[Redacted], Myles W., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020002444 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myles W.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020002444 Hearing No. 480-2018-00241X Agency No. BOP-2017-0655 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 December 20, 2019, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Drug Abuse Program Coordinator at the Federal Correctional Institution in Mendota, California. Complainant’s first level supervisor was the Chief Psychologist (S1). Complainant’s second level supervisor was the Associate Warden (AW1) until October 1, 2017. Thereafter, a new Associate Warden became his second level supervisor (AW2). Complainant’s third level supervisor was Warden 1 (W1) until March 2017. Thereafter, Warden 2 (W2) became Complainant’s third level supervisor in June 2017. 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. 2020002444 2 On March 22, 2017, Complainant initiated EEO Counselor contact alleging discrimination and harassment. On June 22, 2017, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency discriminated against him on the bases of race/color/national origin (Iranian)2, religion (Muslim), disability (back), and in reprisal for protected EEO activity. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on November 13, 2019. The AJ noted Complainant alleged he was discriminated against or otherwise subjected to a hostile work environment based on his race/color/national origin (Iranian), religion (Muslim), disability (back), and in reprisal for protected EEO activity. The AJ listed the following specific background incidents identified by Complainant: 1. In April 2014, Complainant’s request for a compressed schedule was denied; 2. Between 2014 and 2015, Complainant did not receive responses to inquiries regarding student loans; 3. In August 2015, Associate Warden 3 (AW3) accused Complainant of having problems working with women due to his Muslim background and religion; 4. In February 2016, Warden 1 asked Complainant to write and deliver a memo removing a staff member from the Crisis Support Team (CST); 5. In August 2016, Complainant was not selected for an Intern Coordinator position; 6. Beginning in January 2017, the Human Resources Manager (HRM) made several requests for Complainant to provide medical information; 7. In January 2017, the HRM placed Complainant on modified duty and he was unable to access the FCI building or the camp; 8. Sometime between 2015 and February 2017, Warden 1 said “Oh, the Doc doesn’t love me anymore” and “Don’t be mad at me, Doc”; 9. In March 2017, the HRM: (a) questioned Complainant about his doctor’s notes and appointment dates; and (b) sent an email with medical information to a proxy inbox; 10. In March 2017, Warden 1 asked Complainant if he had any issues at the airport; 11. In April 2017, Complainant received a performance rating of Exceeds Expectations; 12. In May 2017, AW2 entered Complainant’s office unannounced and instructed Complainant to remove a window magnet; 13. In June 2017, AW1 entered Complainant’s office. The next day S1 gave Complainant a counseling letter directing Complainant to keep his door open and windows clear. S1 also directed Complainant to address staff in a more professional manner. 14. In August 2017, S1 gave Complainant a counseling letter about Complainant’s handling of an email referencing an inmate’s suicidal potential; 2 While we recognize that Iranian is not a color, the parties did not provide an actual color, however, we shall leave color as a basis in the complaint. 2020002444 3 15. In August 2017, W2 did not allow Complainant to work as the Acting Executive Assistant; The AJ noted that Complainant did not initiate EEO Counselor contact until March 22, 2017. Applying the regulatory 45-day filing period, the AJ found acts occurring before February 5, 2017, were untimely raised. The AJ determined Complainant produced insufficient evidence to prevail on any of his claims and granted summary judgment in favor of the Agency. The Agency subsequently issued a final order on December 20, 2019. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant argues that the claims he raised from 2014 - 2016 should be considered as part of his hostile work environment claim. Additionally, Complainant claims the grant of summary judgment to the Agency because there is insufficient evidence of pretext constitutes reversible error. Complainant argues the fact that the rating official increased his rating when he identified additional achievements supports his contention that the rating was inaccurate in the first place. Complainant notes he did not identify any comparators because there were none as he was the only Drug Abuse Program Coordinator at the facility. Complainant argues the two letters of counseling were discriminatory and undeserved. Regarding the portion of the June 2017 counseling letter for covering his windows, Complainant notes that the AJ cited S1’s statement that his instruction to Complainant was justified because of heightened security concerns in a prison. Complainant notes the Agency stated S1 also relied on the Prison Rape Elimination Act of 2003 (PREA), which it said prohibited the obscuring of doors and windows. However, Complainant states the PREA says nothing about privacy in offices, particularly drug abuse treatment offices where confidential conversations are being conducted. Complainant claims he reached out to the National PREA Coordinator in the Central Office who he states informed him it was not a PREA violation to cover his windows when staff are present. Further, Complainant notes that other offices adjoining his also had their windows and doors covered, but he was the only staff member to be counseled. Regarding the portion of the June 2017 counseling letter cautioning him to be more “professional” when addressing “Executive Staff and staff members,” Complainant argues there is a dispute as to whether AW1 banged on the door and whether the counseling was justified. Further, Complainant states S1 never spoke with him prior to issuing the counseling. Regarding the August 2017 letter of counseling for failing to address a situation with an inmate who was potentially suicidal, Complainant argues that he never read the email in question and thus, was unaware of a possible suicide risk prior to him sending the email to S1. Complainant argues whether he was or should have been aware that the email in his possession concerned a possible suicide was in dispute. He notes that S1 issued him the counseling memo without making an attempt to ascertain his version of the incident. 2020002444 4 Regarding his claim that he was denied the opportunity to serve as acting Executive Assistant, Complainant notes the Agency argues that AW1 stated he denied the request because of two different Agency policies that prohibit Agency psychologists from working outside of their funded programs, absent an emergency and that W2 concurred with the denial. Complainant argues this is pretext and cites six emails from 2017 and 2018 documenting S1 being designated to act as the Associate of Warden Programs. Further, he states that W2 may have genuinely been mistaken in allowing S1 to serve as an Associate Warden; however, he argues W2’s belated assertion of “mistake” well past his denial of Complainant’s request should not be resolved on summary judgment. Regarding his hostile work environment claim, Complainant cites to his May 2016 nonselection, the inability to work in the camp, and the unwanted comments by W1. He acknowledges the May 2016 nonselection is untimely for the purposes of this complaint; however, he states background information regarding the nonselection can still be considered for his claim. Complainant cites several staff members who he states were injured but were permitted to enter the camp. He also states that W1 once asked him whether he had any issues at the airport, which Complainant states he reasonably interpreted as a reference to his Middle-Eastern name. Complainant states the repeated instances in which he cites other employees not subjected to the same treatment as he raises questions of fact as to the Agency’s motivations. In response to Complainant’s appeal, the Agency noted that in its Motion for Summary Judgment it addressed the medical information issue that had been accepted for investigation: “On March 29, 2017, you alleged that HRM violated HIPPA laws when your medical information was sent to an open proxy mailbox and you were constantly questioned about your medical information in a common area.” The Agency noted Complainant never sought to amend that accepted issue throughout the course of litigation. Further, the Agency argued that the AJ correctly concluded complainant was not discriminated against or retaliated against as alleged. Further, the Agency argued that Complainant failed to show he was subjected to a hostile work environment. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2020002444 5 Procedural Issues The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Agency accepted claim 9 as alleging that on March 29, 2017, the HRM violated HIPPA (Health Insurance Portability and Accountability Act) when Complainant’s medical information was sent to an open proxy mailbox and he was constantly questioned about his medical conditions in a common area. We note Complainant never challenged the framing of that claim even though he amended his complaint to include additional claims. Claim 9 was investigated as framed by the Agency without objection by Complainant. Furthermore, we note that during discovery Complainant pursued the matter as a HIPPA violation as revealed in his interrogatories. The Commission has previously determined matters concerning the HIPPA are not within the regulations enforced by the Commission. Luis H. v. United States Postal Service, EEOC Appeal No. 2019002564 (May 31, 2019). Thus, we find claim 9 is properly dismissed for failure to state a claim. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. We note that the Supreme Court of the United States has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. 2020002444 6 Upon review, we find that Complainant failed to timely raise claims 1, 5, and 7, with an EEO Counselor (with initial contact of an EEO Counselor being more than 45 days after the alleged discrimination). As such, these claims are not separately actionable as discrete discriminatory acts. However, as Complainant has alleged a claim of harassment involving all the events raised, we will consider these claims as background in support of his harassment claim. Disparate Treatment Generally, claims of disparate treatment are examined under the tripartite 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, she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. 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 her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Evaluation (claim 11) Regarding his performance evaluation, S1 stated evaluations were based independently on job performance. He stated Complainant was rated “Exceeds” because he felt Complainant went above and beyond what was required of his job description in terms of extra tasks. 2020002444 7 S1 noted that after discussion with Complainant, he raised Complainant’s scoring from 400 to 420; however, this was still not enough to result in an “Outstanding.” The Agency noted that for the 2016-2017 evaluation period Complainant failed to achieve an element of his performance evaluation under Performance Element 1- “Organizational Results” which is weighed more heavily than the other two performance elements. Specifically, the Agency noted he failed to participate or have his staff participate in an Operation Review outside of his discipline during the rating period. Complainant claims the fact that S1 raised his numerical score after discussion when he identified additional achievement shows that the rating was inaccurate in the first place. However, we find Complainant has not offered any evidence, other than speculation, that his “Exceeds” rating was due to discrimination on any of his protected bases. May 2017 incident (claim 12) In May 2017, AW2 saw Complainant’s office blinds were closed and a magnetic blind covered the window in his door. AW2 entered Complainant’s office unannounced and directed him to remove the magnetic blind on the door on the grounds it was not a sound security practice in a correctional facility as there was no clear view of potential threats. Complainant claimed that as a Psychologist it was appropriate for him to cover his windows while meeting with a staff member. AW2 stated he similarly instructed a Computer Specialist down the hall to remove a window covering a few days before the incident with Complainant. June 2017 Counseling (claim 13) On June 15, 2017, AW1 interrupted a closed-door meeting between Complainant and a staff member and asked Complainant to remove the magnetic cover over the door window so staff members could see into the office. Complainant claimed AW1 banged on the door. AW1 stated he knocked on the door. Later that day, Complainant and AW1 exchanged emails on the matter which was subsequently brought to the attention of S1. On June 16, 2017, Complainant was issued a Letter of Counseling concerning office visibility and his tone when interacting with a superior officer. Prior to that date, Complainant had been informally counseled on “safety and security issues related to having a completely obstructed view of the inside of his office” by S1. Because Complainant continued to cover up his windows, and this was viewed as a safety concern, S1 issued Complainant a written counseling on June 16, 2017. The counseling contained a direct order not to have his doors closed, blinds closed, and the door window covered. S1 explained he was informed by AW1 that Complainant had written disrespectful emails to AW1 after AW1 attempted to check on Complainant’s safety due to limited visibility of Complainant’s office. As a result, S1 added in the counseling letter that Complainant should address executive staff in a more appropriate manner. 2020002444 8 In an attempt to show pretext Complainant argues that other employees on the hall also had window coverings but were not counseled. However, he does not dispute AW2’s assertion that these other employees were also instructed to remove their window coverings. Further, there is no evidence that these other employees failed to remove their window coverings after being repeatedly instructed to do so. Complainant notes AW2 told him he had to remove his coverings due to PREA; however, Complainant claims PREA does not apply to privacy in offices. We find the fact that AW2 may have been mistaken about the scope of the PREA does not by itself establish pretext (we need not decide if AW2 was in fact mistaken). We note there is no evidence that AW2 knew the PREA did not apply to staff window coverings, but nevertheless relied on it to mask a discriminatory motive. Further, even assuming the PREA does not apply to privacy in offices as argued by Complainant, we find the Agency is permitted to impose requirements beyond those imposed by the statute, so long as it does so in a non-discriminatory manner. August 2017 Counseling (claim 14) On August 16, 2017, a Special Investigative Services (SIS) Technician discovered an email sent to an inmate implying the inmate was contemplating suicide. The SIS Technician printed the email and began walking it to the psychology department. On the way, the SIS Technician encountered Complainant and explained he “had a referral for an inmate present at the FCI.” Complainant offered to deliver the document to S1. After receiving the document, Complainant proceed to perform other duties before forwarding the document to S1 via email. On August 17, 2017, S1 issued Complainant a written counseling for his handling of the document. The memo noted, “This type of information is considered an emergent matter in that the inmate needed to be seen to ensure mental health stability and the absence of suicidal ideation.” It is undisputed that Complainant receive the email but waited several hours before forwarding it to S1. S1 stated Complainant’s actions were a serious breach of a Psychologist’s duty to respond immediately and effectively to all potential threats of suicide. Complainant contends the Letter of Counseling was unreasonable because he did not know at the time the email, which was in his physical possession, involved suicide. Even assuming Complainant did not read the email, as he claimed, S1’s assertion that Complainant should have reviewed the memo upon receipt and taken immediate action is not unreasonable. Complainant has not presented any evidence indicating that S1’s stated belief was untrue and was instead a pretext for discrimination. Complainant has not identified any other similarly situated individuals who failed to review a referral provided to them and were not counseled by S1. 2020002444 9 Denied Acting Role (claim 15) It is undisputed that W2 made the decision to disallow Complainant from serving as the Acting Executive Assistant. W2 states he made his decision based on his understanding at the time that employees working in a primarily drug treatment role could not be used for other assignments. Complainant does not dispute that the Agency had this policy. However, he argues that the Agency did not apply similar policies uniformly because S1, for instance, was allowed to serve as an Acting Warden on several occasions. In an affidavit, W2 stated he was an Associate Warden at FCI Raybrook, New York prior to coming to FCI Mendota. While at FCI Raybrook, he had occasion to determine whether a Drug Abuse Program Coordinator (DAPC) was able to act as an Institution Duty Officer and perform other duties outside of Psychology Services, W2 states at that time he became aware of a Program Statement that prohibited DAPCs from performing duties outside of their treatment responsibilities, and thus could not perform duties outside of their treatment duties, except in emergencies. W2 stated as a result he did not allow Complainant to Act as Executive Assistant at FCI Mendota because of that policy-based prohibition which he had been made aware of during his time at FCI Raybrook. AW1 also noted that per Agency policies psychologists are not to be assigned non-psychology duties except in emergent situations. The HRM also stated that she verified with Regional Human Resources whether Drug Abuse Program Coordinators could be used temporarily in an acting position, specifically Executive Assistant and was informed that they are not allowed to be pulled for anything. Regarding Complainant’s contention that the Agency did not apply similar policies uniformly, as with S1, W2 stated he was not aware at the time that there was a similar prohibition for all members of the Psychology Services Department who provide psychological services until Agency Counsel informed him of this on September 21, 2018. We note the evidence Complainant presented showed that S1 served as acting Associate Warden of Programs from April 2017 through March 2018. There is no evidence that S1 was permitted to serve in an acting position after September 21, 2018, when W2 stated he learned that the prohibition applied to all members of the Psychology Services Department. The fact that W2 mistakenly allowed S1 to serve in an acting role does not by itself tend to establish pretext. We note the record does not contain that W2’s explanation was false or that he was motivated by discriminatory animus. Hostile Work Environment We turn now to Complainant’s hostile work environment claims. To establish a claim of harassment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020002444 10 The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). To ultimately prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a ““reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See also Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). As an initial matter, we note that Complainant's allegations in Claims 11-15 discussed above are not considered as evidence supporting his harassment claim because we have already determined that none of Complainant’s protected bases were factors in these actions. Additionally, claim 9 is not considered as part of the harassment claim since it was dismissed for failure to state a claim. Requests for Medical Information and Temporary Job Modification (claims 6 and 7) In November 2016, Complainant injured his back which required job duty modifications. Complainant first notified the Agency of this issue in a January 4, 2017 note from his doctor stating, “[Complainant] no self-defense class. Back spasm.” During this time, Complainant was scheduled for mandatory training sessions. The record reveals the Agency requested further medical information to ensure that his medical restrictions were being managed appropriately. When Complainant’s initial medical documentation did not contain sufficient detail, the Agency requested further clarification of his “course of treatment” and subsequently information “regarding limitations.” We find there is no indication that HRM was motivated by discriminatory animus when she requested Complainant provide additional medical information regarding his back injury. As a result of the information provided, the Agency placed Complainant on a temporary job modification. Complainant was assigned to his current position; however, the modification limited him to the administration building and training center. As a result, he could not enter the main FCI facility or the satellite camp. HRM stated he was placed in an office in the administration building to comply with his medical restrictions, which limited his ability to engage in physical activity, including self-defense. HRM stated he was the Crisis Support Team (CST) Leader and had access to the CST office in the administration building already. 2020002444 11 She stated he was placed in that office because he would have very limited interaction with inmates, he would be able to perform his regular duties, and because he already had access to the CST office. We find the Agency presented nondiscriminatory reasons for limiting Complainant’s access to the camp. Although Complainant claims that three other individuals with physical limitations were allowed to access the camp, we note there is no indication that these individuals had the same medical restrictions as Complainant or that the same HRM was involved in the decision to allow those individuals access the camp. Moreover, there is no evidence that the other staff members identified failed to provide adequate medical documentation as Complainant did which delayed an assessment of his medical limitations. Upon review, we find Complainant failed to present evidence to indicate that the Agency’s actions were motivated by discriminatory animus. Comments by W1 (claims 8, 10) In March 2017, upon returning from a trip to Denver, W1 asked Complainant if he had any issues at the airport. At other times between 2015 and February 2017, W1 said, “Oh, the Doc doesn’t love me anymore,” and “Don’t be mad at me, Doc.” Complainant contends that the comment about the airport was motivated by his Middle Eastern background; however, we find that other than his own speculation there is no evidence to support his assertion. Moreover, we find no indication that any of the comments made by W1 were based on discriminatory animus. 2014-2016 Incidents In reaching our decision, we have considered the remaining incidents Complainant identified as occurring between 2014 - 2016. Two of those incidents (denial of a compressed work schedule and the nonselection) are untimely raised discrete incidents which were only considered as background information. Complainant claimed that in 2014 and 2015 he inquired about the student loan repayment program from Human Resources and was told a form would be sent. Complainant stated that the “first documented record is on 12/14/15” and states that the program was not initiated for him until October 2016. Complainant claimed that W1 asked him to write and deliver a memo removing a staff member from the CST. Complainant stated he thought it was more professional for W1 to meet with the staff member as it was W1’s decision. The record reveals that Complainant was the CST Leader and W1 had Complainant write the memo. The record contains a memorandum from Complainant reflecting the staff member was being removed from the CST for two incidents of insubordination in February 2016. Complainant contends that this could have placed his career in jeopardy, as the staff member could have filed some type of complaint against Complainant. The record indicates this incident to be a work-related routine Agency business decision with which Complainant disagreed. 2020002444 12 Complainant also alleged that in August 2015, AW3 accused him of having problems working with women due to his Muslim background and religion. We note this is the only incident alleged to have been committed by AW3. Even if the single comment made identified in claim 3 was motivated by Complainant’s race, national origin, color, or religion, we find such a comment insufficient by itself to constitute a hostile work environment. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to harassment by the Agency as alleged. We find Complainant failed to show that the Agency’s actions were sufficiently severe or pervasive to constitute a hostile work environment. CONCLUSION Accordingly, the Agency’s final order 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. 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. 2020002444 13 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’s signature Carlton M. Hadden, Director Office of Federal Operations June 7, 2021 Date