[Redacted], Cyrus A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2022001095 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cyrus A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001095 Hearing No. 490-2021-00020X Agency No. 1C-371-0002-20 DECISION On December 17, 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 November 23, 2021, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) Level 6 Mail Processing Clerk at the Agency’s Knoxville Processing and Distribution Center (P&DC) facility in Knoxville, Tennessee. On January 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of disability (spinal stenosis, bulging disc, arthritis) and reprisal for prior protected EEO activity when: 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. 2022001095 2 1. On September 25, 2019, Supervisor SDO tried to work Complainant outside of restrictions and yelled at Complainant; 2. On October 16, 21, and 22, 2019, Complainant was given investigative interviews; 3. On October 22, 2019, management would not allow Complainant to leave the room to get his medication, placed Complainant on Emergency Placement, and subsequently, on November 22, 2019, management issued Complainant a Notice of Removal; 4. On a date to be specified. Complainant's picture was placed on the door at facility stating that Complainant was not permitted in the building The Agency accepted the foregoing claims and conducted an investigation of the matter. During the investigation, Complainant testified his medical conditions are spinal stenosis, bulging disc (L5-S1), and arthritis. He testified he was first diagnosed with these conditions in January 2019 and it was unknown how long he would have these conditions. Complainant stated that as a result of these conditions he has work limitations requiring no lifting more than 35 pounds, he must minimize bending, and he needs to alternate sitting and standing every 15 minutes. He stated that these conditions also affect his personal life in that he has difficulty sitting or standing or long periods, and he is unable to lift, bend, clean, or move 35 pounds. Complainant testified Supervisor SDO, Lead Clerk, and MDO were aware of his medical conditions and he had provided them a copy of his restrictions each time he received them. He also noted he had recently returned to work after back surgery and management was aware he had undergone surgery. A doctor’s note from October 23, 2019 states that Complainant may return to work or school that day but his current restrictions include: no lifting greater than 25 pounds from floor to waist, no prolonged sitting or standing greater than 15 minutes at a time (frequent change of positions is preferable), and minimize bending. (ROI, p. 176). Supervisor SDO testified he was aware of Complainant’s work limitations, but not his medical condition. He testified that he was made aware of Complainant’s work restrictions around August 2019 when he was advised the Complainant would have to split his time between 074 and 030, Complainant could do break relief provided they were not sweeping, and that Complainant could not lift anything outside weight restrictions (although Supervisor SDO was not sure what that weight restriction was). Supervisor SDO reported receiving verbal confirmation of Complainant’s work restrictions from MDO. MDO testified Complainant had back problems with work restrictions since 2018. He recalled that Complainant could not lift above the waist. He stated this only affected Complainant’s work in Automation but they knew how to handle things so Complainant would not have to bend. Complainant also identified his prior EEO activity as Agency No. 1C-371-0040-19, which he filed on February 25, 2019, and a grievance he had filed on October 21, 2019. 2022001095 3 Supervisor SDO testified he was aware Complainant had one other EEO complaint filed because although he was not named in that complaint, he was Complainant’s supervisor at that time. MDO testified he became aware in 2019 that Complainant was involved in prior EEO activity. Claim 1 - Work Outside Restrictions Complainant testified that on September 25, 2019, Lead Clerk asked him to perform break relief. Complainant indicated he had just returned to work after surgery 10 days earlier, and he informed Lead Clerk his back was in pain and he did not feel he could perform the task. Lead Clerk said “OK”. Complainant stated that Lead Clerk later returned with Supervisor SDO and repeated her request for Complainant to perform break relief. Complainant again replied that his back was in pain due to his recent surgery. Complainant testified Supervisor SDO then told him to go. Complainant says he informed Supervisor SDO that he would use FMLA leave and go home to avoid injury to his back but then Supervisor SDO denied that, raised his voice, yelled that Complainant could not, and that if Complainant refused, Supervisor SDO would send him home. Complainant testified Supervisor SDO told Complainant not to walk away from him and that he would call the police and the postal inspector on Complainant. Complainant stated he also asked for a union representative and Supervisor SDO denied this request. Complainant testified he believed that when Lead Clerk and Supervisor SDO returned, it was inappropriate and a personal issue with Supervisor SDO. Complainant also asserted that on the previous day, MDO had approved Complainant to work in 074 for the time being while Supervisor SDO was out for two weeks. Complainant stated the reason management gave him for ordering him to work outside his restrictions was that he, a PSE, was given a direct order to perform the work by Supervisor SDO. Complainant disagreed with this reason because he had a medical condition and restrictions and the MDO approved Complainant to work in another location. Complainant stated there were also several other PSE that could have been asked to perform break relief instead. Supervisor SDO testified that he asked Complainant to do break relief that was within his medical restrictions. He noted that Complainant had performed break relief several times before with no issues. He stated Lead Clerk asked Complainant first and Complainant said no. He indicated that Lead Clerk was an acting supervisor, so she then sought out a direct supervisor, which was him. Supervisor SDO then told Complainant break relief was within his restrictions and he needed to do it. Supervisor SDO testified that Complainant was not lifting or carrying anything; he was standing or sitting and moving packages. Complainant had been instructed that if he received a package that was too heavy, he was to notify management and they would have the package moved. Supervisor SDO testified that Complainant did not ask for any accommodations, but he started getting irate and shouting obscenities, and that is when Supervisor SDO asked him to leave. Supervisor SDO stated Complainant did not request leave prior to this outburst. Supervisor SDO testified that he mentioned the police and the postal inspector because Complainant was refusing to leave the building while being irate. He denied yelling at Complainant. He also stated that he did not deny Complainant his FMLA. He stated that he was sending Complainant home for misconduct and therefore he did not need a leave slip. 2022001095 4 Supervisor SDO testified that Agency policy is to escort irate employees out and have them return the next day for an investigative interview. He stated that they try to get a union representative to be present during the escorting. He also stated that if employees are really threatening, they will be placed on Emergency Placement in a non-pay status. Supervisor SDO stated that Complainant’s immediate supervisor conducted the investigative interview and Supervisor SDO was not aware of the results. Complainant testified he believes his medical condition was a factor because management showed no care for his medical condition after he told them he was in pain and did not feel he could safely perform the task. Complainant testified he believes his prior EEO activity was a factor in this decision because he and Supervisor SDO had previously been good coworkers, but once Supervisor SDO received the documents that Complainant had filed an EEO complaint, his behavior and attitude changed. Complainant asserts that Supervisor SDO denied him use of his FMLA leave and denied Complainant access to union representation when requested. Supervisor SDO denied that Complainant’s medical condition or prior EEO activity were factors in this incident. Claim 2 - Investigative Interview Complainant testified that he was given Investigative Interviews by Supervisor SDO on October 16, 21, and 22, 2019.2 He testified the October 16 Investigative Interview was for failure to follow instructions for not doing break relief on September 25th, the October 21 Investigative Interview was for talking to someone who was not in his work area, and the October 22 Investigative Interview was for not having permission to be on the clock before Complainant had even clocked into work. Complainant admitted to engaging in these behaviors. However, he stated he and other employees regularly do engage in this behavior and have never been corrected or talked to about it. He also indicated he had never been told prior to the Investigative Interview that it was not allowed. Supervisor SDO testified that on October 14, 2019, he observed Complainant outside his assigned work area. On October 15, 2019, he observed Complainant outside his assigned work area and disrupting other workers in that area without authorization. Therefore, on October 16, 2019, he held an official discussion with Complainant about being outside his work area without authorization and Complainant was instructed to be in his assigned work area at all times. However, after the meeting Complainant went to the AFSM 100 area without permission and was there for a minimum of 10 minutes. Supervisor SDO testified that on October 17, 2019, he observed Complainant on the dock without permission and off the clock (which is not allowed). He testified that on October 18, 2019, he twice observed Complainant outside his work area. 2 It appears from the record that the actual dates of Complainant’s Investigative Interviews were October 16, 21, and 23, 2019. 2022001095 5 Supervisor SDO testified that the October 21 Investigative Interview was given regarding Complainant’s repeated failure to follow instructions to stay in his assigned work area. He stated that Complainant admitted to not following the instructions regarding being in his assigned work area and said Complainant had his back turned during the interview, called him names, and told Supervisor SDO to “kiss [his] ass.” According to Supervisor SDO, after the interview, Complainant was again not in his assigned area and taunted Supervisor SDO about it. Supervisor SDO then called Complainant’s direct supervisor to assist. Supervisor SDO asserts that Complainant continued to use foul, profane, and abusive language towards him in front of Complainant’s direct supervisor before Complainant gave his direct supervisor a leave slip and left the building. Supervisor SDO testified that on October 22, 2019, Complainant clocked in and handed him a leave slip that stated Supervisor SDO and Lead Clerk were “making a hostile work environment” and then Complainant proceeded to leave. Supervisor SDO testified that on October 23, 2019, he held an Investigative Interview with Complainant regarding his misconduct on October 21, 2019. He indicated Complainant did not agree with the reasons given and became very irate during this interview. Supervisor SDO testified that he asked Complainant for his side of the story but Complainant was very uncooperative. He stated Complainant was acting in a threatening manner, such as cursing, calling him names, screaming, and creating a hostile work environment. Complainant also tried to walk out of the meeting before it was over. Supervisor SDO testified he felt threatened by Complainant’s behavior and therefore notified Complainant he was being placed on Emergency Placement. Supervisor SDO testified that Complainant was warned during the Investigative Interviews that his conduct during the interviews was unacceptable and could lead to disciplinary action. Supervisor SDO identified three other employees who were disciplined for the same reason as Complainant: a clerk, a mail handler, and a PSE/clerk. The record reflects that Complainant participated in Investigative Interviews on October 21, 2019 for failure to follow instructions, October 23, 2019 for failure to follow instructions, and October 24, 2019 for failure to follow instructions. The record also reflects a leave slip for Complainant for October 22, 2019 in which Complainant requested leave without pay and in the remarks section Complainant wrote that Supervisor SDO and Lead Clerk were “making a hostile work.” Complainant testified he believed his medical condition was a factor in this claim because for the first Investigative Interview, Complainant requested accommodation for his back pain after surgery and he was denied. Complainant testified he believes his prior EEO activity was a factor in this decision because he and Supervisor SDO had previously had a good work relationship but a few days after receiving Complainant’s EEO paperwork, Supervisor SDO became combative. 2022001095 6 Supervisor SDO denied that Complainant’s medical condition or prior EEO activity were factors in this incident. Claim 3 - Emergency Placement and Notice of Removal Complainant testified that during his Investigative Interview with Supervisor SDO and APW Local 263 Union President (Union President), he requested to go get medication for his anxiety, but Supervisor SDO and Union President denied him. Complainant testified that he got up to go out of the room, but the door handle would not turn. He stated he tried several times and then Supervisor SDO got up and unlocked the door before he and Union President followed Complainant out and surrounded him. Complainant stated he became fearful, they led him out, and they both argued. Then Complainant was placed on Emergency Placement. Complainant stated he needed medication because he was having an anxiety attack. Complainant testified the reason he was given for his Emergency Placement and Notice of Removal were that he was a danger to his coworkers and himself and Supervisor SDO feared for his safety. He testified he disagreed with these reasons and he did not engage in any of the accused he was accused of such as point a finger at Supervisor SDO, almost hitting someone with his car in the parking lot, going the wrong way. He stated he was not counseled and he was only placed on Emergency Placement as corrective action prior to the Notice of Removal. Complainant testified he filed a grievance on this issue but it was denied. Supervisor SDO denied any knowledge that Complainant was prevented from leaving the room to get medication. He stated he did not recall a request from Complainant to take medication. However, he testified that he placed Complainant on Emergency Placement on October 23, 2019. Supervisor SDO testified he placed Complainant on Emergency Placement because on October 23, 2019, at approximately 12:45 am, Complainant used foul and abusive language towards him, accused him of harassment, and became very loud. Supervisor SDO testified that after informing Complainant of the Emergency Placement, Complainant became irate and tried to abruptly leave the room. However, Complainant did not know that the door requires a badge swipe in order to exit the room. Complainant became frustrated and broke the door handle trying to open it, which required a work order to fix. Supervisor SDO testified that he (along with Union President and another supervisor) then escorted Complainant out of the building while Complainant cursed the whole time. After clocking out at the employee entrance, Complainant then threw his badge and timecard at Supervisor SDO. Complainant then went to his car and drive in the wrong direction to drive right by Supervisor SDO. Supervisor SDO testified that Complainant had music blaring and then he turned to Supervisor SDO and pointed a finger at him, making a gun gesture. Supervisor SDO stated Complainant almost hit another employee on his way out of the parking lot. Another supervisor emailed Supervisor SDO described that we witnessed Complainant throwing his badge card, pointing at Supervisor SDO, and almost hitting another employee. Supervisor SDO testified that on October 24, 2019, he conducted an Investigative Interview with Complainant regarding the events of October 23, 2019. 2022001095 7 During this Investigative Interview, he asked Complainant if Complainant made a gun hand gesture towards him and Complainant denied saying this, saying he made this “money” sign. During the interview, Complainant had his head down and did not provide any good reasons to justify his actions towards management. Supervisor SDO said he then conducted an Investigative Interview on October 24, 2019 with Union President regarding the incident that took place with Complainant on October 23, 2019. Union President stated he saw Complainant almost hit another employee with his car and he witnessed Complainant break the door handle in the quality room. When asked if Complainant made a threatening hand gesture towards Supervisor SDO or become irate or curse, Union President replied “no comment”. Supervisor SDO stated that on November 22, 2019, Complainant was issued a Notice of Removal for Improper Conduct on October 21, 2019 and October 23, 2019. Supervisor SDO testified that Complainant did not have any prior disciplinary incidents before the events described in this complaint. He stated he was the one who issued Complainant’s Notice of Removal and MDO concurred in this. Supervisor SDO stated the Notice of Removal was issued because Complainant was irate and created a hostile work environment when he tore the handle off the door and made a gun gesture. He asserted that Complainant had been warned before and after his Investigative Interviews that his behavior was unacceptable and could lead to disciplinary action. Supervisor SDO stated Complainant’s Notice of Removal was grieved and later reduced to a 7-day suspension. Complainant returned to work on December 9, 2019. An October 24, 2019 letter to Complainant with the subject “Emergency Placement in Off-Duty Status” states that Complainant’s Emergency Placement is because Complainant “became violent and expressed indifference by both cussing at [Supervisor SDO] as well as trying to walk out of the investigative interview and screaming towards [Supervisor SDO] in a violent manner. After [Complainant] was advised he was being sent home, [Complainant] became even more irate, [Complainant] tried to leave the room in which we were having the interview and due to it having to have a badge to exit, [Complainant] broke the door handle and [Supervisor SDO] had to put in a work order to get it replaced. [Complainant was] using profanity the whole time we were walking towards the parking lot, when [Complainant] clocked out, [Supervisor SDO] asked for his badge and timecard and [Complainant] threw it on the floor at [Supervisor SDO’s] feet. [Complainant] then proceeded to [his] car, drove in the direction so that [he] would pass in front of [Supervisor SDO], when [Complainant] passed in front of [Supervisor SDO], [Complainant] was blaring [his] music, [Complainant] then proceeded to run and smiled at [Supervisor SDO] while point [his] finger at [Supervisor SDO] and making a gun gesture. As [Complainant was] driving in the wrong direction, [he] almost hit another employee.” (ROI, pp. 178-179). Complainant indicated his medical condition was not a factor in this claim. However, he stated his prior EEO activity was a factor because he had not been corrected or counseled previously on any of the issues but after Supervisor SDO received Complainant’s EEO documents, this began happening. Complainant testified that multiple coworkers told him that management said they were “going to get” Complainant. However, Complainant did not identify these employees or provide statement from them. 2022001095 8 Supervisor SDO denied that Complainant’s medical condition or prior EEO activity were factors in these actions. Claim 4 - Complainant’s Picture on Door of Facility Complainant testified that a coworker sent him a picture showing that his photo had been placed at the door of the facility. He stated he then contacted his union representative to find out why. He stated management never gave any reasons for doing this, but Complainant believes it defames his character. MDO testified that he requested Complainant’s picture be placed on the door stating Complainant was not permitted in the building because Complainant had created a hostile work environment and there were a lot of new hires at the facility and they did not want him to enter the building among the new hires. MDO testified he believed this was appropriate because of the way Complainant had left and because the security was not tight and they were trying to minimize risk. Plant Manager testified that putting an employee’s badge picture up at the entrance when they are not allowed back into the facility is a standard procedure. He testified he gave the instruction that Complainant’s picture be put up. Complainant indicated his medical condition was not a factor in this claim. However, he stated his prior EEO activity was a factor because he had a good working relationship with Supervisor SDO until Supervisor SDO received his EEO documents. MDO denied that Complainant’s medical condition or EEO activity were factors in this action. Harassment/Hostile Work Environment Allegation Complainant testified that on September 25, 2019, he informed MDO that he was being given a verbal warning for actions MDO allowed. According to Complainant, MDO said he would take care of the situation. MDO testified that Complainant said Supervisor SDO was harassing him, so MDO spoke with Supervisor SDPO about it. Supervisor SDO told MDO that Complainant was unwilling to perform the assignment he was given. He indicated no investigation was conducted into Complainant’s allegations. Supervisor SDO testified that Complainant did not tell him that his or anyone else’s actions constituted harassment and/or a hostile work environment. 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. 2022001095 9 When the Complainant did not object, the AJ assigned to the case granted the Agency’s May 17, 2021, motion for a decision without a hearing and issued a decision without a hearing on October 19, 2021 finding that even viewing all facts in the light most favorable to Complainant, he had not shown he was subjected to discrimination or harassment as alleged. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. However, he did not file a brief in support of his appeal. The Agency contends on appeal that decisions finding no discrimination should be affirmed because the record was adequately developed and the AJ’s legal and factual conclusions were proper. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment The foregoing claims give rise to a claim of disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in 2022001095 10 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, even assuming arguendo, that Complainant proved his prima facie cases for disparate treatment based on disability or retaliation, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding Claim 1, Supervisor SDO stated Complainant was asked to perform break relief within his restrictions, but Complainant refused. Complainant did not request accommodation or leave prior to being asked to perform break relief or refusing to perform break relief. Supervisor SDO informed Complainant there was no need for a leave slip because Complainant was being sent home and he was to return the following day for an investigative interview. In Claim 2, Complainant was given an Investigative Interview on October 21, 2019 for failure to follow instructions when he continued to go outside of his assigned work area despite being instructed by Supervisor SDO on October 16, 2019 to remain in his assigned work area. Complainant was then asked to leave due to his behavior during the October 21, 2019 investigative interview. On October 23, 2019, Supervisor SDO gave Complainant an Investigative Interview regarding his behavior on October 21, 2019. Regarding Claim 3, as a result of Complainant’s behavior during the October 23, 2019 Investigative Interview, Supervisor SDO placed Complainant on Emergency Placement. Immediately following, Complainant attempted to leave before the meeting was over and he broke a door handle in the process. He was escorted from building where he threw his badge, drove recklessly and almost hit another employee, and made a gun gesture at Supervisor SDO. After a subsequent Investigative Interview on October 24, 2019, Complainant was issued a Notice of Removal for Improper Conduct as a result of his actions on October 21 and 23, 2019. 2022001095 11 Regarding Claim 4, after Complainant’s Emergency Placement, per Agency policy, Complainant was not allowed in the facility. Therefore his badge picture was placed at employee entrances stating that he was not allowed in the building. Complainant has not shown that these articulated reasons were in fact pretext to mask discrimination based on disability or prior EEO activity. The record is devoid of any evidence of discriminatory or retaliatory animus on the part of the Agency beyond Complainant’s speculative beliefs. Complainant states he and Supervisor SDO got along well prior to Supervisor SDO learning of Complainant’s EEO activity, but he has provided no other explanation to show Supervisor SDO was motivated by retaliation. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). In so finding, we note that the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Harassment and Hostile Work Environment Complainant has alleged the Agency subjected him to harassment and a hostile work environment based on the foregoing claims. To establish a claim of a hostile work environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis-in this case his disability or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant's allegations can generally be described as relating to disagreements over how work should be done, trivial slights, personality conflicts, and/or petty annoyances between Complainant and Supervisor SDO. 2022001095 12 Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (the record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). In the instant case, we find that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence that discriminatory or retaliatory animus played a role in any of the Agency's actions. Thus, Complainant has failed to meet his burden in establishing he was subjected to unlawful discriminatory harassment. 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 action adopting the AJ’s decision. 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). 2022001095 13 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. 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. 2022001095 14 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 March 8, 2023 Date