[Redacted], Courtney M., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal Nos. 2020003308, 2020003779 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Courtney M.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal Nos. 2020003308 2020003779 Hearing Nos. 480-2019-00489X 480-2019-00490X Agency Nos. DON-13-66001-02266 DON-14-66001-02069 DECISION Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission),2 pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decisions issued on April 4, 2020, and May 8, 2020, 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. 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 decisions. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. 2020003308 & 2020003779 2 ISSUES PRESENTED The issues are whether the Agency should be sanctioned for conducting an untimely investigation and issuing untimely final decisions; and whether Complainant established that the Agency subjected him to discrimination or harassment based on disability or race, or in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Computer Scientist at the Agency’s Space and Naval Warfare Systems, Systems Center Pacific in San Diego, California. Complainant’s first-line supervisor (S1) (disability, Caucasian) stated that Complainant started to take a lot of leave starting in June 2012, and in August 2012, Complainant disclosed that he had a serious medical condition. S1 stated that Complainant exhausted his accrued sick and annual leave, and he went on a leave without pay (LWOP) status on November 15, 2012. Complainant’s LWOP was granted through May 16, 2013. Report of Investigation (ROI) 1 at 119. On May 23, 2013, Complainant submitted a request for leave under the Family and Medical Leave Act (FMLA). S1 responded that Complainant’s request did not include the dates for his request, and Complainant updated his request for FMLA leave from June 14, 2013, through September 9, 2013. ROI 1 at 63-8. Complainant submitted supporting medical documentation on May 30, 2013. ROI 1 at 69-74. On June 10, 2013, S1 informed Complainant that his FMLA request was approved through September 9, 2013. ROI 1 at 80. Complainant stated that he returned to work on or around September 9, 2013. ROI 2 at 1245. Complainant moved to another section on June 30, 2014, and he reported to a new supervisor (S2) (Caucasian). The move was finalized in September 2014. ROI 2 at 1320. EEO Complaint No. DON-13-66001-02266 (Complaint #1) On August 28, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his disability (physical) when: 1. management delayed the processing of Complainant’s FMLA request of May 30, 2013, and a decision was not made within the required five days; 2. during the period of April 2012 through April 2013 (no specific date provided), Complainant stated that his request for time-off to recover from a medical condition was ignored; and 3. during the period of May 2013 through June 2013, a Human Resources Office representative requested substantial medical documentation regarding two of Complainant’s requests for his extension for LWOP. 2020003308 & 2020003779 3 On February 28, 2014, the Agency amended its initial acceptance letter issued on January 29, 2014, and it accepted the above claims for investigation. The Agency reversed its dismissal of claim 3 after Complainant informed the Agency that the initial dates used were incorrect. However, the Agency dismissed Complainant’s allegations of disability discrimination when: 4. Complainant received a one-point salary increase and a one-point bonus, instead of a two-point salary increase for the performance rating period ending June 30, 2012; and 5. Complainant received a notice of proposed furlough dated May 28, 2013, even though he was in an LWOP status. The Agency found that claim 4 was untimely, and that claim 5 was moot because Complainant was never furloughed. ROI 1 at 48-9. On or about April 21, 2014, Complainant requested a hearing before an EEOC Administrative Judge (AJ) because the Agency had not completed the investigation within 180 days. ROI 1 at 306-7. EEO complaint No. DON-14-66001-02069 (Complaint #2) On March 30, 2014, Complainant filed another EEO complaint alleging that the Agency subjected him to discriminatory harassment on the basis of race (Asian), and in reprisal for prior protected EEO activity (EEO activity since June 6, 2013), when: a) on December 3, 2013, Complainant was allegedly threatened and harassed by his supervisor for not attending a Windows 7 training; b) on December 5, 2013, Complainant was issued a Memorandum of Counseling for missing a Windows 7 training; c) On December 5, 2013, Complainant was denied New Employee Orientation training, which he felt was required to do his job when he returned to work from his medical leave; d) Complainant was assigned a temporary job at the Depot in November 2013, which was outside of his major and the position that he was hired for; e) management allegedly never addressed negative remarks made by coworkers during his temporary position at the Depot; f) management did not provide a requested phone, which Complainant alleged was necessary to perform his job duties; g) the job duties at the Depot created a conflict with his requirement to do a job search that was required for his position; 2020003308 & 2020003779 4 h) on May 5, 2014, Complainant’s request to be assigned to the organization (code) he was working in was denied; i) on June 6, 2014, Complainant learned from another employee that she was allowed to have a third-party present during a performance review, while his request was denied; j) on or about September 9, 2013, Complainant learned that his “Return to Duty” form had not been submitted to Human Resources by his supervisor; k) on or about March 30, 2014, Complainant was not given a management directed reassignment; l) on July 10, 2014, a supervisor allegedly provided inaccurate feedback regarding Complainant’s work in the Knowledge Management Group; m) on August 13, 2014, Complainant’s supervisor issued him a “memorandum of report”; n) on September 9, 2014, Complainant was reassigned by management; o) on September 24, 2014, Complainant’s supervisor provided Complainant with a performance contribution score and corresponding salary increase for the period of July 2013 to June 2014 that was lower than expected; p) on September 24, 2014, Complainant’s request to have his performance review conducted by someone other than his supervisor, and to have a third-party present, was again ignored; q) on October 15, 2014, Complainant was required to write a weekly status report to his supervisor, while others were not; r) on or about October 16, 2014, Complainant was assigned to the Archibus Project; s) on or about December 4, 2014, when Complainant received an email from his supervisor regarding the Archibus training website, he disagreed with the statements and believed that these statements were made in reprisal due to his ongoing EEO investigation; and t) on or about December 10, 2014, Complainant’s supervisor claimed that Complainant took unscheduled leave on December 4, 2014, and on or around December 9, 2014, or December 10, 2014.3 3 On appeal, Complainant argues that the dates for his claims are incorrect. For the purposes of this decision, we will use the dates from the Agency’s acceptance letter dated January 16, 2015, following Complainant’s fifth request to amend his complaint. 2020003308 & 2020003779 5 Complainant amended his complaint five times and the Agency accepted the above incidents of alleged harassment for investigation. However, the Agency dismissed Complainant’s allegations of discrimination when on October 10, 2014, the Notice of Amendment of Acknowledgement of Acceptance of Discrimination did not contain the names of people provided in a previous email; on October 13, 2014, the Notice of Amendment of Acknowledgement of Acceptance of Discrimination contained incorrect dates and did not contain the name of witnesses and discriminators provided in a previous email; and on October 14, 2014, a proposed settlement agreement from management was reprisal. The Agency noted that Complainant was alleging dissatisfaction with the processing of a previously filed complaint, and it dismissed these allegations for failure to state a claim. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On September 30, 2015, the initial AJ (AJ1) issued a Dismissal Order (Without Prejudice). AJ1 noted that Complainant filed a motion to reinstate two dismissed issues (claims 4 and 5), which AJ1 denied. AJ1 found that claim 4 was a discrete event, but was not timely raised with an EEO Counselor, and Complainant had not provided support for his request to toll his deadline due to his LWOP. AJ1 found that claim 5 was moot because Complainant was not furloughed. AJ1 also noted that Complainant had a pending motion to consolidate his two complaints, and he found that the cases were substantially related and granted Complainant’s request to consolidate. Regarding Complainant’s request to amend Complaint #2, AJ1 found that the Agency did not oppose the amendment and that Complainant made a compelling case to amend his complaint. As such, AJ1 amended the complaint to include allegations that the Agency discriminated against Complainant based on disability, and in reprisal for prior EEO activity, when: (1) the Agency failed to reasonably accommodate Complainant on June 25, 2015, when it did not grant his requested LWOP; and (2) on June 29, 2015, Complainant was constructively discharged after the Agency denied his request for three additional months of LWOP, forcing him to resign to preserve his health without having to fight with the Agency over leave usage as a reasonable accommodation. However, AJ1 found that if Complainant wanted to pursue the constructive discharge claim, he would have to proceed with that claim by filing a mixed-case appeal or mixed-case complaint with the Merit Systems Protection Board (MSPB). AJ1 noted that Complainant argued that the discriminatory harassment led to his involuntary resignation and therefore, he wanted the harassment issues heard with his constructive discharge claim. AJ1 dismissed Complainant’s hearing request and instructed the Agency to issue Complainant’s MSPB appeal rights. On October 24, 2015, Complainant filed an appeal with the MSPB, but subsequently filed a motion to withdraw the appeal. The MSPB noted that it had not determined if it had jurisdiction over Complainant’s appeal but granted the motion and dismissed the appeal with prejudice. 2020003308 & 2020003779 6 Complainant requested to reinstate his complaint before the EEOC, but later withdrew his hearing request. On May 29, 2019, the second AJ (AJ2) dismissed Complainant’s hearing request and remanded the matter to the Agency to render a final decision based on the existing record within 60 days. On April 4, 2020, the Agency issued the final decision for Complaint #2. The Agency assumed that Complainant established a prima facie case of discrimination based on race, and in reprisal for prior protected EEO activity, and it found that management officials articulated legitimate, nondiscriminatory reasons for incidents b, c, d, h, k, m, n, o, and t. The Agency then found that Complainant did not show that the management’s legitimate reasons were pretextual. The Agency also determined that Complainant did not establish that he was subjected to harassment because he only provided his subjective opinion that management officials discriminated against him, and there was no independent or corroborative evidence that Complainant was unjustly accused, harassed, or treated in a hostile manner by management officials. On May 5, 2020, the Agency issued the final decision for Complaint #1. The Agency found that Complainant did not establish a prima facie case of disability discrimination. However, the Agency found that management officials provided legitimate, nondiscriminatory reasons for their actions, and that Complainant did not show that the reasons were pretexts for discrimination. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed timely appeals of the final decisions, and he submitted briefs and documents in support of his appeals. The Agency opposed Complainant’s appeals. CONTENTIONS ON APPEAL Complainant’s Contentions Complainant requests a sanction in the form of a default judgment for the Agency’s failure to conduct timely investigations and produce ROIs; issuance of an inadequate, incomplete, and impartial investigation; and failure to issue timely final decisions. For Complaint #1, Complainant asserts that the Agency issued the final decision on May 8, 2020, which was “354” days from AJ2’s May 29, 2019 order. For Complaint #2, Complainant states that the Agency’s final decision was 311 days after the AJ’s order. Complainant argues that the “extraordinary” delays warrant a default judgment. In addition, for Complaint #1, Complainant argues that the Agency omitted and/or used incorrect dates to extend the processing of his complaint. For example, when the Agency dismissed an allegation as untimely, Complainant emailed the Agency to correct the dates, and the Agency improperly treated this as an amendment to extend the investigation period beyond 180 days. Complainant also argues that the final decision for Complaint #2 should be vacated because it did not include his amended failure to accommodate claim. 2020003308 & 2020003779 7 Complainant states that he took medical disability leave from January through June 2015, and then requested an additional three months of leave. Specifically, Complainant stated that on June 25, 2015, he requested LWOP through September 15, 2015, and the Agency only granted his request through July 1, 2015. For Complaint #1, Complainant argues that he requested an extension of his medical leave without pay as a reasonable accommodation, and that there was no interactive process. Regarding the incidents in Complaint #2, Complainant asserts that he was retaliated against for his prior EEO activity, and that the Agency’s reasons for their actions were inconsistent. For example, Complainant states that S1 attempts to cover up his reprisal by claiming that Human Resources denied Complainant’s request for New Employee Orientation training, but that Human Resources does not deny training, a supervisor does. Complainant requests that the Commission find in his favor and remand the complaint for a decision on remedies. Agency’s Contentions The Agency argues that a default judgment is not appropriate in this case and the final decisions should be affirmed. The Agency acknowledges that it did not comply with its obligation to issue timely final decisions, but states that this was due to significant employee attrition and staffing cuts, which resulted in large caseloads for the remaining four staff members. The Agency states that, in response, it obtained experienced EEO Specialists for 90-day detail assignments; temporarily hired recent law school graduates; and used an interagency agreement for assistance with drafting of final decisions. The Agency asserts that the unintentional and unavoidable delays do not warrant a default judgment. The Agency also argues that Complainant has not presented any evidence that he was prejudiced by the delays, nor articulated any consequences of the delayed final decisions. In addition, the Agency states that it was Complainant who affected the integrity of the EEO process when he attempted to jockey between forums, including a trip to federal court,4 and changed his litigation strategy, which prejudiced the Agency. The Agency notes that, during the time that Complainant repeatedly amended his complaints, changed forums, and reinstated his complaint before the EEOC, several management witnesses retired. The Agency argues that Complainant waived his right to complain of any deficiencies in the investigations because he had an opportunity to raise any deficiencies upon receipt of the ROIs, and Complainant did not do so. In addition, the Agency asserts that Complainant failed to give testimony, or otherwise cooperate with the EEO Investigator, for Complaint #1. The Agency states that the investigative files are complete, impartial, and appropriate. 4 Complainant filed a civil action with the U.S. District Court Southern District of California on May 6, 2016, and he filed a Motion to Dismiss without Prejudice on March 31, 2017. 2020003308 & 2020003779 8 In response to Complainant’s argument that he did not amend Complaint #1, the Agency states that Complainant failed to give the actual dates in his formal complaint, and that the addition of dates defined the applicable period of the claim. The Agency states that Complainant amended Complaint #1 on February 28, 2014, which pushed back the deadline for the completion of the investigation to August 27, 2014, and that the Agency met its obligation when it forwarded the ROI to Complainant on June 19, 2014. For Complaint #2, the Agency states that it issued the ROI 42 days late on May 6, 2016, but that Complainant’s amendments required it to supplement the record five times, and that a default judgment is not warranted. Regarding the amended failure to accommodate claim, the Agency states that AJ2 issued a Scheduling Order and noted that the EEOC lacked jurisdiction over Complainant’s constructive discharge claim, including the denial of reasonable accommodation claim and other alleged discriminatory bases. The Agency also asserts that since the Commission lacked jurisdiction over the issues Complainant that voluntarily withdrew before the MSPB, the Commission also lacked jurisdiction to remand the issue back to the Agency for further development, and the Agency was not required to consider the issue in its final decision. In addition, the Agency notes that AJ2 specifically ordered the Agency to issue a final decision “on the existing record,” and he did not order the Agency to conduct a supplemental investigation into the denial of accommodation claim. The Agency argues that the Commission should deny Complainant’s request to vacate the April 4, 2020 final decision. The Agency asserts that Complainant did not establish that he was subjected to discrimination or harassment based on disability or race, or in reprisal for prior protected EEO activity, and it requests that the Commission affirm its final decisions. 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 (EEO MD-110), at Chap. 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”). 2020003308 & 2020003779 9 ANALYSIS AND FINDINGS New evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, we note that AJ2 ordered the Agency to issue a final decision based on the existing record, which did not contain any evidence on the amended failure to accommodate claim, which was added after the completion of the investigations. As such, we will consider Complainant’s evidence on the amended claim. However, we note that Complainant has not provided arguments or evidence to show that other new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission will only consider the new evidence related to Complainant’s reasonable accommodation claim, which was added to Complaint #2 by AJ1. Claims We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Id. at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s procedural dismissals of some of his claims; as such, we will not address these claims in the instant decision. Regarding Complaint #1, Complainant argued that he requested an extension of his medical leave without pay as a reasonable accommodation, and that there was no interactive process. However, we note that Complainant raises a new theory of discrimination of a failure to accommodate for the claims in Complaint #1, and the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, we will not address an allegation of a failure to accommodate for the incidents in Complaint #1. The Agency argued that, when AJ2 issued the May 20, 2019 Scheduling Order, he noted that the EEOC lacked jurisdiction over Complainant’s constructive discharge claim, including the denial of reasonable accommodation claim and other alleged discriminatory bases. However, we find that this is not accurate because AJ2 stated that they would proceed “on all the accepted claims as indicated in the September 30, 2015 [order], except the claim for constructive discharge,” and that AJ2 did not exclude the amended failure to accommodate claim. Further, we note that AJ1 amended Complaint #2 to include two separate claims, and that the failure to accommodate claim is distinct from Complainant’s constructive discharge claim. While Complainant requested that the Commission vacate the Agency’s final decision because the Agency did not address the amended failure to accommodate claim, we find that he provided sufficient information on appeal to make a fair and reasoned determination on the claim. As such, we will address the amended failure to accommodate claim below. 2020003308 & 2020003779 10 Sanctions Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). On appeal, Complainant requested that the Commission issue a default judgment as a sanction against the Agency for its failure to conduct timely investigations and produce ROIs; issuance of an inadequate, incomplete, and impartial investigation; and failure to issue timely final decisions. The agency is required to conduct an impartial and appropriate investigation of the complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period. When a complaint has been amended, the agency shall complete its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, except that the complainant may request a hearing from an administrative judge on the consolidated complaints any time after 180 days from the date of the first filed complaint. 29 C.F.R. § 1614.106(e)(2). Here, we note that the parties disagree as to whether Complainant amended Complaint #1. Upon review of the two acceptance letters,5 we find that the complaint was amended because the Agency accepted for investigation a claim that it had previously dismissed. As such, the Agency’s deadline for the completion of the investigation was extended to August 23, 2014, which was 360 days after Complainant filed his formal complaint on August 28, 2013. We find that the Agency met the deadline when it sent the ROI to Complainant on June 19, 2014. For Complaint #2, Complainant amended his complaint five times, with the last amendment on or around January 6, 2015. The deadline for the completion of the investigation for Complaint #2 was March 25, 2015, which was 360 days after he filed his formal complaint on March 30, 2014. The Agency transmitted the ROI to Complainant on May 6, 2015, and it acknowledged that the ROI was 42 days late. While Complainant argued that the Agency issued an inadequate, incomplete, and impartial investigation, he did not provide specific arguments regarding any alleged deficiencies in either investigation. 5 The Agency did not provide a copy of Complainant’s email clarifying the dates of his claims. 2020003308 & 2020003779 11 EEOC regulations also provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). It is undisputed that the Agency failed to timely issue the final decisions. We find that the Agency failed to comply with the Commission’s regulations when it failed to timely complete the investigation for Complaint #2; and when it issued untimely final decisions when the final decision for Complaint #2 was 251 days late, and the final decision for Complaint #1 was 285 days late. However, we find that the Agency did not act in a manner to warrant sanctions. The Agency explained that the delays in issuing the final decisions were due to staffing issues, which it tried to mitigate with temporary hires and assistance from another agency; and that the delay in completing the investigation for Complaint #2 was due to the need to address Complainant’s five amendments. In addition, we note that Complainant has not made a showing that he was prejudiced by any Agency delay; that there were any consequences from the delays; or that there were any effects on the integrity of the EEO process. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay). Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). Accordingly, under the specific circumstances of this case, we decline to issue sanctions against the Agency for their delays. We take this opportunity, however, to remind the Agency of its obligation to comply with Commission regulations in a timely manner. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). 2020003308 & 2020003779 12 Assuming, arguendo, that Complainant established a prima facie case of disability discrimination for claims 1-3, and a prima facie case of discrimination based on race, and in reprisal for prior protected EEO activity, for incidents b, c, d, h, k, m, n, o, and t, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, an Employee Relations Specialist (ERS) stated that there was no requirement to approve or disapprove a FMLA request within five days. ERS noted that the Agency used a Department of Labor form, and that a newer version of the form contained language about a five-day turnaround; however, this was not an Agency requirement. ROI 1 at 148. Regarding claim 2, S1 stated that he was not Complainant’s supervisor during the time at issue, unless Complainant’s supervisor was on leave. S1 stated that he always forwarded Complainant’s leave requests to his supervisor, and if S1 approved any leave, he obtained managerial approval. ROI 1 at 119. Complainant’s former supervisor, who supervised Complainant through August or September 2012, stated that he always approved Complainant’s requests for time off. ROI 1 at 112. For claim 3, ERS stated that when he received Complainant’s FMLA package, page three of the form was missing so he called Complainant, who resubmitted the package. ERS stated that Complainant exhausted his FMLA leave between June 10, 2013, and September 9, 2013, and that they informed him that he would need to submit additional medical documentation if he wanted to request additional leave. ERS stated that Complainant did not provide the documentation because he returned to work. ROI 1 at 147-8. Regarding incident b, S1 stated that the Agency paid $1,600.00 for the week-long Windows 7 training, and that Complainant requested the training. S1 stated that Complainant informed him on Wednesday morning that he had missed the training because he was concentrating on his work. S1 stated that he issued the counseling memo because he needed to document that Complainant missed a funded training, and that S1 was unsure if they could recoup the money or reschedule Complainant. ROI 2 at 1305. For incident c, S1 stated that he asked Human Resources if Complainant could attend the New Employee Orientation, and that he was informed that Complainant could not because he was not a new employee and had already taken the training ten years ago. ROI 2 at 1308. Regarding incident d, S1 stated that Complainant was assigned to the Depot because there was a need for support there and Complainant was in need of a project. ROI 2 at 1309. For incidents h and k, S1 stated that they work on a project basis and once a project ends, the employees need to find new projects. S1 stated that he informed Complainant that he could find his own project, compete for open positions on USAjobs, or have a management reassignment but would have no input into where he was assigned. S1 stated that Complainant worked on a project from March to June 2014, and he requested to stay in that section. However, after Complainant’s duties ended, there was no need for him to stay in that code and S1 did not initiate a management reassignment. ROI 2 at 1314-16. The project manager confirmed that Complainant did a good job, but that he did not have a need for Complainant. ROI 2 at 1374. 2020003308 & 2020003779 13 Regarding incident m, S2 stated that he issued Complainant a written warning because a coworker (CW) expressed concerns that Complainant was sleeping during a training and leaving early, and CW provided a photo of Complainant sleeping. S2 stated that he requested a progress report from the trainer, who noted that Complainant fell behind on lecture materials, and seemed to be generally distracted and tired. S2 also stated that he spoke with Complainant about having taken an extended lunch break. ROI 2 at 1430, 877-81. For incident n, S1 stated that he informed Complainant’s second-line supervisor that Complainant needed a management directed reassignment because he had not found a project on his own since September 2013, and Complainant was ultimately placed under S2. ROI 2 at 1320. Regarding incident o, S1 stated that Complainant was meeting expectations and was given a fair salary increase and bonus. S1 stated that the seven members of the “pay pool” validated Complainant’s performance score. ROI 2 at 1322. For incident t, S2 stated that Complainant requested leave for December 4, 2014, and again on December 8, 2014. S2 stated that Complainant sent him an email on the morning of December 9, 2014, stating that he would not be coming into work that day, and another email that evening stating that he would not be coming into work the following day. S2 stated that he informed Complainant that it appeared that he was abusing leave by putting in leave slips every day, and not asking permission for leave and only giving S2 a “heads up” that he was taking leave, without providing a reason. S2 stated that he did not deny any of Complainant’s leave but informed him that he needed to report to work because they were behind on project deliverables. ROI 2 at 1440-1. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that there are inconsistencies in the Agency’s responses. For example, Complainant asserted that S1 stated that Human Resources denied Complainant’s request for New Employee Orientation training, but that Human Resources does not deny training, a supervisor does, and it was S1’s attempts to cover up his reprisal. However, Complainant did not provide any supporting evidence for his assertions. Rather, the record contains statements from witnesses that existing employees do not attend this training, even if they had been on leave for an extended period of time, and that employees typically only attend this training once. ROI 2 at 1383, 1453. We find that Complainant only makes bare assertions that he was discriminated against and did not provide any evidence to prove that the proffered reasons were pretexts for discrimination. 2020003308 & 2020003779 14 Even crediting Complainant’s assertions that management officials were not truthful, a showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not prove that he was discriminated against based on disability or race, or in reprisal for prior protected EEO activity, for claims 1-3, or incidents b, c, d, h, k, m, n, o, or t. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases for incidents b, c, d, h, k, m, n, o, or t. Further, we conclude that a case of harassment for these incidents is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As such, we will not consider incidents b, c, d, h, k, m, n, o, or t in Complainant’s harassment allegation. We find that Complainant belongs to statutorily protected classes based on his race and prior protected EEO activity, and that he was subjected to unwanted verbal conduct. However, Complainant did not show that any of the remaining incidents occurred due to a protected class. For example, S1 stated that a Depot manager emailed him that Complainant was not following her instructions and that some of Complainant’s work was not usable. S1 stated that he spoke with Complainant and determined that Complainant was not properly trained at the Depot and brought him back. S1 stated that he did not use those remarks in Complainant’s annual performance assessment. ROI 2 at 1310-1. In addition, S1 stated that Complainant had access to a group telephone, and that no one had a personal telephone, and a witness stated that telephones were available for the employees’ use. ROI 2 at 1312, 1395. 2020003308 & 2020003779 15 The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). In this case, there is no evidence that the actions were abusive, offensive, or taken to harass Complainant. As such, we find that Complainant did not establish that the Agency subjected him to harassment based on his race or in reprisal for prior protected EEO activity. Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is 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, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). 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), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate him. Complainant’s evidence shows that on June 17, 2015, Complainant, through his lawyer, requested LWOP as an accommodation from June 16, 2015, through September 14, 2015, and stated that if the Agency denied the LWOP, he was requesting an interactive process meeting. On June 25, 2015, S2 granted Complainant’s request until July 1, 2015. After receiving a request for reasonable accommodation, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also Enforcement Guidance at Question 5. With his initial request on June 17, 2015, Complainant requested to engage in the interactive process. However, we find that Complainant ended the interactive process when he resigned from the Agency on June 29, 2015. On appeal, Complainant stated that he submitted a reasonable accommodation request for LWOP on June 25, 2015, and we note that he resigned just a few days later, and there is no indication that the Agency denied Complainant’s renewed request for LWOP or his request for an interactive process meeting. 2020003308 & 2020003779 16 The Agency granted Complainant’s requested accommodation through July 1, 2015, and Complainant was accommodated through the end of his employment. As such, we find that Complainant did not establish that the Agency failed to accommodate him. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that sanctions against the Agency are not warranted, and we AFFIRM the Agency’s final decisions finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on disability or race, or in reprisal for prior protected EEO activity. 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. 2020003308 & 2020003779 17 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. 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, Director Office of Federal Operations August 4, 2021 Date