[Redacted], Anton S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

May 11, 2022

Appeal No. 2020004610 (E.E.O.C. May. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anton S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency. Appeal No. 2020004610 Agency No. AMS-2019-00581 DECISION 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 July 7, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency’s Headquarters in Washington, D.C. On May 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his physical disability and in reprisal for prior protected EEO activity, when: 1. from January to March 31, 2019, management officials denied Complainant’s reasonable accommodation request to telework; and 2. on unspecified dates, management officials subjected Complainant to various acts of harassment, including, but not limited to, sending him emails written in “ALL CAPS,” 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. 2020004610 2 requiring him to submit his Time & Attendance while on leave, and “badgering” him for doctors’ notes related to his reasonable accommodation request. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).2 The Agency did not dispute that Complainant was an individual with a disability and found that he was qualified for his position. The Agency noted that the record showed that Complainant had been granted telework as an accommodation in the past. However, management officials found that telework was not an effective accommodation because Complainant was unable to perform his duties while teleworking. Specifically, Complainant did not log into the Agency’s system and failed to answer telephone calls. The Agency also found that Complainant did not establish retaliation for claim 1, in part, because Complainant only offered vague and conclusory allegations of reprisal. Regarding Complainant’s harassment claim, the Agency determined that Complainant provided no documentary evidence to support his allegations. However, when Complainant raised his harassment allegations, management officials scheduled meetings to address his concerns, which Complainant failed to attend. Based on the entire record, the Agency found that Complainant was not subjected to severe or pervasive conduct and management officials took appropriate action when they scheduled times to meet with Complainant to discuss his allegations. The Agency concluded that Complainant failed to prove that he was subjected to discrimination or harassment as alleged. The instant appeal followed. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). For claim 1, we find that the record does not support that management officials denied Complainant’s reasonable accommodation request to telework between January to March 31, 2019. 2 The Agency did not specify if Complainant requested a final decision or failed to respond to the notice of his right to request a hearing. 2020004610 3 The record shows that the Agency was subjected to a federal government-wide shut down through January 29, 2019;3 and Complainant submitted his application for retirement, effective February 28, 2019. ROI at 119, 152. Complainant averred that he attended a meeting to discuss his reasonable accommodation request, but he did not recall the date of the meeting. ROI at 74. However, Complainant did not allege, and there is no evidence to show, that he was denied any request to telework as a reasonable accommodation in January or February 2019. Accordingly, we find that Complainant did not establish that the Agency failed to accommodate him or that it did subjected him to disparate treatment based on disability or retaliation for claim 1. Regarding claim 2, we find that Complainant did not establish that he was subjected to harassment due to his disability or in reprisal for his prior protected EEO activity. Even crediting Complainant’s version of events and assuming that the incidents were based on Complainant’s disability, we find that they occurred during the normal course of business to process his time and attendance and requests for reasonable accommodation.4 The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, there is no evidence that the incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. In addition, we are not persuaded that Complainant proved that he was subjected to retaliatory harassment. While Complainant relies on one witness’ statement that management officials had an attitude of “oh, I got you now”, a nature to take revenge, and a bad disposition/attitude; these broad accusations do not prove that any action was taken due to Complainant’s protected EEO activity. Further, Complainant’s uncorroborated contention that a management official shouted at him, “you are not even a man!” is not evidence of a retaliatory motive. Upon careful review of the Agency’s decision and the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected him to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final decision. 3 We note that the shutdown ended on January 25, 2019. 4 Complainant received a Leave Restriction on February 27, 2018, and he was required to provide acceptable documentation to support leave that was not approved in advance. ROI at 108-11, 135. 2020004610 4 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. 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). 2020004610 5 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 May 11, 2022 Date