Adam O.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120172895 (E.E.O.C. Dec. 11, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adam O.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120172895

Agency No. CRC1610110

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 12, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims Examiner,
GS-12, at the Agency’s Office of Workers Compensation Programs in Seattle, Washington.

On July 7, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to
a hostile work environment and/or discrimination on the bases of race (Native American) and/or
retaliation for prior protected EEO activity, citing multiple events of alleged discrimination and
ongoing harassment. Complainant alleged the Agency subjected him to disparate treatment
and/or harassment when: (1) on May 5, 2016, he learned that his Level 1 workplace violence
complaint was closed without proper processing or investigation; (2) January 21, 2015, he was
removed from the position of senior claims examiner, even though other senior claims examiners
(African-American) remain senior claims examiners after using inappropriate language and
displaying workplace violence; (3) on May 26, 2016, he learned that his supervisor lied about

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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him in an EEO statement; (4) on May 27, 2016, a management official threatened him with
disciplinary action in an email, after he objected to harassing conduct, retaliation, and favoritism
towards others; and (5) on May 31, 2016, he learned that, upon the death of her father, another
employee (Caucasian) received flowers, a plant for her desk, an office-wide email expressing
sorrow, and a donation to charity in her father’s name, even though he only received a card upon
the death of his father; (6) on July 16, 2016, while attending union training, a management
official sent him an email compelling him to appear at a meeting on Monday, July 18, 2016 for
the issuance of a draft performance improvement plan; (7) on July 18, 2016, at the meeting
referenced in claim 6, his supervisor attempted to begin the performance improvement plan on a
date on which the office workload was set to increase dramatically; (8) on or about July 28,
2016, his supervisor declined to give him credit in his performance statistics for claims processed
by hi backup while Complainant was at union training; (9) on or about July 28, 2016, his
supervisor declined to allow him to perform backup claims work in order to improve his
performance statistics; and (10) on August 18, 2016, at a mandatory meeting, a management
official presented “false” data to demonstrate that Complainant was continuing to fail elements
of his performance standards.

The Agency accepted the complaint and conducted an investigation which revealed the following
pertinent information.

Complainant alleged that, on January 14, 2016, he overheard a senior claims examiner (African-
American) yelling at a subordinate claims examiner and, when Complainant attempted to
intervene on the claims examiner’s behalf, the senior claims examiner yelled at Complainant.
Complainant reported this to the district director as a Level 1 workplace violence incident. The
district director indicated that he conducted an informal investigation of the situation and that the
employees involved had a disagreement but they assured him everything was fine and that they
were friends. These particular employees had a habit of speaking loudly and he reminded them
about the volume of their conversations. He also chose to reassign one of them to another unit
and considered the matter resolved. Complainant was advised of the actions taken and the union
accepted the outcome.

Complainant alleged that, on January 21, 2015, he was removed from his position of senior
claims examiner because of the false allegation that he told a claims examiner not to speak to any
other senior claims examiner. Complainant alleged that he was treated differently from the other
senior claims examiners (African-American) who had committed other inappropriate acts and
were not removed from their positions. Complainant’s supervisor indicated that Complainant
was given a lateral reassignment due to performance deficiencies. The district director indicated
he concurred with Complainant’s reassignment because of poor performance.

On May 26, 2016, in response to an email from the Civil Rights Center, a senior claims examiner
provided a statement that she had made a complaint about Complainant and two other
employees. She had felt threatened by Complainant and two other “union officials,” who she
believed were watching and following her. There was an ongoing investigation and the
Complainants’ and others’ movements within the office had been restricted.
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Complainant alleged that, on May 27, 2016, he was threatened with disciplinary action because
he had complained about the Agency’s management’s actions, including favorable treatment
afforded to a co-worker, his supervisor’s excessive scrutiny of his work, and management’s
failure to properly handle his Level 1 workplace violence complaint. He further alleged that
other employees of different races were not threatened with discipline for complaining about the
same or similar issues. However, the record establishes that Complainant had sent an email to the
senior claims examiner who had been assigned to review Complainant’s work, alleging that the
senior claims examiner had been discriminatory, advising him to “cease and desist” these
allegedly discriminatory actions and that all communications should be via email. The senior
claims examiner advised Complainant that Complainant was not in the position to tell him to
cease and desist or dictate how he would communicate with him. He advised Complainant that
future inappropriate communications could result in disciplinary actions.

Complainant alleged the Agency treated his disparately when he received only a card when his
father died and a co-worker (Caucasian) received flowers, a plant, an office-wide email, and a
donation to a charity in her father’s name when her father died. The Agency’s management
indicated bereavement donations are handled at the unit level and such expressions of
condolences are made with voluntary contributions from the group.

With respect to Complainant’s performance issues, Complainant was advised on April 14, 2016,
that his performance was failing and if he did not improve, he would be placed on a performance
improvement plan. Subsequently, Complainant’s supervisor met with Complainant weekly to
discuss Complainant’s performance. Complainant’s supervisor indicated that, while
Complainant’s performance improved, by July 2016, his performance was failing in two
elements. That said, Complainant was not placed on a performance improvement plan. In August
2016, Complainant’s supervisor determined that Complainant’s performance had reached a
minimally satisfactory level and he was no longer failing.

Complainant’s supervisor indicated that neither Complainant nor another employee attending
union training were given credit for the work that their backups performed. Complainant was to
receive credit for accurate backup work that he performed.

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). In accordance with Complainant’s request,
the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The instant appeal followed. Complainant has not submitted a statement or brief in support of his
appeal. The Agency submitted a brief reiterating its findings and requesting that the Commission
affirm its FAD.

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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”).

Complainant alleged that the Agency treated him disparately. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the
agency has met its burden, the 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. With respect to Complainant’s Level 1 workplace violence complaint, the Agency’s
management explained that the matter had been investigated and resolved, with the Agency
reassigning one of the co-workers involved in the disagreement and the union agreeing with the
actions taken. With respect to Complainant’s being removed from his position as senior claims
examiner, the Agency’s management explained that he was reassigned due to performance
issues. With respect to Complainant’s allegation that a senior claims examiner lied to the Civil
Rights Center about him, the record establishes that the senior claims examiner responded to the
Civil Rights Center’s inquiry about her complaint that Complainant was watching and following
her and she provided the information she had, which was that the matter was being investigated
and she believed Complainant’s movements had been restricted. With respect to Complainant’s
email exchange with another senior claims examiner that allegedly involved threatened
discipline, we find Complainant’s email to the senior claims examiner was inappropriate and the
reply that any future inappropriate communications could result in disciplinary actions is a
reasonable response, as opposed to a threat. With respect to Complainant’s allegation that he was
treated disparately with respect to gifts upon the death of his father, the Agency explained that
such expressions were voluntary donations from co-workers.

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With respect to the allegations relating to Complainant’s performance evaluation and decisions
relating to when to credit him with work, we find the Agency’s management’s explanation and
actions to be reasonable and within managerial discretion. We note that Complainant ultimately
completed his performance improvement plan and his performance was assessed to be at least
minimally satisfactory. Therefore, we find that Complainant has not established by a
preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the
Agency were a pretext for unlawful discrimination or motivated by some unlawful
discriminatory animus.

Complainant also alleged the Agency subjected him to harassment. In Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment and create a hostile or abusive
working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75
(1998). The Court explained that an “objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively
perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.

We find that Complainant’s harassment allegations can generally be described as relating to
disagreements with managerial decisions and processes, including those relating to assignments,
reassignments, and performance evaluation. Without evidence of an unlawful animus, 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).
As a result, Complainant has failed to establish that he was subjected to harassment as well, as he
has failed to establish that discriminatory animus played any role in the Agency’s actions.

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.

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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.
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.
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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

December 11, 2018
Date