Complainant,v.Eric Fanning, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 6, 2014

0120131469 (E.E.O.C. Mar. 6, 2014)

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

,
Complainant,

v.

Eric Fanning,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120131469

Agency No. 9V1M110386

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
February 4, 2013 final Agency decision (FAD) 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contracting
Officer in the Contracting Office of the Oklahoma City Air Logistics Center at Tinker Air
Force Base, Oklahoma. Complainant’s duties included serving as the principle warranted
Contracting Officer and providing business advice to customers, procuring complex and
diversified commodities, and performing pre-award and post-award functions for customers.
On May 19, 2010, Complainant was reassigned temporarily to the Commodities section by his
second-level supervisor (S2). S2 believed that this reassignment would better distribute the
workload since Complainant’s workload was declining while the Commodities section’s
workload was increasing. In addition, S2 believed that the experience would allow
Complainant to improve his skills and abilities to that of what was expected for a GS-12
Contracting Officer. S2 initially informed Complainant that he would work in the
Commodities section for 90 days; however, S2 informed him on August 4, 2010, that he would
continue in the Commodities section until October 1, 2010.

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Complainant claims that management constantly told him that his work “lacks volume.”
Complainant’s first-level supervisor (S1) believed that Complainant was not proficient at
managing multiple buys and was struggling to keep up with the volume. On one occasion in
January 2011, Complainant and S1 were involved in an incident regarding a buy. S1 believed
that Complainant should have taken only a few days to have completed it, but Complainant had
held on to it for a couple of months. S1 approached Complainant at his desk and asked him to
make a decision on the buy. Both raised their voices, and Complainant alleges that S1 stated
that he did not want Complainant on his staff anymore. S2 was brought out of a meeting to
address the altercation. Complainant, S1, and S2 met in S1’s office to discuss the incident and
S1 and Complainant apologized to each other. Complainant claims that S1 told him that he
was going to find reasons to write him up every day.

The Agency utilizes a Contracting Corporate Resource Board (CCRB) to rotate employees
from one area to another for career enhancement. The CCRB attempts to swap employees at
the same experience and grade levels. To participate in the CCRB, the employee must have
three years experience in their current position/area and the employee must have identified a
desire to move outside of their current organization or management believed the employee
should move to another area. The CCRB was comprised of senior leadership who reviewed a
list of interested employees, their experience, and their desired locations. In February 2011,
the CCRB considered Complainant’s request for a rotation despite his not meeting all the
requirements. The CCRB ultimately decided not to select Complainant for a rotation based on
his supervisors’ statements regarding his performance problems.

In April 2011, senior management officials met to discuss rotations for the Supervisor
Development Program (SDP). Management projected that there would be four vacant
supervisory positions in the next two years and were allotted four slots in the SDP training
program. The officials reviewed the applications of 22 candidates and their supervisory
endorsements. The candidates were rated and given scores of “Highly Recommend,”
“Recommend,” or “Do Not Recommend.” Complainant was one of eight applicants who were
not recommended for the SDP program.

On April 29, 2011, S1 issued Complainant his 2010-2011 appraisal. S1 rated Complainant’s
performance as “Above Fully Successful” and “Far Above Fully Successful” in all 14
Elements. Complainant believed that he should have been rated higher (“Outstanding”) and
that management was attempting to force him to stay in the Commodities section.

Complainant had scheduled a meeting on May 2, 2011, with S1, S2, and a customer.
Complainant cancelled the meeting on April 29, 2011, after receiving his appraisal. S2 sent a
message to Complainant requesting that he reschedule the meeting by May 4, 2011.
Complainant failed to do so; therefore, S2 scheduled the meeting and sent Complainant an
invitation. Complainant did not attend the meeting and S1 and S2 conducted the meeting
without him. S2 discussed the matter with the Employee Relations Specialist and asked S1 to
issue Complainant a write-up for disobeying a direct order and not attending the meeting.

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On August 1, 2011, Complainant requested official time to work on his EEO complaint
rebuttal. Initially, S2 granted him two hours. Complainant stated that was not enough time
and requested additional time. S2 sent Complainant a copy of the Agency’s official time policy
and included senior management officials in the email. Complainant replied that “it was not up
for debate” and that he would take as much time as needed. Complainant’s fourth-level
supervisor (S4) was not happy with the tone Complainant used with his supervisors, but
contacted Complainant and informed him that he would allow Complainant to work on his
EEO complaint for two hours a day from 2:00 p.m. to 4:00 p.m. for the rest of the week. On
August 3, 2011, management received emails from employees who were concerned about
Complainant contacting them about his EEO complaint. Management learned that
Complainant had been working on his EEO complaint and contacting potential witnesses
outside of the approved official time period. S2 instructed Complainant to give Complainant a
three-part write-up for violating management’s direct order.

On August 5, 2011, Complainant called S4 and left a lengthy, angry message with his
secretary. S4’s secretary was uncomfortable with the message and informed S4. S4
summoned Complainant and S2 to his office, but Complainant requested a union
representative. While a union representative was located, Complainant informed S4 that he
was participating in the “Fit-4-Life” fitness program from 11:30 a.m. to 1:00 p.m. and then
would be taking lunch until 1:30 p.m. They discussed Complainant’s prior Fit-4-Life leave
approval and lunch procedures and Complainant agreed to take his lunch first. S4 mistakenly
scheduled the meeting for 1:00 p.m., but was unable to secure a union representative after
moving the meeting to 1:30 p.m. S2 subsequently held the meeting on August 8, 2011, with
Complainant, S1, and the union representative. During the meeting, S2 discussed following
chain-of-command, appropriate communications, accounting for the time he was working on
his EEO complaint and breaks, and his updated Fit-4-Life schedule.

On December 1, 2010 (and amended numerous times), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of disability, age (51), and in reprisal for prior protected EEO
activity when:

1. On May 19, 2010, he was reassigned to the Commodities Section for three
months;

2. On August 4, 2010, his second-level supervisor (S2) informed him he would
remain in Commodities until October 1, 2010;

3. His first-level supervisor (S1) continuously told him his work “lacks volume;”

4. On January 24, 2011, he was yelled at by S2 for an incident involving releasing
proprietary data to the public;

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5. On January 27, 2011, S1 yelled and belittled him in front of his peers, stating he
did not want Complainant on his staff anymore;

6. He was the only Contracting Officer that had to work his Purchase Requests and
review them, while other Contracting Officers have Buyers to assist them;

7. In January 2011, S1 told him he was going to find reasons to write him up every
day;

8. On March 7, 2011, he became aware be was not selected for a Contracting
Corporate Resources Board (CCRB) rotation;

9. On April 28, 2011, he became aware his application to participate in the
Supervisor Development Program was denied;

10. On April 29, 2011, he received his 2010-2011 appraisal which was lower than
he felt he deserved;

11. On May 9, 2011, he was issued a write-up for failure to attend a meeting;

12. On August 3, 2011, he was issued a write-up for failure to follow a directive;

13. On August 5, 2011, his fourth-level supervisor (S4) corresponded directly with
him; and

14. On August 8, 2011, he was called to a meeting with S2 and harassed about the
Fit-4-Life fitness program and official time for EEO rebuttal.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency first addressed the alleged discrete acts. The Agency assumed
arguendo that Complainant had established a prima facie case of discrimination and reprisal
and found that management had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, as to claims (1) and (2), S1 and S2 affirmed that Complainant’s
workload in the Strategic Sourcing Section was declining while the workload in the
Commodities Section was increasing. A self-inspection of the Branch revealed that

1 The Agency dismissed three additional claims for untimely EEO counselor contact and two
claims for failure to state a claim. Complainant did not challenge these dismissals on appeal;
therefore, the Commission will not address them in the instant decision.
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Complainant was making errors inappropriate of a GS-12 Contracting Specialist. In addition,
Complainant had had little opportunity to award new contracts since obtaining his warrant. As
a result, they decided that it would benefit the Branch and Complainant to reassign him to the
Commodities Section, where he would have more opportunity to hone his skills and improve
his ability to manage his workload. S2 informed Complainant that she would discuss his
progress after 90 days. Ultimately, S2 decided to keep Complainant in the Commodities
Section beyond 90 days because the workload had not revitalized, the fiscal year was ending,
and the Commodities workload continued to be heavy.

With respect to claim (8), S3 and S4 explained that the criteria for a CCRB rotation was that
the employee had occupied his or her current position for three to five years, performed
successfully in that position, and had expressed a desire to do something different. S4
affirmed that Complainant did not meet the criteria for a rotation because he had only been in
the Commodities position for nine months and was still struggling as he was experiencing
serious error rates. S4 added that S1 and S2 kept him informed of Complainant’s performance
problems and that approximately 75% of the self-inspection findings from S1’s section came
from Complainant’s files. Accordingly, management did not feel comfortable rotating
Complainant to a more complex workload and tabled his application until he showed
improvement.

Regarding claim (9), S3 and S4 confirmed that they were on the Board that considered the
applications for the SPD program. As part of the application, the applicants’ supervisors
evaluated the applicants’ competencies in leadership, diversity, communication, business
management, and human relations by assigning a score of “1” (Limited Ability/Knowledge),
“2” (Experienced), or “3” (Clearly Exhibits Ability/Knowledge). S1 rated Complainant a
score of “1” for each of the five competencies. S1 stated that he considered Complainant’s
email traffic and how he worked with others and decided that he could not rate him higher than
“1” in any of the sections. S3 and S4 affirmed that the Board decided to “Highly
Recommend” the seven top-scoring candidates and to not recommend eight candidates,
including Complainant. S3 asserted that the Board felt that Complainant needed more time to
develop his leadership skills.

As to claim (10), S1 averred that Complainant’s appraisal was based on his performance since
he had been assigned to the Commodities section. S1 noted that Complainant complained all
the time, questioned everything he was given, and spent a lot of time asking everyone in the
office for help, including some of the office’s newest trainees, which demonstrated that he was
not confident in his ability to make appropriate decisions as a GS-12 Contracting Officer.
Further, S1 added that Complainant was behind in his work and not managing very well. In
addition, S1 affirmed that Complainant’s method of problem solving was to ask everyone in
the office and that he had made a lot of people mad in the Commodities section and other
areas. S2 affirmed that she did not change the ratings S1 assigned and observed that they did
not seem out of ordinary considering Complainant’s ability to handle the workload compared to
other Contracting Officers.
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With respect to claim (11), S2 affirmed that Complainant had scheduled a meeting with her,
S1, and a customer for May 2, 2011, but cancelled it because he had “higher priorities for the
next few weeks.” S2 directed Complainant to reschedule the meeting, but he failed to do so.
S2 scheduled it herself for May 4, 2011, and sent Complainant an invitation but he did not
attend. After consulting with the Human Resources Employee Relations Specialist, she
directed S1 to issue Complainant a write-up because Complainant disobeyed a direct order to
reschedule the meeting.

Finally, as to claim (12), on August 1, 2011, Complainant asked to be relieved of his normal
duties and allowed the rest of the week to prepare his rebuttal to management’s testimony for
his EEO complaint. S2 and S4 initially only approved two hours, but later authorized
Complainant to take official time two hours a day for one week between the hours of 2:00 p.m.
and 4:00 p.m. to work on his EEO complaint. Complainant requested an adjustment on
August 2, 2011, because he had a medical appointment scheduled that afternoon and
management allowed him to take official time two hours prior to him leaving for his
appointment. S2 and S4 learned that Complainant was working on his EEO complaint outside
of the approved time and they directed S1 to issue Complainant a write-up for ignoring
management’s directive. Complainant argued that he was on a break when he sent the emails.
S4 affirmed that Complainant had been granted additional time to work on his EEO complaint
and the write-up was necessary because Complainant disregarded management’s directive.

The Agency concluded that Complainant failed to establish that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated or retaliated against as to those discrete acts.

Turning to Complainant’s overall hostile work environment claim, the Agency determined that
there was no evidence that any of the alleged incidents were based on Complainant’s protected
classes. More specifically, as to claim (3), S1 denied that he told Complainant that his work
lacked volume; rather, S1 stated that told Complainant that he must do a better job of tracking
and managing his workload. S1 added that they have had several discussions on areas where
Complainant could reduce time and effort from the time he receives a new Purchase Request to
award. S2 noted that the workload in the Commodities Section is “higher volume” and that S1
told her Complainant was not proficient at managing multiple buys and was struggling to keep
up with the volume in this area.

With respect to claim (4), S2 affirmed that she spoke with Complainant about releasing
proprietary data to the public, but she denied yelling at him. As to claims (5) and (7), S1
admitted that he went to Complainant’s desk and yelled at him regarding a “small dollar, sole
source” to a company to purchase a product. S2 confirmed that an employee got her out of a
meeting because of this incident and, as she arrived at the work area, she heard S1 say he did
not want Complainant on his staff anymore. S1, S2, and Complainant met after the incident
and S1 stated that he apologized to Complainant. S1 and S2 denied that S1 stated that he
would “find reasons to write [Complainant] up every day.” S2 stated that they were discussing
Complainant’s need to improve at managing his workload and accomplishing tasks to the level
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of a GS-12 Contracting Officer and S1 indicated that if he wanted, he could document some
deficiency in Complainant’s performance every day.

As to claim (6), S2 confirmed that Complainant was not assigned any Buyers, while some of
the other Contracting Officers were assigned Buyers. S2 explained that Buyers do not “assist”
Contracting Officers; rather, they require training, mentoring, and extensive oversight of their
efforts. As to claims (13) and (14), the Agency determined that the record indicated that S4
contacted Complainant on August 2, 2011, in response to Complainant’s request for additional
time to work on his EEO complaint. On August 5, 2011, Complainant left a lengthy message
for S4 with S4’s secretary. According to S4, his secretary was upset by Complainant’s angry
comments; therefore, he requested that Complainant meet with him and S2 later that day.
Complainant requested that a union representative be present for the meeting and it was
rescheduled for August 8, 2011. During the meeting, S2 discussed Complainant’s Fit-4-Life
schedule and Complainant’s official time for working on his EEO complaint.

The Agency concluded that Complainant had not shown that any of the alleged incidents were
based on discriminatory or retaliatory animus. As a result, the Agency found that Complainant
had not been subjected to discrimination, reprisal, or a hostile work environment as alleged.
Complainant filed the instant appeal thereafter.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the investigator was biased, that the investigation was
incomplete and that his submitted evidence was ignored. Further, Complainant claims that he
did not receive the report of investigation. In addition, Complainant contends that Agency
officials lied in their affidavits and continuously retaliated against him. Complainant argues
that the evidence clearly shows that management subjected him to a hostile work environment
and that management will continue its harassment and discrimination unless stopped.
Complainant contends that the FAD includes incorrect and inapplicable legal analysis.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
At the outset, the Commission notes Complainant contends that he did not receive the ROI or
the notice of his right to request a hearing. EEOC Regulation 29 C.F.R. § 1614.108(f)
provides that the agency shall provide a complainant with a copy of the investigative file and
shall notify the complainant that, within 30 days of receipt of the investigative file, the
complainant has the right to request a hearing and decision from an AJ or may request an
immediate final decision from the agency. EEOC Regulation 29 C.F.R. § 1614.110(b)
provides that when an agency does not receive a reply to the notice issued under § 1614.108(f),
the agency shall take final action by issuing a final decision. The Agency submitted a Federal
Express delivery confirmation showing that the ROI and the Notice of Right to Request a
Hearing were mailed to Complainant’s address of record on November 22, 2011, and signed
for as received by “C. Dement” on November 23, 2011. The Commission finds that
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Complainant failed to produce any evidence rebutting the Agency’s documentation showing
that he received the ROI and Notice of Right to Request a Hearing.

In addition, Complainant claims on appeal that the investigator assigned to investigate his
complaint was biased and that the investigation was incomplete. Upon review of the entire
record, the Commission is not persuaded that the investigation into Complainant's complaint
was biased or in any way improper. Complainant has not presented any evidence of
impropriety in the processing of his complaint and Complainant failed to request a hearing, a
process which would have afforded him the opportunity to conduct discovery and to cure
alleged defects in the record. Thus, despite the above referenced arguments, the Commission
determines that the investigation was properly conducted.

Hostile Work Environment

Turning to the merits of the instant complaint, the Commission notes that harassment of an
employee that would not occur but for the employee's race, color, sex, national origin, age,
disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is
hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Enforcement Guidance at 6. The Supreme Court has stated that: “Conduct that is not severe or
pervasive enough to create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris

, 510
U.S. at 22 (1993).
Here, Complainant asserted that based on his protected classes, management continuously
subjected him to a hostile work environment. Complainant alleged numerous incidents of what
he believed to be discriminatory and retaliatory harassment, including an involuntary
reassignment; management officials yelling and belittling him; a negative performance
appraisal; denial of developmental opportunities and, management write-ups. The Commission
finds that Complainant failed to show that any of the alleged incidents were unlawfully
motivated.

More specifically, as to claims (1) and (2), S2 affirmed that Complainant’s workload was
steadily declining while the Commodities section’s workload was very heavy and increasing.
ROI, at 596. After discovering that his files had an inappropriate number of errors for his
grade level, S2 stated that she decided to loan Complainant to the Commodities section to
better distribute her Branch’s workload and to provide Complainant an opportunity to improve
his skills. Id. S2 confirmed that on August 4, 2010, she informed Complainant that he would
remain in Commodities until at least October 2010 because she felt he was still learning and he
was needed there with the end of the fiscal year approaching. Id.
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Regarding claim (3), S1 denied telling Complainant that his work lacked volume; rather, he
maintained that he told Complainant that he must do a better job of managing and tracking his
workload. ROI, at 584. S1 stated that Complainant had not demonstrated an effective
approach or prioritization based on the dollar value and complexity of the buys on his desk.
Id. S2 added that she believed that Complainant misunderstood her statement that the higher
volume in workload in the Commodities section would be a benefit to him and allow him to
hone his skills. Id. at 597. With respect to claim (4), S2 denied yelling at Complainant, but
stated that she carefully discussed the incident with Complainant. Id

. at 599.
As to claims (5) and (7), S1 admitted that he yelled at Complainant regarding a buy that
Complainant should have completed in a few days, but that Complainant had held onto for a
couple of months. ROI, at 584-85. S1 apologized later, but denied that he told Complainant
that he would find reasons to write him up every day. Id. at 585. S2 met with Complainant
and S1 after the altercation. S2 confirmed that S1 did not threaten to write Complainant up
daily; rather, S1 discussed Complainant’s need for improvement and pointed out how he could
find something every day to document. Id

. at 597-98.
Regarding claim (6), S2 agreed that Complainant had not been assigned any Buyers, but
explained that Buyers do not assist Contracting Officers. ROI, at 597. S2 stated that Buyers
require training, mentoring, and extensive oversight of their efforts which can more than
double the responsibility of the warranted Contracting Officer. Id. S2 noted that
Complainant’s view that a Buyer should do his work showed blatant misunderstanding of the
roles and responsibilities of a GS-12 Contracting Officer. Id

.
As to claim (8), S4 affirmed that Complainant did not meet the criteria for a CCRB rotation
because he had only been in the Commodities section for nine months and he was experiencing
serious error rates. ROI, at 620. As a result, S4 stated that management did not feel
comfortable rotating him to a more complex workload at the time. Id. With respect to claim
(9), S4 averred that Complainant was one of eight employees who were not recommended for
the SDP. Id. at 621. S4 maintained that the recommendation board reviewed the candidates’
applications and their supervisory endorsements and determined that Complainant needed
additional time to develop leadership skills. Id

. For that reason, Complainant was not
recommended for the SDP.
With regard to claim (10), S1 maintained that he rated Complainant accurately as he felt
Complainant was capable of producing at a higher level. ROI, at 586. For example, S1 noted
that Complainant was behind in his work and not managing his workload very well, he was
argumentative, and his approach to his work reduced productivity and affected his efficiency.
Id. at 589-90. S1 added that S2 and S3, as reviewing officials, did not change any of the
ratings he gave Complainant. Id

. at 586.
As to claim (11), S2 affirmed that Complainant cancelled a meeting scheduled for May 2, 2011
and failed to reschedule it. ROI, at 601. S2 scheduled the meeting since Complainant had not
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and invited Complainant. Id. Complainant failed to attend the meeting and, after discussing
the matter with the Employee Relations Specialist, S2 requested that S1 issue Complainant a
write-up for disobeying a direct order. Id

.
Regarding claims (12), (13) and (14), S4 stated that he was included in an email sent to S2
regarding his request for official time and he was not appreciative of Complainant’s tone with
his supervisors. ROI, at 624-25. S4 informed Complainant that he would approve
Complainant’s request for more official time on August 2, 2011. Id. at 625. S2 and S4 later
learned that Complainant had been working on his EEO complaint outside of the approved time
and they directed S1 to issue Complainant a three-part write-up for disobeying their directive.
Id. Complainant angrily contacted S4’s secretary on August 5, 2011, and S4 ordered
Complainant to meet with him in his office. Id. at 625-26. Complainant requested union
representation; however, the meeting was cancelled because of schedule clashes. Id. S2 held
the meeting on August 8, 2011, and clarified to Complainant that he was to follow his chain-
of-command; appropriately communicate with others; and, take breaks, use official time, and
participate in the Fit-4-Life program at the appropriate times. Id

. at 609-10.
The Commission concludes that Complainant has not shown that any of the Agency's actions
were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that
the Complainant was not subjected to a hostile work environment as alleged. Further, to the
extent that Complainant is alleging disparate treatment with respect to his claims, the
Commission finds that he has not shown that the Agency's reasons for its actions were a
pretext for unlawful discrimination or reprisal. As Complainant chose not to request a
hearing, the Commission does not have the benefit of an AJ's credibility determinations after a
hearing; therefore, the Commission can only evaluate the facts based on the weight of the
evidence presented. As a result, the Commission finds that Complainant has not established
that he was subjected to discrimination, reprisal, or a hostile work environment as alleged.

Denial of Official Time

Finally, to the extent that Complainant is alleging that the Agency denied him sufficient official
time, EEOC regulations provide that Complainant may have a reasonable amount of official
time, if otherwise on duty, to prepare the complaint and to respond to Agency and EEOC
requests for information. 29 C.F.R. § 1614.605(b). The Commission has stated that an
allegation pertaining to the denial of official time states a separate claim alleging a violation of
the Commission's regulations that does not require a determination of whether the action was
motivated by discrimination. Bryant v. Dep't. of Treasury., EEOC Appeal No. 0120065274
(Feb. 25, 2009) (citing Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23,
1996)). Therefore, the Commission has the authority to remedy a violation of 29 C.F.R.
§1614.605 without a finding of discrimination.” Id

.
In this case, the Agency provided sufficient evidence to establish that it granted Complainant a
reasonable amount of official time to address EEO matters. Specifically, the record reflects
that Complainant requested official time to complete his rebuttal to Agency officials’ affidavits,
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and management subsequently granted him two hours a day of official time for a week.
Complainant has not demonstrated that the time that was provided was insufficient.
Consequently, the Commission finds that the Agency provided Complainant with a reasonable
amount of official time.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).
0120131469

12
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 6, 2014