[Redacted], Ricardo K., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 10, 2020

Appeal No. 2019004809 (E.E.O.C. Dec. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ricardo K.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004809 Hearing No. 430-2018-00100X Agency No. 2004-0558-2017101596 DECISION On June 14, 2019, 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 May 15, 2019, 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., 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 order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly concluded that Complainant was not subjected to a hostile work environment and discrimination on the bases of race (African-American), color (Black), sex (male), disability (physical and mental), age (64), and reprisal (prior and current EEO activity) as evidenced by the 23 claims that form the basis of his complaint. 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. 2019004809 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Disabled Employee Special Emphasis Program Coordinator, GS-11 at the Agency’s Veterans Affairs Medical Center (VAMC) in Durham, North Carolina.2 Following are the stated facts: Regarding Issue 1, Complainant alleged that on September 30, 2016, Complainant had to work late hours without authorized compensatory (comp) time or overtime due to the demands placed on him by his first-line supervisor (S1), Chief of Library Service. S1 stated that Complainant did not request comp-time or overtime to complete Complainant’s monthly workload report prior to the end of his tour of duty or after his tour of duty. Regarding Issue 2, Complainant alleged that, on October 6, 2016, he worked late hours to complete the workload report, but was badgered by S1 for the delay and was threatened with a Performance Improvement Plan (PIP) and a delay of his Performance Evaluation if there were deficiencies in the report. S1 explained that he discussed with Complainant that there could be ramifications for turning in a workload report that was late or incomplete, including that it may lead to Complainant being placed on a PIP. Regarding Issue 3, Complainant alleged that on October 21, 2016, S1 created an intimidating environment during Complainant’s performance appraisal meeting in which S1 demanded Complainant report to S1 monthly during the workload data report. S1 asserted that he required Complainant to provide a copy of his Excel Disabled Employee Special Emphasis Program workload spreadsheet to S1 via email on the last day of the month that Complainant is on duty. S1 explained that this was necessary to prevent what happened in Fiscal Year (FY)-16 when Complainant failed to document his Disabled Employee Special Emphasis Program work daily for nearly five months. S1 stated that he also explained to Complainant that failure to comply with the responsibilities of Complainant’s position in FY-17 will have consequences that may include progressive disciplinary action. Regarding Issue 4, Complainant alleged that on October 26, 2016, S1 removed an important document from Complainant’s office without informing him and without authorization. 2 The Agency explained that Complainant’s position was a GS-11 but he was paid at GS-12 because he was detailed from his Visual Impairment Services Team Coordinator position in January 2012; and his detail became permanent. 2019004809 3 S1 stated that the date in question was Complainant’s flex day, and S1 had put mail addressed to the EEO Advisory Committee on Complainant’s desk. S1 added that when he realized that it was Complainant’s flex day, he retrieved the mail and delivered it to the EEO Program Manager, informing Complainant the next day. Regarding Issue 5, Complainant alleged that on November 3, 2016, S1 created a hostile work environment when he harassed Complainant by questioning Complainant’s role and involvement as Special Emphasis Program Manager for the Persons with Disabilities Employment Program. S1 asserted that he did not recall meeting with Complainant on the date in question, stating that he had spoken with Complainant in meetings with Association of Federal Government Employees (AFGE) regarding Complainant’s role and involvement as a Special Emphasis Program Manager for the Persons with Disabilities Employment Program. Regarding Issue 6, Complainant alleged that on November 18, 2016, S1 improperly instructed Complainant to discuss Complainant’s travel authorization to Greenville, North Carolina. S1 asserted that he did not meet with Complainant on the date in question to discuss Complainant’s travel authorization to Greenville, North Carolina, but that Complainant and S1 did exchange emails about the trip. S1 stated that he asked Complainant to verify whether Complainant needed a travel request; and that he informed Complainant that time keeping will mark Complainant on travel for December 5, 2016, (Complainant’s normal flex day), and for his flex day on December 22, 2016. Regarding Issue 7, Complainant alleged that on December 1, 2016, S1 questioned Complainant for not emailing the updated FY-17 workload data report and questioned upcoming in-service training. S1 stated that although he did not recall meeting with Complainant on the date in question, he did not probe or question Complainant about the report at issue. Regarding Issue 8, Complainant alleged that on December 1, 2016, S1 probed and questioned Complainant about sending S1 the workload data report via email that Complainant had sent earlier. S1 explained that the report and the timely submission of the report were critical elements of Complainant’s FY-17 performance standards. Regarding Issue 9, Complainant alleged that on December 6, 2016, S1 demanded and pressured Complainant to respond to Complainant’s FY-17 Performance Plan. S1 stated that he did not make demands or pressure Complainant regarding Complainant’s FY-17 Performance Plan. 2019004809 4 Regarding Issue 10, Complainant alleged that on December 16 and 19, 2016, S1 demanded Complainant respond to Complainant’s FY-17 performance plan. S1 asserted that on December 16, 2016, S1 sent an email to Complainant and to two AFGE officials regarding the need for Complainant to sign his FY-17 performance standards by December 20, 2016, before Complainant went out on leave on December 22, 2016. Regarding Issue 11, Complainant alleged that on December 19, 2016, S1 sent Complainant an email pressing him to have a Performance Plan Meeting. S1 stated that on the date in question, he sent an email to Complainant and to the same two AFGE officials informing them that Complainant only had two more days of work, December 20 and 21, before Complainant’s holiday break. S1 stated that his email was seeking Complainant’s signature for FY-17 performance standards. Regarding Issue 12, Complainant alleged that on December 21, 2016, S1 badgered Complainant regarding Complainant’s rebuttal letter and refusal to sign FY-17 performance standards. S1 explained that on December 21, 2016, Complainant refused to sign his FY-17 performance standards; and that S1 allowed Complainant to propose a new FY-17 performance plan to S1 on January 18, 2017. S1 stated that until Complainant submitted his proposal of new FY-17 performance standards, Complainant would be working under the FY-17 performance plan S1 created for Complainant and which S1 submitted to Complainant and AFGE on December 6, 2016. Regarding Issue 13, Complainant alleged that on January 4, 2017, Complainant never received an incentive award after being made aware of a document from the Associate Director regarding incentive award payments for employees with “Fully Successful” ratings. S1 stated that Complainant was not eligible for an award because Complainant’s rating for FY-16 was fully successful with no Critical Elements being rated as Exceptional. Regarding Issue 14, Complainant alleged that on January 18, 2017, S1 sent Complainant a disparaging email message expressing his disappointment of Complainant’s absence and his failure to meet with S1 and review Complainant’s performance standards. S1 stated that on the date in question, he sent Complainant an email informing Complainant that as a result of Complainant’s absence, S1 was cancelling Complainant’s 9:00 am meeting with S1 and AFGE, which had been scheduled for Complainant to present his own draft of the FY-17 performance standards. S1 stated that he also reminded Complainant that on December 21, 2016, Complainant had agreed to provide a draft of proposed Performance Standards for FY-17 within 28 days per mutual agreement. 2019004809 5 S1 asserted that he sent Complainant an email that requested Complainant’s draft FY-17 performance standards by 9:00 am on the day Complainant returned to work for S1’s review; and that he also informed Complainant that per their agreement, Complainant had had approximately 28 days to create the draft FY-17 performance standards. S1 added that he sent Complainant an email informing Complainant that if he did not provide the draft FY-17 performance standards by 9:00 am on the day Complainant returned to work, S1 would make the determination that Complainant did not abide by the agreement and the FY-17 performance standards that S1 created for Complainant would remain in force for the full rating period. Regarding Issue 15, Complainant alleged that on January 20, 2017, Complainant responded to S1’s disparaging message which caused S1 to storm into Complainant’s office unannounced, confronting Complainant about Complainant’s Performance Plan and questioned, “how many clients had he seen?” S1 asserted that on Complainant’s return to duty, Complainant did not provide to S1 a copy of Complainant’s FY-17 performance standards by 9:00 am, as repeatedly requested by S1. S1 explained that Complainant stated to S1 that Complainant would have the draft FY-17 performance standards to S1 by the end of the workday on January 20, 2017, which was not per the terms of their mutual agreement.3 Regarding Issue 18, Complainant alleged that on February 15, 2017, the Local Reasonable Accommodation Coordinator (LRAC) visited Complainant claiming, “She happened to be in the building and wanted to follow-up on an email inquiry she sent him regarding two employees reasonable accommodation request.” Complainant alleged that on or about the date in question, LRAC harassed him by stating: "I don't like the idea of you filing a complaint against me. That includes you and your clients. You know, I'm aware of all the EEO complaints and I'm not worried about the results because -- but I want to work with you, Complainant, but you appear to be so negative, I can't work with you." Complainant also alleged that LRAC accused him of improperly sending disabled workers to her to request accommodations. 3 The Agency noted that it dismissed Issues 16 and 17, in their entirety for failure to state a claim. In Issue 16, Complainant alleged that on January 24, 2017, Assistant Human Resource Chief and Local Reasonable Accommodations Coordinator (LRAC) claimed she provided Complainant with a requested accommodation device to assist him. In Issue 17, Complainant alleged that on January 30, 2017, Complainant was unaware it was the end of the investigation period; he subsequently filed a new EEO complaint. Complainant did not challenge the partial dismissal of his claims. 2019004809 6 LRAC stated that on the date in question, after leaving the badging office where LRAC supervised employees, which is located near Complainant’s office, LRAC visited Complainant to see if he had ordered equipment for two hearing-impaired employees because LRAC did not want to duplicate the order for those employees. LRAC also denied making the statements attributed to her by Complainant. Regarding Issue 19, Complainant alleged that on April 12, 2017, S1 did not accept Complainant’s revision to Complainant’s performance plan. S1 explained that on the date in question, he met with Complainant to go over Complainant’s midyear FY-17 performance plan; and that S1 rated Complainant as fully successful or better but Complainant refused to sign the plan. S1 also stated that on April 19, 2017, Complainant submitted his personal choice for performance standards for FY-17, which S1 did not accept. S1 asserted that during Complainant’s midyear FY-17 performance plan review, Complainant tried to give S1 Complainant’s draft version of the FY-17 performance standards but S1 refused the document because the original agreement was for Complainant to provide his draft FY-17 performance standards to S1 by 9:00 am on January 18, 2017, which Complainant failed to do. Regarding Issue 20, Complainant alleged that on May 2, 2017, Complainant received his new position description from Human Resources (HR) and expressed concerns with the reassignment, because LRAC would be his supervisor. S1 asserted that he was not consulted by HR regarding Complainant’s reassignment. S1 explained, however, that he had some discussions with HR about Complainant’s transition to HR in regard to the area Complainant was moving to, equipment, and dates. S1 also explained that Complainant’s move to HR was postponed to review Complainant’s concerns about Complainant’s position and Complainant being transitioned to HR as of October 1, 2017. He added that it was decided for S1 to remain Complainant’s supervisor of record for the FY-17 performance period and Complainant’s appraisal review, which was scheduled for October 18, 2017. Regarding Issue 21, Complainant alleged that on May 3, 2017, S1 questioned and harassed Complainant about not receiving the workload data report; consequently Complainant’s reassignment was effective May 1, 2017, which caused a series of emails between both parties addressing the situation and circumstances. S1 asserted that on May 3, 2017, S1 sent an email to Complainant and HR to give notice that S1 met with Complainant at 11:50 am that day; and that Complainant had refused to submit his April 17, 2017, workload report to S1 as instructed because Complainant no longer considered S1 his supervisor. 2019004809 7 Regarding Issue 22, Complainant alleged that on May 5, 2017, Complainant rescinded his request to be reassigned to another service. S1 affirmed that on the date in question, Complainant rescinded his request to be reassigned, declaring his wish to remain in Education Service. S1 added that Complainant requested that the Associate Chief of Staff for Education, instead of S1, be Complainant’s first-line supervisor; that there be no change to Complainant’s work location; the use of Complainant’s draft FY-17 performance standards - including removal of the mandatory FY-17 Disabled Emphasis Program workload report; and there be elimination of access, accommodation, and service delivery problems for numerous Disabled Employees Special Emphasis Coordinator Program clients. S1 explained that Complainant’s move to a different location was postponed to review Complainant’s concerns; and that Complainant was to be reassigned to HR as of October 1, 2017, reiterating that S1 would remain Complainant’s supervisor of record for Complainant’s FY-17 performance appraisal review. Regarding Issue 23, Complainant alleged that on May 8 and 9, 2017, Complainant’s request to rescind his reassignment was ignored and S1 moved forward with the reassignment by placing a work order to move Complainant’s equipment to another building. S1 stated that Complainant was informed via email dated September 29, 2017, by HR that Complainant would be transitioning to be under the supervision of HR. On March 6, 2018, the AJ accepted the following amendment to Complainant’s original complaint: On or about April 11, 2017, Complainant was subjected to intimidation and harassment when S1 came into Complainant’s office complaining about one of Complainant’s clients with a disability, a black male Veteran with a disability who S1 thought was intimidating two female coworkers (one white and one black) working in the library and holding Complainant accountable since Complainant opened the library door letting Complainant’s client inside to work. Complainant believed the incident S1 described was “fake info” since Complainant observed the same female employees on numerous occasions assisting that same black male veteran with a disability with operating the fax machine, copier, and personal computer the veteran was using at the time. Complainant alleged that strangely, Complainant’s lock and keys were exchanged for new ones which prevented Complainant from access to the library in the evenings to use the copier or fax machines. On May 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), disability (physical and mental), age (64), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973. 2019004809 8 Record evidence indicated that Complainant had filed one prior EEO complaint. However, nothing in the record indicated that the responding management officials (RMOs) were aware of Complainant’s prior protected EEO activity. 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 AJ. Complainant timely requested a hearing. Over objections from Complainant, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on May 2, 2019. The AJ also denied Complainant's motion to consolidate the instant complaint with EEOC Hearing No. 430-2017-00226x. Regarding the incentive award allegation in Issue 13, the AJ stated that while Complainant is correct that employees can receive an award upon achieving a "Fully Successful" overall performance rating for the year, the Agency's legitimate nondiscriminatory reason for Complainant not receiving the award is that an employee must also be rated "exceptional" in at least one critical element in his performance appraisal. The AJ found that Complainant did not meet that requirement in his 2016 appraisal, noting that there is no evidence in the record that the Agency's reason is pretext. Therefore, the AJ asserted, the Agency is entitled to summary judgment on this claim. Regarding Complainant’s hostile work environment allegations in Issues 2, 3, 5, 7, 8, 9, 10, 11, 12, 14, 15, 19 & 21, the AJ found that the evidence shows that most of the disagreement between Complainant and S1 was over Complainant's failure to timely submit two documents: 1) his required monthly workload report; and 2) his performance plan for the upcoming FY-2017. The AJ stated that while Complainant alleged that S1 badgered and threatened him with discipline over the workload report, there is no evidence that any of the alleged conduct occurred because of Complainant's protected bases. The AJ noted that Complainant has not alleged that S1 used any racist, sexist, or ageist slurs or epithets or made any demeaning references to Complainant’s disability or prior EEO complaints. The AJ added that the same is true of Complainant's failure to timely sign his performance plan. The AJ observed that it is undisputed by Complainant that on December 21, 2016, S1 agreed to let Complainant propose different performance standards since he would not sign the plan as drafted by S1. The AJ noted that Complainant's belief is that as constituted, his performance standards were preventing him from receiving incentive awards. The AJ stated that Complainant's proposed performance standards were due January 18, 2017. However, on the date Complainant's proposed standards were due, he did not submit them; and he did not do so until April 2017. Regarding S1’s refusal to accept Complainant’s proposed performance standards, the AJ found that since Complainant missed the deadline, there is nothing discriminatory about S1’s refusal to accept them. The AJ also stated that the text of the email that Complainant found disparaging in Issue 14 in no way showed any unwelcome verbal or physical conduct based on Complainant's protected classes. 2019004809 9 The AJ concluded that there is no evidence to support that any of the remaining allegations involving S1 occurred because of Complainant's protected classes (specifically, that S1 placed excess "demands" on Complainant at work in Issue 1; that S1 removed a document from Complainant's desk without Complainant's permission in Issue 4; that S1 instructed Complainant to follow up with the appropriate RMO about a travel authorization he submitted in Issue 6; or the April 11 incident in Complainant's amended claim where S1 complained to Complainant about one of Complainant’s black male clients). Regarding Complainant’s claims that the Agency's failure to rescind his request to be reassigned was harassment in Issues 22 and 23, even though Complainant admitted he requested the reassignment himself, the AJ found that these incidents did not support a claim for hostile work environment as they did not involve unwelcome verbal or physical conduct that occurred because of Complainant's protected bases. Regarding statements attributed to LRAC in Issue 18, the AJ stated that even assuming that Complainant's testimony is true, it did not demonstrate that Complainant was subjected to any action that would have deterred a reasonable person from opposing discrimination or participating in the EEO process. The AJ explained that Complainant’s statements indicated that LRAC acknowledged Complainant's prior EEO claims (and those of employees with disabilities that he worked with); expressed that she did not like the idea of Complainant filing EEO complaints; and that she expressed a desire to work with Complainant in spite of them. The AJ concluded that considering the context of all the comments that Complainant alleged LRAC made to him, her comments fell short of those that would create a "chilling effect" or deter a reasonable person from filing an EEO complaint. Therefore, the AJ found, the Agency is entitled to summary judgment on this claim. The AJ noted that in his response to the Agency’s summary judgment motion, Complainant alleged that he was not granted several reasonable accommodation requests. The AJ asserted that there is no such accepted claim in the instant matter; and that the allegation is part of Complainant's hearing request in the unconsolidated case. Therefore, the AJ declined to address the allegation. 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. The instant appeal followed. CONTENTIONS ON APPEAL In his two Appeal Briefs, among other things, Complainant reiterates his allegations, asserting that the AJ erred in denying consolidation of Complainant’s cases; and that the unconsolidated case added value and support to Complainant’s pretext rebuttal. Complainant also asserts that a hearing should have been held because there are real genuine issues of material facts to warrant reversing the AJ’s ruling. 2019004809 10 STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We determine whether the AJ appropriately issued the decision without a hearing. 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. 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. ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. After a careful review of the record in the instant complaint, we AFFIRM the AJ’s summary judgment decision in favor of the Agency. 2019004809 11 The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found, for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. He must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Here, Complainant indicated that a hearing should have been held in his case, asserting that the AJ erred when he determined that the central issue regarding the instant case concerned the two mere reports and mere differences between Complainant and S1. However, we find that Complainant failed to establish a prima facie case of discrimination as he has not provided any evidence or facts that give rise to an inference of unlawful discrimination based on any of his protected classes. Notably, Complainant has failed to show that he was treated less favorably than any similarly situated younger female employees without disabilities outside of his racial class who did not engage in EEO activity under similar circumstances. Moreover, even if he had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue. Specifically, regarding Issue 1, S1 stated that Complainant did not request comp-time or overtime. Complainant did not refute this explanation. Regarding Issue 13, S1 explained that employees who achieved "Fully Successful" overall performance rating for the year could receive incentive awards if they also rated "exceptional" in at least one critical element in their performance appraisal. The record reflects that Complainant only achieved the “successful” rating. Therefore, he could not receive the desired incentive award in FY-2016. Complainant did not dispute this explanation. Neither did Complainant present any direct evidence of pretext. The Commission has stated that proof of pretext includes discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. See January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015) (Citing Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015)). 2019004809 12 Importantly, Complainant did not describe any ageist, racial or other inappropriate comment used by S1; nor does he cite any unlawful Agency policy or requirement that was applied to him due to membership in his protected classes. Regarding the remaining issues that involve Complainant’s hostile work environment allegations, we find, as the AJ did, that Complainant has failed to provide evidence of actions undertaken by S1 that would fall outside the category of routine instructions and admonishments or ordinary workplace interactions between supervisors and subordinates. While Complainant may have found S1’s actions unwelcome, he has failed to describe any verbal or physical management conduct that meets the requisite level of severity or pervasiveness to constitute actionable harassment. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of discriminatory harassment. See DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000); Wolf v. U.S. Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); and Bennett v. Dep’t of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). Complainant did cite examples of conduct involving S1 in his Appeal Briefs, including that S1 would go into Complainant’s office in Complainant’s absence and look through his cabinets. However, Complainant did not present any evidence, and the record is devoid of witness testimony, to corroborate Complainant’s allegations or affirm that the cited incidents occurred. Regarding Issue 18, we agree with the AJ’s finding of no retaliation because even if Complainant’s testimony is true, there is no evidence of any significant statement made or action taken by LRAC that could be traced to Complainant’s prior or current protected EEO activities. Complainant may not have appreciated a visit from LRAC but that does not evidence retaliation; and it is insufficient to deter Complainant from participating in future protected EEO activity. The Commission has found that petty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity, but that more significant retaliatory treatment could be challenged regardless of the level of harm. Chavez v. U.S. Postal Serv., EEOC Appeal No. 01A12435 (Jul. 25, 2001) (citing EEOC Compliance Manual on Retaliation at 8-13 through 8-15 (May 20, 1998); Smith v. Sec'y of Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981)). Finally, Complainant stated that the AJ erred when the AJ did not consolidate his two complaints, asserting that the unconsolidated case added value and support to Complainant’s pretext rebuttal. However, we do not find that the AJ erred when he did not consolidate Complainant’s case regarding reasonable accommodation with the instant complaint as there is no basis for such consolidation here. Neither did Complainant explain how not granting his reasonable accommodation requests in that other case added value and support to his pretext rebuttal for the accepted claims in the instant complaint. Because we find no issues of material facts in dispute, there is no reason to reverse the AJ’s summary judgment decision in favor of the Agency. 2019004809 13 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s summary judgment decision and the Agency’s final order adopting it. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2019004809 14 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 December 10, 2020 Date