Rolf R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 14, 20190120172278 (E.E.O.C. Feb. 14, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rolf R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172278 Agency No. 200H-0642-2016102721 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 May 15, 2017 final agency decision (FAD) 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cytotechnologist, GS-0601-11, at the Agency’s Pathology and Laboratory Medicine Service, VA Medical Center in Philadelphia, Pennsylvania. Complainant was employed at the maximum promotion potential for his position throughout the relevant time periods. On September 27, 2013, Complainant emailed the facility’s Director of Continued Quality Improvement (S1) requesting a Merit Promotion to the GS-12 grade level. On that same day, S1 responded with support for Complainant’s request. 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. 0120172278 2 On October 1, 2013, Complainant submitted a self-evaluation narrative in connection with his FY 2013 annual performance evaluation and reiterated his request for promotion to the GS-12 grade level. S1 stated that in or around November 2013, he consulted with the Chief Technologist regarding Complainant’s promotion request. According to S1, the Chief Technologist explained that the VA Medical Center did not employ Cytotechnologists at the GS-12 grade level, which S1 relayed to Complainant in December 2013. Between December 2013 and February 2014, Complainant sent multiple emails to the Chief of Pathology and Laboratory Services (S2) expressing frustration with S1’s handling of his request for promotion. On February 20, 2014, S1 and S2 met with Complainant to discuss the matter. On March 3, 2014, Complainant sent an email to S1 and S2, which he characterized as follow-up to their February 20, 2014 meeting and attached a position description for a Cytotechnologist at the GS-12 grade level. S1 stated that in April 2014, he notified Complainant that the submitted position description required additional edits. Complainant responded via email on April 24, 2014, stating that S1 could edit the document as he deemed appropriate. On June 6, 2014, S1 and S2 met with Complainant to discuss his promotion request. On that same day, Complainant sent a follow-up email indicating that the meeting was encouraging and reiterating his belief that he was entitled to promotion to the GS-12 grade level due to accretion of duties. S1 stated that in June and July 2014, he met with Human Resources Specialists to clarify the process for obtaining a promotion based on accretion of duties. S1 further stated that in August 2014, he completed edits to the draft position description submitted by Complainant, and completed the requisite forms for requesting a promotion based on accretion of duties. Complainant reviewed the draft position description with S1 and S2 on September 5, 2014. On October 2, 2014, S1 provided Complainant with a revised position description for his review, requesting feedback by November 2, 2014. By email dated October 27, 2014, Complainant provided S1 with suggested edits to the draft position description. Management sent the draft position description to Human Resources to review on November 11, 2014. On February 11, 2015, Human Resources notified Complainant that his request for promotion to the GS-12 grade level had been denied, and that a Classification Specialist had determined that his position was properly rated at the GS-09 grade level. Complainant’s actual grade level was unaltered by the determination. Shortly thereafter, Human Resources supplied Complainant with a copy of the proposed position description submitted in support of his promotion request, two Office of Personnel Management (OPM) appeal decisions indicating that Complainant’s position was properly classified at the GS-09 grade level, and a revised position description completed by the Classification Specialist based on guidance provided by the referenced OPM decisions. On May 19, 2015, Complainant sent an email to management officials expressing concern about potential safety hazards in the work environment due to formalin/formaldehyde exposure. Complainant reiterated his concerns in an email dated November 23, 2015, noting that he had heightened health concerns. On that same day, the Anatomic Pathology Supervisor (S3) questioned Complainant about his exposure to the chemicals and informed Complainant that there 0120172278 3 were no safety concerns with the use of cube formalin containers. He added that since no leak or spillage had occurred, Complainant had not been exposed to the chemicals at issue. Complainant responded with an email once again detailing his safety concerns and ways in which he felt the Agency was noncompliant with safety precautions. On October 20, 2015, Complainant interviewed with the Office of Medical Inspector. Management officials stated that all employees were interviewed in response to an anonymous complaint. During his interview, Complainant discussed his Merit Promotion denial and position description downgrade, which Complainant later stated he believed resulted in a detail assignment out of his position. Complainant stated that on November 6, 2015, management officials met with him to discuss his response to a request from a clinician and a few days later, S3 instructed Complainant to communicate with S3 directly before communicating with other laboratory supervisors. Complainant stated that S2 reiterated S3’s instruction on November 10, 2015. S1 scheduled a meeting with Complainant for November 19, 2015, to discuss his FY 2015 annual performance evaluation. S1 invited a representative from Human Resources to attend the meeting. However, when a Human Resources representative could not attend, the meeting was rescheduled for November 23, 2015 and subsequently cancelled. On November 20, 2015, Complainant sent an email to management officials requesting clarification on why Human Resources representatives needed to attend the meeting. On December 4, 2015, a Human Resources official notified Complainant that Human Resources would not be attending his performance evaluation meeting. Complainant’s performance evaluation meeting was rescheduled for January 27, 2016, in his union representative’s office. On November 25, 2015, the Agency’s Occupational Safety and Health Manager informed Complainant that she would obtain an opinion from a third party regarding Complainant’s safety concerns despite her belief that the laboratory conditions were safe. In a memorandum dated December 4, 2015, the Interim Chief of Staff notified Complainant that he was being temporarily detailed to another department while the Agency investigated his safety concerns. By email dated December 18, 2015, Complainant questioned when he could return to the laboratory and the Interim Chief of Staff responded that Complainant could return once air quality tests were completed. Alternately, the Interim Chief of Staff offered Complainant the opportunity to immediately return to the lab, provided he acknowledge his awareness of the potential safety risks. Complainant declined to sign the memorandum. In a memorandum dated December 1, 2015, Complainant received notification that he was identified to testify before an Administrative Board of Investigation on December 8, 2015, related to a hostile work environment complaint. Specific allegations included unprofessional behavior related to promotion opportunities, threatening behavior and comments to intimidate employees in the laboratory, and inappropriate displays of anger within the facility. Following the 0120172278 4 investigation, the Administrative Board of Investigation determined that the allegations were substantiated. Evidence in the record indicates that effective December 8, 2015, Complainant was to be supervised by S3 for technical aspects of his job. As to the diagnostic and scientific aspects of the position, Complainant would be supervised by a Pathologist. Documents pertaining to the change indicated that the changes had no effect on the classification of Complainant’s position. On January 27, 2016, S1 and S3 met with Complainant to discuss his FY 2015 annual performance evaluation and inform Complainant that S3 would be directly supervising certain aspects of Complainant’s work. During the meeting, S1 notified Complainant that he received an Exceptional rating in all elements except for the communication element, where he was rated Fully Successful. Complainant’s overall rating was Excellent. Complainant believed that he was entitled to a higher performance rating, and by extension, a higher performance bonus. Additionally, during the meeting, Complainant asserted that S3 was not qualified to supervise certain aspects of Complainant’s work. Complainant indicated that his prior supervisors were board certified, and that assigning S3 to review his work constituted a significant downgrade to the credentials of his supervisor. Complainant stated that S3 became livid in response to his comments. On February 5, 2016, Complainant emailed management officials to inform them that he had learned that the Cytotechnologist position was to be filled by someone else beginning February 8, 2016. On February 9, 2016, the Interim Chief of Staff responded to Complainant’s email stating, “we have not replaced your position.†On February 24, 2016, air quality testing results revealed no Xylene or formaldehyde exposure over the established regulatory limits. By memorandum dated April 27, 2016, the Interim Chief of Staff apprised Complainant of the air quality test results and Complainant agreed to resume working in the laboratory. On May 26, 2016, S3 met with Complainant to conduct his mid-term performance evaluation and to discuss changes to Complainant’s performance standards, including the addition of quantifiable benchmarks which corresponded to a Fully Successful, Highly Successful, or Outstanding rating for each performance element. S3 rated Complainant Fully Successful or better for each element on Complainant’s mid-year evaluation. Complainant did not sign the evaluation. On July 7, 2016, Complainant emailed S3 reiterating his belief that S3 lacked the qualification, education, training, and competence to supervise him. In the same email, Complainant requested clarification regarding his performance standards. Complainant stated that S3 failed to respond to his email. On November 7, 2016, S1 issued Complainant an overall rating of Excellent on his FY 2016 annual performance evaluation. S1 stated that Complainant expressed frustration with the rating and 0120172278 5 refused to acknowledge receipt of the evaluation with his signature. S1 refused to provide Complainant a copy of his performance evaluation unless he signed the document. S1 acknowledged that Human Resources subsequently informed him that he may provide employees with a copy of their performance evaluation, even if the employee refuses to acknowledge receipt of the document with their signature. On June 21, 2016 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (previously diagnosed with a moderately differentiated squamous cell carcinoma of the nasal cavity), age (YOB: 1952), and in reprisal for prior protected EEO activity when: 1. Between September 27, 2013 and July 31, 2014, Complainant repeatedly contacted his supervisors for information about a GS-12 salary increase with no action taken by management to address Complainant’s request; 2. On February 11, 2015, Complainant was discredited, manipulated, and misrepresented during a meeting to discuss Complainant’s position description; 3. In October 2015, Complainant was removed from the Management Inspection Team; 4. In October 2015, Complainant was cancelled from monthly quality management meetings, but required to continue generating quality management cytopathology monitors; 5. On October 20, 2015, Complainant interviewed with the Office of Medical Inspector (OMI) which Complainant believed resulted in the merit promotion denial, position description downgrade, and the detail out of Complainant’s position; 6. On November 6, 9, and 10, 2015, staff meetings were held that focused on Complainant’s actions as a Cytotechnologist; 7. On November 9, 2015, Complainant was instructed not to communicate directly with facility employees; 8. On November 10, 2015, management prohibited Complainant from communicating directly with Pathology and Laboratory Services superiors; 9. On November 19 and 23, 2015, Complainant was denied an opportunity to discuss his FY 2015 annual performance evaluation; 0120172278 6 10. On December 4, 2015, Complainant was detailed from his work area pending air quality testing in the laboratory area; 11. On December 4, 2015, the Chief of Labor Relations failed to attend Complainant’s performance evaluation meeting after management requested his presence; 12. On December 8, 2015, management changed Complainant’s position description; 13. On December 8 and December 10, 2015, Complainant was the subject of an Administrative Board Investigation that involved accusations of Complainant interfering with patient care and contributing to a hostile work environment; 14. On January 27, 2016, management denied Complainant a monetary bonus and failed to provide Complainant an explanation or evidence to substantiate lowering Complainant’s performance rating from Outstanding/Excellent to Satisfactory; 15. On January 27, 2016, a supervisor became angry, hostile, and berated Complainant after Complainant pointed out that he was not qualified to be the Cytopathy Technical Supervisor; 16. On February 8, 2016, management replaced Complainant with a newly hired younger Cytotechnologist without cause, counseling, or prior notification; 17. On February 8, 2016, Complainant’s detail assignment was extended; and 18. On May 27, 2016, and November 7, 2016, management ignored Complainant’s requests to provide him a copy of his 2016 performance review, remove/correct the critical and non-critical elements in Complainant’s performance standards, and explain the rating system.2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, or a hostile work environment as alleged. 2 The Agency dismissed several claims as discrete acts pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency noted, however, that the incidents would be considered as background evidence in support of Complainant’s hostile work environment claim. Complainant raised no challenges to the dismissed claims on appeal. 0120172278 7 CONTENTIONS ON APPEAL On appeal, Complainant largely reiterates the arguments in his formal complaint. Complainant further contends that the EEO Investigator failed to interview witnesses that could substantiate his claims. Complainant maintains that he was treated differently from similarly situated employees because other employees could complain without being subjected to reassignment, detail, or adverse action. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,†and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). As an initial matter, the Commission will address Complainant's dissatisfaction regarding the investigation of his complaint. Complainant claims on appeal that the investigation was inadequate. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant failed to request a hearing, a process which would have afforded him the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 to the employer. 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). Therefore, 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 0120172278 8 the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.†Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus.3 The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Incident (1) – Delay in Promotion More specifically. regarding incident (1), Complainant contends that management officials refused to submit the required paperwork for him to receive a Merit Promotion for nearly one year. However, S1 explained that he contacted the appropriate Human Resources contacts and completed the required paperwork with the belief that Complainant would receive the desired GS- 12 increase. ROI, at 261. With regard to the delays in the process, S2 corroborated S1’s account that he worked on the issue and contacted the relevant officials, but added that the delays were due to paperwork completion. Id. at 297. Despite Complainant’s contentions that management took no action during the relevant period, emails included in the record indicate that during the period at issue, Complainant and S1 collaborated on an updated position description. Id. at 403, 409, 416, 494, 853. According to a Human Resources Specialist, Human Resources received Complainant’s upgrade package on November 2, 2014. ROI, at 346-347. She noted, however, that prior to that submission, S1 had worked with another specialist who had handled the completed package, but did not complete the classification once the paperwork was submitted. Complainant’s package was ultimately sent to a contractor for the grade determination. Id. at 347. Incident (2) – February 11, 2015 Meeting With respect to incident (2), Complainant did not allege that his age or disability were factors, but attributed his prior EEO activity to the Agency’s actions. We agree with the Agency’s determination that the Agency’s actions could not have been motivated by Complainant’s prior EEO activity because the incident predates Complainant’s 2015 EEO activity. The record 3 We note that in his formal complaint and on appeal, Complainant indicated that the Agency retaliated against him due to his complaints about non-compliance with federal laws, policies, and procedures. The Commission has previously held that whistleblower activities are outside the purview of the EEO process. See Giannu v. Dep’t of Housing and Urban Dev., EEOC Request No. 05880911 (Feb. 13, 1989). 0120172278 9 indicates that Complainant had 2003 EEO activity, but we find, as did the Agency, that the 12- year gap between Complainant’s EEO activity and the Agency’s actions is too far to permit an inference of retaliation. Incidents (3) and (4) – Removal from Management Inspection Team and Cancellation from Quality Management Meetings As for incidents (3) and (4), S1 denied that Complainant was removed from attending meetings and noted that Complainant was never a manager. ROI, at 266. Likewise, S2 denied that anyone told Complainant that he was not welcome at the monthly quality management meetings. Id. at 302. She confirmed, however, that S1 informed her that Complainant voluntarily stopped attending the meetings. S1 stated that, regarding monthly quality management meetings, Complainant was not always able to deliver the required quality management data and excused himself from the meetings. Id. at 265. S1 added that once he observed that Complainant was not attending the meetings, he took over Complainant’s quality management data and Complainant stopped coming altogether. Id. at 267. S1 explained that before and during Complainant’s detail, S1 completely took over the task of generating and looking for quality management data for cytology. Id. at 266. According to S2, Complainant decided to complete his work during the meeting times and S1 started helping because Complainant did not have enough time to generate quality monitors. Id. at 302. Incident (5) – October 20, 2015, Office of Medical Inspector (OMI) Interview Regarding incident (5), S1 averred that the OMI visit was not related to the cytology department, but that OMI interviewed everyone in the laboratory. ROI, at 267. S2 affirmed that the OMI visit occurred subsequent to the position description downgrade, but noted that the OMI visit was the result of an anonymous complaint. Id. at 303. Incidents (6), (7), and (8) – November 2015 Staff Meetings and Communication Restrictions With respect to the early November staff meetings and Complainant’s allegation that management officials restricted him from communicating with facility employees, S1 denied discussions on the noted dates and did not recall meetings regarding Complainant violating protocol. ROI, at 269. S2, however, indicated that while she did not recall the meetings Complainant described, at least one meeting occurred during the relevant period in which management officials discussed process improvement. Id. at 304-305. S2 stressed that no one, to her knowledge, told Complainant that he could not communicate. Id. at 306. In any event, Complainant related that he did not believe that his age, disability, or prior protected EEO activity played a role in the Agency’s actions regarding incidents (6), (7), or (8). Id. at 217-218. Incidents (9) and (11) – FY 2015 Annual Performance Evaluation 0120172278 10 As for incident (9), S1 averred that following the denial of Complainant’s Merit Promotion, Complainant became frustrated, argumentative, and angry. ROI, at 263, 270. S1 stated that, based upon Complainant’s response to the Merit Promotion denial, he requested the presence of a Human Resources representative and Complainant’s union representative so that management could formally transfer administrative supervision to S3. Id. at 271. S1 explained that the meeting was cancelled when Human Resources did not show up and when he tried to reschedule, a Human Resources representative failed to show up again. Id. According to the Chief of Labor Relations, S1’s request for a Human Resources representative was not granted once the union raised concerns. Id. at 326. S1 stated that Complainant eventually had a performance evaluation with two union representatives present. Id. Incidents (10) and (17) – Detail Assignment and Extension Turning to incidents (10) and (17), S1 asserted that the air quality was checked in the laboratory because Complainant expressed concern to the Occupational Health Department regarding formalin exposure. ROI, at 272. The Agency’s Employee Relations Chief related that once employees raise safety concerns, the most appropriate action is to move the employee out of the area while the safety issue is addressed. Id. at 334. A December 4, 2015 memorandum explains that Complainant was detailed to the Office of Care and Coordination Service effective December 4, 2015 “while the medical center investigates concerns related to the safety of [Complainant’s] work environment.†Id. at 418. Complainant contends that he was singled out due to his medical condition because no one else received a detail and the Agency did not close the laboratory or restrict others from working in the area. However, management officials maintained that the Medical Center made the decision to detail Complainant and further extend the detail following his reports to Occupational Health. Id. at 278, 296, 307. Moreover, on January 12, 2016, management officials offered Complainant the opportunity to return to the laboratory if he agreed that he understood and acknowledged awareness of the potential risks, which Complainant declined. Id. at 421. Evidence within the record supports the Agency’s report that once air quality testing was complete, Complainant was allowed to return to his position. Id. at 422. Incident (12) – Position Description Change Regarding incident (12), S1 affirmed that Complainant’s position description was “pencil corrected†by Human Resources to accurately reflect administrative and technical supervision. ROI, at 273. Specifically, S1 stated that the change was done to reflect supervisory line changes that had occurred in the department. S1 further explained that he had been responsible for supervising the Anatomic Pathology department under a government initiative, but once additional supervisors were in place, the position description was pencil corrected. Id. S2 corroborated S1’s reports. Id. at 308. Nevertheless, remarks included in the updated position description indicated that the changes had no effects on the classification of Complainant’s position and the Employee Relations Chief reported that management had the right to assign or change duties assigned to an employee. Id. at 335, 355. 0120172278 11 Incident (13) – Administrative Board Investigation With respect to incident (13), the Agency’s Employee Relations Chief explained that Administrative Investigative Board were generally assembled or called upon by the Director to have a neutral party investigate internal allegations. ROI, at 336-337. S1 denied having knowledge of the underlying reason for the investigation, but reported that he was a subject of the investigation as well. Id. at 274. S2 stated that the investigation was conducted to review accusations that Complainant had interfered with patient care and contributed to a hostile work environment. Id. at 309-310. She related that the investigation was not her decision and she did not know who initiated the investigation. Id. Incident (14) –Monetary Bonus and Performance Rating Explanation S1 affirmed that Complainant received a monetary bonus. ROI, at 275-276. However, he stated that Complainant’s expression of frustration and anger in the 2015 evaluation year impacted his communication skills. Id. Specifically, S1 stressed that Complainant’s communications skills were not at the level to be rated Excellent and therefore that aspect was rated Fully Successful. Id. Incident (15) – Supervisor Interaction Regarding incident (15), Complainant reported that S3 became angry, hostile, and berated him after Complainant pointed out that S3 was not qualified to be the Cytotechnology Supervisor. ROI, at 239. S1 stated that S3 approached him about the interaction, stating that Complainant degraded him in front of a union representative, but noted that Complainant never mentioned the incident to him following the meeting at issue. Id. at 277. Incident (16) – Cytotechnologist Replacement Regarding incident (16), S1 stressed that Complainant’s position was never replaced. ROI, at 278. On February 8, 2016, the Chief of Staff responded to an email from Complainant, explicitly stating that the Agency had not replaced his position. Id.at 413. Likewise, other management officials consistently denied that Complainant’s position had been filled. Id. at 415. S1 indicated that there was consideration to have some of the “CBASES†as a Cytotechnologist, but it did not come to fruition.4 Id. at 259. Nevertheless, S1 affirmed that Complainant’s position was never vacated and he could not be replaced. Id. Incident (18) –FY 2016 Performance Review With respect to incident (18), S1 affirmed that he did not provide Complainant with a copy of his performance evaluation because Complainant refused to sign the document. ROI, at 279. S2 recalled that S1 told her that he provided Complainant with the evaluation and asked him to sign, 4 “CBASES†does not appear to be defined in the record. 0120172278 12 but Complainant did not sign the evaluation. Id. at 313. S1 acknowledged, however, that Human Resources informed him that he could provide employees with unsigned copies of their performance evaluations. Id. While Complainant and management officials had a contentious relationship and numerous personality conflict during the relevant period, Complainant has not shown that he was subjected to a discriminatory or hostile work environment. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal. 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 FAD, which found that Complainant did not demonstrate that he was subjected to discrimination or a hostile work environment. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120172278 13 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 14, 2019 Date Copy with citationCopy as parenthetical citation