Emerson P.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

0120180491 (E.E.O.C. Sep. 19, 2019)

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

Emerson P.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120180491

Agency No. HHS-FDACBER-082-16

DECISION

On December 26, 2017, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s October 19, 2017 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. For the reasons which follow, the
Commission AFFIRMS, as modified, the Agency’s decision.

ISSUES PRESENTED

The issues presented are whether the investigation of the complaint was adequate; whether the
Agency’s dismissal of some of the claims of the complaint on the grounds of untimely EEO
Counselor contact was proper; and whether Complainant has shown by a preponderance of the
evidence that the Agency discriminated against him by subjecting him to a hostile work
environment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Quality
Assurance Specialist/Interdisciplinary Scientist at the Food and Drug Administration (FDA) in the

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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Quality Assurance Branch, Division of Biological Standards and Quality Control, Office of
Compliance and Biological Quality, Center for Biologics Evaluation and Research in Silver
Spring, Maryland. Complainant’s immediate supervisor (RMO-1)2 was the Director of the
Division of Biological Standards and Quality Control.

On May 12, 2016, Complainant initiated EEO counseling. On September 1, 2016, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of race
(Asian), national origin (Indian), and in reprisal for prior protected EEO activity when:

1. On July 27, 2016, RMO-1 threatened to take actions to demote him to a lower grade if
he did not accept his settlement offer;

2. In May 2016, the Visiting Associate (Witness-2), Complainant’s part-time assistant,
was removed from his division without his knowledge;

3. On March 28, 2016, Complainant asked RMO-1 “why did he give him a low rating”
and RMO-1’s response was that he was being “punished;”

4. On February 10, 2016, Complainant received a 3.3 score on his Performance
Management Appraisal Program (PMAP), a score lower than the previous year of 4.0;

5. On February 1, 2016, Complainant stated that RMO-1 removed his Team Lead title
and gave him a new job description which was not consistent with his Series 1910,
Quality Assurance position;

6. In early 2014, Complainant states that RMO-1 told him to get out of his office or he
would throw him out;

7. In May 2014, RMO-1 yelled at Complainant and unfairly blamed him for a contractor’s
mistake on a federal contract, and told Complainant that he did not understand him,
which Complainant took to mean that he was critical of his Indian accent; and

8. In October 2014, Complainant stated that RMO-1 raised the issue that Complainant’s
Indian accent was a communication issue.

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) or to request an Agency decision. Complainant requested an Agency decision.

2 For the sake of consistency and clarity, the Commission will use the Agency identification of the
Director, as well as its identification of other individuals, as set forth in its decision.
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In accordance with Complainant’s request, the Agency issued its decision pursuant to 29 C.F.R.
§ 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

In its final Agency decision (FAD), the Agency dismissed claim 1 on the grounds that it was
inappropriate to have considered the claim, explaining that it was a mistake to have accepted the
allegation as a claim because it occurred during the mediation process.

Regarding claims 3-8, the Agency, in a footnote, concluded that those claims were not timely
raised with an EEO Counselor but that the claims would be analyzed under a hostile environment
theory. With respect to claim 4, the Agency found that it was a discrete act which, although
untimely, would be considered by the Agency as background evidence. The Agency also
acknowledged that if one act of a hostile work environment, specifying claims 2 and 4, is timely
brought, all other related acts, otherwise untimely, could be considered.

Addressing claim 2, the Agency relied principally on the statements of RMO-1 (White/Caucasian)
and Witness-2 (Asian Indian). It noted that Witness-2 was hired to work in the research area on
rapid microbial methods but that an equipment malfunction caused a delay in Witness-2’s research.
During the interim, RMO-1 assigned Witness-2 to help prepare laboratory equipment for the
office’s move to White Oak, alongside Complainant. After the move was completed, Witness-2
split his time between Complainant and another assignment. In May 2016, RMO-1 moved
Witness-2 to another science-based research program which meant he could no longer work
alongside Complainant. RMO-1 also stated that Witness-2 was shifted according to the needs of
the Division and for the good of Witness-2’s career. RMO-1 explained that he assigned a number
of persons to the same projects as Complainant because Complainant requested assistance. He
stated that Complainant should have been able to complete his projects without assistance.
Witness-2 stated that he never had the designation of part-time assistant to Complainant and that
he held a Doctorate degree.

Regarding claim 3, the Agency’s final decision found that Complainant testified that he was told
by RMO-1 that he scored Complainant as 3.3 on his PMAP because of Complainant’s conduct at
one of two meetings in May 2014. The record indicted that Complainant and RMO-1 were meeting
about a contract in which RMO-1 blamed Complainant for issues with the contract. Complainant
attempted to explain that he merely provided technical review of a contract, and that his role was
limited. However, Complainant alleged that RMO-1 did not seem to understand Complainant’s
explanations. Complainant alleged that this is in relation to the event raised in claim 7.

Claim 4 concerns Complainant’s evaluation rating of 3.3. Complainant stated that he should have
received at least a 4.0 and up to a 5.0 rating but, instead, received the rating because of his
membership in protected groups. Complainant asserted that he had done an extraordinary job
during the laboratory transition and that he was rated unfairly. He also stated that he had received
a 4.0 rating in 2014 and that he had never received a rating lower than 3.0 since 2006. Complainant
explained that he believed he would get into trouble if he did not sign the PMAP; that RMO-1 did
not ask him any questions during the evaluation process and provided no feedback.
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In response to claim 4, RMO-1 stated that Complainant had received a 4.0 rating for the 2014
evaluation period and it had already included the move to White Oak in his 2014 evaluation. He
also stated that Complainant could have improved his rating with better project planning and
assuring that calibrations were performed on time and with quality, improved management of data
describing equipment status, “energetic engagement” on projects and clear solutions to problems.
RMO-1 stated that the rating could have been higher if Complainant contributed an equitable share
of performance effort, better “self-initiation” of projects, and improved communication that
resulted in a clear understanding by those involved, resulting in projects moving toward
completion.

In claim 5, Complainant alleged that RMO-1 removed his Team Lead title and gave him a new job
description which was not consistent with his Series 1910 quality assurance position. He stated
that the PMAP document that RMO-1 signed on January 29, 2016 contained administrative and
Team Lead requirements. In a revision sent to Complainant on February 1, 2016, his Team Lead
title was removed. In a third version sent to him on March 28, 2016, RMO-1 eliminated the critical
elements for administrative requirements and relocated his responsibilities to be rated under “all
staff.” Complainant explained that he was assigned to manage equipment and perform minor
repairs, duties more consistent with a Laboratory Equipment Technician. His primary role was
quality assurance which was an auditor’s job but he worked as an auditee.

In response to the claim 5, RMO-1 stated that Complainant’s title was always Lead Quality
Assurance Specialist, never Team Lead. He also explained that although he updated
Complainant’s PMAP in early 2016 because the previous template was incorrect, he did not change
Complainant’s job title. The updated template included a more accurate description of
Complainant’s administrative requirements and an alignment of other elements that better reflected
Complainant’s job description. After extensive negotiations with Complainant, he provided
Complainant with a final version of his job description which was meant to supplement
Complainant’s official position description by providing more specific explanations of his duties
and responsibilities.

The Agency also addressed claim 6, the allegation that the RMO told Complainant to get out of
his office where he had gone to obtain approval of a purchase or he would throw him out. The
Agency found that RMO-1 testified that he had no recollection of the event.

The Agency addressed claims 7 and 8 jointly. In claim 7, Complainant alleged that RMO-1 yelled
at him and unfairly blamed him for a contractor’s mistake on a federal contract and told
Complainant that he did not understand him, which he perceived was a criticism of his Indian
accent. Complainant stated that he served as the Project Officer who made technical
determinations regarding contractors. On May 9, 2014, RMO-1 blamed him for a contractor’s
inability to deliver on a bid and the Quality Assurance Branch Chief (Witness-1) questioned
Complainant’s credibility and ability. Complainant also asserted that each time he tried to explain
to RMO-1 what happened, RMO-1 replied: “I do not understand you.”
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In claim 8, Complainant alleged that in October 2014, RMO-1 again claimed that that he could not
understand Complainant, which Complainant took to mean that it was because of his Indian accent.

Regarding claims 7-8, RMO-1 stated that Complainant failed to arrange and facilitate equipment
and calibration that supported the Agency’s accredited laboratories. A number of items failed
calibration which endangered public health and threatened the availability of certain drugs and
biologics. The contractor in charge of calibration provided unacceptable documentation practices
and poor quality. RMO-1 held a meeting with Complainant to discuss this issue. He stated that it
was not Complainant’s accent but rather his poor logistical planning and difficulty in
communicating effectively with professional and technical staff. RMO-1 explained that his
problems with Complainant arose from his inability to stay on point or express his thoughts
logically and sequentially. RMO-1 testified that Complainant’s accent had nothing to do with his
communication problems. The Witness-1 also stated that during the May 2014 meeting,
Complainant provided conflicting information and when he provided three different answers to
the same question, RMO told Complainant that he did not understand his answers.

CONTENTIONS ON APPEAL

Complainant challenges the adequacy of the Agency’s decision, asserting that it overlooked
documented evidence and failed to interview witnesses whom he had identified. Complainant
continues to maintain that he was subjected to an unlawfully hostile work environment. He also
contends that RMO-1 was not a credible witness, pointing to evidence to support his assertions.
Complainant argues that the Agency failed to provide legitimate, nondiscriminatory reasons for its
actions because there can be no justification for bullying.

The Agency submitted no arguments in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

This is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b).
Accordingly, 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 (EEO MD-110), at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

Adequacy of the Investigation

Complainant has challenged the adequacy of the investigation. Investigations of discrimination
complaints are governed by 29 C.F.R. § 1614.108 and the instructions contained in the
Commission’s EEO MD-110.
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See EEO MD-110, Chap. 6 (“Development of Impartial and Appropriate Factual Records”). An
adequate agency investigation is one that is developed impartially and contains an appropriate
factual record. 29 C.F.R. § 1614.108(b). “An appropriate factual record is one that allows a
reasonable fact finder to draw conclusions as to whether discrimination occurred.” 29 C.F.R. §
1614.108(b); EEO MD-110, Chap. 6, § § I, IV.B., IV.C. An investigator must be unbiased,
objective and thorough. Id. at § V.C. The investigator must obtain all relevant evidence from all
sources regardless of how it may affect the outcome. Id. at § V.D.

We find that although the Investigator did not call witnesses that Complainant suggested, under
the circumstances of this case, the record is adequately developed such that we can draw
conclusions as to whether discrimination occurred.

Timeliness of EEO Counselor Contact

In a footnote in its decision, the Agency dismissed claims 3-8 on the grounds of untimely EEO
Counselor contact. The Agency also dismissed claim 4 for untimeliness because the action was a
discrete act. Nevertheless, it also determined that it would consider claim 4 as background
evidence. We note that the Agency had initially accepted all 8 claims for investigation and the
report of investigation was developed accordingly.

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination are
brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action.

The U.S. Supreme Court has held that a complainant alleging a hostile work environment will not
be time barred if all acts constituting the claim are part of the same unlawful practice and at least
one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002). The Court further held, however, that “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges.” Id. The Court
defined such “discrete discriminatory acts” to include acts such as termination, failure to promote,
denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment
practices. Id. Finally, the Court held that such untimely discrete acts may be used as background
evidence in support of a timely claim. Id.

Here, Complainant claims that he was subjected to a hostile work environment. Unlike a claim
which is based on discrete acts of discrimination, a hostile work environment claim is based upon
the cumulative effect of individual acts that may not themselves be actionable. Id. at 115.
Furthermore, a hostile work environment claim will not be time barred if all acts, constituting the
claim, are part of the same unlawful practice even if some component acts of hostile work
environment fall outside the statutory time period so long as an act contributing to the claim falls
within the filing period. Id. at 117.

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The Commission has stated that “[b]ecause the incidents that make up a hostile work environment
claim collectively constitute one unlawful employment practice, the entire claim is actionable, as
long as at least one incident that is part of the claim occurred within the filing period. This includes
incidents that occurred outside the filing period that the [Complainant] knew or should have known
were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold
Issues at 2-75 (revised July 21, 2005) (citing Morgan, supra).

Based on the foregoing, we disagree with the Agency’s conclusion that EEO Counselor contact
was untimely. Complainant initiated EEO Counselor contact on May 12, 2016. Complainant’s
overall claim is one of harassment. Some of the incidents occurred in 2014. However, one of the
incidents falls within 45 days of his initiation of EEO Counselor contact on May 12, 2016, e.g.,
claim 2 which occurred in May 2016. Therefore, his harassment claim is timely. However, with
respect to claim 4, his performance evaluation, we agree with the Agency that it is a discrete act
and therefore untimely and will therefore be considered only as background evidence.

Because the Agency alternatively addressed the dismissed untimely claims in its decision, we
deem the Agency’s error harmless.

Claim 1

We find that the Agency’s dismissal of claim 1 was proper. It was concerned with settlement
negotiations which involved RMO-1. We have held that “settlement negotiations are to be treated
as confidential and privileged in order to facilitate a candid interchange in order to settle disputes
informally.” Harris v. Dep’t of the Navy, EEOC Request No. 05941002 (Mar. 23, 1995);
Thomason v. Dep’t of the Army, EEOC Appeal No. 01A54061 (June 22, 2006) (settlement
negotiations, including any statements or proposals, are to be treated as confidential and
privileged); see also Horacio Z. v. Dep’t of the Navy, EEOC Appeal No. 0120182210 (Sept. 13,
2018)(dismissal of claim where complainant contended that he felt threatened during email
exchanges with the agency); Nelson v. Dep’t of Defense, EEOC Appeal No. 01A13907 (Sept. 25,
2001) (comments and actions made during a mediation session akin to actions during settlement
negotiation).

Although Complainant claims that the alleged threat occurred after the mediation session at which
RMO-1 was present, we are not persuaded that a different result should follow.3

Disparate Treatment

In claims 2, 3, 4, 5, and 7, Complainant asserted that he was subjected to disparate treatment based
on his race, national origin and in retaliation for his prior EEO activity.

3 The Commission notes that RMO-1 denied that he had made any such threat.

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A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence
that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review of the entire record and consideration of the arguments raised by Complainant, we
do not find that Complainant was subjected to disparate treatment. Complainant has failed to prove
by a preponderance of the evidence that it was discriminatory animus that motivated the Agency
to act as Complainant has alleged.

Regarding claim 2, the removal of Witness-2, who Complainant alleged was his part-time
assistant, we find that the Agency has articulated a legitimate, nondiscriminatory reason for its
action. Witness-2 explained in his affidavit that he was a Visiting Associate with a Doctorate in
microbiology. He denied that he was a part-time assistant to Complainant. Witness-2 stated that
he was assigned to work alongside Complainant and to help him in whatever projects were under
Complainant’s responsibility and job profile. Witness-2 reported directly to RMO-1. He also
explained that because of his Doctorate in microbiology, RMO-1 moved him to the laboratory of
Analytical Chemistry and Blood Related Products where his Doctorate would be better utilized.
There, he came under the supervision of the Laboratory Chief/Supervisory Chemist (LC/SC).

The LC/SC (Indian) stated in his affidavit that the work Witness-2 was performing with
Complainant was not the work of someone with a Doctoral degree. LC/SC explained that he
needed someone with a good quality research project and submitted a proposal to RMO-1. RMO-
1 then moved Witness-2 to his supervision so Witness-2 could perform work consistent with his
education and experience. The LC/SC also stated that Complainant agreed with the move and that
the move was more in line with Witness-2’s background as a scientist with a Doctoral degree. It
was the timing of the move with which Complainant disagreed, according to LC/SC.
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Claim 3 is, in essence, not an independent claim but concerns the explanation for the performance
evaluation which is the subject of claim 4, an untimely discrete act. The Agency articulated a
legitimate, nondiscriminatory reason for its action regarding Complainant’s 3.3 performance rating
for the rating year 2015. Complainant had received a higher rating of 4.0 in the previous rating
year. However, the Agency found that Complainant would have received a higher rating had he
had better performance, including such things as better project planning, assuring all calibrations
were performed on time and with quality, improving his management of data describing equipment
status, self-initiation of projects, and improved communication. Complainant has not shown how
the assessments of his performance were incorrect, other than his subjective conclusion that he
should have been rated higher. Having so found, we find concomitantly that the lower rating, even
if it occurred, was not given in order to unlawfully discriminate against Complainant (claim 3).

With respect to claim 5, the new position description, the Agency’s articulated reason was that the
position was revised in order to update the position description and to provide an accurate
description of the duties and responsibilities of the position. In the absence of evidence of
discriminatory animus, we will not second-guess an Agency’s decision regarding management’s
responsibility to manage operations.

In claim 7, Complainant alleged that RMO-1 yelled at him and unfairly blamed him for a
contractor’s mistake that occurred in 2014. We find that the Agency articulated a legitimate,
nondiscriminatory reason for its action. RMO-1 called a meeting with Complainant to discuss the
failures in the performance of a federal contractor. Complainant had failed to arrange and to
facilitate equipment calibration which supported the Agency’s accredited laboratories. A number
of items failed calibration which endangered public health and threatened the availability of certain
drugs and biologics. Complainant has also not established that there was any causal link between
RMO-1’s actions and his protected bases.

Included in claim 7 is an allegation that RMO-1 was critical of his accent during the meeting.
Regarding accents, Commission guidelines make it unlawful to deny an individual equal
employment opportunities due to the “linguistic characteristics of a national origin group.” 29
C.F.R. §1606.1. See also 29 C.F.R. §1606.6(b)(1) (selection procedures based on foreign accent);
Daly v. U.S. Postal Serv., EEOC Appeal No. 01933547 (Sept. 14, 1995). Comments about an
employee’s accent may, under certain circumstances, raise an inference of national origin
discrimination. Merely asking a complainant to speak more slowly or repeat himself to aid in
understanding does not, without more, reflect an animus based on national origin. Tran v. Dep’t
of the Army, EEOC Appeal No. 0120102086 (Mar. 28, 2013) (“merely expressing an inability to
understand a person’s ‘manner of speaking’ does not necessarily reflect animus based upon
national origin”), req. to reconsider den., EEOC Request No. 0520130391 (Sept. 26, 2013); Genny
L. v. Dep’t of the Navy, EEOC Appeal No. 0120172722 (Oct. 24, 2018).

In the instant case we find that RMO-1 was not commenting on Complainant’s accent but
expressing that he simply was not understanding what Complainant was communicating to him.
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The affidavit of the Supervisory Quality Assurance Specialist (Witness-1) who was present at the
meeting supports RMO-1’s account of what occurred.4

Regarding the foregoing, the Agency has articulated reasons for its actions for which Complainant
has not shown pretext. Regarding pretext, the Commission notes that pretext inquiry is not
concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018); Tyra F. v. General Svcs.
Admn., EEOC Appeal No. 0120170252 (Apr. 4, 2018). The question is not whether the agency
made the best, or even a sound, business decision; it is whether the real reason is discrimination.
See, e.g., Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5, 2007); see also
Carson v. Bethlehem Steel Corporation, 82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question
is not whether the employer made the best, or even a sound, business decision; it is whether the
real reason [was discriminatory]”). Moreover, the occurrence of some of the alleged incidents
has been disputed.

Upon review of the record, we find that Complainant has not shown that the Agency’s reasons
were pretext for discrimination. With respect to claim 2, Complainant did not challenge the
Agency’s reasons. In claim 4, regarding the PMAP, Complainant asserted that he “strongly
believe[d] that [he] was rated unfairly, although the amount and complexity of work done is
demonstrable.” When he questioned RMO-1 about the PMAP as raised in claim 3, he claimed that
RMO-1 informed he that he was being “punished” for the event alleged in claim 7 during which
RMO-1 and Complainant had a heated discussion over a contract in which the contractor failed to
deliver on the contract. We find that Complainant has not shown that the Agency’s reasons were
pretext for discrimination based on his race, national origin, and/or reprisal.

Harassment

Complainant’s harassment claim encompassed claims 2-8. 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 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).

Claim 6 is an allegation that RMO-1 told Complainant to get out of his office where Complainant
had gone to obtain approval of a purchase. RMO-1 had no recollection of the alleged action. Even
if he did, Complainant has not linked the action to prohibited discrimination. Furthermore, the
Commission has consistently held that the discrimination statutes are not civility codes.

4 Witness-1 declined to provide her race or national origin.
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Rather, they forbid only behavior so objectively offensive as to alter the conditions of a
complainant’s employment.

In claim 8, Complainant recounted an incident which allegedly occurred in 2014 and is an
allegation that RMO-1 again stated that he could not understand Complainant. RMO-1 stated that
he does not recall the alleged incident in October 2014. He also stated that communications
problems with Complainant arose from Complainant’s inability to “stay on point” or express his
thoughts logically or sequentially. He maintained that it had no relationship to Complainant’s
accent.

Complainant asserted that RMO-1 took action against him based on his national origin and/or race.
The Commission has reviewed the affidavit of the LC/SC. He stated that in 2006 when RMO-1
was forming the Division, RMO-1 hired Dr. A (Indian) as the Laboratory Chief, a position that the
LC/SC apparently now holds. In his words, he described Dr. A as a notorious person, extremely
rude, very disrespectful to people, and horribly dominating. The LC/SC saw Dr. A insult RMO-1
very publicly more than once, waving his hands in front of RMO-1’s face and using derogatory
words. Dr. A was terminated in 2012.

The LC/SC opined that by his words and actions, Dr. A created “significant anti-Indian feeling”
in RMO-1 and a few others in the Center for Biologics Evaluation and Research. He stated, also,
that in late 2012, RMO-1 told him that there were “too many” Indians in the Division and this
statement troubled him. He also stated that he never heard that sentiment from RMO-1 since then.

The LC/SC stated that Complainant was relatively close to Dr. A. In his view, RMO-1 was not
discriminatory against Indians before the issue with Dr. A, noting that the RMO-1 hired both
Complainant, other Indians, and him. He also stated that prior to RMO-1’s issues with Dr. A, he
saw no discrimination against Indians by RMO-1. The LC/SC stated that RMO-1’s feeling arose
following his experience with Dr. A. He stated also that when Dr. A was controlling everything,
he (LC/SC) felt mistreated by both Dr. A and RMO-1. After Dr. A was terminated, he stated that
RMO-1’s behavior toward him improved significantly. The LC/SC stated that the RMO-1’s
memory of Dr. A worked against Complainant because Complainant reminded him of Dr. A.
According to the LC/SC, the RMO-1 pushed Complainant around because he reminded him of Dr.
A. The LC/SC did not think that RMO-1 discriminated against Indians overall. The LC/SC
explained that he (LC/SC) had hired two Indian employees over the last two years and RMO-1
had no objections. In addition, the LC/SC stated that his assessment of RMO-1’s problem with
Complainant was not so much because he was Indian but because of his friendship with Dr. A.

The LC/SC also stated in his affidavit that when RMO-1 moved Witness-2 to his unit, the RMO-
1 stated, during his performance review in early 2016, that he wanted to punish Complainant. He
could not recall how the statement arose but stated that RMO-1 started discussing a few things
about the Division and the statement came out in relation to the discussion.

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The record also contains the affidavit of a Chemist (Team Lead) (Caucasian, U.S.). Asked whether
he observed RMO-1 discriminate against Complainant based on his race or national origin, he
stated that it was “hard to pin race and national origin on it.” He also stated that some hires have
not worked out and there have been personality issues and the ability for people to work within
the organization. In some cases, the employees were not properly screened but he did not see it as
racial issue. He knew RMO-1 was disappointed with Complainant over his work in validations.

Upon review of the record, we find that there was some evidence of RMO-1’s issues with
personality conflicts he had in the past with Dr. A., who happened to be of the same national origin
and race as Complainant. Although the LC/SC opined that there was significant anti-Indian bias
in the Division, RMO-1 has hired or approved the hiring of several Indian employees. The LC/SC
also stated that his assessment of RMO-1’s issues with Complainant was due to Complainant’s
friendship with Dr. A. We also note that the Chemist stated in his affidavit that that there were
personality issues and issues with the ability of people to work within the organization. As noted
above, there was also evidence of personality conflict with Dr. A, who was friends with
Complainant.

As such, we find that there is some concerning evidence of animus in the workplace. However,
as already concluded above, there is no evidence to support a finding that Complainant’s race,
national origin, or prior protected activity played any role whatsoever in the decisions raised in
claims 2-7. RMO-1 provided a legitimate, non-discriminatory explanation for the actions listed
above. Further, Complainant has not clearly established that his national origin and/or race was
the reason for the alleged action raised in claim 8. Complainant asserted that RMO-1 was having
issues with his Indian accent. RMO-1 denied that his communication issues with Complainant
were related to his national origin. RMO-1 stated that communications problems with
Complainant arose from Complainant’s inability to “stay on point” or express his thoughts
logically or sequentially. Based on the totality of the evidence in the record, we find that
Complainant has not shown that claim 8 occurred because of his race, national origin, and/or in
retaliation for his protected EEO activity.

Having found that there is no discriminatory animus, a finding of a hostile work environment is
precluded based on the lack of animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000). Even so, we do not find that a hostile work environment existed. The
Agency has articulated legitimate, nondiscriminatory reasons for actions taken. Also, having
considered the remaining incidents for which no reason is articulated, we find that they are not so
severe or pervasive so as to have created a hostile work environment. In so finding, we considered
the frequency of the alleged acts, their severity, whether they were physically threatening or
humiliating, and whether they reasonably interfered with Complainant’s performance.

In sum, Complainant has failed to establish by a preponderance of the evidence that, more likely
than not, the Agency discriminated against him. At all times, the burden of persuasion remains
with Complainant to show by a preponderance of the evidence that the Agency acted on the basis
of a prohibited reason. As Complainant chose not to request a hearing, the Commission does not
have the benefit of an Administrative Judge’s credibility determinations after a hearing.
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Therefore, the Commission can only evaluate the facts based on the weight of the evidence
presented. Complainant has not established that he was subjected to a legally hostile work
environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or reference herein, we AFFIRM, as modified, the Agency’s finding of no
discrimination.

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

September 19, 2019
Date