[Redacted], Brent S., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.

Equal Employment Opportunity Commission

Aug 26, 2021

Appeal No. 2019005943 (E.E.O.C. Aug. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brent S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency. Appeal No. 2019005943 Hearing No. 570-2017-01380X Agency No. OCC-17-0039-F DECISION On September 11, 2019, 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 June 21, 2019, 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 Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources Specialist, Director for Compensation and Benefits, NB-0201-07, at the Agency’s Office of the Comptroller and Currency (OCC), Office of Human Capital in Washington, District of Columbia. 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. 2019005943 2 On January 19, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment and discrimination on the bases of race (African American), color (Black), sex (male), disability, and/or reprisal for prior protected EEO activity when: 1. On October 5, 2016, he was given a tentative job offer for the position of Director for Compensation and Benefits, Office of Human Capital, OCC, with a salary significantly less than that of other Directors within the Office of Human Capital, and significantly less than the female Director whom he replaced and, despite his objections to the lower amount, the compensation was not increased. 2. In November 2016, management denied his request for a reasonable accommodation in the form of telework and paid relocation expenses, and he had to wait more than a month of the delivery of the adjustable height desk that he requested. 3. Management rescinded approval of his request to fill the vacant Benefits Manager position on his staff. 4. Complainant was denied veterans’ preference when he applied in 2013 for the position of Director for Compensation and Benefits. 5. Complainant’s rights under the Fair Labor Standards Act (FLSA) of 1938 were violated. 6. Complainant was retaliated against because he was a whistleblower. 7. Responses to Complainant’s Freedom of Information Act (FOIA) requests were delayed. The Agency dismissed claims (4), (5), (6) and (7), pursuant to 29 C.F.R. § 1614.107(1)(1), for failure to state a claim.2 The Agency accepted the remaining claims and conducted an investigation which produced the following pertinent evidence. 2 The Agency initially dismissed Complainant’s Equal Pay Act (EPA) claim pursuant to 29 C.F.R. § 1614.107(a)(3), noting that he had filed a civil action based on this claim in the U.S. District Court for the District of Columbia. However, Complainant subsequently withdrew his EPA filing and it was dismissed from the U.S. District Court without prejudice. The Agency then continued to process the claim and used the evidence gathered for the Title VII sex-based discrimination to decide the EPA claim. 2019005943 3 Alleged Bases Regarding his alleged basis of reprisal, Complainant attested that, when he accepted his job offer via email to management, he indicated that he thought the job offer was inconsistent with EEO policy and other Federal statutes and he requested to meet with EEO officials. Complainant alleged that it was inferred that he would file an EEO complaint. He also attested that he filed several complaints regarding the Agency’s alleged wrongdoing involving discrimination, hostile work environment, veterans’ preference discrimination, whistleblowing and retaliation, and violations of the Equal Pay Act. The Deputy Comptroller of the Currency (Deputy Comptroller), two Human Resources Specialists (HR1 and HR2), and the Manager of Compensation (Manager) attested that they were not aware of Complainant’s prior EEO activity. Regarding his disabilities, Complainant attested that his records from the Department of Veterans Affairs (VA) indicate that he had post-traumatic stress disorder (PTSD), acne vulgaris, back pain/lumbago, bilateral shin splints/leg stress fractures, tinnitus, acquired flat foot injuries, duodenal or marginal, and right and left foot hallux valgus. He attested that he identified himself as a person with disabilities when he accepted his position. Complainant further attested that his medical limitations required a sit/stand station, an alternative work schedule, extra preparation for meetings, and he was limited to 20 minutes per leg on a particular trip. He attested that he provided management with a disability letter and documentation of his medical restrictions. Deputy Comptroller attested that she was Complainant’s supervisor and became aware of his disability on October 27, 2016, when he submitted his reasonable accommodation form. She attested that Complainant was approved for voluntary modifications in his workplace to assist with the conditions that affect his ability to sit for extended periods. She attested that, to her knowledge, Complainant’s medical condition did not affect his ability to perform his job. HR1 attested that Complainant submitted medical documentation on October 27, 2016 and on October 8, 2016, which stated his medical conditions as noted above. She also attested that, regarding work limitations, Complainant’s ability to sit for extended durations at work was impacted by his disabilities. Claim (1) Complainant alleged that, on October 5, 2016, via telephone, HR2, on behalf of Deputy Comptroller, gave him a tentative job offer for the position of Director for Compensation and Benefits. He attested that he believed the offer had a significantly lower salary than that of the other Directors within the Office of Human Capital and the female Director preceding him in that position. Complainant attested that he requested an offer in writing and he received it on October 17, 2016. He attested that the annual salary offer was $150,282. He accepted the offer the next day, knowing that it was less than others as alleged because there was a public record of several salaries of the Office of Human Capital employees. 2019005943 4 Complainant attested that he objected to the salary when HR2 called him, telling him that his three Director peers had salaries exceeding $200,000, and he contacted Deputy Comptroller, who said she would discuss it with the Senior Deputy Comptroller. Complainant attested that the next day, Deputy Comptroller told him that the Senior Deputy Comptroller would not change the offer because it was a fair offer based on the average of 20 years work experience held by the average employee in OCC. Complainant alleged that management used a new hire salary justification for him that included two non-peer employees, one of whom was his subordinate. Complainant generally disagreed with the Agency’s methodology for computing his salary, stating that the Agency did not follow its own policy by not considering his years and quality of experience, academic background, and recognized expertise; comparing his qualifications with other employees in the unit; and not considering future pay increases that he would have received had he stayed with his previous employer. Deputy Comptroller attested that she followed the guidance of Agency policies and worked with Manager to arrive at Complainant’s salary offer and Deputy Comptroller advised HR2 to offer Complainant that salary. Deputy Comptroller attested that Manager completed the New Hire Salary Justification (NHSJ) Form, but she approved the salary amount. Deputy Comptroller attested that HR2 made the offer, which was $125,237 base salary plus geographic location of 20 percent, for a total of $150,285. She attested that Complainant accepted the offer on October 12, 2016, knowing his salary was less than his peers because he had conducted some preliminary research of which he made management aware via email on October 12, 2016. Deputy Comptroller attested that she discussed the salary decision with the Senior Deputy Comptroller, and they determined that she had properly followed Agency policies and the salary was appropriate. Deputy Comptroller explained that total work experience is considered in a salary determination and asserted that Complainant’s experience and years of Federal service were considered. She attested that she did not believe Complainant’s work experience warranted an increase. She also explained that, when determining the appropriate individuals for a peer group, they use anyone who is currently doing similar work with similar duties and responsibilities. She further explained that the fact that someone may be on a temporary promotion is unrelated because there is no way for them to know that when they pull up the report. She explained that the peer report is the current state of the comparable work group. HR2 explained that he made the tentative offer without the salary initially, but, on October 5, 2016, he was later instructed to contact Complainant for recent salary information. HR2 attested that he called Complainant and told him to send his latest SF-50, showing his current salary; HR2 prepared the salary justification package, reviewing the several directors in the NB-201-7 series. HR2 explained that Comptroller gave him a base salary determination along with a written justification, which he forwarded to a Compensation Specialist to do a first-line review, after which the Compensation Specialist is to forward it to the Senior Deputy Comptroller for final approval before the selectee is notified. 2019005943 5 HR2 attested that the Agency adhered to Agency compensation policies. However, he attested that, based on the peer group, the other salaries appeared to be higher than Complainant’s, but he could not state why because he did not know the peer group’s history. He attested that Complainant seemed to be aware of the others’ salaries as he used it as a basis to make a counteroffer on October 12, 2016. HR2 attested that Deputy Comptroller notified him on October 17, 2016 that she was not going to increase the salary and he sent Complainant an email with an abbreviated offer letter than same day. Manager attested that she served as Acting Director for Compensation and Benefits during the relevant time, prior to Complainant assuming the position of Director for Compensation and Benefits. Manager attested that Complainant’s salary was set based on his relevant experience in the area he would be overseeing in comparison to peers in the same series and grade in Human Resources doing similar work. She attested that the factors taken into consideration include the number of years of relevant experience in his area of expertise, which was 0 in comparison to his peers who had 20 to 28 years; the number of years of work experience, which was less than 6 years, in comparison to his peers who had an average of 25 years of Human Resources experience. She also attested that education is not a factor in determining pay. She also attested that Complainant was offered a 10 percent increase over the salary he had at the time. Regarding his comparison to other employees, Manager attested that the Director he replaced had 9 years of directly relevant experience where she directed, managed, led, and provided expert advice on compensation and benefits programs and her salary prior to coming to the unit was about $186,000 and the Agency offered her a 7.8 percent raise to bring her to $200,000. She also explained that a New Hire Salary Justification (NHSJ) is completed for all external hires and if the offer is 10 percent above an employee’s salary or plus or minus 5 percent of the average base salary of the peer group, additional justification is needed. Regarding Complainant’s objection to a particular employee in his peer group, Manager explained that the employee was considered a peer because she occupied a position at the same title, series, and pay grade as Complainant at the time of the NHSJ. She explained that Complainant was hired as a Supervisory Human Resources Specialist, 0201-NB VII and the peer group consisted of anyone occupying a Supervisory Human Resources Specialist, 0201-NB VII in Human Capital at that time. She further explains that the employee was used as a peer because, at the time, she served as Acting Supervisory Human Resources Specialist, 0201-NB VII. Manager explained that Complainant’s salary was lower than his peers because he had no experience in a compensation and benefits department. She asserted that, although Complainant’s resume mentions him doing compensation analysis and conducting benefits surveys, she questioned that because his work had been in agencies without the same pay and benefit flexibility. 2019005943 6 She also noted that Complainant had 15 years of service and a total salary about $136,000, whereas his peers had 20 to 28 years of service and their salaries ranged from $140,000 to $201,000; the other person on the high end of the spectrum had been serving a long detail, the range was $140,000 to $186,000; the person with the lowest base salary had 22 years of directly related experience; in a Title V environment, such as the one where Complainant had previously served, Complainant would not have been offered any increase because it would have been considered a lateral move; and there was a large learning curve for Complainant. Complainant attested that he believed his medical condition was a contributing factor with regard to this issue because his peers who did not have any obvious medical conditions/disabilities received significantly higher salaries, received appropriate justifications, received appropriate internal peers, did not have their new hire salary justifications written up and approved by their subordinates, and were given full credit for their experience. He also attested that he believed his prior EEO activity was a contributing factor with regard to this issue because when he brought up additional information, including salary comparisons, and pointing out false information in his new hire salary justification, management would not concede and rectify their error. Complainant’s SF-50 dated July 24, 2016 indicates that Complainant’s prior position at another Agency was Human Resources Officer and his salary was $136,622. Complainant’s SF-50 dated November 27, 2016 indicates that Complainant was appointed to the position of Supervisory Human Resources Specialist, Director for Compensation and Benefits, at the Agency, at a salary of $150,284. The NHSJ Form indicates that Complainant’s salary offer of $150,284 was 10 percent higher than his current salary of $136,622 and, although Complainant had 6 years of Federal experience and 8 years of military service experience, the experience of the peer group ranged from 20 to 28 years’ experience, with an average of 24.2 years. It indicates that Complainant’s experience was on the lower end of the spectrum when compared to the peer group, noting the peer group salaries ranged from a base of $139,963 to the Band 7 cap of $201,284, with an average of $177,396. It indicates that management felt the increase of 10 percent was consistent given his experience level, when compared with the peer group and it was necessary to ensure his salary was commensurate with others in the peer group within the lower range of experience. It indicates that Complainant’s resume shows that he had a broad knowledge of overseeing many areas of Human Resources but had not developed the depth, breadth, and scope of total compensation and benefits, as he was considered a generalist in managing all human resources programs. It also indicates that the salary was appropriate given Complainant’s limited expertise in compensation and benefits. Emails between Complainant and Deputy Comptroller and/or HR2 indicate his disagreement with the salary offer and asserts that the female he replaced was paid more, which seemed inconsistent with the Equal Pay Act. Complainant also requested contact information for the EEO Coordinator and the Reasonable Accommodation Coordinator. 2019005943 7 Claim (2) Complainant attested that, when he accepted his job offer on October 18, 2016, he indicated that he would request a reasonable accommodation for his medical condition. He attested that he requested contact information for the Reasonable Accommodation Coordinator and was given that information 8 days later; on October 27, 2016, he submitted a request for a reasonable accommodation to Deputy Comptroller, requesting an alternative work schedule of one day off to attend medical appointments and a home relocation or telework option; and, although he was given approval for a sit/stand station on November 15, 2016, he was not provided with the station until about January 5, 2017. Complainant acknowledged that the alternative work schedule was adequate but asserted that the denial of telework or relocation was not. He also asserted that he was not provided the sit/stand station in a timely manner. Complainant attested that his physician provided the necessary documentation, but Deputy Comptroller told him that the term “disability” had a different meaning when used by the Department of Veterans Affairs than when used in the Rehabilitation Act. He attested that the Agency denied the majority of his reasonable accommodation request, stating that he did not demonstrate that telework was required to accommodate his disability. Complainant attested that Deputy Comptroller also told him that his telework request would be a hardship because Complainant’s presence was required in the office to conduct the essential functions of his position and it was essential that he work onsite to become familiar with the organization, but it could be reconsidered after 90 days of service. Complainant asserted that his presence was not essential to his job and the determination that he needed to be in office to become familiar with the organization was completely subjective. He attested that he believed his race, color, and sex were contributing factors because Deputy Comptroller is of a different race, color, and sex. He attested that his medical condition was a contributing factor because HR2 did not appear to have any obvious medical condition. He attested that he believed his prior EEO activity was a contributing factor because when he indicated that he wanted to pursue EEO action and request a reasonable accommodation, the Agency waited eight days to respond. Deputy Comptroller attested that, on October 16, 2016, Complainant made a reasonable accommodation request via the telephone, and the National Accommodation Coordinator informed her that she had received Complainant’s request via email on October 27, 2016. Deputy Comptroller attested that Complainant requested an alternative work schedule “4/10” to allow him to attend weekly medical appointments, and a full-time telework or permanent change in duty station to help him with his commute. She attested that she made the decision to allow the alternative work schedule but not telework or a change in duty station because Agency policy does not allow a new employee to be granted telework in his first 90 days and his duty station was within Headquarters’ 50-mile travel area. She attested that she believed he went directly to the office responsible for the adjustable desks for that because she did not recall approving that request. She attested that Complainant’s race, color, sex, medical condition, and EEO activity were not factors in her decisions. 2019005943 8 HR1 attested that she is the Reasonable Accommodation Coordinator and is responsible for processing the reasonable accommodation requests. She attested that Complainant informed her of his request to Deputy Comptroller and submitted a request to her with medical documentation on October 27, 2016. She attested that Complainant requested a 4/10 alternative work schedule to attend weekly medical-related appointments and either full-time telework or a permanent change in duty station so that he would not have to commute. HR1 attested that Complainant’s alternative work schedule was approved, but his request for 100 percent telework was not granted for the first 90 days in his position. She attested that a change in duty station was not granted because of Federal and Agency regulations, as Complainant’s residence was within a 50-mile travel area and there were no duty stations closer to his residence. HR1 attested that Complainant’s request for 100 percent telework was not granted prior to 90 days was because his presence in the office was required to conduct the essential functions of his new position. She said he provided high-level advice, guidance, and expertise to influence and inform significant executive level actions; he needed to become familiar with the Agency’s unique benefits; he had to learn the large number of benefit programs; and he had to work from Headquarters to learn the pay-for-performance system. She also attested that they offered Complainant an adjustable desk, ergonomic chair, and keyboard/mouse solutions. Regarding the delay in receiving the desk, HR1 attested that Complainant contacted Workplace Services directly to provide him the desk and when she learned of this on December 5, 2016, she instructed Workplace Services to provide the adjustable desk and anti-fatigue mat. She explained that once Workplace Services is advised to purchase furniture, it usually takes a couple of weeks. She attested that Complainant’s race, color, sex, medical condition, and EEO activity were not factors in her decisions. Emails between Complainant and HR1 document their communications regarding his reasonable accommodation requests as discussed above. Claim (3) Complainant attested that the Agency engaged in retaliation because, on December 19, 2016, Deputy Comptroller had approved his request to fill a vacant Benefits Manager position on his staff and, when mediation efforts related to his EEO complaint failed, she rescinded her approval. Complainant attested that Deputy Comptroller told him that she did not want to hire for that position until they completed an organizational analysis and reorganization, but Complainant disagreed with her decision because, regardless of the organizational analysis and reorganization, there was a need for a new Benefits Manager. Complainant attested that he did not know whether his race or color were contributing factors in this matter, but he believed his sex was a factor because Deputy Comptroller is a different sex. He attested that he believed his medical condition was a contributing factor because Deputy Comptroller did not appear to have any obvious medical conditions. He attested that he believed his prior EEO activity was a contributing factor because, when he brought up additional information to management as to their actions being incorrect and unjust, the Agency would not rectify its error. 2019005943 9 Deputy Comptroller attested that she did not approve or deny Complainant’s request to fulfill the vacant Benefits Manager position on his staff. She attested that they were under a hiring freeze since January 23, 2017, and Complainant’s allegation that she rescinded approval was not true. 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). 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. The instant appeal followed. On appeal, Complainant argues that the Agency violated the Equal Pay Act, noting that Complainant was paid more than $50,000 less than the female who previously held the position and by violating the EPA, the Agency is liable under Title VII for sex discrimination. He also argues that the Agency violated the Rehabilitation Act when it denied his request for a reasonable accommodation. In response, the Agency argues that Complainant has not identified any defect in the Agency’s final decision (FAD) warranting reversal and, therefore, the Commission should uphold its FAD. In so doing, the Agency argues that it articulated legitimate non-discriminatory reasons for its actions and Complainant cannot prove its reasons for its actions were a pretext for discrimination. 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”). 2019005943 10 Dismissed Claims The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In claim (4), Complainant alleged that the Agency denied him his right to veterans’ preference in the hiring process. The Commission has repeatedly held that, to the extent that a claim is based on veterans' status or preference, it does not come within the purview of the 29 C.F.R. Part 1614 EEO complaint process. Chaves v. EEOC, EEOC Petition No. 0320100050 (May 9, 2011); Rowe v. Department of Commerce, EEOC Appeal No. 0120073252 (October 11, 2007); Devereux v. United States Postal Service, EEOC Request No. 05960869 (April 24, 1997). Therefore, we find dismissal of this claim was proper. In claims (5), (6), and (7) Complainant alleged that the Agency violated the FLSA, retaliated against him for his whistleblower activities, and improperly processed his FOIA requests. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The EEO process is not the proper forum for Complainant to have raised any of these challenges. Complainant’s challenge to actions directly related to the enforcement of FLSA should be raised with the Department of Labor because that is the Agency having jurisdiction over those matters. The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). Here, there is no indication at all that Complainant's whistleblower activity involved allegations of employment discrimination. Such whistleblower complaints are properly raised with the U.S. Office of Special Counsel. Finally, the Commission has previously determined that it does not have jurisdiction over the processing of FOIA requests, as disputes regarding such requests should be addressed through the approximate Department of Justice guidelines and agency FOIA implementing regulations. See Gaines v. Department of the Navy, EEOC Request No. 05970386 (June 13, 1997) (affirming summary decisions dismissing complaints involving two allegations of the Act (EEOC Appeal Nos. 01960796 (October 23, 1996) and 01963493 (October 23, 1996)). For these reasons, we find that dismissing claims (5), (6), and (7) was proper. 2019005943 11 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 his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability 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 race, color, sex, disability, or prior 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 disagreements with managerial decisions and discretion, such as those relating to salary, reasonable accommodation requests, and filling vacant positions. 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). Although Complainant has alleged discrimination and retaliation, the record does not establish that the incidents at issue were in related to his race, color, sex, disability, or prior EEO activity. Therefore, his allegations are insufficient to establish his claim of discriminatory harassment. Reasonable Accommodation Claim The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See generally 29 C.F.R. Part 1630. In order to establish that a complainant was denied a reasonable accommodation, a complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable 2019005943 12 Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. §§ 1630.2(o) and (p). Complainant alleged the Agency denied his reasonable accommodation requests. Assuming that Complainant was an individual with a disability and a “qualified individual with a disability,” the matter would turn on whether the Agency failed to provide him a reasonable accommodation. As discussed above, Complainant has multiple medical conditions. He requested reasonable accommodations of an alternative work schedule, 100 percent telework or change of duty station, and a sit/stand adjustable desk. There is no dispute that the Agency gave Complainant the alternative work schedule. The Agency explained that, regarding Complainant’s request for 100 percent telework or a change of duty station, a change in duty station was not granted because of Federal and Agency regulations, as Complainant’s residence was within a 50-mile travel area and there were no duty stations closer to his residence. The Agency explained that Complainant’s request for 100 percent telework was going to be reconsidered after he had been there for 90 days. The Agency explained that it was not granted prior to 90 days because it would present a hardship to the Agency. The Agency explained that Complainant’s presence in the office was required to conduct the essential functions of his new position; he provided high-level advice, guidance, and expertise to influence and inform significant executive level actions; he must become familiar with the Agency’s unique benefits; he must learn the large number of benefit programs; and he must work from Headquarters to learn the pay-for-performance system. We find the Agency’s response to this request to be reasonable, in light of the justifications it provided for why Complainant needed a period of time (90 days) to learn the essential functions of his job before he was allowed to telework. After the 90-day period, Agency management indicated they would consider this postponed accommodation request. Complainant acknowledged that the Agency provided his requested sit/stand adjustable desk, but he argued that the Agency was untimely in doing so, as he had requested it on October 27, 2016 and did not receive it until January 5, 2017. The Agency explained that Complainant requested the desk directly from Workplace Services, rather than through the Reasonable Accommodation Coordinator and, on December 5, 2016, when the Reasonable Accommodation Coordinator learned of the request, she instructed Workplace Services to provide the adjustable desk and anti- fatigue mat. The Reasonable Accommodation Coordinator explained that, once Workplace Services is advised to purchase furniture, it usually takes a couple of weeks for it to be received. We find the Agency provided the desk within a reasonable amount of time. For these reasons, we find the Agency made a reasonable effort to accommodate Complainant’s disabilities where it did not pose an undue hardship on the Agency. 2019005943 13 Disparate Treatment Claims A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant’s allegations regarding his salary and reasonable accommodation requests raise allegations of disparate treatment. However, even if we assume that Complainant established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant’s salary was set based on his relevant experience in the area he would be overseeing in comparison to peers in the same series and grade in Human Resources doing similar work, taking into consideration the number of years of relevant experience in his area of expertise and the number of years of work experience. They Agency also explained that education is not a factor in determining pay and Complainant was offered a 10 percent increase over the salary he had at the time. The Agency explained that a NHSJ form was completed, and the procedure used in determining Complainant’s salary was according to the Agency’s policies and guidelines. Regarding Complainant’s allegations about his reasonable accommodation, as discussed above, we find the Agency’s reasons for its denial of Complainant’s requested 100 percent telework or change of duty station were legitimate, non-discriminatory reasons. Although Complainant has alleged the Agency acted discriminately and/or in reprisal, the record does not establish that his race, color, sex, disability, or prior EEO activity had any relationship to the Agency’s actions. Therefore, he has failed to establish his claims of disparate treatment. 2019005943 14 EPA Claim The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003). Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. As noted above, the EPA permits a compensation differential based on a factor other than sex. In order to establish this defense, an Agency must establish that a gender-neutral factor, applied consistently, in fact explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation Discrimination, No. 915.003, (EEOC Compliance Manual) at 10-IV (December 5, 2000). The Agency must also show that the factor is related to job requirements or otherwise is beneficial to the Agency's business and used reasonably in light of the Agency's stated business purpose as well as its other practices. Id.; Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720040139, req. for recons. den., 0520070616 (July 25, 2007). “Employers can offer higher compensation to applicants and employees who have greater education, experience, training, or ability where the qualification is related to job performance or otherwise benefits the employer's business.” EEOC Compliance Manual at 10-IV. The Commission has noted that such a qualification would not justify higher compensation if the employer was not aware of it when it set the compensation, or if the employer does not consistently rely on such a qualification. Id. Furthermore, the difference in education, experience, training, or ability must correspond to the compensation disparity. Id. The Commission has recognized that continued reliance on pre-hiring qualifications is less reasonable the longer the lower paid employee has performed at a level substantially equal to, or greater than, his or her counterpart. Id. In the present case, assuming arguendo that Complainant established a prima facie case of discrimination under the EPA, we find the AJ properly found the Agency has shown that the pay differential was based on a factor other than sex. The Agency explained that the pay differential reflected Complainant’s experience in human resources, generally, and limited expertise in compensation and benefits, specifically. As noted above, Complainant had approximately 14 years’ experience in human resources, as compared to his peer group’s range of 20 to 28 years; and he was considered a generalist without significant specialized experience in total compensation and benefits. The Agency explained that Complainant’s salary was on the lower end of the range of his peer group, which was consistent with his experience level. 2019005943 15 The Agency explained that, when determining the peer group, they used anyone who was currently doing similar work with similar duties and responsibilities. We note that Complainant has specifically pointed to the female employee (FE) who previously held his position as having a salary of approximately $50,000 more than his starting salary with the Agency. The Agency explained that this salary differential was attributable to her having 9 years of experience directing, managing, and leading compensation and benefit programs, whereas Complainant had relatively little such experience. The Agency also explained that, upon entering the Agency, her salary was $186,000 and the Agency gave her a 7.8 percent increase to bring her to approximately $200,000. Upon review of the record, we find the Agency has shown that the pay differential was justified based on a factor other than sex, specifically the amount of general experience human resources and expertise in compensation and benefits. We find these were sex- neutral factors that the Agency applied consistent with its policies. Therefore, we find Complainant has failed to establish his claim of an EPA violation. 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 2019005943 16 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. 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. 2019005943 17 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 August 26, 2021 Date