[Redacted], Maxima R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2019004745 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxima R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2019004745 Agency No. 6X-000-0003-18 DECISION On June 1, 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 May 15, 2019 final decision concerning her 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Associate Medical Director, EAS-26, Injury Compensation and Medical Services, stationed in the Central Illinois District in Bedford Park, Illinois. On March 29, 2018, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her and subjected her to a hostile work environment on the bases of her race (African-American), sex (female) and disability (asthma) when: 1. In September 2017, Complainant’s request to be domiciled closer to her home two days per week was ignored; 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. 2019004745 2 2. In October 2017, Complainant’s subsequent request for accommodation was inappropriately referred to the Headquarters Reasonable Accommodation Committee (HQRAC), and a response to her request was delayed until mid-February 2018; 3. On January 3, 2018, the Manager was inappropriately made privy to her confidential health information and other protected information; 4. In October 2017, the Manager improperly conducted his own Initial Management Inquiry Process (IMIP) on her despite knowing that the District was already conducting an IMIP on the same allegations; 5. On October 25, 2017, Complainant was given a negative performance review during which she was instructed to stop reviewing medical exams; 6. In late 2017, Complainant was required to participate in an interview with an EEO Investigator and threatened with dire consequences if she did not participate; 7. On May 8, 2018, the Manager sent Complainant a letter accusing her of failure to follow his instructions and threatening her with possible termination; and 8. On or about May 8, 2018, Complainant requested an investigation into the Manager’s conduct, but management failed to take action. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). With regard to claim (1), Complainant stated that she asked the Manager (her first-line Supervisor) on October 12, 2017, for permission to work at an Agency facility close to her home two days per week. Complainant stated that she did not receive a response, so she resent her request on October 19, 2017. The Manager responded and asked Complainant if she had a location in mind. Complainant stated that she informed the Manager there were offices in Portage, Indiana and Merrillville, Indiana which were 15-20 minutes from her home. Complainant explained that the ongoing road construction on her regular commute to work caused flareups of her asthmatic condition. According to Complainant, on October 24, 2017, the Manager advised her to apply for a reasonable accommodation. Complainant completed a reasonable accommodation form but asserted that she did not understand why she had to apply for a reasonable accommodation given that two of her colleagues are domiciled at Agency facilities close to their homes and do not have a medical condition. Complainant stated that on February 7, 2018, the Manager approved her request to be domiciled closer to her home two days per week, but she asserted that is not what she requested on her reasonable accommodation form. 2019004745 3 In terms of claim (2), Complainant claimed that because the Manager inappropriately referred her request for a domicile change to the HQRAC, delays occurred which significantly worsened her medical condition. On November 14, 2017, Complainant completed the reasonable accommodation forms wherein she requested 2-3 telework days per week due to aggravation of her asthma due to her extensive daily commute. Complainant included documentation from her medical provider supporting the reasonable accommodation request. On January 3, 2018, a meeting was held as part of the interactive process to determine Complainant’s eligibility for a reasonable accommodation as well as any potential accommodations. Complainant noted that during the meeting the Manager opposed her request to telework even after she explained that her condition had worsened, and that her physician recommended teleworking because the HEPA filter she had at home was helping her breathe better. According to Complainant, the Manager’s opposition to telework agreements was false considering in June 2018, he offered five days of telework to all physicians if they relinquished their employment status as EAS employees and became contractors. The Agency stated that Complainant indicated that on February 5, 2018, she contacted the Chair of the HQRAC to determine the status of her reasonable accommodation request and the Chair informed her that the Disability Programs Compliance Specialist had been out for several weeks and that she had discussed the matter with her other team members. Complainant stated that on February 8, 2018, the HQRAC approved her request to telework two days per week. On February 13, 2018, the Manager approved Complainant for two days of telework per week for a period of 90 days, with the condition that at the end of the period, the accommodation would be revisited to determine if it was still needed or if an alternative accommodation would suffice. As for claim (3), Complainant argued that during the January 3, 2018 interactive meeting, the Disability Programs Compliance Specialist included the Manager on the conversation and proceeded to discuss her confidential medical information. Complainant maintained that the Disability Programs Compliance Specialist did this without asking her if she wanted the Manager to be on the telephone during that portion of the conversation, and that she should have been afforded the opportunity to decide if she wanted him to be able to hear such confidential health information. With regard to claim (4), Complainant stated that in July 2017, the Occupational Health Nurse Administrator (OHNA) failed to properly review recertifications of two medically unqualified Tractor Trailer Operators who had failed to meet the sleep apnea guidelines. Complainant asserted that she confirmed in writing that the drivers needed sleep studies and when the OHNA did not respond, she assumed that the studies had been ordered. According to Complainant, she subsequently learned that the OHNA had contacted the Region Law Department Office concerning the sleep apnea guidelines, which meant that the OHNA had ignored her directive to follow the guidance. Complainant stated that the OHNA subsequently accused her of harassment. Complainant claimed that she was investigated by both the District and the Manager for the same allegations made by the same person. Complainant asserted that the Manager’s actions were in direct contradiction of past practices in which such issues were dealt with by the District. 2019004745 4 Complainant stated that on October 10, 2017, she asked the Manager what allegations and documentation he had, and that he told her he would tell her when he completed his investigation, but he never did so. According to Complainant, it was inappropriate for the Manager to conduct the IMIP without interviewing her, and that if she had been interviewed, she would have addressed the significant performance issues of the three OHNAs who were accusing her. Complainant maintained that the Manager falsely accused her of being demeaning and belittling to all the OHNAs under her, and ignored the positive statements made by two of the OHNAs. The Agency noted that on March 13, 2018, the Manager informed Complainant that the result of the investigation into the OHNA’s allegations were that while the evidence did not support her claim of harassment, it did reveal behaviors Complainant needed to correct. The Manager stated that Complainant was not responsive to questions from the OHNAs, and that she had sent several emails to colleagues which were curt and condescending. With respect to claim (5), Complainant asserted that during her performance review on October 25, 2017, the Manager gave her a verbal order to stop examining Department of Transportation (DOT) exams, told her she did not make policy and that they did not pay her to criticize their examiners. Complainant stated that reviewing DOT exams was an established critical function for Associate Medical Directors in order to protect the Agency and the public from medically unqualified drivers, and that she and a colleague wrote to the Law Department in October 2017 regarding their concerns. Complainant denied that she second-guessed the examiners, explained that what she was doing was reviewing their exams, which is a long-standing function in the office. Complainant stated that her male colleague was not reprimanded by the Manager for co-authoring the report to the Law Department, and that he was not ordered to cease reviewing DOT exams. Complainant maintained that the Manager berated and demeaned her throughout her performance review and spent 90% of the time on her alleged communication issues. The record reveals that the core duties for Associate Medical Directors include acting as medical liaison to the Transportation Department regarding fitness for duties, return to work, and medical licenses for drivers, including but not limited to reviewing DOT exams. The Agency’s Employee and Labor Relations Manual (ELM) Section 863.32 provides that Associate Medical Directors are to provide function guidance in matters of policy and program requirements to district medical personnel and Agency management. Agency management explained that the following points were made in Complainant’s Fiscal Year 2017 performance review: Complainant conducted one walk-through instead of the three required in her objectives. Complainant erroneously stated that the monthly wellness program had been terminated in May 2017. The Manager had been told that communication among the group was lacking, that Complainant was demeaning in her communications with district OHNAs, that the district 2019004745 5 OHNAs are intimidated by her and go out of their way not to communicate with her, and that Complainant’s behavior needed to change. The Manager emphasized that the district OHNAs do not report to Complainant and that she is there to support and guide them. As for claim (6), the Manager informed Complainant on November 20, 2017, that she had been scheduled for an interview on November 22, 2017, in Indianapolis with an EEO investigator concerning allegations of harassment against her by several OHNAs. Complainant asserted that the long drive would exacerbate her medical condition. The Agency stated that the Manager allowed her to have a telephonic interview instead. According to the Agency, on November 21, 2017, Complainant told the Manager that based on the ongoing IMIP and his unwillingness to provide a response to her request as to his authority to conduct a second IMIP at the same time, she refused to be interviewed on November 22, 2017. Complainant stated that she participated in the interview on November 30, 2017. With regard to claim (7), the Agency stated that in a letter dated May 8, 2018, the Manager informed Complainant that on two occasions she told the OHNA that Motor Vehicle Service drivers were medically disqualified, in contradiction to the findings of the contract and referee physicians. The Manager explained to Complainant that under Federal Motor Carrier Safety Administration regulations, medical examiners are responsible for issuing medical certification determinations, and that the Agency’s third-party suppliers are certified to provide the requisite medical determinations. The Manager told Complainant that an Associate Medical Director was not to second-guess the medical examiner. According to the Manager, Complainant’s actions contravened his instructions, violated her employment contract and violated Section 665.15 of the ELM, which requires employees to obey the instructions of their supervisors. The Manager asserted that any additional violations of her employment or the ELM could warrant termination of Complainant’s contract. Complainant contended that no other Associate Medical Director received such a letter, and that the facts as stated by the Manager were incorrect. In terms of claim (8), Complainant asserted that she requested an investigation into the Manager’s harassing conduct, but management failed to take action. Complainant stated that she sent a letter to the official who replaced the Manager while the Manager was on a detail assignment, her second-level supervisor and the Chief Human Resources Officer. Complainant claimed that none of these three individuals responded to her letter. In the final decision, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and determined that management articulated legitimate, nondiscriminatory reasons for its actions. With respect to claims (1) and (2), the Agency stated that while it took some time for Complainant’s requested telework accommodation to be reviewed due to the holiday season and the illness of her contact at the HQRAC, her requested accommodation was approved and implemented by mid-February 2018. The Manager stated that on October 24, 2017, he referred Complainant’s request to the HQRAC which he claimed was required under the applicable policy guidelines. 2019004745 6 Complainant attempted to establish pretext by arguing that male colleagues with different ethnicities were allowed domiciles closer to their homes without having to go through a reasonable accommodation request. The Agency rejected Complainant’s contention noting that Complainant failed to show that any similarly situated Associate Medical Director was treated differently than how she was treated concerning her request for a domicile change. The Agency pointed out that the other Associate Medical Directors were permitted domicile changes for reasons other than their medical conditions, and with one exception, by supervisors other than the Manager. The Chair of the HQRAC stated that on October 26, 2017, she provided Complainant with reasonable accommodation forms to complete, which Complainant submitted on November 14, 2017. According to the Chair, the Disability Programs Compliance Specialist handled Complainant’s request, coordinated the initial review and conducted an interactive meeting on January 3, 2018, after the holidays. The Chair explained that the Disability Programs Compliance Specialist became seriously ill after the meeting and she became aware that a final recommendation had not been provided to management concerning the requested accommodation. The Chair asserted that she resumed evaluation of Complainant’s request and approved the accommodation of telecommuting two days per week, which management granted on February 12, 2018. In terms of claim (3), the Agency asserted that in the meeting of January 3, 2018, between Complainant, the Manager, the Disability Programs Compliance Specialist and a Labor Relations Specialist, the Disability Programs Compliance Specialist stated that at no time did anyone speak concerning Complainant’s confidential health information, and that the discussion was regarding Complainant’s elaboration of her need for the requested accommodation. The Disability Programs Compliance Specialist stated that Complainant did not object at the time of the meeting to the Manager’s participation in the meeting. According to the Disability Programs Compliance Specialist, he would never have allowed anyone to discuss Complainant’s confidential medical information in front of others, as such a discussion is not acceptable during any interactive forums, and he would have intervened immediately if such disclosure had occurred. The Agency determined there was no evidence that the Manager was inappropriately made aware of Complainant’s confidential medical information. The Agency pointed out that under the Commission’s Regulations, supervisors and managers may be informed concerning necessary restrictions on the work or duties of an employee and about necessary accommodations. The Agency concluded that this was what the Manager was informed about during the teleconference. With respect to claim (4), the Manager denied being aware that the district was conducting an IMIP concerning allegations of harassment against Complainant. The Manager stated that he called a few of the OHNAs in the area and asked them if there was any substance to the allegations. According to the Manager, he determined there was something going on that warranted investigation, so he requested that a fact-finding investigation be conducted. The Manager asserted that he did not interview Complainant because he was not conducting an investigation. Complainant’s second-line Supervisor stated that Complainant raised her concerns about the IMIP process by letter dated November 21, 2017. 2019004745 7 The second-line Supervisor explained that he informed Complainant on December 1, 2017, that he was reviewing the information and he would contact her if he needed further information or if he decided to take further action, but that when Complainant filed her EEO complaint, he did not respond further to her. As for claim (5), the Manager stated that he informed Complainant of the aforementioned deficiencies in her performance during her end-of-the-year performance review. The Manager stated that he gave her a rating of “4”, which was the same rating received by all the other Associate Medical Directors. The Manager acknowledged that he told Complainant that she does not make Agency policy and it is not her position to second-guess the examiners. Complainant claimed that she was discriminated against given that the other Associate Medical Director with experience in DOT exams was not asked to stop reviewing DOT exams. Agency management denied that Complainant received a negative performance review as it noted that she received the same rating as all the other Associate Medical Directors. Agency management asserted that as Complainant’s supervisor, the Manager was entitled to have his instructions followed. With regard to the identified comparator, the Agency observed that the Manager stated that the comparator was not attempting to overrule the medical examiner’s determinations as Complainant was, so there was no need to prohibit him from reviewing DOT exams. In terms of claim (6), the Manager stated that he informed Complainant by email dated November 20, 2017, that he scheduled her for an interview with the EEO Investigator. According to the Manager, Complainant responded that November 22, 2017, is the worst travel date of the year and she refused to be interviewed then. The Manager stated that all employees are required to cooperate in any Agency investigation. The Manager noted that he informed Complainant about the consequences of her refusal, but that he did not recall exactly what he told her. With regard to claim (7), the Manager acknowledged that he sent Complainant a letter concerning her failure to follow instructions he gave her during her performance review of October 25, 2017. The Manager stated that he informed Complainant that any further failures to follow instructions might lead to the termination of her employment contract. As for claim (8), Complainant’s Supervisor, while the Manager was on detail, stated that Complainant corresponded with him on a few occasions about differences of opinion she had with the Manager and she thanked him for his responsiveness to her requests. The Supervisor noted that he did not recall Complainant requesting an investigation into the Manager’s actions on or around May 9, 2018. Upon review of the evidence, the Agency determined that Complainant failed to establish that management’s reasons for its actions were pretextual. In addition, the Agency further determined that the incidents at issue were neither severe nor pervasive, either individually or collectively. As a result, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. 2019004745 8 CONTENTIONS ON APPEAL On appeal, Complainant contends that the investigation was unfair and unbalanced in favor of the Agency. Complainant claims that the EEO Investigator ignored crucial material facts and supporting evidence and did not seek affidavits from individuals who supported her claims as referenced in her affidavit. In addition, Complainant states that her duties as an Associate Medical Director include reviewing medical reviews of employees and drivers to make sure they are compliant with Agency safety and health regulations. Complainant maintains that her duties are in direct contradiction to the Manager’s order to stop her reviews. Complainant argues that it was an arbitrary and capricious order based upon his discriminatory attitude toward her on the bases of her race, sex and disability, and his efforts to harass her. Complainant contends that under the accommodation rules, a request can be approved by the employee’s supervisor rather than being referred to the HQRAC. Complainant states that such requests must be handled promptly, and despite the fact that her condition worsened, it took six months to issue her an accommodation. Complainant argues that the Manager discriminated against her in this instance based on her disability and on her race as well after he met with the Caucasian OHNA who filed the harassment charge against her. Complainant claims that the Manager’s harassment of her commenced after he met the Caucasian OHNA. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As an initial matter, Complainant claims on appeal that the investigation was inadequate and biased against her and that the investigator failed to interview individuals who would support her claims. Complainant presented pertinent testimony concerning relevant matters involving the individuals who she believes should have been interviewed by the Investigator. However, we do not discern sufficient cause to believe these individuals would have provided additional probative evidence to the record. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant failed to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Denial of Reasonable Accommodation The Commission notes that an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Complainant has been diagnosed with an asthmatic condition. We shall assume without expressly finding that Complainant is an individual with a disability. 2019004745 9 It is undisputed that Complainant is capable of performing the essential duties of her position and therefore is a qualified individual with a disability. The Agency explained as to claims (1-2) that Complainant’s request to be domiciled at a facility closer to her home had to be referred to the HQRAC because Complainant was seeking an accommodation due to her asthmatic condition. Complainant subsequently revised her request to two days of telework per week. The Agency explained that the delay in processing Complainant’s request was due to a delay in Complainant submitting her request, the winter holidays and subsequently the Disability Programs Compliance Specialist experienced a significant illness which necessitated the HQRAC Chair relieve him for purposes of handling Complainant’s request. In light of this sequence of events, we find that the Agency did not engage in undue delay in addressing Complainant’s accommodation request. The record reflects that Complainant received her requested two days of telework per week in February 2018. Complainant has presented no evidence that the granted accommodation was ineffective. We find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant set forth a prima facie case under the alleged bases with respect to each of the matters at issue. The Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. In terms of claims (1-2), as discussed above, the Agency explained the reasons for its actions and the delays in processing Complainant’s request for accommodation, and the record establishes that she was subsequently provided two days of telework. With regard to claim (3), the Disability Programs Compliance Specialist explained that none of Complainant’s confidential medical information was disclosed during the interactive interview with her, the Manager and a Labor Relations Specialist. Further, the Disability Programs Compliance Specialist asserted that Complainant did not object to the Manager’s presence during the interactive interview. In terms of claim (4), the Manager denied being aware that the district was conducting an IMIP concerning allegations of harassment against Complainant. The Manager stated that he called some OHNAs in the area and asked them if there was any substance to the allegations. 2019004745 10 The Manager indicated that he requested a fact-finding investigation be conducted based on his conversations with these OHNAs. The Manager stated that he did not interview Complainant because he did not conduct an investigation. With respect to claim (5), the Manager denied that he issued Complainant a negative performance review as he stated that he gave her a rating of “4”, which was the same rating received by all the other Associate Medical Directors. As for instructing Complainant to stop reviewing medical exams, the Manager stated that he told Complainant that she does not make Agency policy and it is not her position to second-guess the examiners. In terms of claim (6), the Manager asserted that all employees are required to cooperate in any Agency investigation. The Manager stated that he informed Complainant about the consequences if she refused to participate in the investigation. The Agency stated that the Manager allowed Complainant to have a telephonic interview instead of making the drive to Indianapolis. With regard to claim (7), the Manager asserted that he sent Complainant a letter concerning her failure to follow instructions he gave her during her performance review of October 25, 2017. The Agency stated that the Manager told Complainant that an Associate Medical Director is not to second-guess the medical examiner. According to the Manager, Complainant’s actions contravened his instructions, violated her employment contract and violated Section 665.15 of the Employee and Labor Relations Manual (ELM), which requires employees to obey the instructions of their supervisors. The Manager stated that he informed Complainant that any further failures to follow instructions might lead to the termination of her employment contract. As for claim (8), Complainant’s Supervisor stated that Complainant corresponded with him several times about differences of opinion she had with the Manager. The Supervisor maintained that Complainant thanked him for his responsiveness to her requests. The Supervisor claimed that he did not remember Complainant requesting an investigation into the Manager’s actions on or around May 9, 2018. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. 2019004745 11 Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she 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 the alleged basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. Upon review of Complainant’s arguments regarding the alleged incidents of harassment, we find that they are not sufficient to refute the Agency’s legitimate, nondiscriminatory reasons for what occurred. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION The Agency’s determination that no discrimination occurred is AFFIRMED. 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. 2019004745 12 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). 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. 2019004745 13 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 January 22, 2021 Date