U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neal O.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004522 Hearing No. 531-2019-00477X Agency No. HS-TSA-01542-2018 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 August 4, 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. and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Intelligence Operations Specialist, in Arlington, Virginia. On July 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental and physical), genetic information (family history of liver cirrhosis), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 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. 2020004522 2 1. In January 2018, management verbally counseled Complainant for requesting a reasonable accommodation and informed him that he must work with the Agency for one year before his request would be accepted; 2. From January through April 2018, management denied Complainant’s requests for a flexible work schedule; 3. From January to April 25, 2018, management denied Complainant’s reasonable accommodation request to work at the Agency’s Annapolis Junction location; 4. From mid-January to April 25, 2018, management forced Complainant to deplete all his accrued sick and annual leave; 5. On April 5, 2018, management verbally counseled Complainant for his attendance; 6. On April 9, 2018, management issued Complainant a Letter of Counseling; 7. On April 11, 2018, management sent Complainant an email that “nit-picked” his written work product; 8. On April 12, 2018, management gave Complainant a short turnaround deadline to perform a written assignment: 9. From April 12 to April 24, 2018, management ceased communication with Complainant; 10. On April 17, 2018, management discussed documented performance issues during Complainant’s mid-year review; 11. On or after April 25, 2018, management did not provide Complainant’s final performance evaluation; and 12. On April 25, 2018, Complainant resigned from his position due to intolerable working conditions. 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 but subsequently withdrew his request. On July 10, 2020 when the Agency failed to timely issue a final decision, Complainant filed a motion for sanctions with the Commission seeking default judgment. Thereafter, on August 4, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2020004522 3 The Agency determined that with respect to disability discrimination, Complainant established that he was a qualified individual with a disability. However, Complainant failed to establish that the Agency denied him a reasonable accommodation. First, despite Complainant’s argument that he verbally requested a reasonable accommodation in the form of flexible hours and reassignment to Annapolis Junction, the Agency determined that the January 2018 request did not constitute a reasonable accommodation request. Testimony indicated that management officials reported that Complainant mentioned that working from Annapolis Junction was closer to his home and would help with managing his daughter’s schooling. As for an alleged comparator that Complainant provided, Agency officials explained that the coworker worked at the Annapolis Junction location once per week because of her duties with personnel was housed at that location. The Agency further noted that Complainant acknowledged that when he submitted a written request for an accommodation on April 10, 2018, Complainant did not submit medical documentation with his request. The Agency found that while Complainant alleged that no one requested additional medical documentation and he never heard anything about the request prior to his resignation on April 25, 2018, the record did not show that Complainant attempted to engage in the interactive process or that management officials refused to do so. The Agency stated in its decision that the record revealed a short delay, 15 days, in processing Complainant’s request with respect to informing Complainant that he needed to provide medical documentation, the record did not indicate that the delay was unreasonable. As such, the Agency concluded that it did not violate the Rehabilitation Act in the handling of Complainant’s reasonable accommodation request. Moving to disparate treatment, the Agency analyzed each of the claims, including the non- discrete allegations. The Agency found that management officials articulated legitimate, nondiscriminatory explanations for their actions. Further, Complainant failed to prove by a preponderance of the evidence that management’s explanations were pretext for discrimination. The Agency further determined that Complainant did not establish that he was subjected to a hostile work environment or unwelcome conduct based on membership in a protected class. The Agency concluded that Complainant did not establish that he was constructively discharged because he did not show that the Agency, through unlawful discriminatory behavior, made Complainant’s working conditions so poor that any reasonable person in his position would feel compelled to resign. 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 2020004522 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Request for Sanctions Here, on appeal, Complainant requests that we sanction the Agency, in the form of a default judgment, for the untimely issuance of its final decision. On March 4, 2020, the AJ ordered the Agency to issue a final decision in accordance with EEOC regulation 29 C.F.R. § 1614.110. This regulation provides that agencies must issue a final decision within 60 days. The Agency, however, did not issue its final decision until August 4, 2020, or 92 days after regulatory time limit. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Vet. Aff., EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). While we acknowledge that this is beyond the regulatory time limit, we do not find that the instant facts justify the imposition of sanctions. We find that sanctions are not warranted because the Agency’s delay in issuing the final decision did not prejudice Complainant. Additionally, the minimal amount of time did not result in an unconscionable delay in justice or adversely affect the integrity of the EEO process as a whole. See, e.g. Anthony M. v. Dep't of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020) (the Agency did not issue its FAD until almost two years after Complainant withdrew his hearing request); Josefina L. v. Soc. Sec. Admin., 0120142023 (Jul. 19, 2016), req. for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep't of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) and declining to sanction an agency that issued a decision after approximately 371 days). 2020004522 5 Discrimination and Harassment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he 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. Aff. 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). Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). With retaliatory harassment, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. See Burlington N. and Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter complainant or others from engaging in protected activity. Id. On appeal, Complainant contends that the Agency’s final decision failed to address evidence of discriminatory animus such as a supervisor’s email questioning whether Complainant’s security clearance could be revoked upon learning of Complainant’s resignation; evidence indicating that Complainant informed management officials of his medical condition eight days prior to when management officials stated that they learned of Complainant having a medical condition; corroborating witness testimony; and claims 5 through 12. Additionally, Complainant argues that the final decision applied the wrong legal standard and should not be considered complete. 2020004522 6 However, upon careful review of the Agency’s decision and the evidence of record, 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. 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. 2020004522 7 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. 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 August 18, 2022 Date
