[Redacted], Deangelo C., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022002975 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deangelo C.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2022002975 Hearing No. 430-2021-00052X Agency No. EPA-2020-2026-HQ DECISION On May 5, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s Final Agency Order dated on March 31, 2022, concerning his equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as an Administrative Specialist, GS-0301-09, at the Agency’s Office of Air Quality and Planning Standards, Outreach and Information Division in Durham, North Carolina. On February 5, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him on based on his disability, as well as unlawfully retaliated against him for engaging in protected EEO activity (current EEO complaint), when: 1. From 2017-2019, the Group Leader for Innovative Programs and Outreach Group, also Complainant’s supervisor (S1), attempted to defame his character by making 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. 2022002975 2 inaccurate statements on Complainant’s Performance Appraisal Review System (PARS) and instructed Complainant to falsify his PARS documents by back-dating them in 2017 and 2018. 2. On December 9, 2019, Complainant was sent to the front office as “back up” after exercising his rights to request a reasonable accommodation. 3. On December 3, 2019, during Complainant’s PARS closeout, S1 made derogatory and offensive comments about veterans, Complainant’s work ethic and his disabilities. 4. On June 23, 2019, Complainant received $500 end-of-year bonus, although other colleagues received more than $1,000. 5. On November 16, 2018, S1 attempted to write Complainant up for abuse of the leave policy. 6. On October 19, 2018, Complainant requested accommodations for his disability and S1 gave him the wrong information and never provided any accommodations. 7. On July 18, 2017, Complainant was asked to take care of personal matters for his supervisor, such as making labels for his locker and watering his plants during work hours. 8. S1 threatened to write Complainant up if he did not perform the Senior Environmental Employee (SEE) Payroll function. 9. Complainant’s supervisor misrepresented and minimized his job duties to Human Resources representatives and management even though Complainant was doing the work well beyond his grade and job series. 10. On an unspecified date(s), Complainant was required to work past his 8-hour day, without compensation. 11. On an unspecified date(s), Complainant was required to provide a daily, weekly, report of duties as well as his “comings and goings” not required of anyone else. 12. During the time period, Complainant was assigned more work as a GS-9 than other co-workers who are GS-13s and was forced to train a GS-13 on the Learning Management system. 13. Complainant was not selected for the position of Environmental Protection Specialist Training after S1 scheduled the interview on a day where he was at a disadvantage. 2022002975 3 14. S1 verbally counseled Complainant for failing to plan for the travel of another employee. 15. During the time period, S1 failed to clarify Complainant’s duties and changed his PRS and Position Description (PD) to minimize the work that Complainant was actually performing. After an investigation into the complaint, Complainant was provided a copy of the investigation file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filled a Motion for a Decision Without a Hearing. Complainant responded to the Motion. On March 31, 2022, the AJ issued a decision by summary judgment in favor or the Agency, finding no discrimination or unlawful retaliation was established. The Agency subsequently issued its final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Reasonable Accommodation: Claim 6 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 2022002975 4 C.F.R. § 1630.9. The Commission will assume for purposes of analysis only, without so deciding, that Complainant is an individual with a disability. Complainant stated he was first diagnosed with Attention Deficit Disorder, Post-Traumatic Stress Disorder (PTSD), and Major Depressive Disorder in 2007. He averred he is able to perform all his duties and has no limitations in his personal life although he does have reasonable accommodation in place for a flexible schedule. On April 29, 2019, Complainant requested that his immediate supervisor (“S1”) provide him a private office as a reasonable accommodation. Complainant informed S1 that he had a medical condition that made him easily distracted and he had trouble focusing on his work tasks. S1 asked Complainant to provide examples so he could better understand Complainant’s needs. Based on their conversation, S1 stated that Complainant explained that having a cubicle resulted in staff walking in his workspace and distracting him from his work. S1 spoke with an employee (Employee 1) who worked with Complainant on a training team and performed the payroll function. S1 contacted Employee 1 and advised her to consolidate requests rather that approaching Complainant on multiple occasions with work requests. At that time, Complainant was dissatisfied with this accommodation. S1 asked Complainant to explain in writing how the offered accommodations were inadequate, and how a private office would accommodate his needs. However, Complainant never provided the information and instead informed S1 that he intended to leave for a detail one month later. In January 2020, Complainant returned from the detail, and S1 continued the interactive discussion. After requesting medical documentation to support his reasonable accommodation request, S1 offered Complainant a private office. The Associate Division Director stated that in April or May 2020, she was made aware that Complainant requested an office with a door because he gets distracted by noise. However, up to this point, the Associate Division Director stated Complainant performed his work in a cubicle with no issues. At that time, Complainant was offered a private office. Based on the undisputed evidence of record, the AJ correctly determined that Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within his documented medical restrictions pursuant to its obligations under the Rehabilitation Act. The record shows that Agency management met with Complainant on several occasions trying to arrive at suitable accommodations, and eventually approved a private office, as requested. 2022002975 5 Harassment Claim: Claims 1 - 5 and 7 - 15 To prove his harassment/hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability or engagement in protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claims 1, 3, 9, 11, 12, 15 relating to Complainant’s PARS, S1 stated that Complainant had not provided him any feedback on his PARS reviews. S1 stated that from 2017-2019, he would characterize Complainant’s comments as minimal as far as the tasks listed in his PARS agreement. He further noted that he was not aware of any tasks Complainant completed that were above the GS-9 level. Furthermore, S1 explained in the 2018 final PARS listed the performance period as October 1, 2017 - April 28, 2018, instead of extending to September 30, 2018. As a result, he had Complainant fix the issue and a new PARS was backdated. S1 stated that he did not close out Complainant’s 2019 PARS because he was on a detail at the time. As a result, the Director, Central Operations and Resources Office Environmental Protection Agency, Office of Air Quality and Planning Standards (Director) was responsible. S1 further stated that he provided comments to the Director but made no mention of veterans. The Director suggested to S1 to monitor if Complainant was unable to complete his assigned duties, but he has never witnessed S1 making disparaging remarks about veterans, Complainant’s work ethic or disabilities. Regarding Complainant’s pay claim, S1 stated that his duties were no higher than the GS-9 level. S1 stated that the Agency has a desk audit process and he advised Complainant to make a request for a desk audit, review the desk audit process and inform S1 of any questions. However, Complainant never followed up with him and to his knowledge, Complainant did not request a desk audit. Further, S1 stated that he provided Complainant suggestions on how to keep him focused on priorities and had required him to provide reports since December 2017. S1 noted Complainant took on too many simultaneous tasks and was not staying focused on the priorities assigned. S1 had Complainant provide his top five priorities at the beginning of the day. Again, at the end of the day, he provided a list of what was accomplished or what he worked on. S1 noted this approach was designed to assist Complainant in successfully performing his work and had been very effective. 2022002975 6 Complainant further asserted he was assigned more work as a GS-9 than other co-workers who are GS-13 employees, and that he was forced to train a GS-13 on the Learning Management system. S1 stated, however, that from 2017 to December 2018, he assigned Complainant administrative support work for his group, the Innovative Programs and Outreach Group. The record does not support a determination that Complainant was improperly assigned more work than other employees. Complainant claimed that during the relevant period, S1 failed to clarify his duties and changed his PARS and Position Description to minimize the work that Complainant was actually performing. In March 2017, S1 stated that Complainant and the former National Training Expert both expressed a desire to change Complainant’s position description to allow him to obtain additional responsibilities so S1 agreed to bring the request to Acting Division Director. She felt Complainant’s position description was broad and the tasks being asked of Complainant were administrative in nature which allowed him to perform the duties of the training program. S1 stated that while Complainant’s position description was changed in 2018 and 2020 to be more specific and reflect his new work, his position had no promotion potential. In order for Complainant to get a grade change he would have to apply and be hired for a new position. Regarding claim 2, Complainant asserted that he was sent to the front office as “back-up” after exercising his rights to request a reasonable accommodation. The Division Director stated that she decided to briefly transfer Complainant after his detail because she wanted to assess the need for administrative support throughout the Division. The Division Director stated that, at the time she made her decision, she was not aware that Complainant had made a request for accommodation. Moreover, the Division Director was not aware that Complainant had any objections to temporarily providing support to the front office. Regarding claim 4, S1 stated that he issued Complainant a $500 individual cash award. Specifically, he explained that the awards are based on a single projects or tasks, and do not reflect cumulative efforts throughout the year. S1 stated that the staff must “go above and beyond” with a project and not simply do what is expected. The record contains S1’s detailed award justifications for each employee who received an award. Relating to claims 5, 8, and 14, S1 explained that Complainant frequently arrived to work late. Despite Complainant’s statement that he would do better concerning his attendance, he continued arriving late. As a result, S1 contacted the Labor and Employee Relations for assistance and chose to issue Complainant a “leave counseling.” As for claim 8, S1 does not recall threatening to write Complainant up for not performing the SEE payroll function. S1 stated that Complainant informed him that he would no longer perform this function and he reminded Complainant that the task was administrative and was appropriate for his GS-9 grade level. Regarding claim 14, S1 stated that he instructed Complainant to assist an employee with an invitational travel. While Complainant notified S1 that everything was fine, Complainant did not meet the deadline set by the Office Director. When S1 addressed Complainant’s missed deadline, S1 did not believe this action was construed as a verbal counseling. 2022002975 7 With regard to claim 7, S1 explained in 2017 to 2018, he traveled frequently. Because Complainant’s workspace was next to his office, S1 asked Complainant if he was willing to water his plants once a week and Complainant agreed to the task, which took less than five minutes. Regarding claim 10, Complainant alleged he worked 34.25 hours over his 8-hour day from May 2018 to November 2018 while working with the Joint Training Committee as an expert for learning management systems. He also claimed he was performing the work of two employees working on contracts, developing E-learning, acting as the administrator for Learning Management Systems, and other projects. S1 stated that during the relevant period, he did not direct Complainant’s work related to training. Moreover, S1 stated that he was not aware when Complainant was required to work beyond his 8-hour day. On July 25, 2018, Complainant emailed him stating there were a number of training modules he needed to work on and wanted permission to work past his 8-hour day. Thereafter, S1 forwarded Complainant’s request to the former National Training Expert who stated there was no deadlines and no reason for compensatory time. With respect to claim 13, Complainant applied for and was included on a list of qualified applicants for an Environment Protection Specialist (Training Coordinator) position. Complainant and one other qualified applicant (Applicant) participated in the first-round interviews for the subject position. The first-round panelists unanimously recommended Complainant and Applicant for second-round interviews. Further, S1, the Manager, Community and Tribal Programs Group, and a named employee who performed the payroll function, participated in the second-round. The second-round interview panelists unanimously selected Applicant for the Training Coordinator position. The panel rated Applicant as the number one candidate and Complainant as the second rated candidate. In her decision, the AJ correctly determined that Complainant has not shown sufficient evidence to show that the Agency subjected him to a hostile work environment based on disability or prior protected activity. The AJ further stated that the Agency showed legitimate, non-discriminatory reasons for its actions. After our review of the evidence of record, a finding of hostile work environment harassment is properly precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation was established. 2022002975 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). 2022002975 9 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 31, 2022 Date