Tyson L.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Dec 20, 2019

2019000182 (E.E.O.C. Dec. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tyson L.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 2019000182

Agency No. CRC 17-101-14

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 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. Although the Agency did not issue its decision until September 28, 2018,
Complainant filed his appeal prematurely on August 22, 2018. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Workers’ Compensation Claims Examiner, GS-0991-12, at the
Employee Occupational Injury Compensation Program (EEOICP) District Office in Seattle,
Washington. In an EEO complaint filed on July 7, 2017 and subsequently amended on October
26, 2017, January 19, 2018, and May 16, 2018, Complainant alleged that the Agency subjected
him to discrimination and a hostile work environment because of his sex (male) disability
(respiratory condition) and in reprisal for prior protected EEO activity. Complainant identified the
responsible management officials as the following individuals:

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.
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• A Supervisory Workers’ Compensation Claims Examiner who served as Complainant’s
immediate supervisor between September 9, 2015 and October 30, 2017 (S1a).

• A Supervisory Workers’ Compensation Claims Examiner who served as Complainant’s
first-line supervisor since November 1, 2017 (S1b).

• An Acting Director in the Seattle District Office who served as Complainant’s second-line
supervisor until March 15, 2016 (S2a).

• The permanent Director of the Seattle District Office who became Complainant’s second-
line supervisor on March 16, 2016 (S2b).

• The Director of the Pacific Region who served as Complainant’s third-line supervisor until
January 2017 (S3a).

• The Director of the Pacific Region who served as Complainant’s third-line supervisor since
January 2017 (S3b).

Complainant identified the following incidents as comprising his claim, which have been
rearranged in chronological order:

1. Between March and November 2016, management unreasonably delayed and
prolonged the investigation of allegations against Complainant that were ultimately
deemed to be baseless, with the result for an unduly lengthy period of time,
Complainant was forced to work under restrictions that impaired his ability to do his
job;

2. On October 13, 2016, Complainant received an unfavorable performance rating on his
FY 2016 performance appraisal;

3. On May 8, 2017, S1a issued Complainant an unfavorable mid-term performance
assessment that failed to take into account the time Complainant spent working on
union matters in his capacity as a Steward;

4. On June 27, 2017, management disclosed confidential information about
Complainant’s disability to a co-worker that management obtained when Complainant
submitted a reasonable accommodation request;

5. (a) On June 28, 3017, Complainant was verbally accosted by a coworker (CW1)
regarding the removal of a fan that was allegedly triggering his medical condition and
wherein she loudly referenced details of Complainant’s medical condition (coughing);
(b) On August 29, 2017, CW1 entered Complainant’s workspace and left a note on his
cell phone; and (c) On October 4, 2017, CW1 stood at the entrance of Complainant’s
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cubicle and attempted to have a conversation with Complainant regarding the
harassment complaint that he had filed against her;

6. On June 30, 2017, a management official published a false and defamatory statement
about Complainant using a government computer;

7. On July 12, 2017, S1a: (a) stated to Complainant publicly during a meeting in the copy
room “I do not think that you will be getting your within-grade-increase (WGI);” and
(b) during a formal meeting later that day, denied Complainant his WGI, even though
Complainant was supposed to obtain one on June 25, 2017;

8. On August 28, 2017, Complainant received a notice of proposed suspension for two
days;

9. On November 1, 2017, S2b informed Complainant that management was considering
relocating his office; and

10. On January 8, 2018, S1b issued Complainant a notice of termination of his telework
agreement.

In a letter of partial acceptance dated October 26, 2017, the Agency dismissed incidents (1) and
(2) pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(2) for failure to contact an EEO
Counselor within the 45-day time frame prescribed in 29 C.F.R. § 1614.105(a)(1). The Agency
dismissed incident (3) in accordance with 29 C.F.R. § 1614.107(a)(5) on the grounds that a mid-
year assessment was a preliminary step and that Complainant did not allege reprisal as a basis with
respect to this incident. The Agency accepted incidents (6) and (8) only with respect to the basis
of reprisal after determining that incident (6) failed to render Complainant aggrieved because it
was unaccompanied by a concrete personnel action, and that incident (8) also constituted a
preliminary step. The Agency did, however, consider these incidents as background evidence in
support of Complainant’s overall hostile work environment claim.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Instead of electing to request
a hearing or a final decision, Complainant filed a premature appeal directly with the Commission
on August 22, 2018, regarding the sufficiency of the investigation.

When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision on September 28, 2018, pursuant to 29 C.F.R.
§ 1614.110(b), in which it concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. On October 22, 2018, the Agency notified the Commission that
Complainant had filed an appeal before having received a final decision and consequently never
served the Agency with a copy of his appeal. As noted above, we have accepted the appeal despite
the premature filing.
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When asked about his previous EEO activity, Complainant informed the EEO investigator that he
had assisted two bargaining unit employees with their EEO complaints. IR 185. When asked
about his alleged disability, Complainant responded that he had developed a respiratory condition
characterized by frequent coughing as a result of a coworker (CW1) placing a fan in her cubicle
that had caused dust and other particulates to enter into his work area beginning in June 2017. A
doctor’s note dated June 22, 2017 indicated that Complainant had a cough that appeared to be
related to his breathing in airborne respiratory irritants and recommended that the fan be removed.
Complainant had requested a reasonable accommodation but was informed that his medical
condition did not render him a qualified individual with a disability. Nevertheless CW1 was asked
by S1a to remove the fan and was eventually moved to another location away from Complainant.
IR 184-85, 353-54, 376, 1444. Complainant did not raise the denial of his reasonable
accommodation request as an issue in the instant complaint.

Incident (4): Complainant claimed that on June 26, 2017, he submitted confidential medical
records to S2b as part of his request for a reasonable accommodation, and that the following day,
CW1 verbally accosted him regarding his medical condition, which led him to believe that his
confidential information had been exposed to CW1. IR 191-92, 354-55. S2b and CW1 denied
S2b had disclosed Complainant’s medical information to CW1 or to anyone else. S2b stated that
on June 28, 2017, she had asked CW1 to move her fan from the top of a cabinet in her workstation
so that it would not blow dust into Complainant’s cubicle. IR 784-85, 1546. Another Claims
Examiner who witnessed the conversation (CW2) confirmed that management did not disclose
confidential information about Complainant's medical condition to CW1, and that CW1 did ask
her, CW2, if Complainant had a medical condition related to his cough. IR 1549.

Incident (5): With respect to the incident that occurred on June 28, 2017, Complainant alleged
that CW1 blocked the entrance to his workspace and in a loud voice told him that she took down
her fan because of his claim that it was blowing dust into his workspace, and that CW2 witnessed
this exchange. IR 201-03. As to the incident that took place on August 29, 2013, Complainant
stated that CW1 had left a note on his cell phone, which Complainant had left on his desk,
unattended. In the note, CW1 had asked Complainant to please take his phone with him as it rang
and continued to beep, making noise in the work area. IR 203-04. Concerning the incident that
happened on October 4, 2017, Complainant admitted that CW1 had stood at the entrance of his
cubicle and attempted to have a conversation with him about the harassment complaints he had
filed against her, particularly that she wanted a fresh start with him in the new fiscal year. IR 204-
06. S2b stated that she investigated the matter and found no merit to his claim that CW1’s conduct
was harassing, intimidating, threatening, or bullying in any of the three incidents. S2b also averred
that in order to prevent further issues between Complainant and CW1, she allowed CW1 to move
to a different area in the office, away from Complainant. IR 792-95.

Incident (6): Complainant claimed that someone within the Agency had used government
computers to publish a statement that he had harassed and bullied bargaining unit employees and
had demonstrated poor judgment in representing employees. Complainant complained that
management did not punish or reprimand the author of the statement. IR 193-195.
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When asked whether his sex or his medical condition were factors in the statement being published,
he answered, “not applicable” in his affidavit. When asked whether he was claiming that his prior
EEO activity was a factor when a management official allegedly published a false and defamatory
statement about him, Complainant replied, “Management allowed the defamatory statement to
reference prior Union activity/representation.” IR 195. S2b responded that she could not recall a
false or defamatory statement being published about Complainant. IR 786-787.

Incident (7): Complainant claimed that on July 12, 2017, S1a publicly told him that he would not
be getting his WGI and later that same day informed Complainant that his WGI would be denied.
Complainant further averred that S1a had done so at the behest of S2b and S3b. IR 196. S1a
responded that he did meet with Complainant on July 12, 2017. Before the meeting, they
encountered each other in a copier room and at that point, S1a first informed Complainant that his
WGI would be denied. Later that day, in the formal meeting which took place in a small
conference room, S1a informed Complainant that he would not be getting a WGI because his most
recent performance appraisal rating was minimally satisfactory. S1a also averred that no one else
was around when he told Complainant about the WGI denial. IR 608-10. S2b averred that she
did not direct S1a to tell Complainant that he would not be getting his WGI but did acknowledge
that she was involved in the decision to deny Complainant’s WGI in her capacity as the reviewing
official for the performance appraisal. IR 788-90. S3b contended that no WGI was authorized for
those employees with performance ratings of minimally satisfactory. IR 1426.

Incident (8): Complainant claimed that on August 28, 2017, S2b had issued him a notice of
proposed two-day suspension. The notice identified two charges: unprofessional behavior and
lack of candor. As to the first charge, the notice stated that Complainant kept going to the file
room to obtain case files himself rather than asking the contractors who handled file requests for
assistance, in violation of established policy. Regarding the second charge, S2b had conducted
two investigative interviews on the matter, one on May 31, 2017 and the second on June 6, 2017.
In the first interview, she advised Complainant not to do so, and right after the first interview, he
had done it again and told her during the second interview that he did not. S2b noted that
Complainant would intimidate the contractors, making them feel as if they had no choice but to go
along with his demands. S3b stated that the proposed two-day suspension was an appropriate
disciplinary action. IR 199, 325-330, 332-34, 790-92, 1428-29. There are no indications in the
record as to whether or not Complainant actually served the suspension.

Incident (9): Complainant alleged that on November 1, 2017, S2b told him that management was
considering relocating his office. He maintained that management sought to remove him from his
work station in order to put him in a new unit and was doing so in retaliation for assisting several
bargaining unit employees with their EEO complaints. He acknowledged management’s stated
reason for a possible relocation – to be closer to his new work unit. According to Complainant,
he would only be required to move approximately 10 feet to be within his new unit, and that such
a move would be costly and wasteful. When asked if his office had been relocated, he replied,
“not yet.” IR 207-08. According to S2b, the move was being contemplated because Complainant
had, in fact, been reassigned to a different claims unit.
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S2b averred that it was standard practice to relocate employees to be within their assigned claims
unit, but that the actual movement of bargaining unit employees within the office required
discussions and agreements between management and the union regarding the method and manner
of the move. S1b stated that the move was more than 10 feet and that the cost would be de minimis.
IR 795-97.

Incident (10): Complainant claimed that on January 8, 2018, S1b formally notified him that his
telework agreement would be terminated allegedly for poor performance following a whistle-
blower complaint that he had lodged against the Agency for waste, fraud, and abuse. He also
alleged that management failed to take into account his union activities as required by the
collective bargaining agreement, and that management had begun revoking telework agreements
following the union’s concerns about disparaging comments about telework by an unnamed
manager. IR 212-13, 216-17. In the January 8, 2018 memorandum, S2b informed Complainant
that the reason for revoking his telework privilege was that he had received ratings of “needs to
improve” in two of the five critical elements in his FY 2017 performance appraisal, and that
management’s efforts to help Complainant improve his performance required one-on-one
interactions that were not possible in a telework situation. IR 583. S1b, S2b, and S3b all agreed
that Complainant was not meeting his performance standards. IR 797, 1434, 1479.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the investigative report was incomplete, inaccurate and
flawed. He also contends that his claim included reprisal for protected union activity and contests
the Agency’s final decision on its merits. Complainant does not, however, challenge the dismissal
of incidents (1), (2), and (3).

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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).
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His first step would generally be to establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed in this case, however, since S1a, S1b, S2b, and the other named officials
articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).

As to incident (4), S2b had merely asked CW1 to take down her fan so that it would not blow dust
into Complainant’s work area. Regarding incident (5), S2b stated that she had investigated the
three incidents and had found nothing about CW1’s behavior toward Complainant that was
bullying or confrontational. Concerning incident (6), S2b stated, in essence, that no such
defamatory statement was published, despite Complainant’s protestations otherwise. With respect
to incident (7), Complainant did not receive his WGI because his FY 2016 performance appraisal
was too low to merit a WGI. With regard to incident (8), S2b had proposed the two-day suspension
in response to Complainant’s repeated unprofessional behavior toward the contractors handling
access to the file room and dishonesty to S2b during the course of her investigation of the matter.
As to incident (9), Complainant had been reassigned to another work unit and it was standard
practice to locate employees within their assigned units. Regarding incident (10), S1b had revoked
Complainant’s telework privileges because of his performance-related issues and he had received
a “Minimally Successful” rating on his FY 2017 performance evaluation. Management officials
confirmed that the collective bargaining agreement allowed for the termination of a telework
agreement by a supervisor when an employee is not meeting their individual performance
standards.

To ultimately prevail, Complainant must show that the explanations put forth by the officials
named in his complaint were pretexts designed to conceal a discriminatory or retaliatory motive.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981). In other words, he would have to prove, by a preponderance of the
evidence, that these officials were motivated by unlawful considerations of his sex, disability, or
previous EEO activity in connection with those incidents. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000). Pretext can be demonstrated by showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy
of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007),
req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext
include discriminatory statements or past personal treatment attributable to those responsible for
the personnel action that led to the filing of the complaint, comparative or statistical data revealing
differences in treatment across various protected-group lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal
No. 0120141697 (Nov. 12, 2015).

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When asked by the EEO investigator why he believed his sex, disability, and prior protected EEO
activity were factors in the alleged disclosure of confidential medical condition at issue in incident
(4), Complainant averred that only the medical records of male union stewards were disclosed by
S2b and S3b, that CW1 had been responsible for causing his persistent cough, and that
management had decided to move CW1’s cubicle next to his after he had provided EEO assistance
to fellow employees. IR 192. However, Complainant had not only admitted that he was not aware
of other claims examiners whose medical records had been disclosed without authorization, he had
not presented any evidence tending to support his contention that his own medical records had
been disclosed. IR 193.

As to the three occurrences at issue in incident (5), Complainant acknowledged that he did not
know whether S2b allowed CW1 to remain in an office next to his or had instructed CW1 to annoy,
vex and harass him because he was a male. Complainant also maintained that his medical
condition was a factor in S2b’s handling of these incidents, but did not give a reason why, other
than to repeat his assertion that management failed to resolve the conflict between him and CW1
after being told of the incidents. IR 206, 207. However, the record overwhelmingly establishes
that S2b had investigated all three occurrences and had found that Complainant’s accusations had
no merit to them. Moreover, management had separated Complainant and CW1, allowing CW1
to relocate her work area away from Complainant.

With respect to the alleged defamatory statement published on the Agency’s public computer
system, Complainant himself admitted to his belief that the statement was made in retaliation for
his union activity, not his EEO activity. IR 195. Claims of reprisal for union activity, which did
not involve raising any claims of discrimination, cannot be brought under Title VII or the
Rehabilitation Act. See Alyce R. v. U.S. Postal Serv., EEOC Appeal No. 0120160107 (July 18,
2017), req. for recon. den. EEOC Request No. 0520170572 (Mar. 8, 2018).

Apart from Complainant’s bare assertions, Complainant has presented neither affidavits,
declarations, or unsworn statements nor documents which tend to contradict or undercut the
explanations provided by the various officials named in the complaint, which establish the
existence of at least one of the indicators of pretext listed above, or which would cause us to
question the veracity of any of these officials as witnesses. To the extent that Complainant
challenges the adequacy of the investigation on appeal, we remind him that as he chose not to
request a hearing, the Commission does not have the benefit of an Administrative Judge's
credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts
based on the weight of the evidence presented. Thus, despite the above referenced arguments, the
Commission determines that the investigation was properly and adequately conducted. The
Commission finds that, based on the record evidence in its totality, Complainant has failed to
establish that any of the named management officials were motivated by unlawful considerations
of Complainant’s sex, disability, or previous EEO activity with respect to any of the incidents
described in his complaint.

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Unauthorized Disclosure of Medical Information

The Rehabilitation Act specifically prohibits the disclosure of medical information except in
certain limited situations. Velva B., et. al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006/07
(Sept. 25, 2017), req. for recon. den. EEOC Request Nos. 0420180094/95 (Mar. 9, 2018), citing
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Notice No. 915.002, Question 42 (Oct. 17, 2002). As discussed
above, Complainant has not presented any documentary or testimonial evidence tending to show
any management official divulged or otherwise made public any confidential medical information
pertaining to him.

Hostile Work Environment

To the extent that Complainant is alleging that he was subjected to a hostile environment, we find
that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that
Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile
work environment is precluded by our determination that Complainant failed to establish that any
of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S.
Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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).
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All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request may be submitted via regular mail
to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington,
DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely
filed if it is received by mail within five days of the expiration of the applicable filing period. See
29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition
must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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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

December 20, 2019
Date