Dallas L.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120172071 (E.E.O.C. Apr. 16, 2019)

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

Dallas L.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120172071

Hearing No. 480-2017-00083X

Agency No. SF-06-2135-SSA

DECISION

On May 25, 2017, 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
April 25, 2017, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the Agency subjected Complainant to harassment based on his disability, race, and sex.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims Representative
at the Agency’s Huntington Park District Office in Huntington, California.

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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In August 2005, Complainant suffered an asthma attack at work; Complainant was on medical
leave from August 31, 2005, through February 21, 2006. When Complainant returned to work, he
requested the ability to work credit-hours. His supervisor (S1) (not disabled, Hispanic,
heterosexual) assigned him “offset” cases, which were a priority at the time due to a backlog.

On June 1, 2006, Complainant walked to the service representative area, and greeted the
employees. Complainant stated that S1 came over and stated that “this was not a work-related
conversation,” and instructed Complainant to get back to work. Later that day, Complainant
discussed a case with another Claims Representative. As he finished the conversation, S1 came
over and instructed Complainant to not consult with other claims representatives, but to direct his
questions to either S1 or the Technical Expert.

On June 22, 2006, the Area Director (AD) (unknown disability status, unknown race, unknown
sexual orientation) visited the office for her annual visit. Complainant stated that he met privately
with AD, who berated him over his caseload statistics. Complainant stated that AD then told him
to work elsewhere because he was “too flamboyant for a bureaucratic office.” Complainant stated
that he informed AD that all he wanted was to get a promotion, and AD responded that she would
never promote him. Also on June 22, 2006, AD conducted a staff meeting. During the meeting, an
employee mentioned her grandson’s name, and AD stated that Hispanics were marrying “gringos,”
which is why the grandson had an “American” name.

On June 23, 2006, the District Manager (DM) (not disabled, Hispanic, heterosexual) called
Complainant into her office to inform him that an employee from the Compton office complained
that he made offensive comments about the devil, hell, and his sexual relationship with his partner.2
Complainant denied making such comments.

On August 3, 2006, Complainant was conducting an interview with a claimant who had been
denied benefits. He stated that during the meeting, S1 interrupted him and took over the interview,
telling the claimant in Spanish that Complainant had misinformed him.

On August 4, 2006, Complainant stated that an employee told a “gay joke” at a staff meeting.
Complainant stated that S1 was in attendance and did not prevent the joke. Complainant
complained to the Assistant District Manager (ADM) (not disabled, Hispanic, heterosexual) about
the incident. Also on August 4, 2006, S1 stated that Complainant spoke loudly, and that everyone
can hear him.

On numerous unspecified dates, Complainant stated that S1 called him a term of endearment. He
did not recall which term specifically, but something to the effect of sweetie, dear, honey, or baby.
Complainant stated that S1 also made gestures of a limp wrist, mocking his homosexuality.

2 Some employees from the Compton Office were temporarily working at the Huntington Park
District Office while their office was undergoing renovation.

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On July 13, 2007, Complainant was removed from the Agency for inability to maintain regular
attendance; absence without leave; and failure to follow rules for requesting leave.3

EEO Complaint

On February 19, 2007, Complainant filed an EEO complaint alleging that the Agency subjected
him to harassment on the bases of race (Caucasian), sex (male, homosexual), and disability4
(asthma, anxiety, hearing loss) when it:

a) continuously singled him out;
b) chastised him for socializing with his coworkers;
c) unevenly assigned work to him;
d) instructed him to not ask coworkers for help, and to direct all work-related questions to
management;
e) subjected him to snide remarks regarding his sexual orientation, and made offensive racial
remarks;
f) accused him of making inappropriate comments regarding religion and his sex life;
g) suggested numerous times that he leave the Agency; and
h) stated that he would never be promoted.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Upon the Agency’s motion, the AJ issued a
decision without a hearing on June 21, 2010.

As an initial matter, the AJ found that Complainant’s claim of sexual orientation discrimination
was not actionable, based on the law at the time.5

3 Complainant filed a separate EEO complaint regarding his removal. EEOC Appeal No.
0120082336 (Apr. 15, 2011). The appeal was dismissed pursuant to 29 C.F.R § 1614.301 because
Complainant had already grieved his removal in a grievance process that allowed a grievant to
raise allegations of unlawful discrimination.

4 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act
Amendments Act of 2008, which made a number of significant changes to the definition of
disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because
this matter occurred in 2006, the Commission will use the analytical framework as it existed before
the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an
individual with a disability.

5 We note that the Commission subsequently has held that a claim of sexual orientation
discrimination is a claim of sex discrimination, and therefore is covered under Title VII and
properly processed under the 29 C.F.R. Part 1614 process for EEO complaints. Baldwin v. Dep’t
of Transp., EEOC Appeal No. 0120133080 (July 15, 2015).
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The AJ also determined that Complainant was not a qualified individual with a disability because
he testified that none of his impairments substantially limited a major life activity, especially with
treatment.

For Complainant’s harassment allegation, the AJ noted that there were only five events that were
potentially actionable: (1) when S1 allegedly “took over” an interview; (2) on June 1, 2006, S1
pointed her finger at Complainant, and directed him to “get to work,” without similarly instructing
the coworkers; (3) on June 1, 2006, S1 instructed Complainant to consult with a technical expert
or management for work-related questions, instead of other claims representatives; (4) on June 22,
2006, AD stated something to the effect of “you people married gringos”; and (5) on June 23,
2006, DM admonished Complainant for an alleged offensive conversation about religion and
Complainant’s sex life. However, the AJ determined that the five incidents taken together did not
meet the standard for an actionable hostile work environment claim and granted summary
judgment in favor of the Agency.

On September 1, 2010, the Agency issued a final order adopting the AJ’s finding that Complainant
did not show that he was discriminated against as alleged. Complainant appealed the Agency’s
final order.

On January 11, 2013, the Commission issued a decision vacating the Agency’s final order. See
EEOC Appeal No. 0120110008 (Jan. 11, 2013). The Commission noted that Complainant’s claim
of sex discrimination is viable because he alleged that he was discriminated against for failure to
match gender-conforming behavior. The Commission then found that there were material facts in
genuine dispute regarding Complainant’s allegation that he was subjected to a hostile work
environment based on sex.

For example, S1 denied calling Complainant honey, sweetie, or baby; or using “overtly gay”
gestures. Additionally, there was a dispute as to whether AD called Complainant “flamboyant.”
While AD had since passed away,6 the Commission noted that an AJ’s credibility determination
was needed for the available witnesses to make findings regarding the material issues. The
Commission also found that there were genuine issues of material fact with regards to claims a-d,
and f-h, including facts that go to motivation. Accordingly, the Commission vacated the Agency’s
final action, and remanded the matter back to the Agency for further processing. The Agency was
ordered to request a hearing within 30 days.

On March 10, 2017, Complainant withdrew his request for a hearing. Consequently, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency therein concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

6 The record noted that AD passed away on April 10, 2007.

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The Agency found that Complainant was an individual with a disability because his asthma,
anxiety, and hearing loss affected the major life activities of breathing, hearing, concentrating,
thinking, and caring for oneself. The Agency also noted that while some of the management
officials stated that they did not consider Complainant as an individual with a disability, his
extended leave established constructive awareness.

The Agency determined that the while Complainant found the complained of conduct to be
unwelcome, he did not show that the conduct was based on his protected classes for incidents b, c,
d, f, or for the alleged use of any terms of endearment. The Agency then noted that incidents a-d,
and f were within the normal prerogative of supervisors to monitor workplace conduct and
employee performance of their duties.

For incidents e, g, and h, the Agency found that these were isolated incidents, and even when taken
together, did not constitute harassment. The Agency determined that the incidents did not rise to
the level of “severe and (sic) pervasive harassment.” The Agency noted that the four cited
statements were insufficient to establish that the comments were so offensive that they permeated
the workplace and created a hostile work environment.7

The Agency also found that there was no basis to impute liability to management. The Agency
stated that assuming, arguendo, that Complainant established a prima facie case of harassment,
management may present the following defenses: (1) the alleged conduct did not occur; (2) the
conduct complained of was not unwelcome; and/or (3) the alleged harassment was not sufficiently
severe or pervasive to adversely affect Complainant’s employment opportunities, to unreasonably
interfere with Complainant’s performance, or to create an abusive working environment.

The Agency stated that incidents a, b, d, e, and f, did not present “severe and (sic) pervasive
harassment.” The Agency also found that management established that incidents c, e, g, and h did
not occur as alleged. For the “gringo” comment, the Agency found that this isolated comment was
insufficient to establish a hostile work environment. The Agency also noted that AD did not direct
this comment at Complainant but made it during a staff meeting. The Agency concluded that it did
not discriminate against Complainant based on race, sex/sexual orientation, or disability.

Complainant filed the instant appeal and submitted a brief in support of his appeal on June 25,
2017. The Agency filed a response brief on July 27, 2017.

CONTENTIONS ON APPEAL

Complainant’s Arguments

On appeal, Complainant argues that the Agency’s legal analysis and conclusions are flawed in its
final decision. Specifically, Complainant asserts that the Agency incorrectly stated that (1) the
comments were not directed toward Complainant and/or were not based on his protected classes;

7 The Agency did not identify the specific four statements to which it referred.
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(2) the unwelcome conduct must be both severe and pervasive (thereby demanding a higher
standard than the law requires); and (3) there was no basis for imputing liability to management
by relying on its incorrect analysis of Complainant’s harassment claim.

Complainant argues that the Agency noted that AD made the “gringos” comment, but then
minimized it. Complainant asserts that derogatory race-based language does not have to be
directed specifically at Complainant to prove that conduct was based on his race. Complainant
noted that the Commission established that the use of the term “gringo” would show a
discriminatory bias against White employees.

Regarding the incident when S1 stated that Complainant speaks loudly, and that everyone hears
him when he speaks, Complainant asserts that this was based on his medical condition.
Complainant also argues that S1 calling him honey, sweetie, and baby, while using mannerisms
based on gay stereotypes; AD calling him “too flamboyant”; and the telling of a “gay joke” were
based on his sexual orientation.

Complainant notes that the Commission found that one instance when a supervisor recommended
that an employee transfer because of her age could be sufficient to create a hostile work
environment, citing Robertshaw v. Department of the Air Force, EEOC Appeal No. 01992287
(December 1, 1999). As such, Complainant argues that AD’s statement that he was “too
flamboyant” was sufficiently severe to create a hostile work environment. Complainant adds that
the Commission also found that a claim during which a supervisor made three unwelcome remarks
within a four-month timeframe could establish a hostile work environment, citing Barton-
Daugherty v. Department of Health and Human Services, EEOC Appeal No. 01A12141 (May 11,
2001). Complainant states that he was subjected to four incidents in a three-month timeframe, with
three events occurring on the same day, which was similarly pervasive.

Complainant argues that the Agency only analyzed four explicitly discriminatory statements and
fragmented his claims. Complainant states that the comments must be analyzed within the context
of the other incidents for his hostile work environment claim. Complainant asserts that while
management did not state that incidents a-d, and f, were based on his protected bases, the explicitly
discriminatory comments, in conjunction with these incidents, establish that all of the conduct was
based on his protected bases, and were sufficiently severe or pervasive to establish a hostile work
environment.

Complainant also argues that the Agency inaccurately stated the standard for management’s
defense in a harassment claim. Rather, an employer is liable for a supervisor’s harassment if it
culminates in a tangible employment action. If it does not, the employer can avoid liability if it
exercised reasonable care to prevent and correct promptly any harassing behavior, and the
employee unreasonably failed to take advantage of any preventative or corrective opportunities
provided by the employer or to avoid harm otherwise, citing Enforcement Guidance on Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

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Complainant claims that using the correct standard, the Agency cannot invoke an affirmative
defense because it ultimately terminated Complainant. Additionally, Complainant claims that even
if he had not been terminated, the Agency failed to take reasonable care to prevent and correct
harassing behavior after Complainant complained to AD on three separate occasions. Complainant
requests that the Commission reverse the Agency’s final decision and find that he was subjected
to harassment.

Agency’s Arguments

The Agency requests that the Commission affirm its final decision finding that it did not subject
Complainant to harassment based on his protected classes because the nature and frequency of the
incidents do not establish a hostile work environment.

The Agency argues that some of the incidents were not based on Complainant’s protected
categories. For example, S1 stated that she was not aware of Complainant’s hearing impairment,
and that Complainant’s claim that S1’s statement that he speaks loudly was based on his disability
is only his subjective belief. The Agency also argues that S1 denied calling Complainant honey,
sweetie, or baby, and that the named witness did not provide a statement. Further, even if S1 used
a term of endearment, the Agency notes that the Commission has determined that when a comment
is not explicitly homophobic, or is only perceived that way, it is insufficient to support a hostile
work environment claim, citing Murray v. Department of Army, EEOC Appeal No. 0120130671
(June 9, 2017).

The Agency notes that evidence of the “gay joke” and the “gringo” comment were supported by a
signed, unsworn statement by a witness. However, the Agency argues that the one-time use of the
term “gringo” does not prove race-based harassment. The Agency accepts that AD called
Complainant “flamboyant,” but asserts that there was no evidence that she used the term in a
derogatory or offensive way, and that Complainant’s subjective belief was not sufficient to prove
discriminatory intent.

With regards to the claims that Complainant was singled out; chastised; unfairly assigned work;
instructed to direct questions to his managers or a Technical Expert; and accused of making
inappropriate comments about religion and his sex life, the Agency argues that there were
legitimate, nondiscriminatory reasons for each action, and that Complainant did not offer any
evidence to support his belief that these occurred because of his race, sexual orientation, or
disability.

Regarding the Agency’s liability, the Agency argues that Complainant’s removal was a separate
and unrelated matter, already adjudicated by the Commission. Additionally, Complainant did not
report specific allegations of a hostile work environment, and therefore, unreasonably failed to
take advantage of the Agency’s preventive or corrective anti-harassment policy.

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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 Chap. 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”).

Individual with a Disability

Because this case arose before January 1, 2009, the effective date of the ADA Amendments Act
of 2008, the Commission will apply the analytical framework as it existed before the enactment of
the ADA Amendments Act of 2008 to determine whether Complainant is an individual with a
disability. Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter,
must show that he is an “individual with a disability.” That is, Complainant must demonstrate that
he (1) has a physical or mental impairment that substantially limits one or more major life
activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.
29 C.F.R. § 1630.2(g). Under the law at the time of the events at issue here, an impairment was
substantially limiting when it prevented an individual from performing a major life activity or
significantly restricted the condition, manner, or duration under which the individual could
perform a major life activity. Id. § 1630.2(j).

In its final decision, the Agency determined that Complainant was disabled because his conditions
affected major life activities, including breathing, hearing, concentrating, thinking and caring for
oneself. However, we find that Complainant did not show that he was substantially limited
regarding his hearing impairment because he stated that his hearing loss was “very slight.”
Unfortunately, the record does not contain any medical documentation to show that Complainant
was substantially limited in any major life activity due to his asthma or anxiety.8 However, for the
purposes of this decision, we will assume that Complainant is an individual with a disability for
his asthma and anxiety.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive such that it results in an alteration
of the conditions of the Complainant’s employment.

8 We remind the Agency that they are required to solicit medical documentation during the
investigation when a complainant alleges discrimination based on disability.
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See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3
(Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs
to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the statutorily
protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his
work performance and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).

We find that Complainant belonged to protected classes with respect to his disability, race, and
sexual orientation; and that he was subjected to unwelcome verbal conduct. However, we find that
only some of the complained of conduct was based on his protected classes. In this case, we find
that Complainant has not provided evidence showing that incidents a-d and f-h were based on any
of his protected classes.

For incidents a and b, Complainant claimed that during a conversation with a group of Service
Representatives, S1 singled him out when she instructed him to go back to work, and not the others.
S1 stated that she instructed Complainant to go back to work because she heard Complainant
gossiping, which she believed was unproductive. S1 also denied barring Complainant from
socializing with others. One of Complainant’s witnesses (W1) stated that she saw S1 “chastise”
Complainant. However, W1 believed that S1 had “personal issues,” and was vindictive; and W1
specified that she did not believe that S1 did this based on any of Complainant’s protected
categories.

For incident c, S1 stated that when Complainant returned to work from his leave, he did not have
a regular case assignment. When Complainant requested to work credit hours, S1 assigned him the
“offset” cases because they were a priority for the office. With regards to incident d, S1 stated that
during Complainant’s absence, the office had changed how it processed some of the work, and she
instructed him to work with her or the Technical Expert if he needed assistance. ADM added that
Complainant had a habit of asking for assistance from a trainee, who then complained about
Complainant’s requests. ADM stated that she requested additional training for Complainant, and
also instructed him to refer to a technical expert or manager if he had a question.

Regarding incident f, DM stated that she was contacted by the District Manager at the Compton
office regarding an employee’s complaint that Complainant made offensive comments. DM stated
that she discussed the complaint with Complainant, which was an informal counseling session to
remind him of the Agency’s policy on sexual harassment in the workplace.

For incidents g and h, Complainant alleged that AD made these comments during their June 22,
2006, meeting. Because AD passed away, the only information in the record is the EEO
Counselor’s Report memorializing their conversation on June 21, 2006. While the record does not
contain an affidavit from AD, we can presume that her responses would have been consistent with
her earlier statement.

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AD stated that Complainant informed her that he was working on a project with a famous
entertainer, and she responded that the Agency may not be a good fit for him because he was “very
creative,” and did not seem to work well in an “organized and regimented environment.” AD added
that her comments “had nothing to do with [Complainant’s] sexual orientation.”

Regarding Complainant’s allegation that S1 called him a term of endearment, S1 denied doing so,
and no one has supported his assertion. Complainant identified a witness, who did not provide a
statement9, and those who provided affidavits stated that they never heard S1 call Complainant
any term of endearment. With regards to S1’s statement that Complainant spoke loudly,
Complainant argues that S1 disparaged him based on his medical condition. However, he has not
shown evidence that S1 made the comment due to his hearing loss. S1 stated that she was not
aware of his hearing impairment, and that Complainant never brought it to her attention. Further,
W1 stated that it “did not appear to [W1] that the management thought the Complainant was
disabled.”

As noted in our earlier appellate decision, we found the record lacking. Unfortunately,
Complainant withdrew his request for a hearing before an EEOC AJ, and we can only rely on the
existing record on hand. We do not have the benefit of an AJ’s credibility determinations of the
witnesses in this case, and Complainant bears the burden to prove, by a preponderance of the
evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise,
Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal
No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false
statements where he withdrew his request for a hearing and credibility determinations were unable
to be made): Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012)
(complainant failed to establish that his coworker made offensive comments in a “he said, she
said” situation where complainant requested a final decision and an Administrative Judge did not
make credibility determinations).

Complainant provided witness statements to support his claims. In reviewing the statement by W1,
we do not find that her statement supports his assertion that he was discriminated against based on
his protected classes. W1 expressed her concerns about S1’s actions toward Complainant, but as
noted above, W1 did not believe that S1’s actions were due to Complainant’s protected bases. W1
added that she had not heard anyone make any snide comments about Complainant’s sexual
orientation. Accordingly, we find that Complainant has not shown that incidents a-d and f-h were
due to his protected classes.

We find that the record supports Complainant’s account that an employee made a “gay joke”; AD
called Complainant “flamboyant”; and AD used the term “gringo” in a staff meeting. A second
witness provided a statement corroborating the “gringo” and “gay joke” incidents. Regarding the
“flamboyant” comment, we note that AD did not deny this, so we will conclude that this occurred.

9 The record noted that the EEO Investigator attempted to contact this witness but was unable to
do so because the witness was on leave until January 2008.
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For the purposes of this decision, we will assume that these comments were based on
Complainant’s protected classes of race and sexual orientation and directed at Complainant.
However, we do not find that these incidents rise to the level of unlawful harassment.

In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct
at issue must be viewed in the context of the totality of the circumstances, considering, inter alia,
the nature and frequency of offensive encounters and the span of time over which the encounters
occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual
Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Kozak v. United States Postal Service, EEOC Request No.
01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No.
0120083387 (Feb. 4, 2010). Such conduct “must be both objectively and subjectively offensive,
[such] that a reasonable person would find [the work environment to be] hostile or abusive, and …
that the victim in fact did perceive to be so.” Id.

While we agree that the Agency erred when stating that the situations were not severe and
pervasive, we do not find that these incidents were severe or pervasive. Complainant cites to two
prior Commission decisions to support his claim that the one-time use of the term “flamboyant”
was severe; and that four incidents occurring over a three-month timeframe is pervasive. However,
we find that these cases are distinguishable from Complainant’s situation. Specifically, the EEOC
found that the situation in Robertshaw was severe, and Barton-Daugherty was pervasive, for the
purposes of stating a claim (emphasis added). The Commission remanded both cases back to the
Agency for an investigation, and a determination on the merits. We further note that Complainant
acknowledged that the Commission found that the singular incident “could be sufficient” in
Robertshaw; and that the three incidents in Barton-Daugherty “may establish” a hostile work
environment claim. The Commission did not make a finding of harassment for either case.10
Accordingly, we do not agree that either case supports a finding of harassment in the instant
complaint. We find that in looking at the totality of the circumstances, Complainant’s situation
was not objectively hostile or abusive.

Additionally, Complainant argues that the Agency improperly fragmented his claims when it only
analyzed the four explicitly discriminatory statements and did not consider the other complained-
of conduct. Complainant asserts that the discriminatory comments establish that “all of the
conduct” was based on Complainant’s protected bases. We do not agree. Complainant alleged that
S1 and DM were the responsible officials for the other complained-of conduct. Statements made
by a coworker and AD showing discriminatory animus cannot be imputed to S1 or DM as proof
of their discriminatory animus. As discussed above, Complainant has not shown any evidence
proving that the complained of conduct in incidents a-d and f-h were based on his protected classes.

10 According to Commission records, neither complainant appealed any subsequent Agency final
action on the merits.
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Accordingly, we find that the Complainant has not established that the Agency subjected him to a
hostile work environment based on his disability, race, or sex/sexual orientation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
has not shown that he was subjected to harassment based on his disability, race, or sexual
orientation.

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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 16, 2019
Date