been aggravating his medical
conditions. IR 207-08.

In its final decision, the Agency determined that Complainant failed to provide supporting medical
documentation despite requests that he do so from the Human Resources Officer (HRO) who
processed his accommodation request. The Agency noted that the HRO had given Complainant
specific information on what medical documentation was needed. Final Agency Decision (FAD),
pp. 24-25. In a memorandum dated June 19, 2015, confirming receipt of Complainant’s reasonable
accommodation request, the HRO stated that, according to his May 31, 2015 letter, the HRO
directed Complainant to provide medical information which addressed the medical specialty of the
examining physician, the nature and severity of his present impairments, the prognosis of the
anticipated dates of full or partial recovery, and, inter alia, the manner in which his impairments
substantially limited his major life activities without the ameliorative effects of any mitigating
measures. In addition, the HRO asked Complainant to have his health care providers describe all
of the reasonable accommodations that would allow him to perform the essential functions of his
original position and his detail position, and to provide all requested information by July 6, 2015.
IR 282, 284-85, 442. The HRO averred that the medical documentation that she requested from
Complainant in her June 19, 2015 memorandum was not submitted. IR 442. S1 averred that
Complainant had never discussed his accommodation request with her, that Complainant was at
liberty to telework as needed during her tenure as his immediate supervisor, and that she, S1,
believed that Complainant was teleworking at his own discretion. IR 357.

On appeal, Complainant contends that the Agency never followed up on his accommodation
request after acknowledging that it had received the request. Complainant’s Appeal Brief (AB),
pp. 16-18. Complainant averred that in his letter to S1 and S2 dated May 31, 2015, he requested
that as a reasonable accommodation, he be allowed to telework two or three days per week. IR
206-07. He maintained that management ignored his attempts to follow up on the request despite
his submission of medical documentation.
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Complainant contended that the interactive process for his accommodation request never took
place. IR 207-208, 273-75; He maintained that he provided the medical documentation that had
been requested of him. IR 208. The documentation that Complainant maintains he provided to
the HRO consisted of a letter from a Nurse Practitioner dated June 5, 2015, a letter from a
Psychologist to the Nurse Practitioner dated April 27, 2015, and an undated letter from the
Psychologist. In her June 5 letter, the Nurse Practitioner cited as reasons for the reasonable
accommodation request the fact that he was experiencing increased neck and shoulder pain due to
his cervical spondylosis and related degenerative disc disease. The Nurse Practitioner also stated
that Complainant had been suffering from chronic PTSD and had been experiencing elevated stress
in his work environment. IR 272. In the April 27, 2015 letter to the Nurse Practitioner, the
Psychologist stated that Complainant had been diagnosed with PTSD and major depressive
disorder, and that he was being seen for individual therapy once a week. IR 320. In the undated
letter, the Psychologist recommended that Complainant be given an extended leave of absence due
to increasing occupational stress. IR 321.

Disparate Treatment

In a memorandum addressed to Complainant dated June 12, 2015, S2’s Chief of Staff notified
Complainant that he would be detailed to a temporary assignment for up to 120 days to serve as
the Deputy Director of the OSEOD and that his detail would begin on June 18, 2015. The reasons
the Chief of Staff gave for the detail were set forth in the memorandum as follows:

“Due to significant concerns about the [Client Agency] financial systems
modernization project, immediate changes in IBC leadership are needed. Effective
immediately, your duties and responsibilities as Director, Interior Business Center,
will be temporarily assigned to another individual.”

IR 209, 281. Complainant characterized the action as a demotion that caused him embarrassment
and humiliation and which had ruined his reputation. IR 209. When asked why he believed that
he had been demoted, Complainant averred that he had been moved from a Director’s position to
a Deputy Director’s position, that he had been moved from one of the Agency’s mainline
businesses to a support organization, and that he had lost responsibilities for personnel, budgeting,
and overall decision-making. He also noted that he had been rated as exceptional in his most recent
performance appraisal prior to the detail. IR 209-10, 20-91, 294-97, 304-14. He admitted,
however, that he did not lose any salary or benefits as a result of the detail. IR 210. The HRO
averred that the detail had no impact on Complainant’s grade level, salary, or benefits. IR 444.
The Chief of Staff, S1, S2, and the individual who replaced Complainant as Acting IBC Director
all averred that the decision had been made to temporarily detail Complainant because of
significant concerns that Complainant was not providing effective leadership on a major project
that he had been overseeing. IR 359, 381-82, 426-27, 561-62.

In her June 12, 2015 memorandum, the Chief of Staff informed Complainant that he would be
authorized to take administrative leave between June 12 and June 18, 2015, the start date of his
new assignment. IR 20, 211-12, 281, 428.
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When asked how he had been harmed when he was placed on administrative leave, Complainant
averred that he had been embarrassed and humiliated because placement on administrative leave
was usually associated with punishment for wrong-doing, and was undertaken during the course
of an investigation into misconduct. He further averred that he had to face colleagues asking him
every day if he had been fired. IR 212.

Harassment

When asked to describe the harassment to which he had allegedly been subjected, Complainant
averred that he had endured continuous, ongoing, escalating attacks on his character by S1 that
included telling other executives that Complainant could not be trusted, that he could not give a
straight answer, that he talked like a salesman, and that he did not understand the Agency.
Complaint also averred that S1 constantly questioned him about his role as IBC Director and had
lied to his deputy. IR 194-202.

S1 responded that the Client Agency was a client of the IBC and that Complainant was responsible
for overseeing the migration of three Client Agency components to a new financial management
system. S1 maintained that she and others in the Agency’s senior management had concerns and
questions about IBC’s ability to complete the migration process on schedule. S1 also averred that
it had not been clear to her whether Complainant had been paying sufficient attention to provide
the necessary level of management guidance and support that the project needed, and that she also
had concerns about whether Complainant was providing her with complete, accurate, and timely
information concerning the project’s status. IR 352-353. S1 denied that she told other executives
that IBC was a disaster, but did acknowledge expressing concern that the Client Agency project
could well turn out to be a disaster and could be damaging to the reputation of the IBC. IR 353.
In addition, S1 stated that she requested Complainant ensure that his reporting on IBC activities
was as accurate and timely as possible. IR 354-65. S2 and the Chief of Staff both recall having
conversations with S1 in which she expressed concerns about the timely completion of the Client
Agency project. IR 382, 428.

Constructive Discharge

Complainant averred that he was forced to resign on September 27, 2015. IR 213. In an email
addressed to S1 dated September 18, 2015, Complainant stated:

It is with deep sadness and regret that I am forced to tender my resignation as
Director, Interior Business Center – my dream job. Due to health concern
exacerbated by the current leadership (that have not been accommodated) and
escalating and disruptive leadership related events over the past four years, I am
unable to sustain the current hostile work environment. The events of the past few
months have made it increasingly clear that I can no longer work for the Agency.

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IR 267, 213-14, 359, 382, 42, 445. Complainant’s SF-50 indicates that his resignation took effect
on September 26, 2015, and that the reason for the resignation was that the employee
(Complainant) resigned to pursue a position with the private sector. IR 268, 595.

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”).

Denial of Reasonable Accommodation

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (p); 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); Barney G. v. Department of Agriculture,
EEOC Appeal No. 0120120400 (December 3, 2015).

We will assume for purposes of analysis that Complainant, with his multiple impairments, is a
qualified individual with a disability. Given that assumption, we must now determine whether the
Agency satisfied its obligation under the Rehabilitation Act. It is well-settled that an employee
who requests a reasonable accommodation where the need for an accommodation is not obvious
must provide medical documentation sufficient to justify the request, and that such documentation
must include information pertaining to diagnosis and prognosis for the condition for which a
reasonable accommodation is being sought. See e.g. Sherill S. v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120150222 (April 5, 2017) (finding in agency’s favor where employee failed to
provide medical documentation showing diagnosis and prognosis for her condition, major life
activities implicated, and other pertinent information despite repeated requests); Williams v. U.S.
Postal Service, EEOC Appeal No. 0120081584 (Aug. 20, 2009) (medical documentation deemed
insufficient where the only information provided was a vague doctor’s letter that did not include
diagnosis, prognosis, or the employee’s specific limitations).

In this case, the HRO averred that she never received the medical documentation from
Complainant that she had requested in her response to Complainant’s request for an
accommodation dated May 31, 2015. IR 273-75, 442. Even if the HRO did receive the
documentation that Complainant claims to have sent, that documentation is insufficient. While
the June 5, 2015 letter from the Nurse Practitioner identifies two of the conditions that Complainant
identified as disabilities, cervical spondylosis and chronic PTSD, the letter includes neither a
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diagnosis from a physician nor a prognosis. IR 272. The letter from Complainant’s treating
Psychologist to the Nurse Practitioner dated April 27, 2015, indicates that Complainant had been
diagnosed with PTSD, Major Depressive Disorder, and Nightmare Disorder but does not provide
any information on Complainant’s prognosis regarding these disabilities. IR 320. Again, there
are no indications in the record that the HRO ever saw this document. Similarly, the undated letter
from the Psychologist contains no information regarding diagnosis or prognosis. IR 321.
Complainant has not presented any evidence that tends to undermine or contradict the HRO’s
assertion that she did not receive medical documentation from Complainant supporting his
accommodation request. Likewise, Complainant does not identify any other medical documents
that he claimed to have submitted to the HRO.

On the basis of the record before us, we find that Complainant failed to satisfy his obligation under
the Rehabilitation Act to provide medical documentation in order to justify his non-obvious request
for a reasonable accommodation. Moreover, from the wording of Complainant’s request, he
appears to be asking for relief from a hostile work environment, as opposed to an accommodation
for his disabilities which would have allowed him to perform the essential functions of his position.
We also note S1’s affidavit statement that she allowed Complainant to telework at his discretion,
which was the accommodation that Complainant was seeking. Complainant has thus not
established that he was denied a reasonable accommodation in violation of the Rehabilitation Act
under these circumstances.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). This analysis applies to disparate treatment claims brought under the Rehabilitation Act.
Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981).

As a first step, Complainant must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC
Request No. 05950842 (Nov. 13, 1997). In this case, S1, S2, the Chief of Staff, and the Acting
IBC Director who replaced Complainant all stated that senior management had serious concerns
about Complainant’s ability to oversee the successful migration of three Client Agency
components to the new financial system that the IBC had created for that Client Agency, and that
it was necessary to make a leadership change in the IBC, at least with respect to the Client
Agency’s project.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
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Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008).

When asked why he believed that his race, color, sex, and age were motivating factors in the
decision to detail him out of the IBC and immediately place him on administrative leave,
Complainant gave several responses. He averred that a white female colleague who had played a
role in a large data breach had not been demoted as he claimed he was. IR 212. He further averred
that the Acting IBC Director who had replaced him was a younger female “of child-bearing age,”
and that the demographics of the IBC clearly showed that the office was dominated by white
females. He also pointed to a statement allegedly made by S2 about the need for the Agency to be
run “like motherhood and apple pie.” When asked why he believed that he had been treated
differently because of his religion, he averred that the Acting IBC Director had called him a “cult
leader.” When asked about his disabilities and prior EEO activities being factors in the decision
to temporarily replace him as IBC Director, Complainant reiterated that management had ignored
his reasonable accommodation requests and averred that the detail was due in part to the fact that
he had requested a reasonable accommodation. IR 204-05, 211-12.

Regarding Complainant’s white female colleague, the Chief of Staff denied that this individual
was involved in the data breach to which Complainant referred. IR 428. The Acting IBC Director
denied that she referred to Complainant belonging to a religious cult. IR 564. Apart from his own
assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from
witnesses other than himself nor documents which contradict the explanations provided by S1, S2,
the Chief of Staff, or the Acting IBC Director for detailing Complainant out of the IBC or which
call their veracity into question. Complainant has likewise presented no evidence contradicting
S1’s statement that, rather than actually placing Complainant on administrative leave, she had
authorized him to take administrative leave if he chose to. We therefore agree with the Agency
that Complainant has not met his burden of proof that any of the bases of discrimination raised in
his complaint were motivating factors in the decision to detail him to the position of Deputy
Director of the OSEOD and allow him to take administrative leave until the start date of his new
assignment.

Harassment

To establish a claim of 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 classes; (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
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liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail on his harassment claim, Complainant must prove that the incidents occurred
because of a protected basis. Beyond motive, Complainant must show that S1 had subjected him
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. Since Complainant has also
alleged reprisal, he must prove that S1’s actions were harmful to the point that they could dissuade
a reasonable person from making or supporting a charge of discrimination. Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC Enforcement Guidance
on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016).
Only if Complainant satisfies his burden of proof with respect to all of these elements, motive and
either hostility or chilling effect, will the question of Agency liability for discriminatory or
retaliatory harassment present itself.

Complainant established the first element of a claim of harassment by virtue of the multiple bases
of discrimination set forth in his complaint. We would also agree that the conduct of the named
officials in connection with the various incidents identified by Complainant is unwelcome from
his own subjective perspective. This is enough to satisfy the second element. See Floyd L. v.
Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27, 2017).

In order to establish the third element of a claim of discriminatory harassment, Complainant must
make the same showing he would have to make in attempting to establish pretext in a disparate
treatment claim, namely that in taking the actions that comprise his harassment claim, the Agency
relied on considerations that are expressly proscribed by the statutes enforced by the Commission.
See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016).

Complainant cites as evidence of race and color discrimination a conversation that allegedly took
place between S1 and one of his subordinates in which S1 told the subordinate that Complainant
was “not trustworthy,” and that the IBC was “a disaster.” He also averred that S1 addressed him
using slang such as “I feel like I’m being played.” When asked what he thought this comment
meant, Complainant replied that it meant being “manipulated into a loveless relationship.” In
addition, Complainant cited a comment directed at him by the Chief Human Resources Officer for
the entire department, who allegedly told Complainant that “he could not hire all black people,”
when he selected an African American to be his chief of staff. He also averred that his peers were
granted privileges that he was allegedly denied. As an example, he stated that the Acting IBC
Director was allowed to telework while he was not. IR 202-03. When asked why he believed he
was being harassed because of his age, Complainant stated that the Acting IBC Director who
replaced him was young enough to be of “childbearing age.” IR 203. As to sex, Complainant
averred that S2 had made a comment that she wanted the organization to be run “like apple pie
and motherhood,” and that S1, S2, and the Departmental Human Resources Chief had made it
clear that they preferred women in executive positions. IR 203-04.
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When asked about religion, disability, and reprisal, Complainant repeated his assertions that the
Acting IBC Director referred to him as a cult leader, that management denied his reasonable
accommodation request, and that the detail was in retaliation for making a reasonable
accommodation request. IR 204-05. Complainant’s subordinate did aver that S1 had suggested
to him that Complainant lacked trustworthiness, but denied that S1 had characterized the IBC as a
disaster and could not say whether Complainant’s race, color, sex, age, religion, disability or
previous EEO activities were factors in the way Complainant was being treated. IR 579-82.

When considered as a whole, the evidentiary record indicates that most of the comments that
Complainant attributes to S1, S2, and the Chief of Staff did not occur, and that to the extent that
S1 made comments, she did so as expressions of concern regarding Complainant’s oversight of
the Client Agency’s financial services project that the IBC was tasked with completing. As with
his disparate treatment claim, Complainant has not presented any evidence beyond his own
assertions that expose any weaknesses, inconsistencies, or contradictions in the explanations
provided by S1, S2, the Chief of Staff, or the Acting IBC Director for the various comments to
such an extent that a reasonable fact finder could rationally find those explanations unworthy of
credence. See Opare-Addo v. U.S. Postal Service, supra.

Additionally, we find that Complainant did not show that the actions of S1, S2, or the Chief of
Staff were so severe or pervasive such that a hostile work environment existed. The conduct
alleged to constitute harassment should be evaluated from the objective viewpoint of a reasonable
person in the victims' circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). Complainant must bear in mind, however, that anti-
discrimination statutes are not general civility codes designed to protect against the “ordinary
tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see
also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality
conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged
harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address
discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81 (1998). As we have previously noted, the conduct that Complainant
characterizes as severe and pervasive was nothing more than comments about his oversight of the
Client Agency’s project and his leadership of the IBC. None of those comments, either
individually or collectively, are severe or pervasive enough to rise to the level of hostility that
would support a finding of discriminatory harassment.

Constructive Discharge

To establish a constructive discharge, Complainant would have to show that the Agency made
working conditions so difficult that any reasonable person in his position would have felt
compelled to quit. Clemente M. V. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661
(Mar. 11, 2016), citing Caron-Coleman v. Dept. of Defense, EEOC Appeal No. 07A00003 (Apr.
17, 2002). The Commission has established three elements which a complainant must prove to
substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s
position would have found the working conditions intolerable; (2) conduct that constituted
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discrimination against the complainant created the intolerable working conditions; and (3) the
complainant’s involuntary separation, retirement, or resignation resulted from the intolerable
working conditions. Clemente M., supra, citing Walch v. Dept. of Justice, EEOC Request No.
05940688 (Apr. 13, 1995). Intolerable working conditions must be severe and pervasive. Lopez
v. Dept. of Veterans Affairs, EEOC Appeal No. 01944180 (Jan. 22, 1996). Here, none of the
comments made by or otherwise attributed to S1, S2, the Chief of Staff, or the Acting IBC Director
were severe or pervasive enough to give rise to intolerable working conditions. Those comments
were attributable not to any unlawful motive on the part of these officials, but rather to legitimate
concerns on the part of S1, S2, and the Chief of Staff regarding Complainant’s leadership of the
IBC and oversight of the Client Agency’s project. We therefore agree with the Agency that
Complainant’s resignation on September 27, 2015 was entirely voluntary.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

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

June 7, 2018
Date