William G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 26, 2018

0120162273 (E.E.O.C. Sep. 26, 2018)

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

William G.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162273

Hearing No. 443-2012-00021X

Agency No. 200J-636D-2011102210

DECISION

On June 30, 2016, 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 30, 2016, final order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Program Support Assistant, GS-0303-05, within the Central Iowa Health
Care System in Des Moines, Iowa. On April 6, 2011, Complainant filed an EEO complaint in
which he alleged that his immediate supervisor, the Supervisory Medical Technologist (SMT),
discriminated against him on the bases of sex (male), disability (ocular histoplasmosis, residual
effects of back injury, atrial fibrillation), and reprisal for prior protected EEO activity. He
identified the following issues in his complaint:

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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1. Whether Complainant was denied a reasonable accommodation in May 2010.

2. Whether, on the bases of disability, sex, and reprisal, Complainant was terminated during
his probationary period, effective March 11, 2011.

3. Whether on the basis of reprisal, Complainant was subjected to harassment when:

a. On May 3, 2010, SMT asked Complainant if he wanted to take the part time Program
Support Assistant position.

b. Since May 2010, management had not complied with Complainant’s request for a
reasonable accommodation

c. From June through September 30, 2010, Coworker 1 questioned Complainant about
typing his reports in Microsoft Word.

d. Since July 29, 2010, Complainant was not provided adequate training in his position.

e. On July 14, 2010, Coworker 1 informed Complainant that the SMT did not want to hire
him, but was forced to.

f. On July 29, 2010 and September 30, 2010, SMT informed Complainant that he was not
performing satisfactorily.

g. On August 15, 2010, the SMT asked Complainant if he would be staying in the
Department.

h. On November 8, 2010, Complainant received an unsatisfactory performance rating.

i. Complainant was terminated during his probationary period, effective March 11, 2011.

j. The Agency committed records violations by conducting a security investigation and
by otherwise allowing unlawful access to Complainant’s health records.

k. The Agency denied Complainant reasonable accommodations, including additional
lighting, a lighted magnifier, Zoom Text, Microsoft Word, a large print medical
dictionary, a large monitor, Dragon Speak, and relief from answering the door.

l. The Agency required Complainant to answer the door.

m. The Agency unlawfully interfered with Complainant’s attempt for advancement by,
among other actions, providing negative information to prospective hiring officials.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ
assigned to the case granted the Agency’s April 6, 2016, motion for summary judgment and issued
a decision without a hearing on May 16, 2016. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

Reasonable Accommodation

Shortly after starting work with the Agency, Complainant informed the SMT that he had a
condition known as ocular histoplasmosis, which impaired his ability to read and required him to
use low-vision devices to modify his computer. IR 78-82. Complainant, the SMT, and the EEO
Manager had several meetings to discuss possible accommodations. As a result of those meetings,
the SMT had additional lighting installed in Complainant’s work space. Complainant also brought
in a lighted magnifier. IR 98-101, 173.

A critical performance element of Complainant’s job included entering pathology reports into the
Agency’s VISTA computer system. IR 205. The SMT stated that during their first few months,
new employees are allowed to type out reports in Microsoft Word and then cut and paste into
VISTA, but are directed to eventually enter the information directly into VISTA. IR 101-102.
Complainant informed the SMT that due to his visual impairment, he needed to continue drafting
his reports in Microsoft Word and paste them into VISTA. The SMT opined that Complainant’s
need to cut and paste was instead related to his concern about spelling and lack of familiarity with
medical terminology rather than his vision problem. The SMT had concerns that moving between
the two software programs could jeopardize the privacy of patient health data. IR 98-102.
Nevertheless, the SMT obtained permission from the Chief of Staff to permit Complainant to
continue to prepare his reports in Microsoft Word beyond the training period. IR 103-04, 112.

On December 3, 2010, the EEO Manager, the SMT, and a union steward met with Complainant to
discuss additional accommodations. As a result of that meeting, Complainant was given assistive
low-vision software. Complainant was also provided with a magnifier for his computer screen and
was told to consult with the low vision clinic at the Medical Center to see what other
accommodations might be available. IR 101-02, 188-94, 230. On January 31, 2011, another
accommodation meeting was held in which it was determined that the Agency would provide
Complainant with Zoom Tech, that Complainant should coordinate the low vision magnifier for
his computer with the low vision clinic, and that Complainant could continue to cut and paste his
pathology reports into the VISTA System through Microsoft Word.

Termination during Probation

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As noted above, Complainant’s main job function was to enter pathology reports into the VISTA
system. On July 29, 2010, the SMT issued Complainant his 90-day performance review. The
SMT informed Complainant that he was not satisfactorily performing his job, pointing out that
Complainant’s knowledge of medical terminology was deficient. She indicated that Complainant
needed more training. IR 215. On September 20, 2010, Complainant submitted a self-assessment
indicating that he had taken several on-line training courses, including a course on medical
terminology. IR 102, 217-20. On January 31, 2011, Complainant was asked to provide a list of
any areas of training that he felt he had not received. IR 231-32.

On February 11, 2011, a Surgeon received a record indicating that a patient had a cancer diagnosis.
The record included an incorrect annotation that the Surgeon had been notified of the results when
in fact he had not. The Surgeon confronted Complainant about it, who acknowledged that he
drafted the patient record and failed to notify the Surgeon. Agency’s Motion for Summary
Judgement (SMJ), Ex. A.

On February 17, 2011, the SMT recommended that Complainant not be retained beyond the
probationary period due to continued unsatisfactory performance. IR 237-39. On March 7, 2011,
Complainant was notified that he would be terminated due to unsatisfactory performance and the
incorrectly drafted report regarding the Surgeon. IR 215-16, 239-41. According to the SMT,
Complainant’s unsatisfactory performance included insufficient accuracy in typing reports, and
that even with the access to the medical dictionary in Microsoft Word, Complainant was unable to
attain 90% error-free accuracy in his reports. IR 238-39, 243-47.

Harassment

Incident 3(a): Complainant averred that on May 3, 2010, the SMT had asked him if he wanted to
take a part-time Program Support Assistant position. The SMT responded that as the laboratory
manager and hiring supervisor, she would not have been allowed to speak with Complainant
between the date of the interview and his first day of work. She stated that this was the
responsibility of the Human Resources Office and speculated that someone from that office might
have called him. IR 115.

Incident 3(b): Complainant repeated his allegation that the Agency failed to provide him with a
reasonable accommodation since he was hired in May 2010.

Incident 3(c): Complainant averred that from June 2010 through September 30, 2010, one of his
coworkers (Coworker 1) questioned him about why he continued to cut and paste his reports from
Microsoft Word rather than enter them into the VISTA system directly. The SMT responded that
direct entry of reports into the VISTA system was the prevailing practice and that Coworker 1,
who had been assigned to train Complainant, was trying to get him to the point where he could
type his reports directly into VISTA. IR 116, 160.

Incident 3(d): Complainant averred that since his 90-day performance review on July 29, 2010,
he had not been provided with adequate training in his position.
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The SMT responded that she had assigned Coworker 1 and another Program Support Assistant to
provide Complainant with on-the-job training. She stated that Complainant was under the
mistaken impression that there was a formal training program to which he needed to be sent. IR
117, 160. As noted above, Complainant had completed several on-line courses by September
2010, and at the end of January 2011, was asked what additional training, if any, he needed. IR
102, 217-20, 231-32.

Incident 3(e): Complainant averred that on July 14, 2010, Coworker 1 informed Complainant that
the SMT did not want to hire him, but was forced to. Coworker 1 denied that she said those words.
IR 161. The SMT also denied making that statement. She averred, however, that she did express
concerns about Complainant’s background, and that the Human Resources Office followed up and
determined that he was qualified for the position. IR 117-18.

Incident 3(f): Complainant averred that on July 29, 2010 and again on September 30, 2010, the
SMT informed him that he was not performing satisfactorily. The SMT responded that this was
correct, but that she had met with Complainant for a second time regarding his performance on
November 8, 2010. IR 118-19.

Incident 3(g): Complainant averred that on August 15, 2010, the SMT asked Complainant if he
would be remaining within the Department. The SMT responded that she asked everyone who
worked under her the same question. She averred that she asked this question of her employees
every year as part of her yearly workforce planning efforts and staffing trend assessments. IR 119.

Incident 3(h): Complainant averred that on November 8, 2010, he had received an unsatisfactory
performance rating during his probationary period. The SMT responded that unsatisfactory was
her assessment of Complainant’s progress as of that date. IR 120.

Incident 3(i): Complainant repeated his allegation that on March 11, 2011, he was terminated
during his probationary period. The SMT responded that Complainant had been terminated
because he was not meeting the performance standards of his position. IR 120.

Based upon the foregoing incidents, the Agency filed its initial motion for summary judgment on
June 21, 2012. On October 26, 2012, Complainant amended his complaint to include four
additional incidents of alleged retaliatory harassment which are summarized below as incidents
3(j) through 3(m). On September 17, 2015, the complaint, which had originally been assigned to
another AJ, was assigned to the AJ whose decision on summary judgment is now before us. On
February 4, 2016, the AJ re-opened discovery regarding incidents 3(j) through 3(m). On April 6,
2016, the Agency filed a supplement to its June 21, 2012 motion for summary judgment in order
to include incidents 3(j) through 3(m). In granting the Agency’s motion for summary judgment,
the AJ made the following findings:

Incident 3(j): Complainant averred that the Agency committed records violations by conducting
a security investigation and by otherwise allowing unlawful access to his health records.
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The AJ found no evidence that the SMT, the EEO Manager, or anyone in the Human Resources
Office had accessed Complainant’s medical records.

Incident 3(k): Complainant maintained that the Agency continued to deny his requests for a
reasonable accommodation, including additional lighting, a lighted magnifier, Zoom Text,
Microsoft Word, a large print medical dictionary, a large monitor, and Dragon Speak. The AJ
found that Complainant never requested Microsoft Word because he already had it. The AJ also
found that Complainant did not request a large monitor. According to the investigative record,
Complainant had been provided with the other accommodations that he requested.

Incident 3(l): Complainant averred that the Agency required him to answer the door. The AJ
found that Complainant and all of the other Program Support Assistants had been required to
answer the door, and that this was a task which Complainant had been required to perform since
his first day on the job.

Incident 3(m): Complainant averred that the Agency unlawfully interfered with his attempt for
advancement by, among other actions, providing negative information about him to prospective
hiring officials. The AJ found, however, that Complainant was unable to recall what jobs he
actually applied for following his termination. The AJ also found that Complainant had not
presented any evidence that the SMT or anyone other than the SMT had spoken with hiring
officials at places where he applied for work after his termination.

CONTENTIONS ON APPEAL

On appeal, Complainant, makes a number of contentions. First, he argues that the Agency had
failed to make a record and had been delaying the case. Second, he argues that a handwritten note
on his appraisal “not to send anyone else with a disability to the rating official again” constituted
evidence of disability discrimination. Third, Complainant contends that he was discriminated and
retaliated against because he was a veteran. Fourth, with respect to incident 3(l), Complainant
argues that the requirement that he answer the door was a new procedure that had been instituted
for the express purpose of causing him pain and humiliation so that he would resign.

Complainant raises additional contentions regarding the AJ’s refusal to admit certain evidence
regarding his claims. He also disputes the AJ’s exclusion of his attorney from the hearing process
due to contumacious conduct.

The Agency submitted a statement in opposition to Complainant’s appeal in which it urges the
Commission to affirm the AJ’s decision without a hearing finding no discrimination and its final
order implementing the AJ decision. The Agency does not address Complainant’s contentions
about the disqualification of his representative in the hearing process.

ANALYSIS AND FINDINGS

AJ’s Conduct of the Hearing and Sanction of Complainant’s Representative
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Commission Regulation 29 C.F.R. § 1614.109(e) provides that an AJ may, upon reasonable notice
and an opportunity to be heard, suspend or disqualify from representing complainants or agencies
in EEOC hearings any representative who refuses to follow an AJ’s order or otherwise engages in
improper conduct. Further, “[a]ll participants in the EEO hearing process have a duty to maintain
the decorum required for a fair and orderly proceeding and to obey orders of an Administrative
Judge. Any person who engages in improper behavior or contumacious conduct . . . at any time
subsequent to the docketing of a complaint for a hearing is subject to sanction.” Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chap. 7. § V. (Aug. 5.
2015). The provisions of MD-110, Chapter 7, Section V, govern the exclusion and disqualification
or suspension of representatives. Exclusion applies to the hearing process on the current case in
which a representative is representing a complainant. § V.A. Exclusion bars the individual for the
duration of the hearing process from further participation in the case in which the misconduct
occurs.

The general standard for exclusion of a representative is contumacious conduct, i.e., “willfully
stubborn and disobedient” behavior. § V .A .3. (quoting Black’s Law Dictionary). Such conduct
includes unprofessional or disrespectful behavior and degrading, insulting, or threatening remarks
or conduct. Exclusion “generally applies to conduct occurring in the Administrative Judge’s
presence at any point during the hearing process, including prehearing proceedings and
teleconferences as well as the hearing itself. It also applies to a representative’s refusal to obey
orders of the Administrative Judge.”

MD-110 further provides, “Sanctions should be proportional to the nature and degree of the
improper conduct.” When considering sanctions against a representative, an AJ “should be mindful
that a party to the EEO process is entitled to be represented by an individual of that party’s choice,
and the representative is expected to be an advocate for the party’s interests.” At the same time,
“all representatives also have a particular responsibility to respect the order and authority of the
EEO process.” Id. § V.A.

Before excluding a representative, an AJ should first warn the offending person to stop the conduct,
as well as give notice that if the conduct continues, the representative will be excluded from the
hearing. The AJ should give a “clear and specific description of the nature of the misconduct”
including “the particular details of what the person said or did.” Id. The AJ may do this through a
show cause order, giving an opportunity to be heard.

In this case, we find that the AJ issued an Order to Show Cause on October 7, 2015 in which he
detailed the conduct of Complainant’s attorney representative over the course of the hearing
process, and directing him to show cause as to why he should not be sanctioned for “compromising
the EEO process, engaging in contumacious conduct, and failing to prosecute.” The AJ detailed
Complainant’s representative’s disrespectful responses to and personal attacks on the Agency
attorney, his demands that the Agency attorney be removed from the case, and his “seriously
disruptive, obstructive, and unprofessional” conduct.
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The AJ also detailed Complainant’s refusal to comply with discovery requests and to submit to a
second deposition, which was requested by the Agency following the AJ’s granting of
Complainant’s motion to amend his complaint with additional issues. Complainant’s
representative filed a response on November 5, 2015, in which he made numerous allegations
about the conduct of the Agency’s representative.

On November 12, 2015, the AJ issued an Order to Remove Complainant’s representative from the
hearing process. He ordered the exclusion of Complainant’s representative for failing to
demonstrate good cause as to why he should not be excluded from participating in Complainant’s
hearing request based on his contumacious conduct and failure to participate meaningfully in the
hearing process. The AJ found that Complainant’s representative failed to offer any evidence in
support of his allegations of wrongdoing on the part of the Agency attorney and further, did not
dispute engaging in the conduct identified by the AJ in his Order to Show Cause.

On February 4, 2016, the AJ also issued a Scheduling Order and Order on Complainant’s Motion
to Remove the Agency Representative. The AJ concluded that based on the hearing record, and
the submissions of Complainant’s representative prior to his exclusion, Complainant had not
demonstrated evidence of Agency misconduct that would justify the exclusion of the Agency
representative.

On appeal, Complainant makes a number of assertions that center around how the AJ conducted
the hearing. In particular, he contends that the AJ failed to admit certain evidence into the record,
and that the AJ unjustifiably barred his attorney from representing him in the hearing process.

The Commission notes that AJs have broad discretion in the conduct of hearings, including
discovery and the determination of whether to admit evidence, or permit or compel the testimony
of witnesses. See 29 C.F.R. § 1614.109(e); EEO MD-110, at Ch. 7 (Aug. 5, 2015); Nia G. v. Dept.
of Justice, EEOC Appeal No. 0120160255 (April 24, 2018). Given the scope of the AJ’s
discretion, a party claiming abuse of that discretion faces a very high bar. Romain H. v. Dept. of
Homeland Security, EEOC Appeal No. 0120162083 (Dec. 15, 2017).

We find that the AJ properly excluded Complainant’s representative from representing him in the
remainder of the hearing process, and that Complainant’s representative engaged in contumacious
conduct. The AJ gave Complainant’s representative notice and an opportunity to respond and
explain his conduct. Although Complainant’s representative claimed that he had the right to
vigorously represent his client, we find that he does not have the right to engage in personal attacks
on the Agency attorney or to make unfounded accusations of criminal or ethical wrongdoing. See
Arrendondo v. U.S. Postal Service, EEOC Appeal No. 01A51491 (March 31, 2006); In the Matter
of Arnold T., EEOC Appeal No. 1120160001 (April 30, 2018). Therefore, we affirm the AJ’s
exclusion of Complainant’s representative from the hearing process.

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We further find that Complainant has not produced any documents or witness statements tending
to show that the AJ arbitrarily excluded evidence that might have raised a genuine issue of material
fact with respect to his claims of reasonable accommodation denial, discriminatory termination, or
retaliatory harassment.

Summary Judgment

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case.

Reasonable Accommodation

We begin with Complainant’s claim that he had been denied a reasonable accommodation.
Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result in an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture,
EEOC Appeal No. 0120120400 (December 3, 2015). For purposes of analysis, we will assume
that Complainant is a qualified individual with a disability. As soon as Complainant informed the
SMT of his disabilities, the SMT engaged the EEO Manager in order to obtain accessories that
would enable Complainant to read what was on his computer screen, including Zoom Tech, a
lighted magnifier, and other assistive software and devices. In addition, the SMT allowed
Complainant to continue to cut and paste his pathology reports from Microsoft Word to VISTA,
as opposed to requiring Complainant to enter his reports into VISTA directly. The SMT did so in
spite of her reservations about whether moving back and forth between the two programs could
compromise patients’ health care data. Consequently, we agree with the AJ the Agency satisfied
its obligation under the Rehabilitation Act to provide Complainant with a reasonable
accommodation, and that no genuine issue of material fact exists which would necessitate a hearing
on this claim.

Disparate Treatment

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We now turn to Complainant’s claim that he had been terminated during his probationary period
as a result of discrimination and reprisal. 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 (1973). This analysis applies to disparate
treatment claims brought under the Rehabilitation Act. Prewitt v. United States Postal Service,
662 F. 2d 292, 310 (5th Cir. 1981).

As a first step, Complainant must generally 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed in this case, however, since the SMT articulated a legitimate
and nondiscriminatory reason for terminating Complainant during his probationary period, namely
that he was not meeting the performance expectations of his Program Support Assistant position.
See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v.
Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 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 Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008). Apart from his own bare assertions, Complainant has presented neither affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents which
contradict the SMT’s explanation as to why she recommended that Complainant be terminated or
which call the SMT’s veracity into question. In particular, Complainant has not presented any
evidence to refute the SMT’s assessment that Complainant was unable to meet the standard of
90% accuracy in transcribing pathology reports or to refute that Complainant had made a critical
error in the report that the Surgeon had seen the test results when in fact he had not. Again, we
find, as did the AJ, that no genuine issue of material fact exists such that a hearing is necessary
and that Complainant did not establish pretext with respect to the SMT’s motivation in
recommending that Complainant be terminated.

Harassment

To establish a claim of 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 classes; (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
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liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail on his harassment claim, Complainant must prove that the incidents occurred
because of a protected basis. Since Complainant has alleged reprisal, he must also prove that S1’s
actions were harmful to the point that they could dissuade a reasonable person from making or
supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006). See also EEOC Enforcement Guidance on Retaliation and Related Issues,
EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if Complainant satisfies
his burden of proof with respect to both of these elements, motive and chilling effect, will the
question of Agency liability for retaliatory harassment present itself.

Complainant established the first element of a claim of harassment by virtue of his membership in
his claimed protected classes. We would also agree that S1’s conduct in the various incidents
identified by Complainant is unwelcome from his own subjective perspective, which is enough to
satisfy the second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120150737 (Apr. 27, 2017).

In order to establish the third element of a claim of discriminatory harassment, Complainant must
show that in taking the actions that comprise his harassment claim, S1 relied on considerations of
his sex, disability, or protected EEO activity that are expressly proscribed by Title VII. See
Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016). We
concur with the assessment made by the AJ that with respect to his claim of retaliatory harassment,
Complainant fails to offer any evidence to suggest that unlawful reprisal on the part of the SMT
was a motivating factor in any of the incidents comprising that claim.

In order to establish the fourth element, Complainant must show that the actions of the Agency
were so severe or pervasive such that a legally hostile work environment existed. The conduct
alleged to constitute harassment should be evaluated from the objective viewpoint of a reasonable
person in the victims’ circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). Complainant must bear in mind, however, that anti-
discrimination statutes are not general civility codes designed to protect against the “ordinary
tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see
also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality
conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged
harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws address
discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81 (1998).

In this case, incidents 3(b) and 3(i) merely repeat incidents (1) and (2), which have already been
shown to have been nondiscriminatory. As to incidents 3(e), 3(j), 3(k), and 3(m), Complainant
failed to present evidence that any of these incidents had even occurred.
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The remaining incidents involved work-related tasks assigned to Complainant such as answering
the door, routine reviews of his performance by his supervisor, and an offer for a part-time position
that had occurred before he actually had come on board. We find that none of the incidents
comprising his harassment claim are sufficiently severe or pervasive to rise to the level of
harassment, either singly or collectively. Once again, we concur with the findings of the AJ that
no genuine issue of material fact exists with respect to the SMT’s motivation in connection with
any of the incidents that comprise Complainant’s harassment claim. Complainant’s mere assertion
that there is a factual dispute does not make it so. See e.g. Complainant v. Federal Reserve System,
EEOC Appeal No. 0120130692 (Sept. 3, 2015) citing Patton v. U.S. Postal Service, EEOC Request
No. 05930055 (July 1, 1993) (recitation of a factual dispute is insufficient to overcome a summary
judgment motion).

With respect to his contention regarding incident 3(l), Complainant appears to be arguing that he
had been constructively discharged. Such an argument must also fail. Our precedent on
constructive discharges is well settled: the central question in a constructive discharge case is
whether the employer, through its unlawful discriminatory behavior, made the employee’s
working conditions so difficult that any reasonable person in the employee’s position would feel
compelled to resign. The Commission has established three elements which a complainant must
prove to substantiate a claim of constructive discharge: (1) a reasonable person in the
complainant’s position would have found the working conditions intolerable; (2) conduct that
constituted discrimination against the complainant created the intolerable working conditions; and
(3) the complainant’s involuntary resignation resulted from the intolerable working conditions.
Coleen M. v. Dept. of the Army, EEOC Appeal No. 0120170104 (April 12, 2018). The record
pertaining to Complainant having to answer the door establishes that answering the door was a
routine task that was made known to Complainant when he began working for the Agency. He
therefore cannot establish any of the elements of a constructive discharge claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order implementing the AJ’s decision without a hearing finding that Complainant had not
established that he was discriminated against as alleged.

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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). 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.
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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

September 26, 2018
Date