[Redacted], Donovan O., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2022003858 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donovan O.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2022003858 Agency No. RD-2021-00595 DECISION On July 7, 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 June 15, 2022, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an IT Specialist, GS- 12, at the Agency’s Business Center-Technology Office in Washington, D.C. On December 15, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (severe anxiety) and age (YOB: 1961) when: 1. On July 23, 2021 and September 21, 2021, he learned Management removed and reassigned his Section 508 Coordinator duties from him on June 28, 2021, and his supervisor included a comment about his prior reprimand on his third-quarter evaluation; and 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. 2022003858 2 2. On several dates, he was subjected to various incidents of harassment including, but not limited to: a. On or about August 3, 2021, Management changed his job title, impeded his advancement and misrepresented his conversations; and b. On September 21, 2021, Management stated, during a meeting, “If you are angry it’s your own fault, you need to make yourself happy.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant established a prima facie case but that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not submit any evidence to support his assertions of pretext. The Agency further found that Complainant did not establish that he was subjected to harassment because Complainant only identified a few isolated incidents which taken together did not rise to the level of harassment. The Agency therefore concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Concerning his allegation of disparate treatment discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We find that the Agency’s decision accurately recounted the relevant material facts and correctly identified the legal standards for Complainant to prove that he was subjected to disparate treatment based on his age and disability.2 To the extent Complainant appears to challenge the adequacy of the investigation because the investigator did not interview the Departmental Section 508 Program Manager, we find that the investigator made a good faith effort to do so but was unable to do so because she was on leave and did not return prior the close of the investigation. See Report of Investigation (ROI) at 328. 2 As an initial matter, we note that the Agency does not dispute that Complainant is a qualified individual with a disability for purposes of the Rehabilitation Act. 2022003858 3 We find that the Agency’s investigation was sufficient to allow us to determine whether discrimination had occurred. See Emerson P. v. Dep’t of Health and Human Srvcs., EEOC Appeal No. 0120180491 (Sept. 19, 2019). We further find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to establish that the Agency’s reasons were a pretext for discrimination. The Assistant Chief Information Officer (ACIO) explained that he appointed the Section 508 Coordinator duties to a GS-14 position as the result of an office reorganization which updated the roles for each division. See ROI at 112. He further explained that he made the decision to assign the Section 508 Coordinator duties to a GS-14 position based on the information he received from the people handling the reorganization. See ROI at 112. He stated that although Complainant reviewed emails and documents for compliance, he had not been acting as the Section 508 Coordinator, and the task of reviewing emails and correspondence for Section 508 compliance was not removed from Complainant. See ROI at 113. Complainant’s first and second-line supervisors both confirmed that Complainant still handled the Section 508 compliance check duties which are part of his performance description. See ROI at 102, 123. Complainant did not provide any evidence to support his assertions of pretext, only casts doubt on the veracity of the Agency’s explanation. However, mere disagreement with an Agency’s actions does not establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). We further find that the Agency’s decision correctly identified the legal standards to prove that Complainant was subjected to a hostile work environment and correctly found that Complainant failed to establish that he was subjected to a hostile work environment as alleged. The Branch Chief (BC) explained that Complainant misunderstood the comment she made about needing to “make [him]self happy,” stating that it was a general comment at a staff meeting in which someone played a brief clip of the song, “Don’t Worry, Be Happy,” and she said something about how it was a good message to remember with everything going on in the world. See ROI at 105. The evidence in the record indicates that the comment was made generally, was not addressed to Complainant, and in any event, taken in context, does not refer to Complainant’s disability. See ROI at 130; 147; 159. The mere fact that Complainant subjectively perceived the comment to be directed at him personally and took offense is not sufficient to establish an objectively offensive hostile work environment as required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII’s purview.”). Moreover, all of Complainant’s allegations of harassment, even taken together, consist of only a few isolated incidents and stray comments that do not rise to the level of a hostile work environment. See Tessa L. v. Dep’t of the Interior, EEOC Appeal No. 0120141159 (July 25, 2017). 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 finding that Complainant did not establish that he was subjected to discrimination as alleged. 2022003858 4 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). 2022003858 5 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 September 20, 2022 Date