[Redacted], Quinn B., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2019004267 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Quinn B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2019004267 Agency No. HS-HQ-00686-2017 DECISION On June 27, 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 23, 2019, final decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-15, at the Agency’s Office of Operations Coordination, Information and Events Coordination Branch facility in Washington DC. On February 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability2 (learning, reading, and writing disability) when: 1. From October 2016, Complainant was subjected to harassment by his supervisor (S: no claimed disability); 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 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019004267 2 2. On October 31, 2017, S issued Complainant an "Exceeded Expectations" rating for his fiscal year (FY) 2016 performance appraisal; 3. On December 1, 2016, S denied Complainant's reasonable accommodation request that he be provided with seven3 computer monitors and a stand for his workstation; 4. On or about September 7, 2017, S denied Complainant's entitlement to "straight time" pay, totaling $620.64, for Labor Day (September 4, 2017), when S excused Complainant from working his regularly scheduled tour of duty, and refused to allow Complainant to complete his timesheet for the pay period; 5. On October 31, 2017, S issued Complainant an "Exceeded Expectations" performance rating and made false statements on his FY 2017 performance appraisal. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the FAD found that, with regard to the two “Exceeded Expectations” ratings, the Agency articulated legitimate nondiscriminatory reasons for the ratings and that, while Complainant felt his work deserved higher ratings, he failed to demonstrate pretext and failed to show that the evaluations he did receive were based on discrimination. With regard to Complainant being denied pay for Labor Day, 2017, the Agency again found that S articulated a legitimate nondiscriminatory reason for his action, namely that Complainant was scheduled to work that day but called in to say he was not coming in but did not request annual or sick leave, nor did he work. The Agency again found that Complainant failed to show that the Agency’s articulated reason for its action was a pretext, or that the Agency’s action was based on discrimination. With regard to the denial of reasonable accommodation, the FAD found that Complainant was provided an effective accommodation for a year and then was subsequently offered the accommodation of his choice. Finally, with regard to harassment, the Agency found that the actions alleged were insufficiently severe and/or pervasive to constitute harassment and that Complainant failed to show that the actions either involved or were based on disability. The instant appeal followed. 3 While the FAD indicates Complainant requested six monitors, the record shows that Complainant requested seven monitors in total, of which one was for classified materials and the remaining six for unclassified materials. 2019004267 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Reasonable Accommodation An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise 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); Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). A request for modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation (Guidance) at Question 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. app. § 1630.9. Thus, “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 29 C.F.R. pt. 1630 app. § 1630.9; Guidance at Question 5. To establish a denial of reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 16302(m); and (3) the Agency failed to provide a reasonable accommodation. A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). When the disability and/or the need for accommodation is not obvious, the agency may ask the employee for reasonable documentation about his/her disability and functional limitations. Guidance, at Question 6. As noted above, for purpose of this decision the Commission assumes without finding that Complainant is an individual with a disability. 2019004267 4 The record shows further that the Agency determined that Complainant is a qualified individual with a disability. We next need to determine whether or not the Agency failed to provide an accommodation. The record shows that on September 7, 2016, Complainant completed an online Agency reasonable accommodation request form, requesting: [S]even monitors because I will be required to perform mission essential functions on A, B, and C LANs. One of the seven monitors will be used to process my work on the B and C LANS. That monitor stand is already in place at my new location. The six A LAN monitors will help me perform all of my job functions efficiently and accurately. Due to the sensitive medical information disclosed to you, the six A-LAN monitors will: • Improve my ability to multi-task and conduct research on a variety of topics that will be senior [sic] DHS leadership; • Enhance my speed and efficiency in producing/completing various work products; and • Organizing information, my thoughts, and prepare reports, outlines for reports, etc. Complainant subsequently provided documentation from his physician stating that Complainant’s: [C]ondition makes it difficult to adjust to changes in the workplace setting while maintaining a high level of productivity. . . . He reports that his job requires multi- tasking, research, and efficient production and completion of reports and other work products. It might be difficult for him to perform these functions without the technology to which he is accustomed. . . . [Complainant] reported that in the recent past, he functioned efficiently and productively with an array of computer screens in a special stand holding 6-7 screens. As this system worked in the past, he will likely do better with access to such technology. We note that this statement does not provide a medical reason for Complainant’s need for seven monitor screens, it only states that Complainant was accustomed to using seven screens and that doing so again “will likely” allow him to “do better.” In his Formal complaint, Complainant said that he met with S and the Agency Disability/Reasonable Accommodation Program Manager (DRAPM: no claimed disability); On or about 15 NOV 2016, . . . to discuss and demonstrate (interactive process) how the six-monitor stand and six monitors would enhance my ability to process unclassified information more efficiently, quickly, and accurately. In addition, I demonstrated how having simultaneous visual access to multiple electronic 2019004267 5 documents, databases, websites, etc., enhance my ability to organize my thoughts/outlines and efficiently synthesize large amounts of information into succinct work products. (Parentheses in original.) S averred that when he met with Complainant he requested that Complainant: [H]elp me understand how his disability limited his ability to perform his current job in the Reports Section. I did not understand what limitations were being addressed by his solution (the six monitors). At all meetings [Complainant] reminded me he had a reading and writing disability - that he wrote and read slowly and had a hard time getting projects completed on time. I then requested he explain how the proposed solution of six monitors would mitigate the limitations he experiences in the work-place as a result of his disability. He did not comply with my request. Instead he demonstrated what he would display on the monitors, but did not provide me, or [DRAPM] with how his disability affected his ability to perform his job functions or how the extra monitors mitigated his limitations. He stated that the additional monitors helped him organize and process information, and enhance accuracy, and timeliness. He did not provide any examples. On December 1, 2016, S formally rejected Complainant’s request for a total of seven monitor screens: [B]ecause you have not provided sufficient medical documentation to show that a seven-monitor setup is needed as a reasonable accommodation. However, I am offering the following resources: one additional A-LAN monitor to be located on your desk (this provides you with two monitors for the classified systems and three monitors for the unclassified system); permission to print-out materials for reference as needed; document holders; and training on Microsoft Office products. . . . [Y]ou informed me you had a reading and writing disability - that you read and write slowly and had a hard time getting projects completed on time. You did not explain how your disability limited your ability to do assigned work. I then requested you explain how your proposed solution of seven monitors for the unclassified system would mitigate your limitations. You informed me the additional monitors helped you organize and process information and enhance accuracy, and timeliness. . . . You have been able to perform the essential functions of your job with your existing four monitor setup. To support your request for seven monitors as a reasonable accommodation, you must provide [DRAPM] medical documentation 2019004267 6 to show that this accommodation is needed. I am denying your request because you have not provided [DRAPM] with the necessary medical documentation. I understand that you used seven monitors in your last job, and that on an almost daily basis you conducted searches of multiples databases. With the seven monitors you were able to keep each database open as a reference in.case information was needed. However, the requirements of your current job are different from the requirements of your last job. In your current job there are rarely situations when you need to reference more than two documents. As you believe you need additional monitors to perform your job more effectively, I will provide one additional A-LAN monito to be located on your desk (this provides you with two monitors for the classified systems and three monitors for the unclassified system). If you need to reference more than two documents, but do not want to use available Microsoft tools that enable you to view multiple documents, you are authorized to print the documents. If you need document holders, I will provide these as well. I am also willing to send you to training on Microsoft products in order to increase your understanding of how to use the software tools that are available, and to increase your confidence in applying these tools to assist you with organizing and managing your work material. During your seven-monitor demonstration [DRAPM] and myself on November 15th, you highlighted the need to display your two email accounts along with a spreadsheet of all your account passwords. I do not believe displaying your account passwords is a prudent security practice, and I do not require you to continuously monitor your email accounts. Like everyone else in the office, you are expected to periodically check your email but you are not required to have your Microsoft Outlook email boxes visible at all times. As for meeting deadlines I give [sic] you as much time as I believe I can, while preserving time to review what you provide and still meet my suspense [sic]. The record thus shows that, while S initially denied Complainant’s request for the six additional monitors, he did offer Complainant an alternative accommodation. We note in this regard that the Commission has long held that individuals protected under the Rehabilitation Act are not entitled to the accommodation of their choice, but to an effective accommodation. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (alternative proposed accommodations must be “effective”). Complainant maintained that the accommodation was not effective and that he contacted S: Raising concern [sic] that the document holders would not facilitate my ability to cut and paste from a hard copy document on a document holder to an electronic document on my computer monitor. I also raised concern that the electronic "word 2019004267 7 find" function on a computer doesn't work on a printed document sitting on a document stand. [S] did not respond to my concerns. In addition, the document holder would create an additional barrier because I would have to set up the document stand within my range of vision. Because I already have three monitors, I would have to set the document stand in front of one of my monitors-unless I wanted to place it outside my line of sight-to my right or left. If I set the document stand within my line of sight, it would block the view of the information on one of my monitors. With regard to Complainant’s concerns about needing to set up the document stand within his line of sight, thus blocking one of the monitors, we note that Complainant has not shown why such an issue regarding viewing documents outside of his line of sight would not also arise with seven monitors. Nor has Complainant shown that the inability to search or cut-and-paste from a hardcopy document is related to his disability. We therefore find that Complainant has not shown that the accommodation offered by S was not “effective.” We note in this regard that following the initial accommodation offered by S, Complainant was able to perform his work functions and he received an “exceeded expectations” evaluation in his FY 17 performance appraisal. Complainant argues that the fact that the Agency eventually agreed, on or about November 2, 2017, to provide him with the seven monitors and monitor-stand he had originally requested, shows that such a request did not create an undue hardship for the Agency. We note, however, that the record does not show the Agency claimed undue hardship when denying Complainant’s original request. Instead, the record shows that an alternative accommodation was offered, one that Complainant has not shown to have been ineffective, despite the inability to cut and paste or use the “search” function. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2019004267 8 This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination when he was denied pay for Labor Day and when he received “exceeds expectations” ratings for his FY 16 and 17 personnel evaluation. We next find that the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to the denial of pay, S averred that: In preparation for, what would tum out to be, Hurricanes Maria, Harvey, Jose, and Maria, [the Agency] activated the DHS Crisis Action Team. As a member of the Crisis Action Team, [Complainant] had been assigned shifts in late August 2017, and he worked those shifts. On August 30, [Complainant] was informed that he was assigned to work additional shifts and that he was to report to work on Monday, September 4 at 10:00 PM. This eight-hour shift ended at 6:00AM on September 5. [Complainant] sent an email at 2:20 PM on September 4th stating he was not coming into work. I sent a subsequent email inquiring why he wasn't coming in. I finally reached [him] by telephone where he informed me he was not coming to work. [He] did not request annual or sick leave during this conversation. Neither OPS Mission Support Division nor experts from the OCHO Employee Relations Division agree with [his] position that the Government is required to give him a one week notice before changing his schedule. Since he did not work his assigned hours, he wasn't paid. With regard to Complainant’s FY 16 evaluation, S averred that: I gave [Complainant] an Exceeded Expectation rating for FY 16 on Oct 31, 2016 because that is the rating he earned based on his performance goals and core competencies. Based on my assessment of [Complainant’s] performance during FY 17 [sic] he earned a 4.12 out of a possible 5.0 for his annual rating. Using the performance rating calculator, that value equates to a rating of "Exceeded Expectations." During FY 2016 [Complainant] supervised by [Former Supervisor (FS)] from October 2015- June 2016, and by me from June 2016 to September 2016. In the process of providing [Complainant] his annual performance evaluation, I considered the October-June and June-September self-assessments [he] provided, and I considered the interim performance rating (value) provided by [FS] (4.027). The self-assessment [Complainant] provided for the June- September time frame, when I was his supervisor, was useful. As for his work described in the October-June self-assessment, I had no direct knowledge of his 2019004267 9 performance during this period or the quality of his work. In addition to the self- assessment, I also had the interim performance rating provided by [FS]. S further averred that he decided to [R]ely more heavily on the interim performance rating provided to me by [FS] and less so on [Complainant’s] Oct-June self-assessment. [Complainant] put a lot of work into both of his self-assessments, and the multiple emails he sent to [Complainant’s second-level supervisor (S2; unspecified disability)] and me on December 20, 22, 23, 24, and 26 addressing perceived "false statements" in his interim performance rating. Instead of providing the information about his past performance to me, it would have been much more useful, and certainly more appropriate, for him to have provided the information to [FS] to assist [FS] in shaping his interim performance rating. There is a section on the [interim] rating form for the employee to provide comments-he did not provide any comments. When I asked [Complainant] if he had provided the self-assessment to [FS] ahead of his interim rating, he said he had not. With regard to Complainant’s FY 17 evaluation, S averred that: It is very difficult to earn an Achieved Excellence Rating. It is reserved for the very top performers, and that is not how I would describe [Complainant’s] performance in FY17. [His] actions this year earned him a Letter of Counseling, for continuing to take actions he was told to cease, and a Letter of Reprimand for failing to work his assigned hours. I have an office of GS-12s and 13s, and one GS-15 ([Complainant]). None of my GS-12s or -13s needed that level of attention. The degree to which [Complainant] achieved his performance goals and core competencies earned him a rating of Exceeded Expectations for FY 17. [Complainant] met most, but not all, of the criteria for a Meets Expectations performance rating, but he where he [sic] really fell short was his core competencies, specifically Communication, and Cooperation and Teamwork. He did not consistently deliver timely, clear, and concise communications (assigned work), and he does not routinely select the appropriate information to include in his assigned work products. A good example is his Personal Annual Assessment. I gave him a month to complete the task and he turned it in to me two weeks late. As for Teamwork, Marty does not collaborate or work well with others to achieve high impact contributions (products). His reviews of his teammates' work, and his feedback to his teammates on their work is mediocre. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has not met this burden. 2019004267 10 With regard to Complainant receiving no pay for Labor Day, 2017, Complainant averred that he had not been scheduled to work on the day in question until FS: [P]rovided the shift change on August 31, 2017, [four] days in advance of the September 4, 2017 shift. . . . [O]n September 4, 2017, I emailed [FS] and [the Deputy Director] approximately 7.5 hours before the September 4, 2017 shift and notified them that I would not be able to report for work that night at 10 PM; on September 4, 2017 at approximately 17:08 . . . I . . . advised [S] telephonically that I would be unable to make it to work for the [Crisis Action Team] that night. . . . [S] responded by saying “okay.” Complainant further averred that a few days later he explained to S that the reason he could not work on the day in question was because he had taken medication “that would not permit me to work.” Complainant maintains that pursuant to Agency policy, supervisors are required to provide employees notice of schedule changes at least one week in advance, and that he later told S he could not request sick leave for the day in question “because it was a holiday, annual and sick leave cannot be granted or used on a holiday, and a holiday is designated ‘as a non-leave day’ [sic] as reflected in 5 USC 6302(a).” We note, however, that Complainant does not deny that he failed to show up for work and that he requested neither sick nor annual leave for the day in question. Even assuming arguendo that, pursuant to Agency policy, Complainant should have been provided more notice of the schedule change, and further assuming arguendo that Complainant could not request either annual or sick leave because the day was a Federal holiday, Complainant has not shown that the Agency’s action was a pretext to mask discrimination or that S harbored discriminatory animus towards Complainant’s protected basis. We note in this regard that Complainant has submitted new evidence concerning proposed changes to 5 USC § 6101 that was previously unavailable. We again note that this new evidence does not alter our finding that Complainant has not established discrimination based on disability. With regard to Complainant’s FY 16 performance appraisal, Complainant said that S told him that one of the reasons he did not receive an “achieved excellence” rating was because Complainant failed to complete a database competency plan listed in his performance appraisal. Complainant argues that, pursuant to the appraisal, he was merely required to “develop” such a plan, he was not required to “complete” the plan. Complainant averred that “I advised [S] at a later date that ‘complete’ and ‘develop’ are not synonyms, and the two words have completely different dictionary meanings.” S, on the other hand, averred that: His plan does say “develop" and the Webster-Marina dictionary defines “develop” as: • to create or produce especially by deliberate effort over time • to make available or usable From my perspective as the one issuing the tasking, it means to provide something that is useable. Also, as a GS-15 employee, I expect him to be able to 2019004267 11 communicate with me if he has questions about my expectations, to work with me to set and clarify expectations, and to keep me informed. With regard to Complainant’s FY 17 performance appraisal, Complainant alleged that S made false statements on his performance appraisal and that he had “no basis” to claim that Complainant turned work in late. We find, however, that with neither the FY 16 nor the FY 17 performance evaluations, has Complainant shown, by a preponderance of the evidence, that S’s actions were motivated by discriminatory animus towards Complainant. The only nexus Complainant claims between his disability and S’s actions comes from the fact that S issued Complainant his FY 16 performance appraisal shortly after Complainant requested a reasonable accommodation. We find such nexus to be too tenuous to establish, by a preponderance of the evidence, that discrimination based on disability occurred. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile work environment when he was denied a reasonable accommodation, received lowered FY 16 & 17 performance evaluations, and was denied pay for Labor Day 2017, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment including such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant claims the following acts of harassment occurred: beginning on October 24, 2016 and continuing, S accused Complainant of missing deadlines; on or about October 27, 2016, S criticized Complainant for failing to read an email within nine minutes of receiving it in a secondary email account; on or about November 29, 2016, S stood over Complainant’s shoulder, told him to write an email, watched him write the email, and criticized Complainant for taking too much time to write the two-sentence email, stating “this is taking too long to write one sentence [Complainant’s name]. I want you to finish this right now," and quickly rattling off a sentence for Complainant to substitute for what he had already written, and when Complainant asked him to repeat the sentence, S said, ''no, you do it yourself, [Complainant’s name]"; on or about November 29, 2016, S criticized Complainant for failing to open and read an email he had received seven minutes earlier; on or about December 8, 2016, S criticized the quality of Complainant’s work product and after Complainant requested that S provide an example of Complainant’s work product that met his expectations, he said, "[t]here really aren't any"; on or about December 9, 2016, S informed Complainant that since you "wait until the last minute to [do] work assignments," S offered to "hold [your] tasks until closer to the due date if that will he]p [you]"; on or about December 9, 2016, Complainant emailed S to request a meeting so that Complainant could obtain a better understanding of his expectations but Complainant did not 2019004267 12 receive a response; on or about December 23, 2016, S sent Complainant an email that stated “your work product which you provided on the Las Vegas New Year's Eve event is unacceptable and does not come close to meeting [my] expectations"; on January 13, 2017, S publicly admonished Complainant and accused him of making changes to a document without permission; on January 25, 2017, S called Complainant into his office and angrily told him that he was not permitted to discuss "six monitors" while at work, that the "six monitor" issue was a "done deal," that Complainant’s reasonable accommodation request for six monitors constituted ''whining" and sent Complainant an email stating, "[ d]o not spend any more government time researching what it will take to have six monitors installed on your desk"; and on or about September 15, 2017, S counseled Complainant regarding an email, stating that the email would be held against Complainant during his FY 17 performance rating and would be incorporated into Complainant’s permanent record, and prohibited Complainant from sending emails to distributions lists. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). 2019004267 13 Following a review of the record we find that Complainant has not shown that the alleged actions were sufficiently severe and/or pervasive to alter the terms and conditions of Complainant’s employment. Nor does the record show that the actions were based on or involved Complainant’s protected basis. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown, by a preponderance of the evidence, that discrimination occurred, and we AFFIRM the FAD. 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. 2019004267 14 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation