Jamison F.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Mar 27, 2018

0120160467 (E.E.O.C. Mar. 27, 2018)

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

Jamison F.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120160467

Hearing No. 510-2014-00360X

Agency No. HHS-OS-0079-2013

DECISION

On October 15, 2015, 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
September 21, 2015, 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., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as an Auditor, GS-0511-12, at the Agency’s Field Office in Miami, Florida.
He was assigned to the Office of Audit Services, which was housed within the Office of
Inspector General. He was billeted to an audit group led by a Senior Auditor (RMO1) who,
while not in his supervisory chain, was responsible for overseeing the implementation of the
audit projects assigned to his group. His supervisory chain consisted of the Audit Manager, his
immediate supervisor (RMO2), the Regional Inspector General, his second-line supervisor

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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(RMO3), the Assistant Inspector General, his third-line supervisor (RMO4), and the Inspector
General, his fourth-line supervisor (RMO5).

On January 11, 2014, Complainant filed an EEO complaint, which he amended on April 1, 2014,
May 19, 2014, and May 22, 2014. He alleged that the named officials subjected him to
harassment and disparate treatment because of race (Caucasian), national origin (American), sex
(male), religion (Protestant), disability (dyslexia, post-traumatic-stress-disorder - PTSD), age
(49), and prior protected EEO activity. Complainant identified the following incidents as
comprising his claim:

1. On August 7, 2013, RMO2 gave him a poor mid-year performance review;

2. On August 7, 2013, RMO2 gave him a proposed two-day suspension;

3. On November 13, 2013, RMO2 sustained the proposed two-day suspension;

4. On November 21-22, 2013, he served the two-day suspension;

5. On December 30, 2013, RMO4 denied his request for reassignment to another
audit group;

6. On March 25, 2014, RMO2 informed him that he would be removed from the
flexiplace program, ostensibly as a result of the two-day suspension;

7. As of April 1, 2014, he did not receive his 2013 performance appraisal, which he
claimed he should have received in February 2014;

8. On unspecified dates, RMO1 routinely denied him access to source emails,
routinely failed to keep him informed of task assignments given to staff, and
systematically excluded him from planning work for staff auditors;

9. On March 25, 2014, RMO2 failed to meet with him regarding his work
environment concerns;

10. On February 28, 2014, RMO4 denied his request to be reassigned from RMO1
and RMO2;

11. On March 6, 13, 20, 24, 2014, and April 1, 2014, RMO1 continued to harass and
belittle him by sending him emails which caused him undue hardship because of
his dyslexia;

12. On April 7, 2014, RMO2 denied his request for reassignment;

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13. On April 7, 2014, RMO2 made inaccurate statements in his 2013 performance
appraisal;

14. On April 8, 2014, and April 14, 2014, RMO5 failed to respond to his requests for
reassignment;

15. On April 7, 2013, he was informed that a staff auditor (Witness 3) was dissuaded
from providing evidence to support his discrimination claim.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and the supplemental investigative report (SIR), along with notice of his
right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently, 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.

Complainant’s Alleged Disabilities:

Complainant averred that he was diagnosed with dyslexia around 1973. He also averred that he
suffered from PTSD and depression, which arose due to a violent assault that he and his wife
experienced in their home. He did not identify the date on which the assault occurred. He
maintained that all five named RMOs were aware of his conditions. IR 61, 83. When asked
whether he was substantially limited in one or more major life activities, he replied that because
of his dyslexia, he experienced attention distraction, trouble with comprehension and problems
with hearing, as well as difficulty with expression, grammar, sentence structure, spelling and
punctuation in his written work product. IR 62. When asked the same question in reference to
PTSD, he stated that he was unsure of his environment, he did not trust his neighbors, and that he
felt embarrassed and helpless. IR 62. He averred that he was taking various medications for
PTSD, including pain killers, and muscle relaxers, and that he was also seeking help from the
Agency’s Employee Assistance Program. IR 62. In his supplemental affidavit, Complainant did
not mention PTSD, but did state that he had been experiencing an increase in the frequency of
episodic depression. SIR 58. When asked if was able to perform the essential functions of his
job with or without a reasonable accommodation, he replied that he was. IR 62.

Complainant’s Previous EEO Activity:

Complainant averred that he filed one informal complaint and four formal complaints of
employment discrimination, all of which were resolved in March of 2011. IR 63-64. He averred
that RMO2 had been named in many of his prior EEO complaints. SIR 61. RMO2 admitted that
she was involved in the previous EEO activity in 2010 or 2011, and that she was named as a
responsible management official in at least one of his complaints. IR 202. On November 14,
2013, Complainant initiated contact with the EEO office in which he raised additional allegations
of hostile work environment that led to the filing of the instant complaint and its subsequent
amendments. IR 424-27.
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On November 28, 2013, he filed a grievance with RMO 4 on the two-day suspension, explicitly
identifying discrimination because of race and other bases as the reason for the suspension. IR
428. Complainant also averred that in addition to being retaliated against for his own complaint,
he had spoken out as a witness in support of an Hispanic female auditor who served as his Senior
Auditor prior to RMO1. IR 65-66.

Incident (1) – Mid-Year Performance Review

Complainant admitted that he did not receive a numerical rating of his performance during his
mid-year review in August 2013. He averred that the narrative prepared by RMO2 contained
inaccurate statements regarding his performance, and that RMO2 never warned him that there
were performance-related issues. IR 64-65. RMO1 averred that for Complainant’s mid-year
progress review, he prepared feedback and a written summary of Complainant’s audit work for
RMO2, and that the feedback he provided was “not positive.” He pointed out a number of what
he characterized as deficiencies in Complainant’s performance, particularly his failure to follow
directions on a number of occasions and refusal to carry out assigned tasks. IR 285-86. RMO2
described the performance appraisal process and explained that the mid-year progress review
provided an opportunity to address aspects of performance that needed improvement. She stated
that she did not give him a numerical rating for his mid-year review, but averred that
Complainant was not meeting expectations in the critical elements of achieving results,
collaborating with others, and oral and written communications. IR 202-04, 329-40; SIR 154-56.
RMO2 also pointed that she documented performance deficiencies in the mid-year reviews of
two female auditors, one of whom was Hispanic. IR 205.

Incidents (2), (3), & (4) - Suspension

Complainant averred that the reason he was issued the two-day suspension was that he was
accused of making EEO-related telephone calls in the conference room instead of making calls to
doctors’ offices, and that errors he made on his time sheet were the result of dyslexia. IR 63, 76-
68, 71-72. RMO2 averred that she proposed the suspension for multiple incidents of
unprofessional conduct consisting of inappropriate email and verbal exchanges with RMO1.
RMO2 also averred that she had counseled Complainant on a number of occasions prior to
proposing the suspension, including at the mid-year review conference. The proposal was
sustained by RMO3. IR 205-208, 214, 216, 277-79, 384-91, 394-404, 418-23. Complainant had
been issued a notice of proposed five-day suspension in June of 2010 by RMO2. IR 384-89,
407-17. This suspension was sustained on March 15, 2011, but was reduced to only one day by
the Regional Inspector General. IR 390-91. The female Hispanic auditor who was once
Complainant’s senior auditor (Witness 1) was given a 14-day suspension by RMO2. IR 468.

Incidents (5), (10), (12), & (14) – Reassignment Requests

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Complainant maintained that on the dates referenced above, he repeatedly requested to be
reassigned from under RMO2’s supervision to another audit team, and that the management
officials in his chain of command either refused to honor his requests or failed to respond to
them. IR 74-77; SIR 76-80, 97. When asked what his reasons were for requesting reassignment,
he did not mention the need for a reasonable accommodation of his disabilities. Rather, he stated
that he was requesting reassignment because he believed that he had been and had continued to
be subject to a hostile work environment because of his race, sex, age, disability, religion, and
prior EEO activity on behalf of both himself and Witness 1. IR 75-76; SIR 80. When asked why
Complainant’s reassignment requests were denied, RMO2 and RMO3 averred that they denied
Complainant’s requests because the proposed reassignments were not shown to be an efficient or
effective use of limited audit resources. IR 173, 208-209, 217, 469; SIR 163, 432-33, 860-61.
RMO4 averred that he denied Complainant’s requests because he did not believe that it was
appropriate for him to intervene while the matters were involved in pending administrative
litigation; SIR 76-80, 98-101, 593-597. RMO5 averred that he recalled receiving emails from
Complainant but did not recall the substance of those emails. He further averred that he did not
respond to Complainant’s emails because he was not the appropriate person to respond to a
complaint such as the one Complainant had raised. He further stated that as IG, it was his job to
make policy decisions as to how to direct operations. SIR 605.

In an email from Complainant to RMO3, RMO4, and RMO5 dated April 8, 2014, Complainant
expressed his belief that his work environment was making him mentally and physically ill. SIR
97. RMO2 responded in a memorandum to Complainant and dated April 9, 2014, in which she
stated:

I am sending you this memorandum to follow up on an email you sent regarding
your mental and physical health. Specifically, you informed your senior
management that you believe that your work environment is making you mentally
and physically ill. While you have not cited a specific health condition, you
did propose a suggested workplace modification that you believe will assist
you in performing your job duties. This suggestion was a reassignment. This
memo will serve to provide you with information about what the Agency will
need in order to be able to respond effectively to your request. Request
accommodation of health condition. (emphasis supplied)

SIR 549-551. RMO2 then prepared a generic letter to a medical provider in order to help
Complainant obtain the information he needed to support his request for a reasonable
accommodation. SIR 552-53.

Incidents (8) & (11) – Harassment by RMO1

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In essence, Complainant maintained that on unspecified dates, while serving as the Auditor-in-
Charge on specific projects, he was cut out of the audit group’s work loop by RMO1. He
averred that RMO1 routinely denied him work-related access to source emails, failed to inform
him of the task assignments given to members of the audit team, and routinely and systematically
excluding him from planning the work that was to be done by staff auditors. SIR 69. In
addition, he averred that RMO1 continued to harass and belittle him by sending him emails on
March 6, 13, 20, 24, 2014, and April 1, 2014. Those emails included: a false accusation that he
had contacted an auditee ten days too early; a dismissal of his audit criteria; and editing of
documents without notifying him of the changes that were being made. SIR 84-92. RMO1
responded that all auditors, including Complainant, had access to all of the electronic files
needed to complete any given audit, that he knew of no situation in which Complainant was ever
denied access to information that he needed to complete an audit, and that the email
communications between him and Complainant on March 6, 13, 20, and 24, and on April 1, 2014
were strictly about the audit work being undertaken. SIR 572-79. RMO2 averred that she
informed Complainant that RMO1 did not need to include Complainant on all email
communications, and that she found RMO1’s means of communication, which consisted of
talking to Complainant and forwarding emails from other auditors, to be reasonable. She also
noted that she had observed numerous emails in which RMO1 did include Complainant. SIR
428-30.

Incident (6) – Removal from the Flexiplace Program

Complainant averred that on March 25, 2014, RMO2 informed him that because he had been
suspended in November 2013, he was no longer eligible to participate in the office’s Flexiplace
Program. SIR 61. RMO2 averred that in order to remain eligible to participate in the program,
an employee could not have had any formal disciplinary action issued to him within the
immediately preceding twelve-month period, and that she had informed Complainant of this
policy. SIR 422-24. RMO2 also averred that a senior auditor who was an Hispanic female who
had engaged in previous EEO activity (most likely Witness 1) was also unable to participate in
the Flexiplace program due to a formal disciplinary action having been taken against her. SIR
425. Page (4) of the Agency’s telework policy states that an employee must not have been
issued a final disciplinary action within the previous twelve months. SIR 630, 824.

Incident (9) – RMO2’s Failure to Meet regarding Complainant’s Workplace Concerns

Complainant averred that on several occasions, he had expressed concerns to RMO2 regarding
the hostile nature of the workplace environment, most recently on March 25, 2014, and
characterized RMO2’s response to his concerns, “dismissive.” SIR 69-72. RMO2 responded
that she met with Complainant on March 25, 2014 to discuss Complainant’s loss of eligibility to
participate in the Flexiplace program, and that they talked about Complainant’s work
environment concerns for approximately 45 minutes. RMO2 stated that she reminded
Complainant that he did not have to be included on all emails from RMO1, that as the Senior
Auditor, RMO1 could communicate either by talking directly with members of his team, cc’ing
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the auditor, or forwarding an email to the auditor. She maintained that RMO1’s means of
communicating with his team were reasonable. SIR 428-31.

Incidents (7) & (13) – The 2013 Performance Appraisal

Complainant raises two allegations concerning his 2013 performance appraisal. First, he averred
that he did not receive it until April 7, 2014, when he should have received it by the end of
February 2014, at the latest. SIR 66. To this allegation, RMO1 responded that she did meet with
him about the appraisal on April 7, 2014. She averred that she tries to meet with employees
about their appraisals by the middle of February, but that in Complainant’s case, she took longer
because she needed to document a rating of minimally successful in one of the critical elements
comprising Complainant’s performance plan. She stated that she requested and received an
extension of time from the Agency’s headquarters to complete the appraisal. SIR 425-26.

Complainant’s second allegation was that the rating was inaccurate, the narrative contained
numerous errors, and the overall rating he received of “minimally successful” had caused him to
lose eligibility for a performance award or a within-grade increase in 2014. SIR 63-64, 66-67.
RMO2 acknowledged that Complainant received and signed, but disagreed with, the rating that
he received. IR 182. He received ratings of “fully successful” on three of the four critical
performance elements, but had received a rating of “minimally successful” on the element
entitled, “collaborating with others.” This caused him to receive an overall performance
appraisal rating of “minimally successful” for Calendar Year 2013. SIR 197, 203-04. He had
overall ratings of “fully successful” for Calendar Years 2011 and 2012. IR 353-54, 373.
According to a table of performance reviews conducted by RMO2 between August 2011 and
August 2013, one Hispanic female auditor was rated minimally successful on her 2011 appraisal
while another Hispanic female received a minimally successful rating on her 2012 appraisal. IR
466.

Incident (15) – Alleged Witness Intimidation

Complainant averred that on April 7, 2013, he was told by Witness 3 that someone in the Miami
Field Office told her to “keep her mouth shut.” He maintained that the RMOs named in his
complaint were using coercive measures to dissuade her from providing evidence in support of
his discrimination claim. SIR 95. On April 21, 2014, he sent an email to RMO5 informing him
of his suspicions. SIR 214. Witness 3, however, denied that she ever made the statement that
Complainant attributed to her, or that the alleged coercion ever occurred. SIR 612. RMO5
averred that he was not aware of this comment. SIR 606.

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ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Denial of Reasonable Accommodation

Although Complainant did not formally allege in his complaint that RMO2 and the other named
officials denied his requests for reasonable accommodation of his disability, he appeared to be
raising that argument in his initial and supplemental affidavits. We will therefore address this
argument.

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).

The first step in determining whether or not an individual is entitled to a reasonable
accommodation is to ascertain whether or not that individual has a disability. In this case,
Complainant reported in his affidavit that he had been diagnosed with dyslexia in 1973 and with
PTSD and episodic depression on unspecified dates. We assume, for purposes of analysis, that
Complainant is an individual with a disability.

A qualified individual with a disability is an “individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position. Julius C. v. Dept. of the Air Force, EEOC
Appeal No. 0120141294 (June 16, 2017) citing 29 C.F.R. § 1630.2(m). Complainant presented
uncontradicted testimonial evidence that he was able to perform the essential functions of his
auditor position with or without reasonable accommodation. We therefore assume that he is a
qualified individual with a disability.

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Prior to April 8, 2014, Complainant did not cite any of his disabilities as the reason for
requesting reassignment. Rather, he cited the alleged, ongoing hostile work environment created
by RMO1 and RMO2. It was not until April 8, 2014, when he sent an email to RMO3, RMO4,
and RMO5 that his work environment was making him mentally and physically sick, that his
request was interpreted as a request for reasonable accommodation of a disability. Upon
receiving this information, RMO2 informed Complainant of what he would need to do and what
information he would need to provide in order that his request for a reasonable accommodation
be granted. There are no indications in the record that Complainant ever provided the requested
information. To the extent that the Agency had an obligation to provide Complainant with a
reasonable accommodation of his disability, we find that the Agency satisfied that obligation by
attempting to initiate the interactive process to determine the appropriate reasonable
accommodation.

Harassment

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). 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 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 show 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 incidents occurred because of a protected basis. Alternatively, since Complainant has
alleged reprisal, he must prove that the actions of the various RMOs 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.

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Complainant established the first element of a claim of harassment by virtue of the multiple EEO
bases he identified in his complaint. We would also agree that the conduct of RMO1 and the
other named officials is unwelcome from his own subjective perspective, which 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 show that in taking the actions that comprise his harassment claim, the named RMOs relied
on considerations of his protected bases that are expressly proscribed by the statutes the
Commission enforces. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120142387 (Mar. 29, 2016). With regard to the August 2013 mid-year performance review,
RMO2 stated that she prepared the mid-year narrative based upon feedback she received from
RMO1 indicating that Complainant was not meeting expectations in several critical areas of his
performance. As to the two-day suspension that Complainant served in November 2013, the
action was based on numerous email and verbal exchanges between Complainant and RMO1
that RMO2 characterized as disrespectful toward RMO1. We also note that Complainant was
issued a one-day suspension in March 2011 for similar conduct. Concerning the reassignment
requests that Complainant made between December 2013 and April 2014, RMO2 and RMO3
maintained that they denied those requests based on the need to ensure that the limited resources
of the Audit Service were being utilized efficiently and effectively. By the time the requests
reached the desk of RMO4 in April 2014, Complainant had already filed the first amendment to
his complaint. Moreover, as previously noted, it was not until April 8, 2014 that RMO3, RMO4,
and RMO5 interpreted Complainant’s reassignment requests as requests for reasonable
accommodation, and once they did, they presumably instructed RMO2 to explain the reasonable
accommodation procedures to Complainant.

Regarding the interactions between Complainant and RMO1 that occurred between March and
April 2014 and on unspecified dates, RMO1 maintained that he was following standard protocols
in his communications with Complainant and the rest of the audit team, that he never denied
Complainant access to any information that he needed to complete his assigned audits, and that
the communications between Complainant and RMO1 were strictly work-related. In connection
with Complainant’s removal from the Flexiplace program, Complainant was issued a suspension
in November 2013 and the Agency’s telework policy clearly specified that employees who had
received a formal disciplinary action within the preceding twelve months could no longer
participate in the program. In reference to RMO2’s alleged failure to meet with Complainant
regarding his work place concerns, RMO2 maintains that such a meeting took place on March
25, 2014. As to Complainant’s 2013 performance appraisal, RMO2 stated that it was delayed
until April because she needed an extension of time to complete a performance narrative that had
to document a minimally successful rating on the element of collaborating with others. As with
the mid-year, RMO2 stated that she relied upon input from RMO1 and the Senior Auditor for the
team, in addition to her own observations. Finally, with regard to the alleged incident of Witness
3 being intimidated by one of the RMOs, Witness 3 herself stated under oath that the incident
never occurred.

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Complainant must now present affidavits, declarations, or unsworn statements from witnesses
other than himself or documents that expose any weaknesses, inconsistencies, or contradictions
in the RMOs’ proffered explanations for the various incidents 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, 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, national origin, sex, religion, age, disability, and previous EEO activity were motivating
factors in the incidents comprising his claim, Complainant replied that the statements contained
in the RMOs affidavits and in the other documents contained so many errors and inaccuracies
that they were “pretextual.” IR 62, 64, 65-66, 67-68, 69, 70, 72, 73, 74, 77-78; SIR 62, 66-69,
71, 72-79, 81-84, 93-95. In his original, supplemental, and rebuttal affidavits, Complainant
presented detailed, point-by-point rebuttals of the assertions made by the RMOs regarding his
2013 performance appraisal, the denial of his reassignment requests, the suspension, and the
various other matters. However, those rebuttals merely represent Complainant’s understandably
different interpretation of the same facts. By themselves, these rebuttals are not sufficient to
contradict the explanations provided by the RMOs or otherwise undermine their veracity as
witnesses.

Complainant did present affidavits from other witness in support of his claim. The first was
from Witness 1, the Hispanic female who once served as Complainant’s senior auditor and who
herself received a 14-day suspension from RMO2. When asked whether Complainant’s
protected bases or prior EEO activity were the reasons for his poor mid-year evaluation, Witness
1 stated: “I believe that if Complainant received a poor rating, that could have been in retaliation
for his prior EEO activity; this is what happened to me when I filed an EEO complaint in 2012.”
Witness 1 denied that Complainant participated directly in her complaints, but speculated that
RMO2 could have retaliated against Complainant by virtue of the fact that Witness 1 and
Complainant were close colleagues. She opined that RMO2’s behavior, particularly issuing
Complainant the suspension and denying his reassignment requests, was an attempt to humiliate
and punish her and Complainant in retaliation for discrimination and harassment claims they had
filed in the past. IR 85-87, 292-93; SIR 157-62. She admitted, however, that she could not
provide witnesses to provide relevant information concerning retaliation against Complainant.
IR 294. This, coupled with the fact that Witness 1 also filed an EEO complaint against RMO2
after being disciplined by her raises questions regarding her credibility as a witness. As
Complainant chose to withdraw his hearing request, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. And because we have
no means of gauging Witness 1’s credibility, we cannot credit her statements as being supportive
of Complainant’s claim.

The second witness, Witness 2, is an Hispanic male. Complainant averred that Witness 2 was
allowed to be reassigned from RMO2’s supervision after complaining about RMO1 for accusing
him of being insubordinate. SIR 64-65. Witness 2 averred that he had difficulty working under
RMO1 and RMO2, pointing out RMO1’s tendency to micromanage his work to the point at
which he, Witness 2, began to experience high blood pressure. IR 300; SIR 622. However,
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rather than request that he be individually reassigned, he advocated that the audit teams rotate so
that auditors could have the experience of working with different senior auditors.
He averred that he had made this request most recently in the self-assessment portion of his 2013
performance appraisal, and that he had been involuntarily reassigned to RMO1’s team and
shortly afterward to another audit team in Tallahassee, Florida. Witness 2 described this
arrangement as being “loaned” to the audit team in Tallahassee. Witness 2 also averred that his
proposal to rotate the audit teams had been disapproved. IR 299-301; SIR 623-25, 627. From the
affidavit of Witness 2, it appears that both auditors’ requests to leave RMO1’s team had been
denied. Witness 2 was therefore not treated differently than Complainant.

As previously noted, Complainant averred that Witness 3, was “dissuaded” from providing
evidence to support his claim but Witness 3 herself denied that such conversations ever took
place.

A fourth witness, a male auditor averred that he had been working with Complainant since
December 2009, and that they had worked well together and had not experienced any conflicts.
IR 171. However, this witness provided no information on either his own or Complainant’s
interactions with RMO1 or RMO2.

After reviewing the record in its entirety, we find, as did the Agency, that Complainant has not
established the existence of a discriminatory or retaliatory motive on the part on any of the
named RMOs with respect to any of the incidents set forth in his complaint. Because
Complainant has not established a connection between his race, national origin, sex, religion,
disability, age, or previous EEO activity and any of those incidents, no further inquiry is
necessary as to whether they are severe or pervasive enough to rise to the level of harassment or
constitute separate acts of discrimination under disparate treatment theory. Tynisha H. v. Dept.
of State, EEOC Appeal No. 0120141395 (March 17, 2017). We therefore find that Complainant
has not established that he was discriminated against or subjected to a legally hostile work
environment.

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 discrimination as alleged.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

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.
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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

March 27, 2018
Date