[Redacted], Bernardo C., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jul 20, 2021

Appeal No. 2020001925 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernardo C.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020001925 Agency No. DOS-0444-18 DECISION On January 17, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 18, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-0343-13, at the Agency’s Bureau of Consular Affairs, Western Region facility in Van Nuys, California. On October 30, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability, age, and reprisal for prior protected EEO activity when: 1. He was denied a reasonable accommodation; 2. On August 27, 2018, he learned that his location assignments were revised for Cycle 5; 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. 2020001925 2 3. On March 6, 2019, he received an annual evaluation for the 2018 rating cycle that inaccurately characterized his performance as “Fully Successful;” 4. He was exposed to a hostile work environment characterized by, but not limited to, derogatory comments, lack of communications, threats, and intimidation; and 5. On June 30, 2019, he received a Letter of Reprimand.2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts. Alleged Bases Regarding his alleged basis of disability, Complainant attested that he was a disabled veteran who had been diagnosed with Post-Traumatic Stress Disorder (PTSD), as well as multiple physical conditions, including chronic frontal sinusitis, skin lesions, reactive arthritis, Barrett’s esophagus, sleep apnea, bruxism/TMJ, and hypertension. He attested that his conditions required pain management, prescribed medication, and frequent bathing, but he was able to do his assignments and considered himself one of the best analysts in the unit. He attested that, in the course of requesting reasonable accommodations, he notified his supervisors and the Disabilities and Reasonable Accommodations Division (DRAD) of his impairments. Members of management attested that they were aware of Complainant’s conditions. A Supervisory Program Analyst (Supervisor) attested that Complainant requested reasonable accommodations and was referred to the DRAD. Regarding his alleged basis of reprisal, Complainant attested that this was his first EEO complaint with the Agency, but he had filed complaints with a prior employer. He also attested that he requested a reasonable accommodation and has also expressed opposition to the manner he was treated by management. Members of management acknowledged that Complainant had requested a reasonable accommodation. Claims (1) and (2) Complainant attested that his job requires traveling to visit and audit the Passport Application Acceptance Program (PAAP) at passport Acceptance Facilities (AFs). He alleged that, on August 27, 2018, he learned that his location assignments were revised for Cycle 5. He alleged that he was assigned more AFs to review and longer distances to travel than his peers and his assignments were in violation of his reasonable accommodation agreement. 2 On his formal complaint, Complainant indicated his alleged disability was physical and specified it was “100% Disabled Vet.” During the investigation, he attested that his disabilities include mental and physical disabilities. 2020001925 3 Supervisor explained that Program Analysts audit AFs on a two-year cycle. He attested that Complainant’s assignments are not modified and he has the same responsibilities as his peers, subject to the approved reasonable accommodation agreement. Supervisor explained that audit routes are established to ensure efficiency of travel and to complete the two-year process of visiting each AF. He explained that, once the routes are established, he assigns analysts to conduct the work and, in doing so, he considers analyst preferences, their home base/work location, and operational efficiency. He explained that he avoided assigning AF’s to the same analyst who conducted the audit at that location in the prior cycle to ensure that there is no bias and that the captured statistics fit a legitimate standard deviation. He explained that analysts may express preferences which are taken into consideration when the final route assignments are made but having expressed a preference is not a guarantee or overriding factor in the assignments. He explained that, after the assignments are made, the routes may have to be adjusted to deal with unexpected events and/or to equalize the number of AF’s assigned to each analyst. He explained that there is an informal process where analysts may “trade” routes for their own personal reasons, but these trades are subject to his approval. He explained that equalizing AF assignments is a goal, but it is difficult to equalize travel time since each analyst is individually responsible for establishing the order of AF’s visits each travel week and schedules their travel plans accordingly. Supervisor attested that, in August 2018, prior to Cycle 5, Complainant expressed dissatisfaction with his route assignments, indicating that he wanted to reduce his amount of travel time/distance. Supervisor attested that he accepted Complainant’s request and made adjustments. Supervisor denied Complainant’s assertions that he was assigned routes that required travel in excess of his peers. He explained that each analyst establishes his own travel path. He attested that Complainant prefers to fly a specific airline and stay at specific hotels and those preferences impact his travel path and increases the number of trips he takes. Supervisor explained that Complainant’s peers do not make those changes or impose those constraints on themselves. Complainant attested that he requested reasonable accommodations from DRAD and, while he did not receive all his requests, he was given a reasonable accommodation agreement. The record shows that Complainant was granted the following reasonable accommodations: authorization to request hotel rooms near elevators when available and provable to use taxis, with receipts; authorization to rent a full-sized automobile when in travel status; daily telework while working in his local office; his medical needs taken into consideration and, as best possible, accommodated when making route assignments; and assigned as primary driver for rental cars during blitzes. Complainant indicated that DRAD refused additional requested accommodations including the following: only fly Southwest Airlines for early boarding options, which then would limit the cities to which he could go for audits; limit hotels to those with acceptable climate controls and location; not having to wear a tie and/or suit when performing audits; approval to wear a hat; not having to obtain gas receipts at the gas pump, which are needed for travel vouchers; and 2020001925 4 approval for hotel stays when conducting audits in the Los Angeles basin, as Complainant’s home is 100 miles away. Complainant alleged that management was no longer considering his medical needs and the spirit and intent of the agreement were constantly being violated. Management attested that Complainant also requested pre-assigned inspection routes prior to them being made available to his peers for selection (i.e., first choice for all route selections). Supervisor attested that Complainant requested route assignments close to his home and asked that he be given priority in all assignments over his peers. The Acting Division Chief (Chief) explained that Complainant was granted a reasonable accommodation agreement using the interactive process. She attested that his requests regarding freedom of choice of airline and hotel and hotel accommodations in Los Angeles were denied. She attested that the primary difference between what Complainant requested and what was granted involved the route assignments. She explained that all employees need to be on equal footing for assignment selections. Claim (3) In Complainant’s 2018 performance appraisal, Supervisor rated Complainant’s performance as “Exceeds Expectations” in every area except “Job Knowledge” and, in that area, he rated his performance as “Fully Successful.” Complainant’s overall rating was “Exceeds Expectations.” Complainant attested that his work expectations were not discussed at the beginning of the 2018 rating period, nor were they meaningfully discussed during the mid-year discussion. At the end of the year, he provided Supervisor with a list of his accomplishments. Based on his assessment of his performance, he expected a rating of “Exceeds Expectations” in all categories, which would have earned him an overall rating of “Outstanding” and an extra step increase. Supervisor attested that the work expectations are standardized and the same for each analyst. He attested that, during Complainant’s mid-year review, they discussed his report writing, planning, and coordination of inspections and participation in working groups. He attested that he asked Complainant to take steps to improve communications and emotional intelligence, as throughout the year, there were concerns about Complainant’s communications with customers. He attested that Complainant did not deny the concerns and said his communication problems were the result of his impairments. Supervisor attested that he rated Complainant’s performance in “Job Knowledge” as “Fully Successful” because there were consistent performance concerns with Complainant’s communications and diplomacy. Supervisor attested that, when provided the feedback, Complainant stated that he was not going to change his behavior. 2020001925 5 The Office Director (Director) attested that he was the reviewing official for Complainant’s appraisal, and he agreed with the rating. Claim (5) Complainant was issued a Letter of Reprimand dated June 28, 2019, for improper personal conduct during a May 9, 2019 Agency meeting. Complainant alleged that the action was untimely, and the Agency did not consider his side of the story. He also alleged it was not factual and failed to consider his medical condition. Complainant attested that he was disciplined for asking legitimate questions that deserved to be addressed by management. He denied yelling at anyone and attested that he was not angry. A June 28, 2019 Letter of Reprimand from the Agency to Complainant indicates that Complainant was issued the reprimand for improper personal conduct on May 9, 2019, during a presentation at an “All-hands AFO Blitz.” The letter indicates that Complainant asked several questions that were too specific and somewhat irrelevant. It also indicates Complainant yelled at the presenter and angrily exited the room, slamming the door behind him, and when management approached him in the hallway, he continued to use a raised voice that could be heard inside the room. The letter indicates that Complainant’s conduct was unprofessional, disrespectful, unacceptable, disruptive, and reflected negatively on the Agency. Supervisor attested that he was at the meeting and observed Complainant engaging in improper conduct. Director attested that he was at the meeting when Complainant interrupted a presentation and raised a question that had nothing to do with what was being discussed. He attested that Complainant’s interruptions caused an unnecessary delay in the presentation and were inappropriate for the meeting. He attested that he asked Complainant to hold his questions until the end of the meeting and to keep them on topic, but Complainant stormed out of the meeting and was disruptive. Director attested that he consulted Human Resources and was advised that, based on prior counseling for the same or similar behavior, a Letter of Reprimand was warranted. Claim (4) Complainant attested that, in addition to the claims noted above, his examples of being subjected to a hostile work environment included that his questions were routinely ignored, Supervisor once hung up on him on the phone, Supervisor refused to address his concerns, Supervisor called him “names” on the phone, and his peers have been made aware of his reasonable accommodation agreement. Supervisor attested that Complainant has been hostile on the phone and it is difficult to communicate with him. He attested that he has advised Complainant to be more professional in discussions, but the calls have become less and less productive. 2020001925 6 He attested that he told Complainant that unless he changed his approach, the call would cease; Complainant continued, and Supervisor hung up the phone. Supervisor denied calling Complainant any names. Supervisor denied discussing Complainant’s reasonable accommodation with any of Complainant’s peers, but he attested that he has heard Complainant discussing the matter with other analysts. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complaint reiterates that he is a 100 percent disabled veteran and describes his difficulties in reading reports and responding to EEO documents. He expresses his frustrations with the Agency and alleges that the investigation was inadequate, providing a list of witnesses that he would like interviewed. He asserts that veterans are targeted, the Letter of Reprimand contained fabrications, and that his performance approval was not an accurate assessment of his performance. He also reiterates and expands upon his contentions and includes information in support of his claim. The Agency has not submitted a statement or brief in response. 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”). Reasonable Accommodation Claim 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). 2020001925 7 The term “reasonable accommodation” means, in pertinent part, modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of the position in question. See 29 C.F.R. §1630.2(o)(1)(ii). Reasonable accommodations may include but are not limited to: job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. 29 C.F.R. §1630.2(o)(2)(ii). To establish the agency denied a complainant a reasonable accommodation, a complainant must show that: (1) he was an individual with a disability; (2) he was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). Assuming arguendo that Complainant was a qualified individual with a disability, the matter would turn on whether the Agency failed to provide a reasonable accommodation. Here, Complainant acknowledges that the Agency engaged him in an interactive process and granted him a list of reasonable accommodations for his disabilities. However, Complainant asserts that the Agency refused some of his requests, including freedom of choice of airline and hotel accommodations, waiving standards of professional attire, approval to wear a hat, not having to obtain receipts at the gas pump, and approval for hotel stays in Los Angeles. Complainant also alleged the Agency did not honor the term of his reasonable accommodation agreement requiring the Agency to take his medical needs into consideration when making assignments. At the outset, we note that, while Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019) citing Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). The record does not establish that Complainant’s requests that were not granted were necessary for him to perform the functions of his job. In fact, Complainant attested that he was able to perform his assignments and considered himself to be one of the best analysts. We note that, with respect to the assignments, management explained that Complainant’s medical needs were taken into account when he was given assignments and Complainant’s individual travel choices impacted his travel time and distance. Therefore, we find the record establishes that the Agency met its responsibility to provide Complainant reasonable accommodations sufficient to enable him to perform his job. Disparate Treatment Claims For a complainant to prevail on a claim of disparate treatment, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020001925 8 He must initially 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. To establish a prima facie case of disability discrimination under a disparate treatment theory, a complainant must demonstrate that: (1) he is an “individual with a disability” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied a reasonable accommodation. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020). To establish a prima facie case of disparate treatment on the basis of reprisal, a complainant must show that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132503 (Aug. 28, 2014), citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). The complainant must ultimately prove, by a preponderance of the evidence, that the agency's explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Here, Complainant’s allegations in claims (2), (3), and (5) give rise to claims of disparate treatment. However, assuming arguendo that Complainant established a prima facie case of discrimination and/or reprisal with respect to these claims, we find his claims still fail. The Agency has articulated legitimate, nondiscriminatory reasons for its actions. With respect to his allegations in claim (2) regarding his assignments, the Agency explained that Complainant’s assignments were not modified, and he had the same responsibilities as his peers, subject to the approved reasonable accommodation agreement, and, while Complainant sought to have his first choice of assignments, all employees were on equal footing with respect to assignments. With respect to Complainant’s allegations claim (3) regarding is performance evaluation, the Agency explained that Complainant’s rating reflected the fact that there were consistent performance concerns with Complainant’s communications and diplomacy. With respect to Complainant’s allegations in claim (5) regarding the Letter of Reprimand, the Agency explained that Complainant was issued the letter because of his improper conduct during an Agency meeting, including interrupting the presenter and asking inappropriate questions, causing unnecessary delays, and storming out of the meeting. Although Complainant has alleged the Agency acted discriminately and/or in reprisal, we have reviewed the record and found that the preponderance of the evidence does not establish that he was subject to discrimination or retaliation. Therefore, he has failed to establish a claim of disparate treatment. 2020001925 9 Harassment Claim To establish a claim of hostile environment harassment, a 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 her 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, 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 disability or prior protected EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Most of Complainant's harassment allegations can generally be described as relating to managerial decisions, including those relating to reasonable accommodations, assignments, performance evaluations, and discipline. Some of his allegations also reflect personality conflicts, trivial slights, or petty annoyances with management. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex, or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Complainant’s remaining allegations relate to management’s saying things to or about Complainant that he did not like or otherwise speaking to Complainant in a displeasing manner. We also find these allegations are insufficiently severe or pervasive to have altered the conditions of Complainant's employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). We have reviewed the record and, while Supervisor may have demonstrated poor communication skills, it does not establish that that the incidents at issue were based on 2020001925 10 Complainant's disability, age, and/or prior protected EEO activity. Therefore, we find Complainant's allegations are insufficient to support his claim of discriminatory harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020001925 11 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations July 20, 2021 Date