[Redacted], Albert D., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021004097 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Albert D.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021004097 Hearing No. 570-2019-01150X Agency No. HUD-00089-2018 DECISION On June 25, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Engineer, GS- 0801-13, at the Agency’s Office of Public and Indian Housing Real Estate Assessment Center (REAC), located in Washington, DC. Complainant was hired under Vacancy Announcement Number 17-HUD-791. He began working with the Agency on December 24, 2017. Complainant was provided with his Construction Analysis GS-13 Performance plan on February 7, 2018. 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. 2021004097 2 To become certified, he had to complete training lessons and inspections. During the relevant time, Complainant’s first level supervisor was a Supervisory General Engineer (S1). Complainant’s second level supervisor was a Supervisory General Engineer (S2). Complainant’s third level supervisor was a Program Manager (S3). On May 9, 2019, Complainant filed an EEO complaint which was subsequently amended alleging that the Agency discriminated against him on the bases of race (Arab), national origin (Arab/Palestinian), religion (Islam), and disability (injured foot, bad back, obesity, carpal tunnel) when he was subjected to a hostile work environment consisting of the following events: 1. On March 29, 2018, an employee injured him when he slammed a door on Complainant’s foot; 2. On March 29, 2018, an employee spoke to him in a disrespectful and demeaning manner, and referred to him using a vulgar and graphic sexual term; 3. On March 29, 2018, Complainant’s management did not address his complaint of aggressive and disrespectful behavior by an employee; 4. On an unspecified date, management refused to engage in the interactive process to provide an effective reasonable accommodation for the injury he sustained during an inspection; 5. On April 2, 2018, management questioned the validity of his medical documentation; 6. On an unspecified date, management delayed the processing of his workers’ compensation claim; 7. On April 2, 2018, management continued to schedule him for inspections instead of providing him a reasonable accommodation; 8. In April 2018, management instructed him to use annual leave if he was not scheduled to conduct inspections; and 9. On May 8, 2018, and thereafter, Complainant was denied a religious accommodation when management refused to approve his leave. Complainant alleged that he was subjected to discrimination and a hostile work environment based on reprisal for his current EEO activity when: 10. On June 25, 2018, Complainant received a Notice of Opportunity to Improve Performance (OIP); 11. During his employment, Complainant only performed REAC Inspector duties, despite being hired as an Engineer; 12. In March and April 2018, management required Complainant to falsify his timecard and violate leave procedures by directing him to submit his leave request in WebTA for leave that was not the leave earned from the particular category; 13. Via email in April 2018, management required him to obtain liability insurance to cover the cost for damage occurred when he broke a resident’s flat screen television due to his injured foot; 2021004097 3 14. On July 5, 2018, he was provided with an open package addressed to him that was received in the office March 2018, which contained sensitive personal information for which Complainant was held accountable; 15. On July 5, 2018, Complainant was directed to cancel his travel for mandatory training in Chicago; 16. In May 2018, management denied his request for annual leave; 17. On July 23, 2018, Complainant became aware that he was being placed under close monitoring inside the REAC office; 18. On July 30, 2018, a coworker addressed Complainant in a disrespectful tone with profanity and directed him to keep his issues away from the office and refrain from bothering his coworker; 19. On unspecified dates, he was forced to use his sick leave because of severe back pain endured during long walking distances; 20. On an unspecified date, Complainant became aware that his government credit card was suspended for unpaid vouchers; 21. On unspecified dates, Complainant’s travel vouchers were scrutinized by management; 22. On unspecified dates, Complainant was not entitled to travel on TDY (temporary duty) or local travel, or travel compensatory/credit hours for the extra hours worked, unlike his colleagues; 23. On August 27, 2018, Complainant received a “Notice of Opportunity to Improve Performance Evaluation and Proposed Removal for Unacceptable Performance;” and 24. Since August and September 2018, he was not paid for travel which was pending on his government travel credit card.” 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 requested a hearing. The record contains the AJ’s Case Management Order dated May 26, 2020, in which the AJ listed the bases of Complainant’s complaint to include race, national origin, religion, age, and disability and 24 alleged incidents. The AJ noted that there had been dismissals; however, Complainant did not file a comment on the Agency’s dismissals prior to the initial conference. The AJ also noted there were no proposed amendments or consolidations. Subsequently, the Agency filed a motion for summary judgment noting the parties agreed the claims before the AJ consisted of a claim that Complainant was subjected to discrimination based on his race, religion, national origin, age, and disability when he was subjected to a hostile work environment consisting of the 24 alleged incidents. In response to the Agency’s motion for summary judgment, Complainant included a statement of issues identifying his complaint as alleging that he was subjected to discrimination based on his race, religion, national origin, age, and disability when he was subjected to a hostile work environment. 2021004097 4 However, in his argument, he claimed that he was subjected to a pattern of harassment and retaliation after he made EEO contact in the current complaint. Specifically, he stated that he filed a formal complaint on May 9, 2018, at which point his supervisory chain was made aware of his complaint by the EEO Counselor. Complainant claimed that S1 treated him worse after his complaint was filed. He alleged that following the filing of his complaint, S1 wrongfully provided him with an OIP, on July 5, 2018, he was provided an open package which contained confidential information, S1 canceled his travel plans on July 5, 2018, and on July 23, 2018, he became aware he was being placed under close monitoring. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on May 24, 2021. The AJ found Complainant failed to show that he was subjected to discrimination based on his race, religion, national origin, age, and disability when he was subjected to a hostile work environment regarding the 24 alleged incidents. The AJ noted that aside from his unsubstantiated claims of discrimination, he failed to present evidence to link his protected categories to the Agency’s actions. The AJ noted the crux of his complaint is the Agency’s failure to accommodate him after he sustained a workplace injury to his foot. Complainant alleged that a coworker deliberately injured him during a housing inspection and subsequently used vulgar language in the workplace. The AJ noted there was no dispute that management investigated his claims and obtained witness statements regarding the incidents in question. No witness statement corroborated Complainant’s version of events and no witness statements reported any inappropriate activity. Nevertheless, management never assigned Complainant to work with the coworker subsequent to the incidents. Regarding the claim of reasonable accommodation, the AJ noted the record contained no indication that Complainant submitted sufficient medical documentation detailing his need for accommodation. Thus, the AJ granted summary judgment in favor of the Agency. The Agency subsequently issued a final order on May 28, 2021. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant argues the AJ erred in finding he had not proffered sufficient evidence proving that a genuine dispute of material facts. He claims he was subjected to a pattern of harassment based on his work-related injury and when he requested reasonable accommodation, and that the Agency retaliated against him by denying his leave requests, training requests, and improperly rating his work performance. Complainant notes he proved he fractured his foot and provided sufficient medical evidence that a doctor stated the Agency should place him on sedentary/light duty and limit his standing and walking until he fully recovered. He notes that under EEO case law, a visible injury or disability may not need medical documentation in order to grant the accommodation request. Further, he states the AJ overlooked a witness affidavit noting that S1 previously engaged in discriminatory behavior and had made discriminatory comments in the workplace. 2021004097 5 In response to Complainant’s appeal, the Agency argues Complainant did not submit sufficient medical documentation that detailed his need for accommodation. The Agency notes that no documentation has corroborated that Complainant sustained an injury to his foot as disabling as alleged in his complaint. The Agency cites to the record showing Complainant’s supervisors requested he provide clarifying medical documentation and repeatedly notified him that he could request a reasonable accommodation, if one was needed. The Agency notes Complainant did not submit a reasonable accommodation request. Further, the Agency states Complainant was not subjected to a hostile work environment. Finally, the Agency argues Complainant has not established that he was subjected to retaliation. The Agency claims his retaliation argument is conclusory and mistakenly characterizes the actions taken by his supervisory chain of command as retaliatory when the record is clear that there were legitimate, nondiscriminatory reasons for the actions. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that summary judgment was appropriate. We find that the record is adequately developed and there are no disputes of material fact. At the outset, we note the AJ’s decision did not address retaliation as a basis. The record shows that Complainant amended his complaint to add retaliation to incidents 10-24 and that the Agency accepted this amendment. 2021004097 6 Further, the report of investigation reveals that retaliation was investigated in connection with incidents 10-24. We also note that the Agency argues on appeal that it did not retaliate against Complainant. To the extent the AJ failed to address retaliation, we find this constitutes harmless error and we consider the basis of retaliation for claims 10-24 in our decision. Further, we address Complainant’s contention that the AJ failed to consider the affidavit of Coworker 3. The record contains a July 7, 2020 affidavit from Coworker 3 identifying his race as Caucasian and noting that he was a former employee of the Agency. In his affidavit, Coworker 3 stated he witnessed Complainant being subjected to harassment or discrimination. However, we also note that Coworker 3 previously provided a statement dated February 17, 2019, included in the report of investigation, in which he stated that he never met Complainant and had only spoken to Complainant a few times over the phone. In our review, we consider both of the statements provided by Coworker 3 in reaching this decision. Upon review, we note that incidents 1 - 3 involve the interaction between Complainant and a coworker on March 29, 2018, and management’s reactions to that interaction. Specifically, Complainant attended an inspection with a Senior Quality Assurance inspector (Coworker 1) from March 27-29, 2018. Complainant claimed that on March 29, 2018, Coworker 1 intentionally slammed a door on his left foot. Complainant also claimed that on March 29, 2018, Coworker 1 spoke to him in a disrespectful manner. Specifically, Complainant claimed that Coworker 1 and Complainant were discussing roofing and in front of the maintenance crew and site manager, Coworker 1 stated in a loud voice, “your ass is sensitive and it is more sensitive than this surface.” Complainant reported these incidents to S1. Despite Complainant’s contention that S1 did not address his complaint of aggressive and disrespectful behavior by Coworker 1, the record reveals S1 spoke with Coworker 1 who denied the allegation. S1 also received a written statement from witnesses contradicting Complainant’s allegations. Nevertheless, S1 never scheduled the two together on future inspections and the incident was determined to be an accident. Complainant failed to show that the actions were motivated by discriminatory animus. Next, we address Complainant’s reasonable accommodation claims (incidents 4 and 7). Complainant claimed that he sent reasonable accommodation requests on April 2, and 12, 2018, and on May 10, 2018, but that REAC management refused to use the letter from the hospital and the letter from the doctor. The record reveals Complainant submitted a report from the hospital noting he had a possible fracture of his toe, noting no broken bones, and stating it may take a few weeks to heal. The general instructions stated if walking caused pain, then Complainant should stay off the injured leg until he was able to walk without pain. Further, the doctor provided a note dated April 24, 2018, stating that Complainant could resume limited duties on (date left blank) with the following restrictions: sedentary/light work only and indicating limited walking/standing. Further, in a summary of the April 24, 2018, visit, the doctor noted that Complainant had a fracture of his toe and listed light duty standing and walking/sedentary. It was noted that maximum medical improvement was expected August 1, 2018. 2021004097 7 S1 stated that he was not aware the information provided by Complainant equated to a reasonable accommodation request. Specifically, S1 noted that Complainant informed him of his medical condition on April 2, but Complainant decided on that day to travel. Further, S1 noted that Complainant decided to travel to his training the weeks of April 9, April 16, April 30, May 14, May 30, August 6, and September 3. He noted Complainant had approved Workers’ Compensation for the week of April 23, and May 7, and was on leave from June 4 - June 25, 2018. He also noted that Complainant was on leave and “admin” for the weeks of 6/25, 7/2, 7/9, 7/16, 7/23, 7/30, 8/13, 8/20, 8/27, 9/10, and 9/17. S1 noted Complainant did not communicate with him either verbally or in writing what kind of accommodation he was requesting. S1 noted that he repeatedly asked Complainant (both verbally and in writing) to provide him an assessment from the doctor on his specific limitations/restrictions so that S1 could make adjustments to his assignments. S1 noted Complainant never provided a list of the specific limitations/restrictions. As late as July 31, 2018, S1 informed Complainant that if he was requesting reasonable accommodation, he should have his doctor provide details of his limitation (how many pounds he can lift, how long he can sit/stand/walk/drive/fly). Complainant failed to provide the requested information. In the present case, we find it undisputed that Complainant suffered an injury to his foot on March 29, 2018, and that management knew of the injury2; however, we find the AJ properly determined Complainant failed to provide the requested additional documentation outlining medically imposed limitations for his purported disability.3 Regarding issue 5, Complainant claimed that on April 2, 2018, management questioned the validity of his medical documentation when S1 stated the medical report did not mention bone fracture and used a disrespectful tone. S1 stated that he did not question the validity of Complainant’s medical documentation. He stated that he only requested Complainant provide him with a medical report of his injury on April 2, 2018, which Complainant provided to him later that day. The record contains Complainant’s April 2, 2018 email in which Complainant informed S1 that he went to the hospital over the weekend for the injury to his foot. Complainant stated that it was found he had a bone fracture in his left foot. Complainant noted he could walk very slowly due to the injury. S1 responded by stating, “Please provide me the medical evaluation from the doctor. I need that for my record.” In an email later that same day, Complainant sent the hospital report. Thus, despite Complainant’s contention, there is no indication that on April 2, 2018, S1 questioned the validity of Complainant’s medical documentation; rather, the record reveals that when Complainant did not include the hospital report, S1 asked for a copy. 2 Although Complainant identified other claimed disabilities in his affidavit, the only disability he claims to have requested a reasonable accommodation for is his injured foot. 3 In reaching our decision, we consider the additional medical documentation Complainant submitted in response to the Agency’s discovery request, including Doctor’s Addenda to the April 24, 2018 medical assessment and the August 3, 2018 report from Progressive Radiology. 2021004097 8 Regarding issue 6, Complainant alleged that management delayed the processing of his Workers’ Compensation claim. Specifically, he said that S1 caused the delays. Further, he said S1 would accuse him of not being responsive and replying back to his requests on time. S1 denied delaying Complainant’s Workers’ Compensation claim. Rather, he noted that he spoke to Complainant on April 4, 2018, and told him about his right to file for Workers’ Compensation and forwarded him the forms and information about the contact person to file a claim. S1 explained he completed his part of the form on April 16 and immediately returned the form back to Workers’ Compensation. S1 noted that he received an email from the Workers’ Compensation Specialist dated April 24, 2018, asking Complainant to provide additional clarification on restrictions/limitations. S1 stated he did not know if Complainant provided the additional clarifications and whether that caused a delay or not. S1 noted that on May 18, 2018, Complainant sent him an email and said a specific part of the CA-17 required S1’s signature. S1 explained that after consulting with the Workers’ Compensation Specialist, he was told that he did not need to fill out that section. S1 stated that Complainant did not provide a response after he informed Complainant that the Workers’ Compensation Specialist said the Agency did not need to complete Side 1 of the Form CA-17. Regarding claim 8, Complainant claimed that management instructed him to use annual leave if he was not scheduled to conduct inspections. S1 denied instructing Complainant to take annual leave if he was not scheduled to conduct an inspection. S1 stated that all quality assurance staff have an assignment every week, except staff who have scheduled leave. S1 noted that staff are either assigned to conduct inspections, special assignments, or other administrative activities. S1 stated that he sent Complainant emails dated May 1, 2018 and May 8, 2018, informing him that he never asked staff to take leave if they had no scheduled assignment. Regarding claim 9, Complainant alleged that on May 8, 2018, and after, he was denied a religious accommodation when management refused to approve his leave. S1 stated he did not deny Complainant’s request for religious accommodation. S1 noted that prior to May 15, 2018, Complainant had not informed him the request was related to religious accommodation. Once he received notice it was a religious accommodation, S1 stated he immediately informed Complainant on May 16, 2018, that he would approve the requested 160 hours. S1 stated Complainant re-submitted his leave request for 80 hours on May 20, 2018, which was approved on May 21, 2018. S1 then sent Complainant a follow-up email on May 20, 2018, noting that he only requested 80 hours instead of 160 hours. Complainant then submitted another request for 40 hours of leave, which was also approved. S1 noted that when Complainant submitted his original request for 160 hours of leave on May 8, 2018, he stated it was leave for a personal matter and he stated he needed to take care of his family but did not provide details. S1 stated there was no refusal of a religious accommodation request. Rather, he noted as soon as it was indicated the request was for a religious accommodation, it was granted. Upon review, we find Complainant failed to establish that he was denied religious accommodation as alleged. Regarding claim 10, on June 25, 2018, Complainant received an OIP. S1 noted the OIP was issued due to Complainant’s poor performance. Specifically, S1 noted Complainant failed to demonstrate the ability to independently conduct a full inspection. 2021004097 9 S1 noted Complainant was provided nine training inspection opportunities and all of them indicated he lacked the skills and knowledge of the REAC inspection definitions and protocols. Further, S1 noted that as part of the certification process, Complainant was assigned to conduct two Phase II inspections, both of which resulted in unsatisfactory evaluations. The record contains the trip reports indicating, in part, that Complainant showed a lack of concentration, fell asleep one time on the job, was not prepared for training, did not use his computer and software properly, and failed to correctly record or miscategorized a large number of inspection defects. Regarding claim 11, Complainant claimed that he only performed REAC Inspector duties, despite being hired as an Engineer. S1 noted that the Job Announcement stated that complete comprehensive site inspections and evaluations of contract inspectors using the Agency’s Uniform Physical Condition Standards (UPCS) protocol was one of the major responsibilities. S1 explained that Complainant had to complete all training first so he could then independently conduct comprehensive site inspection and evaluate contract inspectors. Regarding claim 12, Complainant stated that in March and April 2018, management required him to falsify his timecard by directing him to submit his leave requests in WebTA for leave that was not the leave earned from that particular category. Complainant stated that S1 told him that he was given Friday as a travel administrative day but that this was incorrect because Complainant stated he traveled on Friday, arrived after 4:00 pm and continued to work over the weekend. S1 denied directing Complainant to submit his leave requests in WebTA for leave that was not the leave earned for that particular category. In addition, S1 stated that he never instructed Complainant to change leave that was not leave earned for a particular category. Further, S1 noted that Complainant never made him aware of any error on his WebTA. Moreover, S1 stated he never told Complainant that Friday was a travel administrative day because the day varied every week. S1 noted that any staff that exceeded his eight-hour regular duty hours could request travel compensatory time or credit hours. He also stated that staff can request “time extension” for administrative duties. S1 stated Complainant was never required to work on weekends, including submitting vouchers and WRT (Weekly Reporting Tool). Regarding claim 13, Complainant claimed that in April 2018, management required him to obtain liability insurance to cover the cost for damages occurred when he broke a resident’s television. Complainant stated when he was working with his injured foot, he tripped and broke a television. He claimed when he emailed S1 for support, S1 replied that he was supposed to have liability insurance to protect himself. Complainant stated he replied back that he did not know that federal employees were required to carry liability insurance. S1 denied requiring Complainant to obtain liability insurance to cover the damage to the television. He said he did not ask Complainant to obtain liability insurance and was only asking if Complainant had liability insurance. S1 stated before he was able to consult with upper management to see how they would handle the situation, Complainant’s trainer informed S1 that the property manager had resolved the issue with the tenant. S1 stated as the situation was settled, he did not take further action with the matter. The record contains the emails in question, in which Complainant informed S1 of the damage to the television. 2021004097 10 In response, S1 asked whether Complainant had professional liability insurance and advised they negotiate with the tenant to see the reasonable replacement cost. S1 informed Complainant that they did not have a policy to pay for the damage caused by staff but advised Complainant to find out what the tenant wanted and to let management know of their decision. Thus, despite Complainant’s contention, we find he was not required to obtain liability insurance as alleged. Regarding claim 14, Complainant claimed that on July 5, 2018, S3 approached him and threw documents at him and said he should review them because some could belong to Complainant. Complainant reviewed the documents and discovered two envelopes that had arrived in the office in March 2018, which contained sensitive personal information. S3 noted that Complainant had not been in the office for an extended period to time and while Complainant had been out, his mail was sent to REAC HQ. S3 stated when Complainant’s mail was received there, it was placed in a pile on a desk. S3 said that when Complainant was in the office, S3 saw the pile of mail on the desk and handed it to him. S3 recalled Complainant asking why the package was open, and that S3 stated he told Complainant he did not know, and Complainant turned around and left his site. For purposes of this decision, we assume that S3 threw the documents as described by Complainant. We note, however, that Complainant did not identify any other purported physical or threatening incidents. Further, we note Complainant did not show that the incident was due to any of his protected bases. Regarding claim 15, Complainant claimed that on July 5, 2018, he was directed to cancel his travel for mandatory training in Chicago. Complainant stated that he set up his reservations to attend the training in May 2018, per the direction of S2. However, he stated that S1 told him, per the direction of S3, to cancel his reservation. S1 noted he made the decision and asked Complainant to cancel his All-Hands training in Chicago, but that he provided Complainant a summary of the items discussed and the training materials from the event. S1 stated the decision was made after consulting with upper management and the Employee Labor Relations Specialist because Complainant failed to adhere to the training schedule as outlined on his OIP. S1 noted per the OIP, Complainant was to complete his on-line training by July 6, 2018, and travel to Chicago on July 9, 2018, for the All-Hands training. However, Complainant did not complete his on-line training until July 25, 2018. S2 noted that Complainant was instructed to cancel the trip because he was not able to finish his online training prior to the event as he was instructed to do in his OIP. S2 noted Complainant was given two weeks to complete the online training so he could attend the event in Chicago, but he was not able to do so. S2 stated he should have been able to complete it in one week or two at the most. S3 noted he, in consultation with S1 and S2, felt Complainant would benefit more from having additional time to concentrate on passing his on-line UPCS mandatory training. Regarding claim 16, Complainant claimed that in a reply email in May 2018, S1 denied his request for annual leave. We distinguish this incident from our above discussion of claim 9 (concerning the denial of religious accommodation). The record reveals that on April 30, 2018, Complainant requested 160 hours of annual leave “for personal and family related issues.” S1 noted that he originally informed Complainant that he did not have sufficient leave to cover that request. 2021004097 11 Then on May 2, 2018, Complainant stated that leave from his prior employer had been credited to his account. S1 noted that Complainant informed him that his 160-hour leave request was for a personal matter and that he needed to take care of a family matter, but Complainant did not inform him of the details. S1 had reservations about the amount of leave due to the reports from all the trainers that Complainant had a major lack of understanding of the inspection software and protocols. S1 explained he had great concern Complainant’s leave request would delay his learning/training progress. S1 noted that after consulting with upper management, he asked Complainant to reduce his leave request to one or two weeks only. Complainant refused to reduce the amount of leave requested. S1 stated on May 8, 2018, he denied the request due to concerns that such a large amount of leave would negatively impact Complainant’s training. Regarding claim 17, Complainant claimed that on July 23, 2018, he witnessed a verbal discussion between S2 and S3 with another manager in which they stated that they needed to keep Complainant close to watch him and added that this was to make sure whether he was actually working. Complainant stated that they laughed at his situation and claimed that they had supported him and helped him with his foot injury. S3 stated that he was not involved in any discussion with S2 or anybody else about keeping Complainant under close monitoring inside the REAC office. S2 stated there was no such thing as “close monitoring,” but that he presumed Complainant was talking about coming into the office to complete his online training that took over 15 weeks versus the normal one to two weeks it usually does. S2 explained that initially Complainant was permitted to take online training at home like everyone else. However, when they found out that Complainant had not logged into the system for multiple days and had no other official work assignments, they questioned him and he offered various excuses and then offered to take leave. S2 stated that they did not have him take leave and instead told him to just come into the office to receive the proper support and equipment. S2 noted that Complainant stated while at home he had “technical difficulties” and a lack of response from people that could assist him thus, they told him to come into the office every day until he finished the training. S2 noted during this time Complainant failed the test multiple times and then when in the field, he could not stay focused enough to learn. Regarding claim 18, Complainant claimed that on July 30, 2018, a Construction Analyst (Coworker 2) addressed him in a disrespectful tone with profanity and directed him to keep his issues away from the office and refrain from bothering other coworkers. Coworker 2 denied speaking to Complainant in an aggressive or disrespectful manner. Coworker 2 noted while on detail on July 30, 2018, Complainant told two other individuals that he felt management was messing with him because of the injury to his foot. Coworker 2 stated she told Complainant that she did not want to hear about it and reminded him here were two sides to every story and told him not to involve the two individuals. Regarding claim 19, Complainant claimed that he was forced to use sick leave because of severe back pain experienced as a result of walking long distances. Specifically, Complainant identified S1 and S3 as directing him to use sick leave for his Workers’ Compensation appointment and medical needs. S1 stated he never forced Complainant to use sick leave. S1 stated he was not aware of the exact date and time of Complainant’s Workers’ Compensation appointments. 2021004097 12 He noted that Complainant never communicated that he needed administrative time or for how long such appointments were. S1 acknowledged that Complainant informed him that he felt pain due to walking and that is why S1 suggested he take medical leave or other leave to care for his medical condition. S1 noted he also asked Complainant to provide him with a list of the limitations/restrictions from his doctor so that he can make a decision on how to accommodate Complainant; however, Complainant never provided that list. Regarding claim 20, Complainant claimed that while he was on sick leave, he became aware that his government credit card was suspended for unpaid vouchers. Complainant identified S1 and S3 as the responsible management officials with regard to this incident. Complainant stated he learned on August 10, 2018, his government credit card was suspended, when he stated he needed to setup travel plans for August 29, 2018. Complainant explained his government credit card was charged after S1 directed him to cancel his travel authorization for the Chicago meeting in July. Complainant noted the hotel charged him and there were pending charges that were never paid by the approving official, S1, for travel agents fees and tolls. S1 stated he did not make any decision to suspend Complainant’s government credit card. He noted Complainant’s government credit card was suspended due to delinquency of nonpayment to the credit card company. S1 stated Complainant failed to submit his vouchers in a timely manner. S1 noted Complainant also disputed some charges on the credit card. S1 stated that because Complainant delayed submitting his voucher, reimbursement of his travel expenses was not approved on time, and the credit card company decided to suspend the credit card. S1 stated that he assisted Complainant in processing his voucher and getting it resolved before his travel. The record contains emails confirming S1’s efforts to get Complainant’s credit card reinstated. The record shows that by August 30, 2018, Complainant’s government credit card was active. Thereafter, S1 directed him to proceed with making travel arrangements in September 2018. S3 denied making the decision to suspend Complainant’s government credit card. S3 noted that only the credit card company can do that for nonpayment. S3 noted the policy for vouchers is that they have to be submitted within five days of the completion of a trip. He noted that vouchers have to be accurate and have all supporting receipts submitted or they will be returned for correction. S3 notes this happened to Complainant numerous times. S3 stated that it is entirely Complainant’s fault for not submitting accurate vouchers and proper documentation for his trips. Regarding claim 21, Complainant claimed that his travel vouchers are now scrutinized by management. Complainant claimed that S1 always scrutinized his travel vouchers and made false allegations that Complainant paid more than 10% for tips for Uber taxi services. Complainant stated that was not true since he does not pay tips. Complainant also claimed that S1 would not approve charges for highway tolls, hotel charges, and travel agent fees. S1 denied Complainant’s allegations. S1 noted that all travel vouchers go through the same review process. S1 noted he did not disapprove Complainant’s highway tolls, hotel charges, or travel agent fees. S1 explained that he requested Complainant make corrections or provide justifications for charges. 2021004097 13 For the hotel charge, S1 noted that Complainant was disputing the charge with the credit card company/hotel. For the travel agent fee, S1 noted that Complainant stated he had no knowledge of the travel agent fee. S1 stated that he therefore asked Complainant to consult with the travel agent to provide the receipt to justify all the travel fee expenses or provide a justification or ask the travel agent to make a correction. S1 stated that if Complainant obtained the receipt, he could amend/resubmit his voucher. S1 noted that Complainant did correct the toll amount, resubmitted the voucher, and the voucher was approved. S1 noted that Complainant stated he would call the travel agency for clarification and would dispute the hotel charge with the credit card company/hotel. Regarding claim 22, Complainant claimed that he was told he was not entitled to travel on TDY or local travel, or travel comp/credit hours for the extra hours worked, unlike his colleagues. Complainant stated that S1 instructed that inspectors were only allowed to have travel and/or credit hours if they worked over eight hours in a day and the request needed to be made for approval. Complainant stated he requested travel compensatory hours for being stuck at the airport and that S1 told him that he was given Friday as an administrative day and he could use that day in return. Complainant stated that he told S1 that when he arrived it was already past 7:00 pm and that S1 replied he needed to submit his travel for the following week, submit his timecard, submit his travel voucher, and submit the weekly report on the weekend. Further, Complainant noted that he requested to travel TDY or local travel to and from the office to where he lived and REAC management replied that he was hired to work at the REAC Washington, DC office. Complainant noted that initially he was allowed to work from home and that he was informed he would be on 100% travel and he said he could travel from his home directly to the airport. S3 also noted that the job announcement indicated that travel was 75% or greater and that 100% travel may be required. He stated that Complainant was treated the same as everyone else with regard to TDY, local travel, and credit/comp time. S1stated that he did not make the decision that Complainant was not entitled to travel on TDY or local travel, and/or travel/credit hours. S1 noted that Complainant was told that he could submit a request for March 28, 2018, and on May 23, 2018, to earn travel compensatory time or credit hours. S1 stated staff are allowed to earn travel compensatory time or credit hours if they work past their duty hours. S1 noted that the job listing, for which Complainant was hired, included the duty station as Washington, DC. S1 noted the job announcement specified that travel could be up to 100%. Regarding claim 23, Complainant claimed that on August 27, 2018, he received a “Notice of Opportunity to Improve Performance Evaluation and a Proposed Removal for Unacceptable Performance” (Proposed Removal). Complainant claimed that S1 never discussed performance with him prior to the OIP or after the OIP issues with his performance and was acting based on revenge because S1 and REAC management denied his leave request in May and then came back and approved it. 2021004097 14 S1 stated that he made the decision to issue Complainant the Proposed Removal. S1 noted he consulted with S2 and S3 prior to issuing the Proposed Removal. S1 noted the OIP was issued to Complainant on June 25, 2018, and was fully explained in a telephone call the same day and he was informed of all the steps to meet the OIP requirements. S1 noted that Complainant only met one of the four items required in the OIP. S1 noted Complainant was repeatedly made aware of his performance deficiencies. S1 noted that for each training inspection with a trainer, the trainers informed of items he needed to improve. S2 stated that the Proposed Removal was issued since Complainant struggled to master the most basic, foundational requirements, was not able to conduct himself when out in the field after more than six months of training, coaching, and mentoring. As a result, S2 noted that they had no choice but to propose his removal because he was “just wasting everyone’s time and the taxpayers dollars struggling in a position he was unfortunately incapable of performing in.” Regarding claim 24, Complainant claimed that in August and September 2018, he was not paid for travel which was pending on his government travel credit card. Complainant stated that all travel expenses were uploaded in the travel claim system. Complainant stated that S1 would not approve his expenses and that he compiled a larger bill that lead to the government travel card being suspended. Complainant stated his voucher was denied over ten times by S1. Complainant stated Coworker 3’s travel for the same week was paid or cancelled without complications. S1 stated that all submitted vouchers were paid to Complainant except one voucher for the week of September 17, 2018, and one amended voucher for the week of April 9, 2018, where it was returned to him for corrections and he was asked to resubmit after correcting. S1 noted Complainant did not travel the week of July 30, August 6, August 13, August 20, and August 27. S1 stated Complainant traveled the week of September 3 and the voucher was paid in the amount of $1,196.53. S1 noted Complainant did not travel the week of September 10, 2018. S1 noted Complainant traveled the week of September 17, 2018, and submitted his voucher but it was returned due to errors. S1 stated that Complainant was spoken to several times to assist him in completing the voucher. S1 noted that after repeated requests, Complainant did not return the voucher. S1 explained they did not have access to it. S1 noted Complainant was removed from federal service on October 10, 2018. S1 noted the Agency called Concur Travel to reopen his account on October 15, 2018, and again on March 21, 2019. S1 noted the travel reviewing official called Complainant on March 21, 2019, and asked Complainant to go into the system to correct his voucher and resubmit. Complainant refused to continue the phone call. S1 also stated that Complainant submitted an amended voucher on August 24, 2018, for the week of April 9, 2018. S1 explained the amended voucher was also returned to him for correction. S1 stated he spoke to Complainant and emailed him several times from August - September 2018; however, Complainant failed to make corrections or resubmit the documents. S1 noted Complainant did not travel the week of September 24, October 1, and October 2018. 2021004097 15 In the present case, assuming Complainant established a prima facie case for all bases on his disparate treatment claims, we find he failed to show that the Agency’s legitimate, nondiscriminatory reason its actions was a pretext for discrimination. The statements of Coworker 3, considered together, do not persuasively show that any discrimination occurred in general or with regard to the specific claims in this complaint. The record reveals Complainant failed to establish that he was denied a reasonable accommodation, since he failed to provide the requested information detailing his specific limitations. Further, Complainant failed to establish he was denied a religious accommodation as initially he failed to notify the Agency that his request for 160 hours of annual leave was a religious accommodation and subsequently, once he notified management that he was requesting leave for a religious observance, the request for leave was granted. We find that the record supports many of the Agency’s explanations about the travel voucher issues and that Complainant has failed to show that any travel voucher dispute was motivated by discrimination or retaliation. Additionally, the record reveals that the Agency placed Complainant on an OIP due to his documented performance deficiencies and afforded him an opportunity to improve. When Complainant failed to perform at a satisfactory level by the end of the OIP period, the Agency proposed his removal. Furthermore, we find Complainant failed to establish that he was subjected to harassment based on any of his protected bases. As described above, we note the record did not reveal that several of the allegations occurred as alleged. Additionally, we note that several of the incidents more likely were the result of routine supervision, personality conflicts, and general workplace disputes. Further, we find that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021004097 16 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004097 17 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 February 7, 2023 Date