Rolf R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 14, 2019

0120172278 (E.E.O.C. Feb. 14, 2019)

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.
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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
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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
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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
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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;

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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.
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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 law”).

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
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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).
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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

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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.
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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.
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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.
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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