0120140193
08-19-2016
Ken E.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ken E.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120140193
Hearing No. 560-2010-00300X
Agency No. 9S1LT0002
DECISION
On October 2, 2013, Complainant filed an appeal from the Agency's September 3, 2013, 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.
ISSUES PRESENTED
Whether the Agency discriminated against, and subjected Complainant to a hostile work environment based on disability, and in reprisal for protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Specialist at the Agency's Readiness Section, Global Force Management, Joint Support Division, Operations and Plans Directorate, U.S. Transportation Command (TRANSCOM) in Scott Air Force Base, Illinois. At an unspecified time, Complainant was provided reasonable accommodations of a private office, text reading software, and scanners which he used to scan documents into the text reading software.
In August 2007, the Agency conducted a Climate Assessment Survey (CAS). Complainant stated that he wrote comments expressing concerns about career advancement opportunities for individuals with disabilities; and requesting that the Agency take into consideration their needs for the Base Realignment and Closure (BRAC).
On July 10, 2009, Complainant attended a meeting to brief the Deputy for Programs and Readiness (DPR) (no disability) in advance of an upcoming meeting with the new Deputy Commander. During the meeting, Complainant asked questions and acted in a manner which led the DPR to end the meeting early. Complainant was not allowed to attend follow-up meetings. Complainant alleges that on July 13, 2009, a Colonel (COL1) (no disability) informed their office that they were creating a new "Readiness Branch," which would be led by a military officer who had not yet arrived.
On August 5, 2009, Complainant sent an email to the COL1 and the DPR, informing them that he planned to file an EEO complaint, and that he was an individual with a disability. Complainant alleged that the COL1 then came to his office and loudly asked, "[c]an I talk to you about your EEO complaint?" On August 7, 2009, Complainant alleged that the COL1 announced that an incoming Lieutenant Colonel (LC1) (no disability) would arrive to be the Branch Chief of Readiness. On October 1, 2009, the LC1 arrived, and supervised Complainant until January 15, 2010. Another Lieutenant Colonel (LC2) (no disability) then became Complainant's supervisor.
In March 2010, Complainant asked the COL1 and the LC2 for a desk audit of his position. On April 12, 2010, he repeated his request to the COL1, who informed him that no desk audits were being performed while the organization was transitioning to the General Schedule (GS) system.
On April 6, 2010, Complainant attended a meeting where the COL1 asked the LC2 if he could provide some assistance to Complainant. The LC2 agreed, but added that he had concerns because the employees in the Global Force Readiness (GFR) Branch were also very busy, and lacked the Readiness expertise to assist Complainant. On April 8, 2010, a Lieutenant (LT) (unknown disability) had trouble accessing one of the Agency's systems, and asked to utilize Complainant's computer. Complainant requested that the LT give him the data to input into the system instead, and stayed late that night to input the data.
On April 12, 2010, the LC2 saw Complainant leave his office to retrieve something from the printer, and as he walked by, asked him a question. Complainant did not respond, and brushed against him. The LC2 followed Complainant back to his office to ask his question again. On April 19, 2010, the LC2 issued Complainant a Letter of Counseling for "Disrespect towards his first line supervisor" for the incident. The LC2 stated that Complainant's conduct was disrespectful and uncalled for.
Complainant alleged that on April 15, 2010, the COL1 informed him that he could submit a request for overtime compensation. On April 16, 2010, Complainant submitted a request for fifty one (51) hours of overtime pay for work done between March 30, and April 14, 2010. The DPR, who was the approving authority for overtime requests, denied Complainant's request because Complainant had not been directed to work overtime; no one had pre-knowledge that he was working overtime; he could not determine the justification for the overtime; and no one knew what work was done in those 51 hours. On August 19, 2010, the LC2 issued Complainant a Letter of Counseling for "Allegations of uncompensated overtime." In the letter, the LC2 reminded Complainant of the proper procedure to obtain authorization prior to working overtime.
In November 2009, the COL1 and the DPR served as part of a nine-member Pay Pool committee to determine employees' performance ratings. The committee, led by the Deputy Director of Manpower and Personnel (DD), decided that Complainant's 2009 performance was a "3."
In the summer of 2011, another Lieutenant Colonel (LC3) (unknown disability), and another Colonel (COL2) (unknown disability) joined TRANSCOM. In June 2011, Complainant's office relocated to another building. On July 13, 2011, Complainant informed the LC3 that in April 2011, he discovered that a map of the new office contained a notation of "Special Needs office required" next to his name. Complainant stated that while this notation was removed, he had concerns about other copies being available, and that people would assume that he has a mental disability.
On August 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him, and subjected him to a hostile work environment on the bases of disability (Attention Deficit Hyperactivity Disorder (ADHD) with specific learning disabilities), and in reprisal for requesting reasonable accommodations, and filing the instant EEO complaint. Complainant amended his complaint three times and the following claims were accepted for investigation:
1. After a July 10, 2009 meeting with the DPR, he was subject to a series of acts meant to humiliate, degrade, isolate, and intimidate him in front of his coworkers;
2. On April 12, 2010, and other dates, management denied his request for a pay and position description upgrade;
3. On August 5, 2009, the COL1 asked him about his disability in front of others;
4. Management officials refused to meet with him to hold an individualized review, discreetly discuss reasonable accommodations, and engage in a collaborative process concerning his requests for reasonable accommodations;
5. Management officials failed to contact him about his CAS comments regarding individualized reasonable accommodates as to his private office, and the BRAC reorganization;
6. On or about August 7, 2009, he was not selected for the position of Branch Chief of the newly formed Readiness Branch;
7. On or about August 7, 2009, management allegedly failed to reasonably accommodate him concerning specific equipment needs, and BRAC-related office construction accommodations;
8. Management failed to provide him with a required 2010 National Security Personnel System (NSPS) plan and initial review;
9. Management continuously changed his rater/supervisors without filing a "Change of Rater/Supervisors for National Security Personnel System Employees" form;
10. Management shunned him, and did not treat him as part of the GFR Branch; and on April 6, 2010, the LC2 argued that the GFR employees cannot and should not have to help him;
11. On April 8, 2010, and other dates, management required him to perform excessive workloads, another division's work and man-hours without relief of compensation;
12. On April 19, 2010, the LC2 issued him a Letter of Counseling for "Disrespect towards his first line supervisor;"
13. On April 19, 2010, his request for 51 hours of overtime compensation was denied, after the COL1 informed him that he could submit for overtime;
14. On April 19, 2010, the LC2 issued him a Letter of Counseling for "Allegations of uncompensated overtime," for allegedly informing leadership that he was working overtime without compensation; and informing him that prior approval and authorization is required to work overtime.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and requested to amend his complaint to add the following claims:
15. Management allegedly made a disclosure of information about his disability by including a note, "Special Needs Office," on drawings for an office in the new building;
16. After moving to the new building in the summer of 2011, the office originally provided to him did not meet his needs;
17. His 2010 NSPS annual appraisal rating of record was not a "4" or higher; and
18. On or about November 3, 2011, a paralegal released pages from his EEO complaint to management officials.
Complainant subsequently withdrew his hearing request, and consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
As an initial matter, the Agency dismissed two claims. The Agency dismissed claim 18 because it determined that while the AJ accepted it, the claim was not like or related to his other claims since it involved a paralegal, not one of the already named management officials. Additionally, the Agency found that it had improperly accepted Complainant's claim that on April 8, 2010, the COL1 and the LC2 requested that he allow the LT to use his system, and he objected. The Agency found that this failed to state a claim, and that Complainant did not allege any adverse action by a management official.
The Agency then found that claims 1, 2, 3, 5, 6, 9, 10, 11, 13, and 15 did not occur as alleged. For claim 1, Complainant claimed that his work environment changed after the July 10, 2009 meeting, where he "politely questioned" the DPR, who "became angry" and ended the meeting. The DPR stated that Complainant was disrespectful, which led him to terminate the meeting. Additionally, the COL stated that Complainant's conduct during the meeting "was the single most disrespectful act [he had] observed by anyone." Specifically, Complainant rolled his eyes, exhaled loudly, and made comments about the way he would do things. Complainant alleged that following the meeting, the DPR took action to humiliate him by not allowing him to attend follow-up meetings. Additionally, Complainant alleged that the COL announced a new Readiness Branch, which would be led by a military officer to "openly demote" and humiliate him within the organization. In response, the COL stated that he pulled Complainant from the remainder of the briefings to allow him to "cool down." The COL stated that Complainant had also upset another employee on July 9, 2009, and he wanted to prevent another incident. Additionally, a witness (W1) denied hearing the COL1 make an announcement about the creation of a Readiness Branch, and the arrival of a new branch chief.
For claim 2, the COL1 stated that he was informed about a moratorium on desk audits since November 2009, and as such, the Agency found that Complainant's management officials did not deny his request. For claim 3, the Agency found that Complainant's own statement alleging that the COL1 asked him about his EEO complaint, contradicts his claim that the COL1 asked him about his disability. Additionally, W1 and another witness (W2) stated that they did not hear the COL1 ask about, or discuss Complainant's disability or his EEO complaint. For claim 5, the Agency's Director, Equal Opportunity Office (DEOO) stated that upon request from Complainant, she reviewed the comments from the CAS, and did not find any pertaining to reasonable accommodations related to BRAC. The DEOO also informed Complainant that no names, or other identifying information, were attached to the CAS. Additionally, the COL1 stated that the CAS pre-dated his arrival, and that he only had access to the statistics from the survey, and did not see any remarks.
For claim 6, the COL1 stated that while he had a vision to create a Readiness Branch, he did not have the resources to accomplish this, and as such, no Branch Chief position was available. The COL1 stated that the LC1 was brought in to help with the manning issues, but he was not called the Branch Chief. In response to Complainant's claim that he had functioned as the Readiness Branch Chief prior to the LC1's arrival, no one corroborated his assertion. Additionally, there is no evidence that there was a vacant Branch Chief position for which Complainant applied, and then was not selected. For claim 9, the Agency found that the record showed that Complainant had three supervisors during the period in question, and as such, his supervisors did not "continually" change. For claim 10, Complainant provided no evidence showing how management officials "shunned" him. In regards to the LC1's statement at the April 6, 2010 meeting, the LC1 stated that the GFM employees were needed for GFM duties, and that Complainant stated that no one else had the skills to assist him. The COL stated that Complainant accused GFM employees of "sitting around doing nothing with their feet in the air and watching TV."
For claim 11, the LC2 stated that on April 8, 2009, Complainant requested data from LT, who was then unable to get into the system. The LT asked to use Complainant's computer, who denied his request, and the LT emailed the data to Complainant. While the Agency found that Complainant did work beyond his normal work schedule at times, he did not show evidence that his workload was "excessive;" or that his managers required him to perform this work. For claim 13, the Agency found that this incident did not occur as alleged because there was no evidence that the COL1 told Complainant to submit his request for overtime compensation. For claim 15, the Agency found that there was no evidence that Complainant's name was associated with the phrase "Special Needs office" on any of the identified documents.
Reasonable Accommodation
For Complainant's disability discrimination claim, the Agency found that Complainant provided a statement from a doctor noting that he has Attention Deficit Disorder, and requested that he be provided with "suitable occupational accommodations," dated May 31, 2000. Attached to the statement was an excerpt from a book describing ADHD. Additionally, the Agency found that he was able to perform the essential functions of his job without an accommodation, although his accommodations assisted him in performing his duties. As such, the Agency concluded that Complainant was a qualified individual with a disability.
However, the Agency found that his managers were not aware that he was an individual with a disability. While Complainant asserted that his disability was "well documented" by the Agency, he stated that he gave the May 31, 2000 medical document to other named managers, who are not currently involved in the instant case. Additionally, the Agency's program manager for its disability accommodation program searched its records, and found no medical documentation on file for Complainant. His managers stated that they did not learn of his disability until he sent his August 5, 2009 email. While Complainant argues that his accommodations were "overwhelmingly obvious to all," he also admitted that he probably did not tell the COL1 that he had a disability. Complainant also stated that he was "very private" about his disability, and took measures so that others were not aware of his use of the reading software.
In regards to Complainant's allegation that he was discriminated against when the Agency failed to provide him with a reasonable accommodation, the Agency found that he had not proven his claim. For claim 4, in response to Complainant's allegation that the Agency failed to engage in an interactive process, the COL1 stated that he met with Complainant on October 16, 2009, to discuss his accommodations. Complainant stated that he was uncomfortable during the meeting because he came to discuss his work, and "not interact about [his] accommodations." The COL stated that they could meet later to discuss his accommodations, and instructed him to "get on his calendar" for follow-up discussions, which he did not do.
With respect to his requested accommodation, Complainant stated that his scanners had broken in 2007, and that they were not replaced until 2009. Complainant stated that he had to personally order the scanners through the Computer/Electronic Accommodations Program (CAP),2 and that there was a delay in getting them hooked up. In response, the COL1 stated that he did not arrive to TRANSCOM until 2009, and that there was a delay in getting the scanners hooked up because the office was focused on a "high-level, time sensitive and classified operation." The COL1 also stated that Complainant requested to have his other equipment updated; and that he acted in a timely manner to accommodate him. The Agency found that Complainant had not identified any accommodations that were denied to him.
For claim 7, the COL1 stated that on or about August 7, 2009, no decision had been made as to where the division would be relocated since no building had been designated for it. Additionally, the COL1 stated that when he learned of Complainant's disability through his August 5, 2009 email, he reassured Complainant that he would have similar accommodations after the move. The Agency concluded that claim 7 did not occur as alleged.
For claim 16, Complainant alleged that his cubicle in the new office location did not meet his needs. However, when management officials asked Complainant for details of his requests, he claimed that they "relentless[ly] badgered" him, and the COL2 stated that Complainant never provided the list of workspace deficiencies, but only stated that he was promised the same accommodations that he had in his former office. The COL2 also stated that Complainant did not provide medical documentation, which he requested so that "trained professionals" could evaluate Complainant's requests. However, the Agency found that Complainant's managers responded to his requests to modify his workspace, and provided him with his requested furniture, despite the lack of medical documentation to justify his requests. The Agency concluded that Complainant was not discriminated against on the basis of his disability when it failed to provide him with reasonable accommodations because management officials were not aware of his disability until August 2009; the COL1 did engage in an interactive process; Complainant did not provide any medical documentation; and his managers provided Complainant his requested accommodations.
Disparate Treatment
The Agency did not discuss Complainant's prima facie case of discrimination based on disability and reprisal, but found that the managers provided legitimate, non-discriminatory reasons for its actions. For claim 12, the LC2 stated that he counseled Complainant because he initially ignored him, and made physical contact as he walked by. The LC2 stated that when he repeated the question, Complainant "reluctantly" responded. The COL1 stated that this incident reflected the "disrespect he commonly showed towards military officers who are his superior." For claim 14, the LC2 stated that he issued Complainant the counseling letter because he never discussed his overtime request with his managers prior to submitting it. The LC2 stated that the counseling was to inform Complainant that he could not work overtime on his own accord, and then expect compensation.
For claim 17, the COL1 stated that he supported Complainant receiving a "4" rating, but that the Pay Pool ultimately decided to give Complainant a "3." The DPR stated that the Pay Pool took into consideration the fact that Complainant's annual pay increased, which raised expectations of his performance, and the nine members of the Pay Pool unanimously agreed to give Complainant a "3."
The Agency found that Complainant had not shown that the proffered reasons were pretext for discrimination. For claim 12, while Complainant alleged that the LC2 "provoked" him, and that he did not believe that he made physical contact with the LC2, he did not deny that he initially ignored the LC2, and that the LC2 followed him back to his office. For claim 14, Complainant claimed that another employee routinely worked overtime without prior approval and was still compensated; however, he did not provide any corroborating testimony. For claim 17, Complainant alleged that the COL1 had "recklessly exposed" his prior EEO activity to the Pay Pool members prior to their deliberations. However, the Agency found that there was no evidence to support Complainant's assertion.
Hostile Work Environment
In regards to Complainant's allegation that he was subjected to a hostile work environment, the Agency found that claims 8, 12, 14, and 17 did not occur because of his protected bases, and that even assuming so, the incidents were not sufficiently severe or pervasive to unreasonably interfere with his work performance or create an intimidating, hostile or offensive work environment. As such, the Agency found that Complainant had not shown that he was subjected to a hostile work environment based on disability and in reprisal for protected EEO activity.
Complainant filed the instant appeal, but did not submit a brief in support of his appeal. The Agency filed its opposition brief on April 18, 2014,3 requesting that the Commission affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant did not contest the Agency's dismissal of the two claims on appeal; as such, we AFFIRM their dismissal and will not address these issues further in this decision.
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
Assuming, arguendo, that Complainant is a qualified individual with a disability, we note that an individual is not entitled to reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012). In claim 16, Complainant stated that he was not accommodated in his new office space. The COL2 and the LC3 requested that Complainant provide a list of his requested accommodations, and documentation to support his request for reasonable accommodation. On July 21, 2011, Complainant replied that he believed it was "inappropriate and unlawful" to request additional medical documentation. Despite the lack of medical documentation, however, the record shows that the Agency acted to provide his requested accommodations, and Complainant has not shown that the Agency denied him any accommodation. For claim 7, the record does not show that Complainant requested that the Agency replace his broken scanners as an accommodation. Complainant stated that there was no process by which he could request an accommodation, and that he placed his request for replacement scanners through CAP in August 2009. Additionally, the COL1 provided Complainant's requested updated equipment in 2009. As such, we find that the Agency did not discriminate against Complainant because he did not provide the reasonable documentation requested by the Agency, and he has not shown that he was denied any accommodation.
In regards to Complainant's contention that management officials did not engage in the interactive process in claims 4 and 5, we find that Complainant has not established this assertion. For claim 4, the record shows that the COL1 made attempts to discuss Complainant's reasonable accommodation requests, and that Complainant was the one who did not engage in the discussion. The COL1 stated that after Complainant did not schedule appointments for further discussions, he went to Complainant on four different occasions to follow-up. We note that Complainant's discussions with the COL1 regarding his reasonable accommodation is inconsistent with his assertion, noted above, that there was no process by which he could request accommodations. For claim 5, we find that Complainant has not shown that the management officials were aware of his comments made in the CAS. The DEOO stated that she reviewed the CAS, and did not see the comments Complainant allegedly made in his CAS. Additionally, the COL1 stated that the Division Chief would have only seen the statistical data from the CAS, and even if Complainant had put his name on his CAS, it would have been removed before any comments are shared due to the anonymous nature of the survey. Accordingly, we find that Complainant has not shown that the management officials discriminated against him based on disability when they failed to engage in an interactive process.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on disability, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 1, the COL1 stated that he did not allow Complainant to attend the additional briefings to allow Complainant a chance to cool off. He stated that he was trying to protect Complainant from causing another incident in front of senior leaders. Additionally, W1 stated that she did not hear the COL1 announce a Readiness Branch with a new military Branch Chief on July 13, 2009.
For claim 2, the COL1 stated that there was a moratorium on desk audits since November 2009, but that he planned to conduct one, once the moratorium was lifted. In regards to claim 3, the COL1 denied making any comments about Complainant's disability, and W2 stated that he did not overhear the COL1 making such statements. For claim 6, the DPR stated that there was no Readiness Branch, and that there was no Branch Chief position for which Complainant was not selected. The COL1 stated that while he had plans to establish a Readiness branch, it did not occur, and as such, no Branch Chief position was created. The COL1 also stated that the LC1 was not called the Branch Chief.
For claim 8, the LC1 stated that he did not issue Complainant his 2010 performance plan because he was informed to hold off because the Agency was transitioning to the GS schedule, and they were unsure when that would be completed. The LC2 then became Complainant's supervisor, who stated in his EEO affidavit that it was almost completed.4
For claim 9, the COL1 stated that Complainant only had three different supervisors. While Complainant named six different individuals as his supervisor, we find that the record shows that his supervisors were not "continuously changed," since they were changed only twice during this time period. With respect to claim 10, the COL1 stated that he asked the LC2 if his employees could assist Complainant, to which he agreed. However, the COL1 stated that he felt that Complainant was not always willing to share his duties with others. The LC2 stated that the GFM employee did not have the training or experience that Complainant said was required for assisting Readiness.
In regards to claim 11, the LC2 stated that when the LT requested to use Complainant's computer, Complainant accused the LT of being incompetent, and told him to contact the help desk. The COL1 stated that he offered to input the data, but that Complainant stated that he would do it. For claim 12, the LC2 stated that he issued the counseling letter because Complainant's actions were disrespectful and unprofessional. The LC2 stated that Complainant initially ignored him, and "reluctantly" answered him; and that it was a simple "yes," or "no" question that would not have taken any time to answer.
For claim 13, the DPR stated that he denied Complainant's request for overtime because it was not authorized by any leader, and that no one knew what Complainant did for those hours. In response to claim 14, the LC2 stated that he counseled Complainant to inform him that he needs to obtain approval for overtime hours prior to requesting compensation.
For claim 15, the LC3 stated that the documents with the notation of "Special Needs Office," had the term in numerous locations, and that it is hard to determine which individuals required special attention since it did not specify Complainant's name. The LC3 stated that the term was used as a visual aid to help the contractors in the design of the work area layout. He also stated that he apologized to Complainant, who felt offended by the term; and made efforts to remove and delete all the copies that contained the term.
In regards to claim 17, the DPR stated that only he and the COL1 were aware of Complainant's protected EEO activity. The DD stated that at no time was there any mention of Complainant's disability, requests for reasonable accommodation, or his EEO complaint. The DPR stated that the Pay Pool members decided Complainant's performance rating was a "Meeting, Not Exceeding His Objectives," which is a "3." The DPR also stated that Complainant had received a salary increase of over $7,000 the previous year, and that the leadership expected higher performance consistent with a higher salary. The COL1 stated that while he initially thought that Complainant should have been rated a "4," the Pay Pool gave him a fair assessment. The COL1 also stated that he agreed that Complainant was working at the level required for his new salary, and not exceeding it.
In response to the managers' proffered reasons, we find that Complainant made bare assertions that the managers were not truthful, and discriminated against him based on his disability, and in reprisal for his protected EEO activity, we find that Complainant's assertions are insufficient to prove pretext or to establish that the Agency officials' actions were discriminatory. Accordingly, we find that Complainant has not shown that he was discriminated against based on disability, or in reprisal for protected EEO activity.
Harassment
As discussed above, we found that Complainant has not shown that he was discriminated against based on disability, or in reprisal for protected EEO activity for claims. As such, we find that since Complainant did not establish that any of these actions taken by the Agency were motivated by his protected bases, his claim of harassment is precluded. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
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 the Agency discriminated against, or subjected him to a hostile work environment based on disability, and in reprisal for protected EEO activity.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 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
_8/19/16_________________
Date
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.
2 CAP is a centrally funded reasonable accommodations program for employees with disabilities administered by the Department of Defense.
3 The Agency received an extension to file its brief with a deadline of February 19, 2014.
4 The LC2 signed his affidavit on May 14, 2010.
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