[Redacted], Bryan F., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 16, 2023

Appeal No. 2022002206 (E.E.O.C. Feb. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022002206 Hearing No. 550-2019-00479X Agency No. ARPOM18NOV04402 DECISION On March 17, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 15, 2022, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant held two positions. First, Complainant worked as a Test Development Specialist, 1701, AD-00 at the Agency’s Defense Language Institute Foreign Language Center (DLIFLC) in Presidio of Monterey, California, from November 28, 2016, to January 9, 2019. Second, Complainant worked as a Personnel Clerk in the Faculty Personnel System (FPS) personnel office from January 9, 2019, to February 23, 2019. Complainant’s original appointment had a not to exceed date of February 23, 2017. Complainant’s term was extended for one-year effective February 24, 2018, with a not to exceed date of February 23, 2019. 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. 2022002206 2 On December 14, 2018, Complainant filed an EEO complaint. Complainant subsequently amended the complaint on January 9, February 6, March 11, and April 1, 2019. The claims are as follows: 1. Complaint alleged that the Agency harassed him and discriminated against him on the bases of race (Iranian), national origin (Iran), sex (male), and religion (Shi'a Islam), when: a. On or about February and March 2017, Supervisor-1 repeatedly took tasks from her own team (which included people with the same nationality as her) and gave them to Complainant; b. On or about March 1, 2018, Complainant became aware of a negative comment on his Standard Form (SF) 52 (“picking up skills slowly”) that no one from his chain of command took responsibility for, and Supervisor-3 never provided him with feedback whether the comment was removed; c. On June 14, 2018, Supervisor-1 sent him an email and copied Supervisor-2 implying he was behind schedule with the Turkish project; d. On or about July 2018, Supervisor-4 sent an email to Supervisor-2 accusing Complainant of leaving sensitive testing material on Complainant’s desk; e. On or about July 11, 2018, Supervisor-1 and Supervisor-2 blamed him for the Turkish Target Language Expert (TLE) leaving and ending her contract one day early although Supervisor-2 approved her departure; f. On September 12, 2018, Supervisor-1 and Supervisor-2 brought Coworker-1 to a meeting as a note-taker although Complainant expressed to them that he did not feel comfortable with Coworker-1’s presence; g. On September 12, 2018, Supervisor-1 blamed him for the inconsistencies in the font size of a Turkish project which was caused by an update performed by the Information Technology Office (ITO) division which he had immediately reported to her and the ITO division chief; h. On September 12, 2018, Supervisor-1 blamed Complainant for the bold font in a Turkish passage although he had explained to her in an email that the font was part of the original text and was intended by the author; i. On or about September 12, 2018, Supervisor-1 misrepresented his production when she talked to Supervisor-2 and sent Complainant an email (courtesy copied to Supervisor-2) to lead her to believe Complainant neglected the quality control of his project while he completed the tasks according to the given instructions; j. On September 12, 2018, Supervisor-1 accused Complainant of not listening to her earlier explanation on how to number test items of a Turkish project, although she never gave him an instruction on how to do it; k. On September 13, 2018, Complainant felt intimidated when Supervisor-2 encouraged him to transfer out of Language Proficiency and Assessment Directorate (LPAD) at a meeting on September 12, 2018; l. In late September 2018, Complainant became aware that Supervisor-1 and Supervisor-3 asked Coworker-2 to write a statement documenting that 2022002206 3 Coworker-2 heard Complainant yell at Supervisor-1 during a meeting on September 12, 2018; m. On September 18, 2018, Supervisor-3 asked Complainant to write his account of the issues without explaining what specific allegations he should be responding to, which he shared with Supervisor-1, and Supervisor-1 later used in her counseling letter to him stating that he did not respond to her allegations; n. On September 30, 2018, Supervisor-3 tried to influence a colleague by unnecessarily sharing with her an allegation that Complainant had yelled in the September 12, 2018, meeting with Supervisor-1 and Supervisor-2; o. In late September and early October 2018, Supervisor-3 shared with Supervisor-1 information and evidence Complainant had confided in Supervisor-3 which helped her revise her account of her issues with Complainant in her counseling letter to him; p. On October 5, 2018, Supervisor-3 refused to provide Complainant with the statements that Coworker-1 and Coworker-2 had written about Complainant at Supervisor-3’s request; q. On October 5, 2018, Supervisor-1 changed her allegation that Complainant called her a liar and added the wording to her allegations in the face of the new information and evidence he presented to Supervisor-3 which Supervisor- 3 shared with Supervisor-1 and statement requested from Coworker-1; r. On October 5, 2018, Complainant became aware that sometime between September 12, 2018, and October 5, 2018, Supervisor-1 and Supervisor-3 told Coworker-1 to add a statement to the minutes of the September 12, 2018, meeting and to which he mentioned that voices were raised on both sides; s. On October 5, 2018, Supervisor-1, in a counseling letter, accused Complainant of failing to meet his performance standards, despite approving an amendment to his project’s timeline; t. On October 5, 2018, Supervisor-1 issued Complainant a Letter of Counseling (LOC) alleging that he yelled at her, pointed his fingers towards her, called her a liar in an attempt to profile him and shift attitudes against him, and criticized him on his monthly review of the contractor-developed test items and of the Persian language pool; u. On November 2, 2018, Supervisor-1 assigned Complainant significantly more test documents to review for at least several months compared to other project managers; v. On December 7, 2018, Supervisor-3 and Supervisor-2 refused to inform him whether they had requested an extension for his appointment beyond February 23, 2019; and w. From September 2018 to December 14, 2018, Supervisor-1 and Supervisor-2 provided him with a contradictory answer to his question as to why Test Production participation in the Yoruba Standard Setting Study was cancelled right after he applied to participate in it. 2022002206 4 2. Complainant alleged that the Agency discriminated against him based on race (Iranian), sex (male), national origin (Iran), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: a. On January 8, 2019, Supervisor-3 informed him that his employment appointment will not be extended after February 23, 2019, and immediately transferred him into a clerical position at the FPS office; b. On January 8, 2019, Supervisor-3 humiliated Complainant in front of his peers when Supervisor-3 shouted at Complainant several times and threatened to call the police when Complainant refused to speak with Supervisor-3 in Supervisor-3’s office; and c. On January 8, 2019, Supervisor-3 accused Complainant of being unproductive and making his colleagues uncomfortable with his presence. 3. Complainant alleged that the Agency harassed him and discriminated against him based on race (Iranian), sex (male), national origin (Iran), and religion (Shi’a Islam) when: a. On or about August 6, 2018, Supervisor-1 and Supervisor-2 held him in suspicion while other project managers were considered justified in making similar changes to their projects; b. On October 5, 2018, in an attempt to harass him and shift attitudes against him, Supervisor-1 sent Complainant an email implying he might need the Employee Assistance Program (EAP); and c. In early January 2019, after Complainant informed Supervisor-2 that he wanted to go to the Presidio of Monterey (POM) for a meeting regarding his current issues, she told him that he should submit a leave request for such meetings, including meetings with the union and EEO. 4. Complainant alleged that the Agency discriminated against based on race (Iranian), sex (male), national origin (Iran), religion (Shi’a Islam), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: a. From October 18, 2018, to January 9, 2019, Supervisor-5 refused to meet with Complainant multiple times to get an explanation why Supervisor-3 treated him in a manner that he felt was unfair and humiliating; b. On January 6, 2019, Complainant was removed from his assigned work area and placed at a table in the employee break area where other FPS personnel could easily see him; and c. On February 22, 2019, Supervisor-6 withdrew the opportunity for Complainant to continue working as an FPS Personnel Clerk for which he was receiving training. 5. Complainant alleged that the Agency discriminated against him based on race (Iranian), sex (male), national origin (Iran), religion (Shi’a Islam), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on or about February 23, 2019, Supervisor-7 and Supervisor-6 terminated Complainant’s appointment. 2022002206 5 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 5, 2021, motion for a decision without a hearing and issued a decision without a hearing on July 29, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. We note that Complainant was descriptive in his formal complaint and included specific details regarding the alleged harassment and discrimination. Only supplementary, relevant details regarding each claim are included herein. People involved The following Agency employees are relevant to the claims: Complainant’s second level supervisor from August 1, 2017 to January 9, 2019 (Supervisor-1); Complainant’s first-level supervisor from April 1, 2018 to January 9, 2019 (Supervisor-2); Complainant’s third-level supervisor from November 28, 2016 to January 9, 2019 (Supervisor-3); Complainant’s first-level supervisor from November 28, 2016 to March 31, 2018 (Supervisor-4); an English Editor (Coworker-1); a Program Analyst (Coworker-2); Complainant’s fourth-level supervisor from July 1, 2017 to January 9, 2019 (Supervisor-5); Complainant’s first-level supervisor from January 9, 2019 to February 23, 2019 (Supervisor-6); and Complainant’s second-level supervisor from January 9, 2019 to February 23, 2019 (Supervisor-7). Disparate Treatment claims Regarding claim 1.a, Complainant explained that Supervisor-1 took a test scoring task from her team and assigned the task to Complainant. Complainant reported that everyone considered this task to be very boring and very difficult. Complainant said the tasks were supposed to be evenly distributed and that he had other tasks he needed to do. Supervisor-1 stated that she considered the task a good opportunity for Complainant to develop work experience because Complainant was new to the department. Supervisor-1 explained that she asked Supervisor-4 whether Complainant had availability prior to making the assignment. Supervisor-1 noted that Complainant agreed to receiving the assignment. Supervisor-1 explained that no members in her team shared her nationality. Supervisor-1 explained that she is Korean and that her team members were Russian and Chinese. Regarding claim 1.u, Complainant stated that he was assigned significantly more test documents to review. He stated that he received 41, 40, and 38 documents across the three months, respectively. Complainant compared this with the average 30 documents assigned to other people. Complainant stated that these test documents for review are supposed to be evenly distributed. 2022002206 6 Complainant stated that such assignments were setting him up for failure. Supervisor-1 explained that the distribution occurred because reviewers’ assignments are redistributed to other employee when they take leave. Supervisor-1 also explained that she was not the assigning management employee for this task. Regarding claim 2.a, Supervisor-3 stated that Complainant was transferred, and his position not extended because Complainant was unproductive and made other employees uncomfortable. Supervisor-5 and Supervisor-6 reported that Complainant was disruptive to the LPAD workplace to the point that other employees felt threatened. Supervisor-1 provided the example of Complainant’s unproductivity in that Complainant was working on a Persian/Farsi project for almost six months but had only processed four out of 34 documents. Supervisor-1 described becoming frightened and nervous during the September 12, 2018 meeting. She reported that Complainant said, “you are lying, and you are a liar” with a raised voice. Supervisor-1 stated Complainant continued to call her a liar while pointing his finger at her. Supervisor-2 and Coworker-1 described similar conduct from Complainant. Coworker-1 described being uncomfortable with some of Complainant’s conduct during the September 12, 2018 meeting as well as when Complainant approached him afterwards to discuss the incident. Regarding claim 4.b, Complainant stated that upon his transfer to the FPS personnel office, he was assigned to a desk in an office he shared with another individual. Complainant reported that the officemate went on leave and that he was asked to sit and work in the employee break area. Complainant stated that he was assigned to a cubicle after reporting the issue to upper management. When Complainant’s officemate returned, he returned to the original desk. Supervisor-6 explained that Complainant was moved out of the original office because there were personnel files to which Complainant should not have unsupervised access. Regarding claim 4.c, Complainant characterized Supervisor-6’s behavior as leading Complainant to believe that Complainant could continue to work in FPS. Supervisor-6 stated that he had explained to Complainant that there was not a job for him to continue at FPS and that Complainant’s transfer to FPS was temporary. Supervisor-6 noted that no job opportunity was withdrawn. Supervisor-6 explained that Complainant’s transfer to FPS was still subject to his appointment’s not to exceed date. Regarding claim 5, the record demonstrates that Complainant’s position was terminated at the expiration of his appointment. Complainant stated that there was a need for the work that he was performing and that this need supported his extension. Official Time (claim 3.c) Complainant reported that in January 2019 Supervisor-2 stated, “in the future, you have to send me a leave request for meetings with the union or EEO.” Supervisor-2 stated that while she was on leave, Complainant had sent an email to Supervisor-1 asking if he could go to POM and that Supervisor-1 allowed Complainant to go. Supervisor-2 reported that when she returned from leave, Complainant was asking her to go to POM two to three times a week. 2022002206 7 Supervisor-2 stated that she allowed him to go when he asked. Supervisor-2 explained that Complainant would leave at 12 pm and not return until the next day. Supervisor-2 reported a belief that Complainant would make the trip two to three times but that “it continued and continued and continued.” Supervisor-2 noted that she did not ask Complainant where he was specifically going in POM and that she did not know to whom Complainant was talking. She stated that she was responsible for Complainant and his safety if he was not on leave. Supervisor-2 explained that after the repeated trips to POM, she said, “if this continues, then we have to agree that you will apply for leave.” Harassment Regarding claim 1.b, Complainant reported that Supervisor-3 stated that the comment should be removed. Complainant admitted that he did not follow up with Supervisor-3 to see whether the comment had been removed. Regarding claim 1.c, Complainant stated he had provided Supervisor-1 with his timeline for the Turkish project. Complainant stated that he was current with the timeline. Complainant described Supervisor-1’s email as terse. Complainant stated that Supervisor-1 stated in the email that she wanted to make sure that the project gets finished by September. Complainant asserted that there was no need to send the email because he was current with the timeline. Regarding claim 1.d, Complainant denied the substance of the accusation. Complainant stated that he had left a handout on his desk. He stated that the handout covered information that is publicly accessible. Complainant stated that the accusation distracted him from his work. Regarding claim 1.e, Complainant reported that the Turkish TLE was scheduled for three days. Complainant stated that the TLE finished her work in two days and that she had another obligation that made her want to leave early. Complainant stated that Supervisor-2 said, “if you are happy with her work and if she finished her work, there is no need for her, you can talk to the coordinators who brought her.” Complainant stated that the Turkish TLE left. Complainant reported that Supervisor-2 later came to his office and stated, “you let her go a day early.” Complainant stated that Supervisor-1 emailed him, “you want to make sure that the TLEs stay for the amount of time they’re scheduled or they stay for as long as they are needed, rather than just two days.” Claims 1.f - 1.t, 3.a, 3.b, and 4.a are discussed together as they deal with a dispute that occurred during a meeting on September 12, 2018, the subsequent investigation regarding the dispute, and the resulting October 5, 2018, LOC. Supervisor-2 reported that she called the September 12 meeting because she felt there were issues that needed to be discussed between her, Complainant, and Supervisor-1. Complainant explained that he was not comfortable with Coworker-1’s presence at the meeting because Coworker-1 was an employee of equal rank. Complainant stated that he discussed the font errors and bold text with Supervisor-1 and Supervisor-2 and that they gave him an okay to leave them. Complainant stated that they then blamed him for the errors at the meeting. 2022002206 8 Complainant stated that the production in claim 1.i refers to the number of test items. Complainant stated that he had never been told what number of test items were required for the Turkish project. Complainant stated that when he submitted the finalized tests, Supervisor-1 stated that she told him twice as many test items were required for the project. Regarding claim 1.k, Complainant reported that Supervisor-2 asked Complainant, “why don’t you transfer to another place, like say Persian/Farsi school?” As noted above, Supervisor-1 reported that Complainant said, “you are lying, and you are a liar” with a raised voice at the September 12, 2018, meeting. Supervisor-1 stated Complainant continued to call her a liar while pointing his finger at her. Supervisor-2 and Coworker-1 described similar conduct from Complainant. Complainant denied this conduct. Complainant stated that the conduct described in claims 1.l to 1.n were management efforts to fabricate evidence before sending him the LOC. The LOC indicates that it is not a formal disciplinary action but an informal written counseling of Complainant’s unprofessional, unacceptable conduct during the September 12, 2018 meeting as well as observed deficiencies in Complainant’s ability to multi-task. Complainant explained that claim 3.a referred to the process of Test Development Specialists amending the timelines for projects and that Complainant’s amendments were held in suspicion. Regarding claim 3.b, Supervisor-5 admitted to refusing to meet with Complainant. Supervisor-5 explained that Complainant’s concerns had to do with issues that are the responsibility of the supervisor and not Supervisor-5, Complainant’s fourth-level supervisor. Regarding claim 1.v, Complainant stated that he asked Supervisor-3 and Supervisor-2 whether his appointment was extended. Complainant stated that Supervisor-2 told him that he had to ask Supervisor-1 or Supervisor-3. Complainant reported that Supervisor-3 responded that he was not ready to inform Complainant about the decision. Supervisor-3 admitted to not discussing the non-extension with Complainant until January 8. Supervisor-3 explained that the collective bargaining agreement required only a two-week notice of non-extension. Regarding claim 1.w, Complainant reported that Supervisor-2 stated that an Agency employee made the determination to cancel the Test Production participation in the Yoruba Standard Setting Study, however, when Complainant spoke with that employee, he indicated he had not canceled it. The employee reported that it was understandable why Supervisor-1 and/or Supervisor-2 had that impression because he had expressed concerns about the number of observers for the Yoruba study to Agency management. Regarding claim 2.b, Complainant stated that he followed up with Supervisor-5’s office to see if he could get an explanation for his non-renewal and transfer to FPS. Complainant stated that Supervisor-3 then approached Complainant and ordered Complainant to come with Supervisor-3 to Supervisor-3’s office. Complainant stated that he declined. Complainant reported that Supervisor-3 told him that Supervisor-3 could call the police and have Complainant removed to which Complainant responded, “do it.” Complainant stated that Supervisor-3 raised his voice several times following this comment until a colleague intervened and then Supervisor-3 left. 2022002206 9 Regarding claim 2.c, Supervisor-3 admitted to making the statement. The supporting evidence demonstrating why Supervisor-3 believed Complainant was unproductive and made colleagues uncomfortable is fully discussed under the background for claim 2.a. ANALYSIS AND FINDINGS Standard of Review The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Disparate Treatment To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. 2022002206 10 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions at issue. Regarding claim 1.a, Supervisor-1 stated that she assigned the test scoring tasks to Complainant to develop his work experience because Complainant was new to the department. Regarding claim 1.u, Supervisor-1 explained that the distribution occurred because reviewers’ assignments are redistributed to other employee when they take leave. Regarding claim 2.a, Complainant’s transfer to FPS and non-extension occurred because Complainant was unproductive and made other employees uncomfortable. Regarding Complainant’s workspace assignment in FPS, Supervisor-6 explained that Complainant was moved out of the original office because there were personnel files to which Complainant should not have unsupervised access. Regarding claim 4.c, Supervisor-6 explained that no job opportunity was withdrawn. Rather, Supervisor-6 stated that he had explained to Complainant that there was not a job for him to continue at FPS and that Complainant’s transfer to FPS was temporary. Supervisor-6 noted that Complainant’s transfer was still subject to his appointment’s not to exceed date. Regarding claim 5, the record demonstrates that Complainant’s position was terminated at the expiration of his appointment. 2022002206 11 Even if we evaluate the LOC under the disparate treatment analysis, Complainant has not proven the legitimate, nondiscriminatory reasons for the LOC were pretext for discrimination. As noted above, Complainant’s yelling during the September 12 meeting was observed by multiple employees and Supervisor-1 highlighted multiple deficits in Complainant’s productivity. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. Rather, Supervisor-1 noted that Complainant received a three-month extension on his assigned Turkish project similar to the other Test Development Specialists. We find that Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment actions were a mere pretext for discrimination. Complainant admitted on multiple occasions that there were no statements or physical evidence demonstrating a relationship between the actions and Complainant’s membership in statutorily protected classes. The reasons for the employment actions also have a strong foundation within the record. For instance, multiple employees reported observing Complainant yell during the September 12 meeting. Additionally, Supervisor-1 was able to identify the exact deficits in Complainant’s productivity. Official Time EEOC Regulation 29 CFR § 1614.605 (b) requires, in part, the agency to provide a reasonable amount of official time for the complaint to prepare the complaint and to respond to requests for information. Regarding claim 3.c, Complainant asserted that Supervisor-2 said, “in the future, you have to send me leave request for your meetings with union or EEO.” Supervisor-2 explained that Complainant had received permission to go to POM once from Supervisor-1 as well as multiple times from Supervisor-2. Supervisor-2 stated that she did not ask where Complainant was specifically going in POM and that she did not know to whom Complainant was talking. Supervisor-2 stated that Complainant’s trips to POM would take four hours per day. Supervisor- 2 explained that after the repeated trips to POM, she said, “if this continues, then we have to agree that you will apply for leave.” Complainant did not dispute that he had received official time from Supervisor-1 and Supervisor-2 for trips to POM prior to Supervisor-2’s request for leave submissions. We find that there is insufficient evidence to find a violation of 29 CFR § 1614.605 (b). Harassment To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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 2022002206 12 environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. 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. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Regarding Complainant’s claim of harassment, we find that Complainant failed to prove that the conduct complained of was based on Complainant’s membership in a statutorily protected class. As noted above, Complainant admitted on multiple occasions that there were no statements or physical evidence demonstrating a relationship between the conduct and Complainant’s membership in statutorily protected classes. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2022002206 13 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2022002206 14 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 16, 2023 Date