[Redacted], Clinton R.,1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022002196 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clinton R.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2022002196 Agency No. 64-2021-00435 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 14, 2022, finding no discrimination concerning his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-13, Auditor, at the Agency’s Office of Audit and Evaluation, Office of Inspector General (OIG), in Washington, D.C. The record indicates that on May 5, 2021, Complainant contacted an EEO Counselor regarding his complaint. On July 12, 2021, Complainant filed his complaint alleging discrimination and harassment based on disability and in reprisal for raising concerns of discrimination and harassment when: 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. 2022002196 2 1. He was expected to perform work for which he was not responsible. 2. He was subjected to patterns of noisy disruptions by his coworkers and maintenance staff. 3. He was issued a Letter of Reprimand, dated December 29, 2020. 4. He was suspended for five days from March 1, 2021, to March 5, 2021.2 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 EEOC Administrative Judge or a final Agency decision. 29 C.F.R. § 1614.108(f). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant indicated that he began working at the Agency’s OIG in May 2017, as a GS-9 Auditor. The record indicates that since then, Complainant’s first level supervisor (S1), GS-14, Supervisory Program Analyst, promoted Complainant to GS-11 and then to GS-12 and recently to the GS-13 Auditor position effective July 19, 2020. Complainant indicated that he had Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder (ADD, ADHD) which affected his concentration and focus, making him sensitive to noise. Regarding claim 1, Complainant indicated that on December 22, 2020, S1 required him to take notes and lead a meeting that was going to be led by his coworker, per the project members’ agreement. S1 indicated that on Friday, December 18, 2020, a GS-14, Team Lead (“Lead”) already asked Complainant to write the notes for the December 23, 2020 Census Bureau meeting. At the December 22, 2020 team meeting, the coworker volunteered to write the notes, but since the Lead already asked Complainant to write the notes, S1 told Complainant to do so in support of the Lead’s direction from the previous week. S1 indicated that he did not ask Complainant to lead the December 23, 2020 meeting. Regarding claim 2, Complainant claimed that from October 2018, to March 2020 (at which time his full-time telework began due to the pandemic), he was subjected to patterns of noisy disruptions. 2 Complainant also alleged that he was removed from federal service effective June 4, 2021. The Agency initially processed the complaint including the removal issue as a mixed case complaint, appealable to Merit Systems Protection Board (MSPB). 29 C.F.R. § 1614.302. Upon completion of the investigation of the complaint, the Agency bifurcated the removal claim and issued Complainant a separate final Agency decision, under Agency No. 64-2021-00375, on January 25, 2022, finding no discrimination, i.e., including his appeal rights to the MSPB. Complainant appealed to the MSPB who issued a decision upholding the removal and finding no disability discrimination. Appellant v. Department of Commerce, DOCKET NUMBER DC- 0752-22-0240-I-1 (September 19, 2022). The removal claim is not at issue in this decision. 2022002196 3 Specifically, Complainant indicated that his coworkers constantly slammed their file/desk drawers; forcefully closed the office door by yanking the door closed; forcefully threw trash into their trash cans making a banging sound; and picked up their keyboard and dropped it on their desk. Complainant also indicated that S1 and the Lead would repeatedly click their ink pens despite him repeatedly telling them that what they were doing was very disruptive to him due to his disability. Also, on February 5, 2020, the maintenance staff were rhythmically banging their ladders against the floor and creating an excessive disruptive commotion for at least 10 or 15 minutes which created a hostile environment toward him. Complainant did not indicate any purportedly noisy disruptive incidents after February 5, 2020. S1 indicated that he did not become aware of Complainant’s concerns regarding noisy disruptions by his coworkers or clicking pen noise until March 3, 2021. S1 also indicated that he did not click his pen in an intentionally malicious manner to disrupt Complainant. S1 stated that regarding the February 5, 2020 incident, maintenance staff was changing the heating/air conditioning vent filters and he did not direct the staff to purposely create a disruptive environment. The Lead stated that he never had a conversation about clicking his pen and he had no knowledge of patterns of noisy disruptions Complainant alleged. The Lead indicated that Complainant began to have performance issues well after these incidents, i.e., late in November 2020, well after teleworking began due to the pandemic. Complainant’s coworker (C1), GS-13, Auditor, indicated that she sat in the cubicle across from Complainant. C1 denied that she subjected Complainant to patterns of noisy disruptions or observed others engaged in any activities that would suggest that they were intentionally making more noise than would be expected from routine office activities. C1 stated that Complainant never told her or any other coworkers that she was making noises that were disruptive to him. Regarding the February 5, 2020 incident, C1 indicated that she was in the office, and she believed the maintenance staff only made an amount of noise that was required to perform their tasks, i.e., using ladders and working with ducts and wires in the ceiling to repair the heating/air conditioning system. Complainant’s second level supervisor (S2), GS-15, Division Director, indicated that in April 2019, Complainant came to her office and told her that he had trouble concentrating in the office due to noise and his coworkers were slamming the door of the microwave in the office. S2 suggested to Complainant that she could move the microwave oven closer to her office, but Complainant asked her not to do that. S2 also suggested to Complainant he could request a reasonable accommodation through Human Resources (HR) office to increase the number of telework days if working in a cubicle environment was too distracting. Complainant told S2 that he was not going to request a reasonable accommodation and that he had already figured out his own way to deal with the problem. S2 indicated that Complainant never told her that he was being harassed. S2 indicated that Complainant worked from home (teleworked) full-time since March 2020 (due to pandemic) until June 4, 2021 (when he was removed from his employment - not at issue in this decision). 2022002196 4 The record indicates that on February 3, 2021, Complainant filed a complaint with the HR office alleging harassment by S1. Specifically, Complainant alleged that since 2018, his coworkers and S1 subjected him to “obnoxious and disruptive noise” around his desk and S1 issued him a letter of reprimand, described herein. HR conducted an investigation, which included interviewing Complainant, S1, and the Lead. On March 30, 2021, HR completed its investigation and found Complainant’s harassment claim unsubstantiated and no inappropriate conduct or collusion by S1 as alleged. Regarding claim 3, S1 issued Complainant a letter of reprimand dated December 29, 2020, for failure to follow supervisory instructions. Therein, S1 stated that on December 2, 2020, Complainant was given a verbal counseling for his unresponsiveness to communication attempts from colleagues, not attending scheduled meetings, and not logging into and updating TeamMate files. As part of the counseling, S1 provided Complainant with clear expectations for his responsiveness to communication attempts, meeting invites, and the expectation to update TeamMate files. Despite these instructions, stated S1, Complainant continued to engage in the same misconduct of failing to follow S1’s instructions on fourteen occasions from December 4 - 15, 2020. S2, concurring with S1, indicated that starting in November 2020, Complainant stopped completing his assignments and responding to emails, Team instant messages, and phone calls from S1 and the Lead regarding his assignments. Regarding claim 4, Complainant was issued a Notice of Proposed Five Calendar Day Suspension dated February 8, 2021. Therein, S1 cited six specifications for Complainant’s failure to follow instructions from January 5 - 14, 2021. Specifically, S1 stated that Complainant failed to: complete an assignment instructed by the Lead to formulate a list of testing attributes and its update on the subject assignment; submit the assigned notes from the December 23, 2020 meeting; submit an assignment instructed by the Lead to review a number of decision memoranda issued by Census Investigative Services; and respond to a meeting invitation for his attendance. Therein, S1 cited Complainant’s prior verbal counseling and the letter of reprimand, described in claim 3, for his failure to follow instructions. On February 25, 2021, Principal Assistant Inspector General, SES, issued a decision suspending Complainant as proposed from March 1 - 5, 2021. Based on the foregoing, the Agency issued a final decision finding no discrimination as alleged. On appeal, Complainant reiterates his allegations, including his being harassed by noise created by his coworkers in 2018 and 2019, even after obtaining noise-cancelling headphones, and by maintenance staff. Complainant also reiterates that he was harassed by management and his coworkers. 2022002196 5 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 (EEO MD-110), Chap. 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"). 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 Complainant 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. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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 Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022002196 6 Regarding Complainant’s disability claim, the Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, there is no evidence Complainant requested a reasonable accommodation for his disabilities. The record indicates that in April 2019, Complainant talked to S2 about his having trouble concentrating in the office due to noise (slamming the door of the microwave oven). Although S2 suggested Complainant to request a reasonable accommodation through HR to increase the number of telework days, Complainant told S2 that he was not going to do so. Furthermore, the record reflects that Complainant was no longer subjected to the purported noise disruptions (i.e., slamming/banging office doors, drawers, keyboard, and trash cans by coworkers and/or by repairing staff) since March 2020, when he began teleworking from home fulltime due to pandemic. Complainant does not specify any noise related incidents after March 2020. Assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record reveals that Complainant was issued a letter of reprimand dated December 29, 2020, for failure to follow supervisory instructions. Specifically, S1 stated that Complainant was given verbal counseling on December 2, 2020, regarding his unresponsiveness to communication attempts from colleagues, not attending scheduled meetings, and not logging into and updating TeamMate files. Despite this counseling, Complainant’s conduct did not improve and he continued to engage in the same misconduct on fourteen occasions from December 4 - 15, 2020. The record reflects that on February 25, 2021, Complainant was issued a five-day suspension from March 1 - 5, 2021, for failure to follow instructions from January 5 - 14, 2021. Specifically, S1 stated that Complainant failed to complete assignments instructed by the Lead and by S1 in a timely manner and failed to respond to a meeting invitation for his attendance. Therein, S1 cited Complainant’s prior verbal counseling and the letter of reprimand, described above, for his failure to follow instructions. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. The Commission has held that agencies generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Complainant v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); Complainant v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Although Complainant disagreed with the severity of the assessed discipline, we note that the Commission cannot stand as a “super-personnel” department. See Janel B. v. Soc. Sec. Admn., EEOC Appeal No. 2019000126 (Aug. 12, 2020). Upon review, we find that Complainant failed to establish that he was subjected to discrimination as alleged. Further, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Harassment 2022002196 7 To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant 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 Complainant’s 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 Agency. 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); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). 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). 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 his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Regarding his claim of harassment, considering all the events, including the alleged noisy disruptions, we find that Complainant failed to show that it was related to any protected basis of discrimination. Further, the Commission has held that routine work assignments, instructions, admonishments, and addressing performance deficiencies do not rise to the level of harassment because they are common workplace occurrences. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014); Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). We note that anti-discrimination statutes are not civility codes designed to protect against the “ordinary tribulations” of the workplace. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 23 U.S. at 81. Upon review, we find that Complainant failed to make such showing here. We find that Complainant failed to provide any evidence (apart from his own assertions) of noise disruptions not typical in an office and no evidence that any noise disruptions were aimed at him. Thus, we find that Complainant did not establish that the Agency subjected him to harassment as alleged. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2022002196 8 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. 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, 2022002196 9 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 15, 2023 Date