[Redacted], Silas T., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020002645 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Silas T.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020002645 Agency No. 8L1M16020F18 DECISION On February 19, 2020, 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 January 21, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equipment Specialist (Electronic), GS-11, at the Agency’s Air Force Life Cycle Center facility in Hill Air Force Base, UT. On May 9, 2016 and by subsequent amendments, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and/harassment on the bases of disability (anxiety and depression), religion, and/or reprisal for prior protected EEO activity as follows: A. Complainant alleged that he was subjected to a hostile work environment and discrimination based on mental disability when, on or about June 23, 2015, 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. 2020002645 2 Complainant’s supervisor (S1) sent a humiliating email to Complainant with every other senior manager in building 1284 courtesy copied on the email. B. Complainant alleged that he was subjected to a hostile work environment and discrimination based on mental disability and reprisal when: 1. On or about February 1, 2015, Complainant’s Work Lead (WL1) sent an email to the Avionics Lead (AEL) and then forwarded it to other individuals at ACC/A4 Langley, Virginia, with disparaging remarks in the email about Complainant. 2. On or about February 14, 2015, Complainant’s Work Lead (WL2) stated, “[S1] said you have to have this task completed by 1530 today” putting undue stress on Complainant. 3. From July 2015 through February 22, 2016, when S1 ignored numerous emails that Complainant sent concerning his job assignments. 4. On or about September 30, 2015, S1 assigned Complainant a suspense that was unnecessary and was outside his assigned work area and which WL2 objected to and caused a back-up on his normal workflow. 5. On September 30, 2015, Complainant met with and informed senior managers separately (S3, DIR1, and S2) of his medical/health status. Complainant asked these senior managers for reasonable accommodations based on his medical status. Management failed to take timely and appropriate actions concerning Complainant’s medical status and request for reasonable accommodation. 6. On or about October 14, 2015, S1 assigned additional work to Complainant for reporting unfair treatment to the Deputy Director (S3). 7. On October 15, 2015, Complainant met with and informed senior managers separately (S3, DIR1, and S2) of his medical/health status. Complainant asked these senior managers for reasonable accommodations based on his medical status. Management failed to take timely and appropriate actions concerning Complainant’s medical status and request for reasonable accommodation. 8. On or about October 15, 2015, Complainant’s Commander (DIR1) held a private meeting with Complainant in which he expressed to the Commander that he believed the extra work assigned was for reprisal, but the Commander took no noticeable action. 9. On October 30, 2015, Complainant met with and informed senior managers separately (S3, DIR1, and S2) of his medical/health status. Complainant asked these senior managers for reasonable accommodations based on his medical status. Management failed to take timely and appropriate actions concerning Complainant’s medical status and request for reasonable accommodation. 10. On or about December 29, 2015, WL1 sent a threatening email to Complainant stating, “I do not care about your actions in the past, but if 2020002645 3 they are hindering the performance of your duties then we have a problem.” 11. On April 4, 2016, S1 took away Complainant’s assigned workload (Time Compliance Technical Order/TCTO) and reassigned it to another co- worker (CW1). 12. On April 5, 2016, S1 issued Complainant a counseling entry for being unprofessional. 13. On April 5, 2016, S1 assigned Complainant another co-worker’s work (to remove wires off the jet) prior to Engineering data being completed. 14. On April 29, 2016, S1 issued Complainant an unfair and low award bonus without capturing the significant work accomplished during the rating period. 15. On or about May 4, 2016, Complainant became aware that S1 denied Complainant’s reasonable accommodation request to reduce his work assignments/workload. 16. On or about May 13, 2016, Complainant became aware that management failed to inform him about the Reasonable Accommodation Program or the Americans With Disabilities Act (ADA). 17. On or about May 13, 2016, Complainant became aware that management failed to move Complainant to another building even temporarily as a reasonable accommodation even though Complainant asked repeatedly which building is currently available without necessary modifications to the cubicle. 18. On or about May 13, 2016, Complainant became aware that management had violated several laws and regulations when they allowed S1 to impose excessive and unnecessary stress upon Complainant by bullying and intimidating him, ostracizing Complainant, using abusive language, speaking to Complainant in condescending tones in front of upper management, among other demeaning actions. 19. On or about July 11, 2016, Complainant became aware that management had allowed the Branch Chief (S2) and S1 to improperly fill out the ADA request and make the final decision. 20. On July 20, 2016, Complainant was notified by WL2 that management was asking what Complainant was working on all the time and not asking anybody else. 21. From approximately October 2015 to July 25, 2016, management repeatedly asked Complainant to look for another position/job, apply for a disability retirement, or make suggestions of “fit for duty” instead of fixing the discrimination and hostile work environment. C. Complainant alleged he was subjected to a hostile work environment and discrimination on the bases of mental disability, religion, and reprisal when: 1. On or about December 8, 2016, Complainant overheard a co-worker (CW1) make a comment “Fuck Mormons” in a loud voice which 2020002645 4 Complainant felt was offensive not only to himself but other employees of different religious faiths. 2. On December 9, 2016, management (DIR2, S2, and S1) failed again to reasonably accommodate Complainant by refusing to change his work center/supervisor/division to another building even though they were provided documentation to help them to properly follow current ADA (Reasonable Accommodation) procedures. 3. On January 12, 2017, management (DIR2, S2, and S1) issued Complainant a Notice of Decision to Reprimand for the offense of Conduct Unbecoming a Federal Employee. D. Complainant alleged he was subjected to a hostile work environment and discrimination on the bases of mental disability and reprisal when: 1. On or about July 7,2015, S1 did not assume responsibility for sending a humiliating email to Complainant with every senior manager in building 1284 courtesy copied on the email. 2. On or about July 7, 2015 through February 22, 2016, S1 and Complainant’s Work Lead (WL1) imposed excessive and unnecessary stress upon Complainant, causing additional medical treatments, medication, and conditions such as chest pain, headaches, upset stomach, shortness of breath, uncontrollable trembling, heart palpitations, and inability to rest or relax while awake, and sleep problems, which has also affected home life significantly. 3. On or about October 4, 2015 through March 22, 2016, Complainant became aware that S1 ordered a priority shift in Complainant’s workload without regard to the contractual obligations or costs to the government. 4. On or about November 9, 2015, S1 and WL1 held a meeting with Complainant and stated,“You do not talk to anyone” in front of the Branch Manager (S2). 5. On or about November 9, 2015, S1 and WL1 held a meeting with Complainant and shouted, “I refused to work with an engineer” in front of S2 and Complainant’s Work Lead (WL2), which was later proved false to S2. 6. On or about December 29, 2015, WL1 emailed Complainant that he had to be flexible and work outside his position description if necessary, to keep the aircraft flying. 7. On or about December 29, 2015, WL1 deliberately sent a humiliating email with the complainant’s work document marked for corrections and the subject line stating “for your laughs” to Complainant in error when it was intended to be sent to a co-worker (CW2). 8. On or about December 29, 2015, WL1 lied to Complainant, stating he did not send Complainant a humiliating email. 2020002645 5 9. On or about January 19, 2016 through February 1, 2016, WL1 corrected Complainant’s paperwork/assignments to correct the Technical Manuals, but not other employee’s work that was writing the same exact information. 10. On or about February 16, 2016, Complainant had a meeting in the Commander’s office with management (DIR1) and S2 to go over recent events in which he disclosed to them that he had made on the initial EEO intake form. Also discussed was that Complainant had met with a Wingman Advocate and “he suggested I go to EEO. I declared Psychological harm has taken place which caused impairment of my mental health, as documented by competent psychologist, psychiatrist, or psychotherapist.” 11. From March 22, 2016 to July 25, 2016, management violated the No Fear Act by allowing the reprisals, hostile work environment, and disparate treatment to continue against Complainant instead of fixing the problem. 12. On March 22 and 23, 2016, S1 failed to acknowledge Complainant’s email that he was taking sick leave. 13. On March 24, 2016, S1 failed to acknowledge Complainant’s email that he was taking annual leave. 14. On April 5, 2016, S1 told Complainant to come to him if Complainant had anything to say instead of going to his Lead. 15. On or about May 13, 2016, Complainant became aware that management (DIR2) expressed her agreement with an email sent to Complainant on June 24, 2015 by (S1) and which email previous Deputy Director (S3) disagreed with. 16. On or about July 18, 2016, Complainant became aware that management refused to address the need that the building that Complainant works in is operating under a very old Union agreement allowing the employees to be subjected to smoke instead of a tobacco free environment. 17. On or about July 21, 2016, Complainant became aware that management was allowing S1 to continually harass Complainant without any discipline or counseling with regard to the consequences of continuous harassment and reprisal on the part of S1. 18. On August 8, 2016, DIR2 requested an estimate of the amount of official time used by Complainant before the implementation of the formal request for official time on or about August 1, 2016. 19. On August 9, 2016 during a meeting held with Complainant, DIR2 made the statement that Complainant had filed an EO complaint against S2 when Complainant asked what happened to S2 and why she wasn’t communicating and helping Complainant in her capacity as Complainant’s second-level supervisor. 20. On August 29, 2016, S1 assigned Complainant a tasking that was not his to begin with and with a 30-day suspense due date for which there is no appropriate engineering source data, funding and a DEPOT schedule. 2020002645 6 21. On September 19, 2016, S1 used unprofessional and foul language when speaking with one of Complainant’s co-workers and was not counseled, unlike Complainant who was counseled on April 5, 2016 to Maintain Professional Exchanges which Complainant believes is disparate treatment. 22. On September 26, 2016, S2 was pulled into an office to question Complainant about attending an IPR meeting which WL1 concluded without direct communication that Complainant was going to attend. 23. On September 26, 2016 during a meeting, WL1 continually interrupted Complainant and disputed Complainant’s method of reviewing technical books until Complainant had to ask for an intervention by S2 in private to stop the behavior. 24. On or about January 13, 2017, Complainant became aware that DIR2 was actively pursuing a constructive discharge against Complainant which Complainant believed would eventually end in his termination from federal service. 25. When Complainant became aware on or about January 9, 2017, a co- worker (CW1) harassed Complainant by telling him to turn down his headphones which were an approved reasonable accommodation. E. Complainant alleged he was subjected to a hostile work environment and discrimination on the bases of mental disability, religion, and reprisal when: 1. Complainant became aware on or about 8 December 2016, when he overheard a co-worker (CW3) make a comment “It’s a lot of goddam work” in a loud voice when speaking with other co-workers about sugar maples which Complainant felt was offensive; and 2. On November 29, 2016, S1 made a comment, “That goddam snow is heavy” in a loud voice when speaking with other employees which Complainant believed was offensive not only to himself, but other employees of different religious faiths. F. Complainant alleged he was subjected to a hostile work environment and discrimination on the bases of mental disability and reprisal when: 1. On or about December 29, 2015, WL1 sent Complainant an email stating, “Second, it wasn’t hostile towards you as a person; it’s as an Equipment Specialist.” 2. On April 21, 2016, S2 told Complainant to properly notify S1 when he requested sick leave and was told he couldn’t leave until approved by S1. 3. On April 21, 2016, S2 questioned Complainant’s medical proof of his diagnosis. 2020002645 7 4. On May 11, 2016, WL2 told Complainant out of concern for Complainant’s situation that he should find another job because S1 would not stop the abuse. 5. On May 13, 2016, Complainant became aware that because of management’s imposed excessive and unnecessary stress put upon Complainant causing him to use his own money and time/leave to seek medical attention and have his prescribed medications doubled. 6. On July 21, 2016, Complainant became aware that management allowed the hostile work environment to continue to the point where Complainant is experiencing new medical symptoms (i.e., hand tremors. 7. On August 3, 2016, because S1 imposed continuous excessive and unnecessary stress upon Complainant causing him to file an OSHA Form 301 and to seek medical help from the Occupational Medicine Services (OMS). G. Complainant alleged he was subjected to a hostile work environment and discrimination on the bases of mental disability and reprisal when: 1. From July 20, 2016 to August 23, 2016, DR2 partially denied Complainant’s request for official time; and 2. From August 26-30, 2016, DIR2 did not follow procedures outlined in Management Directive (MD) 110 when she partially denied Complainant’s request for official time for 3 hours per day for four days and only granted 8 hours. The Agency partially accepted the complaint.2 The Agency conducted an investigation, the pertinent results of which are discussed in the Analysis and Findings section below. 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. The instant appeal followed. On appeal, Complainant has resubmitted a large amount of evidence that he states is not new evidence but is to ensure we have his complete file. He makes numerous allegations, including Agency bias and that there was a constructive discharge. He asserts that the EEO process is corrupt, noting that he filed “over 58 claims” with “around 33 claims accepted for investigation.” 2 The Agency initially dismissed some of the alleged claims and accepted others, but the Agency reversed its position on several of these. Our decision addresses the claims as dismissed or accepted and decided in the Agency’s final decision. 2020002645 8 His asserts that he was not given an opportunity to rebut evidence of record and challenges the facts found in the Agency’s final decision (FAD). He reiterates his contentions, essentially that he was denied a reasonable accommodation and subjected to discrimination, harassment and/or reprisal/retaliation. He challenges the author of the FAD, as he did not see that the author had any EEO experience or was an EEO attorney and challenges the experience level of the investigator. In response, the Agency argues that Complainant failed to meet his burden of proof, noting the evidence of record indicating that Complainant engaged in inappropriate behavior in the workplace, which were the legitimate nondiscriminatory and non-retaliatory reasons that Complainant’s supervisors took the actions at issue. Regarding Complainant’s allegation that the Agency failed to accommodate his disabilities, the Agency notes that Complainant acknowledged that he did not need any accommodation to perform the essential functions of his position, but, instead, wanted the accommodation to get away from his supervisor; nevertheless, the Agency granted four of Complainant’s five requested items and placed into a program designed to find vacant, funded positions for reassignment. The Agency notes that Complainant retired while the Agency was looking for that reassignment. The Agency argues that for these reasons and those contained in its FAD, we should affirm its FAD. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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”). Dismissed Claims 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). 2020002645 9 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. The Agency dismissed all 25 claims in Claim D and both claims in Claim E for failure to state a claim. It dismissed Claims F(1) and (2) because they were neither severe nor pervasive enough to have altered Complainant’s employment; it also found they were not sufficiently chilling as to prevent a reasonable person from engaging in protected activity. It dismissed Claim F(3) because the record established that the alleged incident occurred within mediation discussions. It dismissed Claim F(4) because Complainant attested that he was not offended by the comment and he believed the comment was made to support him rather than for a discriminatory reason. It dismissed Claims F(5) through (7) because, as alleged, the claims do not identify any specific discriminatory action on behalf of management. We agree that these claims, as alleged, fail to state actionable independent claims of discrimination and dismissal was proper on this basis.3 However, the allegations are still relevant to the overall ongoing harassment claim. Official Time Claim Agencies must afford complainants a reasonable amount of official time to allow a complete presentation of the relevant information associated with their complaint and to respond to agency requests for information. 29 C.F.R. § 1614.605. The actual number of hours to which a complainant is entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the agency and the agency's need to have its employees available to perform their normal duties on a regular basis. Whatever time is spent in meetings and hearings with Agency officials or AJs processing a complaint is automatically deemed reasonable. Because investigations are conducted by agency or Commission personnel, the above regulation does not envision large amounts of official time for preparation purposes. Consequently, “reasonable,” with respect to preparation time (as opposed to time in meetings and hearings), is generally defined in terms of hours, not days, weeks, or months, albeit what is reasonable depends on the individual circumstances of each complaint. EEOC Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 6, § VII.C, at 6-16 -- 6-18 (as revised, Aug. 5, 2015). In Claim G, Complainant alleged that, from July 20, 2016 to August 23, 2016, the Agency partially denied his request for official time and, from August 26 to 30, 2016, the Agency did not follow proper procedures in partially denying his request for official time. Complainant does not allege that the Agency denied all of his requests for official time; he acknowledges that the Agency approved his requests for some of the requested official time. On appeal, he argues that 37 hours was not reasonable in light of the number of his claims that were alleged, “over 58,” and accepted, “around 33.” 3 Although the Agency dismissed some of the claims on alternative bases, because we find dismissal was proper on the bases noted, we decline to consider those alternative bases. 2020002645 10 In its FAD, the Agency noted that it granted Complainant’s all of the official time Complainant requested between July 18 and 29, 2016; granted 2 hours of official time per day, between August 1 and 17, 2016, but not the time Complainant spent working at home; did not grant Complainant’s request for 2 hours on August 18 and 19, 2016 because to date, Complainant had been granted 34 hours of official time, which was reasonable; and granted some of Complainant’s requested official time from August 22 and 30, 2016, providing him written explanations for the denied requests. Although the instant complaint contains numerous allegations, we find the Agency’s granting of 37 hours of official time to be reasonable. Denial of Reasonable Accommodation Claim The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See generally 29 C.F.R. Part 1630. In order to establish that he was denied a 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. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). Here, the Agency does not dispute that Complainant is an individual with a disability and, therefore, covered by the Rehabilitation Act. Therefore, the next inquiry is whether Complainant is a “qualified individual with a disability.” 29 C.F.R. §1630.2(m). 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. Id. The Agency found that Complainant was not a qualified individual with a disability. Nevertheless, it assumed arguendo, that he was a qualified individual with a disability and found that management accommodated him by providing him with all of the requested accommodations necessary to minimize work disruptions and improve his concentration, noting that he was not entitled to a stress-free environment or a new supervisor. We will assume arguendo that Complainant was a qualified individual and proceed to whether the Agency failed to provide him a reasonable accommodation. The complaint includes several allegations of instances when the Agency denied Complainant’s request for a reasonable accommodation. Complainant attested that during September to October 2015, he requested a lateral transfer and relief from performing other employees’ duties. While management acknowledged that Complainant requested to be moved to another building, management denied that Complainant made a request for a reasonable accommodation during this time. 2020002645 11 DIR1 attested that, while Complainant had informed him that he was seeing a doctor for anger and stress, Complainant did not provide any medical documentation of a disability. DIR1 attested to his perception that Complainant requested to be moved because of his dissatisfaction with his supervisor. S3 attested that Complainant shared with him that he was experiencing stress due to events at home and work, but Complainant did not request a reasonable accommodation and he was not aware, at this time, that Complainant had any limitations requiring an accommodation. When asked about his submission of medical documentation relating to his medical conditions, Complainant referred to his reasonable accommodation form and indicate that it was dated May 5, 2016. Complainant’s May 5, 2016 written request for a reasonable accommodation including the following: (1) a change of work center/supervision, (2) single occupancy cubicle with high walls, (3) allowance for him to listen to music with headphones, (4) a standing workstation, and (5) clearly written instructions. A psychiatrist’s letter of record indicates that the accommodations were necessary to alleviate Complainant’s anxiety and stress by reducing distractions and removing him from the supervision of individuals he believed were treating him unfairly. A psychologist’s letter also indicates that the stressful work environment negatively affects Complainant’s ability to cope with his anxiety and depression and recommends Complainant’s requested accommodations. On or about May 25, 2016, the Agency informed Complainant that it would provide four of his five requests. The Agency agreed to provide everything except moving him to another work center/supervisor/division. Management attested that the Agency could not move Complainant’s position to a separate building. Management explained that a change in supervision could not be offered because there was online Equipment Specialist Supervisor in the A-10 Program Office and a change in Division could not be accommodated without an available vacancy in other Division and concurrence by leadership. Management explained that Complainant’s resume was sent to other AFLCMC organizations on Hill AFB, but no Division had a placement opportunity for him. Management also explained that a change in workcenter location to another building was deemed disruptive to the Equipment Specialists’ Section’s ability to conduct business, as all of the Equipment Specialist in the Division are located together to promote teamwork, communication, and efficiency. Management explained that the Equipment Specialists’ responsibilities include working with others in the office to ensure information ins accurately reflected throughout the Technical Order library. Due to the collaborative nature of their work, management explained that providing a separate workspace in a separate building would severely impact Complainant’s ability to accomplish the mission. Complainant indicated to management that he was willing to participate in the Physically Disqualified Program (PDP). He attested that the Chief of Occupational Medicine Services determined that he was not medically qualified to perform the duties of the Equipment Specialist position and recommended that he be placed in the PDP. 2020002645 12 On appeal, the Agency asserts that, in April 2017, the Agency identified light duty that Complainant could perform while he was in the PDP. However, on May 15, 2017, Complainant notified management that he intended to retire as of July 31, 2017. In conclusion, the record shows that Complainant’s reasonable accommodation requests were granted except for his request for a new supervisor and location. The Agency’s explanation for not granting this request is sufficient to establish that doing so would have posed an undue hardship on the Agency. We note that the Agency also attempted to reassign Complainant and offer him a light duty assignment, through the PDP. We find that the Agency fulfilled its obligations under the Rehabilitation Act. Harassment Claim Complainant has alleged the Agency subjected him to harassment, noting numerous alleged instances. To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, his disability, prior EEO activity, and/or religion. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Some of Complainant's harassment allegations can generally be described as relating to routine managerial decisions, such as those relating to assignments, reasonable accommodations, and discipline and awards. Some of Complainant's other allegations can generally be described as reflecting personality conflicts, trivial slights, and petty annoyances between a supervisor or co- worker and a complainant. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017) (routine work assignments, instructions, and admonishments generally do not rise to the level of harassment because they are common workplace occurrences); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). 2020002645 13 Some of the allegations involve Complainant’s being subject to harsh statements, profanity, statements that include the use of the word, “god,” or reference a religious group. However, assuming these allegations were true, we find they are insufficiently severe or pervasive to have altered the conditions of his employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). The allegations, assuming they are true, were isolated incidents that are insufficient to support a prima facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). Furthermore, although Complainant has alleged the Agency acted discriminately or in reprisal, we have reviewed the record and it does not establish that that the incidents at issue were based on Complainant's disability, religion, and/or prior EEO activity. Therefore, we find Complainant's allegations are insufficient to establish his claim of discriminatory harassment. Disparate Treatment Claims Several of Complainant's allegations give rise to claims of disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). In a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Once a complainant establishes a prima facie case, the burden shifts, in accordance with McDonnell Douglass, 411 U.S. 792 to the Agency to articulate a legitimate, non-discriminatory reason for the action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The complainant then has the burden of proving by a preponderance of the evidence that the reason offered by the Agency is a pretext for a discriminatory motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). Complainant’s allegations in Claim B regarding being issued an unfair and low award bonus and in Claim C regarding being issued a Notice of Decision to Reprimand give rise to claims of disparate treatment. 2020002645 14 However, even if we assume that Complainant established a prima facie case of discrimination and/or reprisal, his claims ultimately fail, as we find that the Agency articulated legitimate, non- discriminatory reasons for its actions. Regarding his performance appraisal, Complainant received an evaluation indicating that he had met all six of his performance elements for an overall rating of “Acceptable.” Complainant attested that he believed he was given an unfair award bonus because he had a high workload and all of his work was not considered. Members of management attested that Complainant received a 5 hours of Time Off Award and explained that Complainant’s award was consistent with his performance and his performance did not warrant a higher rating because of his inability to appropriately communicate and work well with his peers. Regarding the Notice of Decision to Reprimand, Complainant received a reprimand for conduct unbecoming a federal employee because, on September 26, 2016, during the A-10 Technical Order in Process Review with contractors from KIHOMAC and Advanced Project Consulting, Complainant exhibited behavior that was unprofessional and intimidating when a participant (Participant)offered his opinion and Complainant waved his hand and said, “Whatever,” and continued to speak over him and stated words to the effect of, “You don’t have a workload so don’t tell me how to do my job until you do.” Complainant also allegedly stated, “This is a waste of my time.” Complainant denied waving his hand but acknowledged motioning to Participant with his right hand. Complainant attested that Participant was speaking out of turn and interrupting Complainant and Complainant was trying to get Participant to let him finish his discussion. He acknowledged saying, “Whatever” and generally described the events at issue as involving “heckling” and arguments. Complainant submitted a statement in response to the proposed reprimand. Management explained that Complainant submitted an 82-page document that did not address his unprofessional behavior but focused on why he thought he was correct in making his assertions. Management attested that the Douglas Factors and Penalty Selection Factors were used in determining the reprimand. Management also consulted an Employee Relations Specialist (ERS) prior to making the decision. Management also noted that Complainant had previously received counseling and/or disciplinary actions for unprofessional and aggressive behavior to co-workers in December 2014; unprofessional conduct during a meeting with contract personnel at their facility in February 2015; and unprofessional behavior towards a co- worker, displaying aggression, throwing documents out of his cube followed with an explicative in April 2016. Management explained that, due the repetitive nature of Complainant’s aggression and unprofessional behavior, he suggested a reprimand. Although Complainant asserts that the Agency acted discriminately and/or in reprisal, we find that the record does not establish by a preponderance of the evidence that the reasons offered by the Agency were a pretext for a discriminatory motive or in retaliation for Complainant’s EEO activity. Therefore, we find that he has failed to establish a claim of disparate treatment. 2020002645 15 Constructive Discharge Claim Complainant has generally alleged that the Agency’s discrimination and hostile work environment was sufficient to have caused a constructive discharge. A discriminatory constructive discharge occurs when an agency, motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in the complainant's position would feel compelled to resign. Byron E. v. U.S. Postal Serv., EEOC Appeal No. 0120143037 (Sept. 1, 2016). The Commission has adopted a three-pronged test for establishing a constructive discharge. A complainant must show that: (1) a reasonable person in his position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) the complainant's involuntary resignation result from the intolerable working conditions. Ileana R. v. Dep’t. of Homeland Sec., EEOC Appeal No. 0120120394 (Nov. 24. 2015). However, even where actions which precipitate an individual's retirement are discriminatory or retaliatory, this does not automatically establish that the subsequent resignation or retirement constituted constructive discharge. Olsen v. Dep't of Def., EEOC Request No. 05A10104 (Mar. 22, 2001). Complainant essentially asserts that he retired because the alleged incidents of harassment and discrimination detailed in the complaint. However, as noted above, the record does not establish discriminatory harassment, the denial of a reasonable accommodation, or discriminatory or retaliatory disparate treatment. Therefore, we find Complainant has not met his burden to establish that the working conditions were so difficult, unpleasant, or intolerable that a reasonable person in his position would feel compelled to retire and his constructive discharge claim fails. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2020002645 16 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. 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. 2020002645 17 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 21, 2021 Date