[Redacted], Felton M., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Sep 28, 2021

Appeal No. 2021003456 (E.E.O.C. Sep. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton M.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021003456 Hearing No. 570-2021-00150X Agency No. EPA-2020-0059-HQ DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Economist, GS-13, at the Agency’s Technology and Analytical Support Branch, Engineering and Analysis Division in Washington, D.C. On July 13, 2020, Complainant filed a formal EEO complaint claiming the Agency discriminated against him and subjected him to a hostile work environment based on race (Asian), national origin (Pakistan), sex (male), disability (chemical sensitivity), age (YOB: 1946), and in reprisal 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. 2021003456 2 for prior protected EEO activity2 when, on February 19, 2020, Complainant’s supervisor issued him a Letter of Warning. Following the completion of the report of investigation of the accepted claim, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on February 15, 2021, the AJ issued a notice of proposed summary judgment in favor of the Agency. After receiving a response from Complainant, the AJ issued a decision on March 30, 2021, by summary judgment, in favor of the Agency. On May 4, 2021, the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). 2 Complainant filed a prior EEO complaint where he identified the same management official in the instant complaint as the responsible management official in his prior complaint. 2021003456 3 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that he has a chemical sensitivity which was diagnosed around 2000. Complainant explained that his condition was permanent, and he had informed management as about his condition. Complainant noted that he had requested a reasonable accommodation and he explained that management officials put notes on the main doors requesting staff to avoid wearing fragrances. We presume for the purposes of analysis and without so finding that Complainant is an individual with a disability. The AJ properly determined that Agency articulated legitimate, non-discriminatory reasons for issuing Complainant the Letter of Warning (LOW). Complainant’s first level supervisor (S1) stated that he issued the LOW because Complainant’s hygiene had become a concern. Specifically, S1 explained that Complainant had been wearing the same clothes for several weeks which had noticeably large holes. S1 further explained that Complainant’s office had an unpleasant odor because he kept his office door shut all day and his office contained dirty dishes and other random items. S1 clarified that before issuing the LOW, he consulted with labor employment relations regarding this matter. Lastly, S1 denied that Complainant’s protected bases or prior protected EEO activity factored in his decision to issue the LOW. A copy of the February 19, 2020 LOW states that Complainant was issued the notice to warn him about unhygienic practices that may jeopardize the health of others and cause unnecessary distractions. Specifically, the LOW indicates that Complainant had worn the same outfit (a yellow v-neck sweater with noticeable holes and socks with a large visible hole past the heel) to work from January 27, 2020 to February 19, 2020. The LOW also mentions that there was an unpleasant odor inside and in the hallway near Complainant’s office. 2021003456 4 After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful retaliation for Complainant’s race, national origin, sex, disability, age, and in reprisal for prior protected EEO activity. Harassment To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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, national origin, sex, disability, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record supports that the AJ properly determined that Complainant was not subjected to discriminatory harassment as alleged. Complainant’s claim of discriminatory harassment as evidenced by the event at issue is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his race, national origin, sex, disability, age, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2021003456 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 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). 2021003456 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 28, 2021 Date