0120112836
10-27-2011
Frederick D. Caporelli, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Frederick D. Caporelli,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120112836
Agency No. DOS-F-100-10
DECISION
On May 18, 2011, Complainant filed an appeal from the Agency’s April 29,
2011, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission
accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency
subjected him to discrimination and harassment on the bases of disability,
age, and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Classified Pouch Handler/Courier Escort at the Agency’s U.S. Consulate
General, Regional Diplomatic Courier Division in Frankfurt, Germany.
Complainant began his employment in May 2008. On April 9, 2010,
Complainant contacted an EEO Counselor. On July 2, 2010, Complainant
filed an EEO complaint alleging that the Agency discriminated against him:
1. On the bases of disability (knee, diabetes), age (51),
and reprisal for EEO activity (April 9, 2010 EEO Counselor contact)
when his First Level Supervisor (S1) and the Acting Supervisor (AS1)
subjected him to hostile work environment harassment when:1
a. In 2008, during his first six months of employment, S1 forced him to
take three weeks of annual leave;
b. From May 2008 to December 2008, management made him work the 5:00
a.m. to 1:00 p.m. shift;
c. From May 2008 to December 2009, management denied him leave for family
appointments and school functions;
d. On March 31, 2010, management sent him home;
e. On April 1, 2010, management made him work an hour and a half past
the end of his shift;
f. On or about April 6, 2010, S1 issued him a written reprimand, which
was subsequently changed to an oral reprimand and then a “counsel
to” memo;
g. On an unspecified date, S1 denied him the opportunity to attend truck
driving school and obtain a truck license;
h. Management subjected him and other employees to unwelcome verbal
conduct such as yelling, derogatory name calling, abusive comments,
and threats:
• On March 31, 2010, S1 yelled at him in public: “Next time you put
diesel in the van, wipe off any excess on the van … Are you going to
acknowledge me? … You will acknowledge me! I am your supervisor and
you are the employee!”
• On March 31, 2010, after S1 sent him home, AS1 threatened to have
the Marines physically remove him if he did not leave immediately
• On July 26, 2010, management questioned him when he arrived at his
job seven hours early
• S1 called his wife a “sugar mama”
• S1 told him, “I know kids in kindergarten who are smarter than
you”
• AS1 told him, “If you don’t listen to me or do what I say I will
send you home”
• Management called his house early in the morning and screamed at
him over the phone
• S1 told him to forget about having time off in summer 2011 (when his
children would be on vacation) because other employees with no children
would have that time off instead
• S1 screamed “I knew it was fucking Fred,” walked up to his
workspace, raised his [S1’s] fists, and smashed them into a crate
• S1 “played head games” with him “from day one”
• S1 called a co-worker a “stupid fucking idiot”
• S1 called an upper manager a “fucking pussy with no balls”
• S1 publicly humiliated a co-worker over money issues
• S1 accused a co-worker of being on drugs
i. Management took the following actions towards all employees:
• Placed their pay stubs and phone bills on a table in violation of
the Privacy Act
• Counseled them in front of everyone for public humiliation
• Changed their work schedules based on their behavior
• “[R]un this operation like we are in the military”
2. On the basis of reprisal (April 9, 2010 EEO Counselor contact)
when, at a staff meeting on April 14, 2010, S1 asked if he would like
to discuss the March 31, 2010 incident.
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 EEOC Administrative Judge. 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 and
harassment as alleged.
Regarding claim 1, the Agency found that Complainant failed to establish
his claim of harassment. Specifically, the Agency determined that the
actions complained of were not based on Complainant’s protected classes
and were not sufficiently severe or pervasive to create a hostile work
environment. Regarding claim 2, the Agency found that Complainant failed
to establish a prima facie case of reprisal discrimination. Specifically,
the Agency determined that S1 was unaware of Complainant’s April 9,
2010 EEO activity at the time of the April 14, 2010 meeting.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency’s final decision
did not address all the points he raised in his rebuttal statement.
In support of his reprisal discrimination claim, Complainant asserted
that S1 changed his pre-approved vacation dates to shorten his vacation
after the Agency issued its final decision. In addition, Complainant
asserted that S1 had changed his vacation dates three years in a row and
that other employees received their preferred dates.2 In support of his
disability discrimination claim, Complainant asserted that management
assigned other employees Escort duties when they were on light duty
but never assigned him Escort duties when he was on light duty.3 In
support of his age discrimination claim, Complainant asserted that age
discrimination occurred as he alleged and S1 told him he was too old.
The Agency did not submit a brief or statement in response.
ANALYSIS AND FINDINGS
Standard of Review
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 (EEO
MD-110), at Ch. 9, § VI.A. (Nov. 9, 1999) (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”).
Disparate Treatment – Claim 1: Incidents (a)-(g)
Complainant alleged several adverse employment actions as part of his
harassment claim. We will analyze those adverse employment actions
under a disparate treatment framework.
To prevail in a disparate treatment claim such as this, a complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary
depending on the facts of the particular case. McDonnell Douglas, 441
U.S. at 804 n.14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence,
that the agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, a complainant
retains the burden of persuasion, and it is his obligation to show by
a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See Hicks, supra.
Prima Facie Case of Reprisal – Incidents (a)-(g)
To establish a prima facie case of disparate treatment on the basis of
reprisal, a complainant generally must show that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000).
Upon review, we find that Complainant failed to establish a prima facie
case of reprisal discrimination. Specifically, we find that Complainant
did not show that the Agency subjected him to adverse treatment after
he contacted an EEO Counselor on April 9, 2010. Regarding incidents
(a)-(f), Complainant alleged that they occurred before April 9, 2010.
Regarding incident (g), we note that Complainant did not specify when
the incident occurred.
Incident (a) – Forced to Take Annual Leave in 2008
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability and age, we find that the
Agency articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, S1 averred that that he only allowed Complainant to take
leave on certain dates (September 14, 2008 to October 4, 2008) because
the leave matrix was already established when Complainant started working.
In addition, S1 averred that he did not force Complainant to take leave,
but merely told Complainant that those were the available dates. Further,
S1 averred that new employees normally are not allowed to take leave
during their first six months of employment.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason is a pretext for
disability and age discrimination. In an attempt to establish pretext,
Complainant averred that S1 said he was the “low man on the totem
pole” and told him to take the vacation or lose it.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason is pretextual. In so finding, we note
that Complainant did not dispute S1’s explanation of why he could only
take annual leave on certain dates. In addition, we find that S1’s
comment referred to Complainant’s status as a new employee and not
to his disability or age. Finally, we note that Complainant was not
entitled to annual leave as a new employee because the Locally Employed
Staff Handbook states, “Newly appointed employees are normally not
granted annual leave during the first six months.”
Incident (b) – Made to Work the Early Shift
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability and age, we find that the
Agency articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, S1 averred that, when possible, all new employees worked
the early shift during their first six months. S1 explained that
the majority of the work is done during the early shift and having new
employees on the early shift allowed a floor supervisor to better assess
their performance during the probationary period.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason is a pretext for
disability and age discrimination. In an attempt to establish pretext,
Complainant averred that S1 told him at the time of he was hired that
he would be working the night shift and that other employees rotated
between the day and night shifts.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason is pretextual. In so finding, we note
that Complainant did not dispute S1 explanation that he regularly assigned
new employees to the early shift. In addition, the record contains no
evidence that S1 did not similarly assign other new employees to the
early shift.
Incident (c) – Denied Leave
Upon review, we find that Complainant failed to establish that incident
(c) occurred as alleged. While Complainant alleged that that S1 and
AS1 denied him leave for family appointments and school functions from
May 2008 to December 2009, we find that Complainant failed to provide
sufficient evidence to substantiate this allegation. Specifically,
besides generally alleging that he was denied leave over a 19 month
period, Complainant did not provide any additional information about
when those denials occurred.
Incident (d) – Sent Home
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability and age, we find that the
Agency articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, S1 averred that Complainant was sent home because he did not
calm down during a verbal altercation and management was worried that he
could become violent. In addition, AS1 averred that Complainant was being
hostile and disrespectfully raising his voice. Further, AS1 averred that,
because explosive behavior should not be tolerated and could be dangerous
in the work place, he had told Complainant during a previous incident that
the next time Complainant acted that way he would send Complainant home.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate,
by a preponderance of the evidence, that the Agency’s reason is
a pretext for disability and age discrimination. Upon review, we
find that Complainant failed to show that, more likely than not, the
Agency’s reason is pretextual. In so finding, we note that Complainant
specifically averred that he was not claiming he was sent home because
of his disability or age.
Incident (e) – Made to Work Late
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability and age, we find that the
Agency articulated a legitimate, nondiscriminatory reasons for its action.
Specifically, AS1 averred that he told Complainant to stay out longer
to escort a courier from the airport because it did not make sense to
dispatch another driver out to the airport. AS1 explained that there was
work to do back at the warehouse and Complainant had space in his vehicle.
In addition, S1 averred that sometimes flights are delayed and employees
have to work overtime. Further, S1 averred that Complainant’s position
description states that employees will work irregular hours.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason is a pretext for
disability and age discrimination. In an attempt to establish pretext,
Complainant averred that AS1 never asked if he could work a little later
to help out and that management “knows this is the only job in town
so they abuse the system.”
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason is pretextual. Although Complainant
appeared to take issue with AS1 ordering instead of asking him to work
late, we note that Complainant did not dispute AS1’s explanation of
why he had to work late.
Incident (f) – Discipline
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability and age, we find that
the Agency articulated a legitimate, nondiscriminatory reasons for
its action. Specifically, S1 averred that he counseled Complainant
because of the March 31, 2010 incident. In addition, S1 averred that,
although he initially intended to issue Complainant a written reprimand,
he later decided to reduce the level of discipline after speaking with
the Regional Director and Human Resources about the situation.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason is a pretext for
disability and age discrimination. In an attempt to establish pretext,
Complainant averred that S1 was “trying to get rid of [him]” because
of his disability and his age. Specifically, Complainant averred, “I
am in [S1]’s eyes too old and incapable of doing my job. He will not
say this but this is my gut feeling.”
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason is pretextual. In so finding, we note
that the record contains no evidence, aside from Complainant’s mere
speculation, that S1’s actions were motivated by discriminatory animus.
Incident (g) – Truck Driving School
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of disability and age, we find that
the Agency articulated a legitimate, nondiscriminatory reasons for its
action. Specifically, S1 acknowledged that he had initially mentioned
during the employment interview that Complainant would be going to truck
driving school. S1 also averred, however, that management decided not
to request any additional slots at the school before Complainant began
his employment.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason is a pretext for
disability and age discrimination. In an attempt to establish pretext,
Complainant averred that S1 told him that he would not be getting his
truck license because people that are 50 and older have to have their
license renewed each year and S1 did not want to pay for the renewal of
his license each year.4
Upon review, we find that Complainant failed to show that, more
likely than not, the Agency’s reason is pretextual. In so finding,
we note that Complainant did not dispute S1’s explanation for why he
could not attend driving school. In addition, Complainant admitted in
his affidavit that S1 renewed the license of a 51 year-old co-worker
every year. This tends to show that, despite S1’s comment, S1’s
actions were not based on Complainant’s age and instead were based on
other considerations.
Claim 1 – Hostile Work Environment Harassment: Incidents (a)-(i)
Harassment does not violate federal law unless it involves discriminatory
treatment on a basis covered under the anti-discrimination statutes.
See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002, at § I (June 18,
1999). Further, the anti-discrimination statues are not a “general
civility code.” Id.
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on their 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).
The harasser’s conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim’s circumstances. EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002,
at 6 (Mar. 8, 1994) (Harris Guidance).
Upon review of the record, we find that Complainant failed to
establish a claim of actionable harassment because he did not prove,
by a preponderance of the evidence, that the harassment complained of
was based on his disability, age or prior EEO activity.
Regarding incidents (a)-(g), we find, under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that Complainant’s
claim of hostile work environment must fail. See Harris Guidance.
A finding of hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by
the Agency were motivated by discrimination or retaliation. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Regarding incidents (h) and (i), we note that S1 and AS1 denied
committing much of the conduct complained of; however, even assuming
that the conduct occurred as alleged, we find that the record contains no
evidence that it was based on Complainant’s disability, age, or prior
EEO activity. Although Complainant and management did not get along,
Complainant failed to show that S1 and AS1 targeted him because of his
protected classes. First, we find that the unwelcome conduct alleged
by Complainant in incident (i) affected all employees equally. Second,
we note that Complainant alleged in his affidavit that management also
treated other employees poorly. Specifically, Complainant averred that
S1 and AS1 called other employees derogatory names, publicly humiliated
them over money issues, and accused them of being on drugs. In addition,
Complainant averred, “It’s a vicious cycle in here and they [S1 and
AS1] go from employee to employee.” Moreover, Complainant specifically
named three other employees5 whom he believed were also subjected to
similar harassment by management. Complainant clearly disagreed with
management’s supervisory style and believed that their interactions
with employees were rude and unprofessional. However, there is no
evidence in the record, other than Complainant’s bare assertions,
that the actions of S1 and AS1 were motivated by his disability, age,
or prior EEO activity.
Claim 2 – Reprisal
To establish a prima facie case of disparate treatment on the basis of
reprisal, a complainant generally must show that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000).
On April 9, 2010, Complainant engaged in protected activity when
he contacted an EEO Counselor about the instant complaint. The EEO
Counselor’s Report reflects that Complainant chose to remain anonymous
during the informal complaint process.
On April 14, 2010, S1 held a staff meeting with AS1, Complainant,
and other employees under his supervision. Complainant alleged that,
during the meeting, he was “called out” by S1 in front of other
employees “to let everyone know this is what will happen to you if
you say anything.” Specifically, Complainant alleged that S1 stated,
while looking directly at him, “If anyone in here has any grievances now
or in the past with me, let’s start a new beginning!” In addition,
Complainant alleged that S1 asked if he would like to talk about the March
31, 2010 incident, to which he replied, “Absolutely not!” Further,
Complainant alleged that S1 stated that he was “a loose manager,”
that there were people “on the outside looking in right now,” and that
if anyone else got involved “everything will be done by the book.”
Upon review, we find that Complainant failed to establish a prima
facie case of reprisal discrimination. Specifically, we find that
Complainant did not show that S1 was aware of his protected activity
before the April 14, 2010 meeting. S1 averred that, before the meeting,
the EEO Counselor had informed him that an anonymous employee had filed
an informal complaint alleging a hostile work environment. In addition,
S1 averred that the purpose of the meeting was to let employees know he
was told they had a problem in the warehouse and to give employees the
chance to discuss any problems they might have. Moreover, S1 averred
that he was unaware that Complainant had engaged in the EEO process
until he was contacted by the EEO Investigator in the instant complaint.
Although Complainant believed that S1’s actions during the meeting
were retaliatory, Complainant provided no evidence, beyond his bare
assertions, that S1 knew or suspected that he was the employee who had
contacted the EEO Counselor.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/27/11________________
Date
1 In his formal complaint, Complainant did not provide specific examples
of the alleged harassment. In its acceptance letter, the Agency
identified Complainant’s claim as being “subjected to a hostile
work environment characterized by, but not limited to, threats, acts of
intimidation, berating, and yelling.” In his affidavit, Complainant
listed incidents (a)-(i) in response to a question asking him to describe
incidents he was claiming contributed to a hostile work environment.
2 Regarding the claim that S1 changed his vacation dates, we note that
Complainant did not previously raise this claim as part of the instant
complaint. It is therefore inappropriate for Complainant to raise
this new claim for the first time on appeal. See Hubbard v. Dep’t of
Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004).
3 Complainant mentioned in his affidavit and again on appeal that
management discriminated against him on the basis of disability in
not assigning him Escort duties. We find that Complainant failed to
establish a prima facie case of disparate treatment because he did not
identify any relevant comparators.
4 S1 clarified in his affidavit that he meant that it would be a
“hassle” for Complainant, not the Agency, to have to get recertified
every year.
5 According to Complainant, the employees ranged from 30 to 56 years of
age. Complainant did not provide any information about their disability
or prior EEO activity.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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