EEOC Appeal 2025003023

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Wes L.,1
Complainant,
v.
Daniel Driscoll,
Secretary,
Department of the Army,
Agency.
Appeal No. 2025003023
Hearing No. 440-2024-00266X
Agency No. ACEROCK23SEP02940
DECISION
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 12, 2025, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lock
and Dam Operator at the Agency’s Rock Island District in Joliet, Illinois.
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.

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On October 17, 2023, Complainant filed an EEO complaint alleging that he was
subjected to a hostile work environment based on race (African American) and
color (Black) when on July 18, 2023, a coworker (Coworker 1) told another
coworker (Coworker 2) to “go hang from a tree and shake like a monkey.”
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation (ROI) and notice of his right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
Following a hearing on April 23, 2025, the AJ issued a decision. As part of the
findings of fact, the AJ noted that the team was trying to remove a tree branch
when Coworker 1 made the statement that Coworker 2 should hang off the branch
like a monkey. Complainant was not present when the comment was made.
Coworker 2 reported the incident to a Supervisor but stated that he did not feel that
it was necessarily intended to be racist. The AJ determined that the context was
ambiguous, but the comment could cause a hostile work environment.
The AJ then found that the Agency was not liable because it showed that it
exercised reasonable care to promptly correct and prevent harassing behavior. The
Supervisor questioned Coworker 1 about the incident and mediated a conversation
between Coworker 1 and Coworker 2. Coworker 1 apologized to Coworker 2 and
the other employees. The Supervisor also issued a counseling letter to Coworker 1
and warned him that further offensive comments could result in termination. The
AJ determined that Coworker 1 did not make any further racist comments to
Coworker 2 or any of the other Black employees. Coworker 1 was terminated
approximately two (2) months later for a comment made to a White employee
(Coworker 3). The AJ concluded by entering judgment in the Agency’s favor.
The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove discrimination as alleged.
The instant appeal followed on June 6, 2025. The Agency requests that the
Commission reject Complainant appeal for failure to serve the Agency.2
2 Complainant filed two responses to the Agency’s opposition on August 9 and 11,
2025. The Commission’s regulations provide that “[a]ny statement or brief on
behalf of a complainant in support of the appeal must be submitted…within 30

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STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will
be upheld if supported by substantial evidence in the record. Substantial evidence
is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.
ANALYSIS
Request to Dismiss Appeal
As an initial matter, we address the Agency’s request to dismiss the appeal based
on its contention that Complainant failed to properly serve the Agency. It states
that once the EEO Office was notified of the appeal, it added the incorrect Agency
counsel. Appeals to the Commission must be filed with a copy of the appeal to the
opposing party at the same time it is filed with the Commission. 29 C.F.R. §
1614.403(b). The record reveals that Complainant’s appeal was filed electronically
through the Commission’s portal, and a system-generated notice was sent to the
Agency on June 12, 2025. We find that the Agency was properly on notice of
Complainant’s 	appeal, 	and 	its 	internal 	operations 	caused 	the 	delay 	in 	the
appropriate representative’s awareness of the appeal. As such, we decline to grant
the Agency’s request to dismiss Complainant’s appeal.
Harassment
In order to establish a prima facie case of harassment, Complainant must prove, by
a preponderance of the evidence, the existence of five elements: (1) that he is a
member of a statutorily protected class; (2) that he was subjected to unwelcome
conduct related to his protected class; (3) that the harassment complained of was
based on his protected class; (4) that the harassment had the purpose or effect of
days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). As such, we will not
consider Complainant’s untimely submissions.

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unreasonably 	interfering 	with 	his 	work 	performance 	and/or 	creating 	an
intimidating, hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. See Celine B. v. Dep’t of Navy, EEOC
Appeal No. 2019001961 (Sept. 21, 2020); Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998). See also Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982), approved in Meritor Savings Bank v. Vinson, 477 U.S.
57, 66-67 (1986); see generally Flowers v. Southern Reg’l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In other words, to prove his 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 race and color. Only if
Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.
The Commission previously found that the use of the term “monkey” to refer to an
African American is historically offensive, derived from the portrayal of African
Americans as subhuman or inferior. See Willia M. v. Dep’t of Veterans Affairs,
EEOC Appeal No. 2020005021 (Mar. 14, 2022); Almon v. U.S. Postal Serv.,
EEOC Appeal No. 0720090023 (Feb. 9, 2011). Even if the statement made to
Coworker 2 was sufficient to create a hostile work environment for Complainant
based on his race and color, we find that substantial evidence supports the AJ’s
determination that the Agency was not liable.
In a case of coworker harassment, the Commission has long held that an agency is
responsible for acts of harassment in the workplace where the agency (or its
agents) knew or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action. See Taylor v. Dep’t of the Air Force,
EEOC Request No. 05920194 (Jul. 8, 1992); Tedeshi v. U.S. Postal Serv., EEOC
Appeal No. 01871031 (Apr. 20, 1998). What is appropriate remedial action will
necessarily depend on the particular facts of the case, such as the severity and
persistence of the harassment and the effectiveness of any initial remedial steps.
See Taylor v. Dep’t of the Air Force, EEOC Request No. 05920194 (July 8, 1992).

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Here, the Supervisor learned of the incident on July 25, 2023, from Coworker 2.
The Supervisor brought in Coworker 1 the same day, which was his day off, and
the Supervisor informed Coworker 1 that his conduct would not be tolerated.
Hearing Transcript at 87, 98-9. The memorandum of counseling was issued on or
about August 2, 2023. ROI at 117. The Supervisor also testified that he warned
Coworker 1 that if anything happened again, he would pursue the most severe
discipline, which was removal. Hearing Transcript at 138.
The AJ found credible the Supervisor’s testimony that he addressed the situation.
An AJ’s credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other objective
evidence so contradicts the testimony, or the testimony so lacks in credibility that a
reasonable fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (Aug. 5, 2015). Complainant did not offer documents or other
objective evidence to contradict this testimony or otherwise show that it lacked
credibility.
On appeal, among other things, Complainant opposes the AJ’s decision to disallow
Coworker 2 as a witness during the hearing. An AJ has full responsibility for the
adjudication of the complaint, including overseeing the development of the record,
and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e).
Given the AJ’s broad authority to regulate the conduct of a hearing, a party
claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v.
U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta
S. 	v. 	Dep’t 	of 	Justice, 	EEOC Appeal 	No. 0720150016 	n.3 	(June 	3, 2016)
(responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e)
gives AJs wide latitude in directing terms, conduct, and course of administrative
hearings before EEOC).
The record shows that the Agency filed a motion for sanctions, in relevant part,
because Complainant provided the ROI to Coworker 2, which prejudiced the
Agency because a witness was improperly influenced by reviewing the complaint
file. 	The 	Agency 	requested 	various 	sanctions, 	including 	the 	prohibition 	of
Coworker 2 from testifying at the hearing and the denial of his statement admitted
as evidence. In his appeal, Complainant denies showing Coworker 2 the ROI and
argues that Coworker 2 was denied the opportunity to testify based on a false claim
by the Agency. Complainant Appeal Brief at 18. However, Coworker 2’s proffered
statement revealed that he “was shown some of [the Supervisor’s] remarks to the

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EEO investigator about [Complainant’s] complaint.” Complainant Motion for
Preadmission of Exhibits at 4. While the record does not contain the AJ’s order on
the Agency’s sanction motion, the AJ noted in the Decision that they did not have
Coworker 2’s testimony. We find that Complainant did not show an AJ abuse of
discretion for denying Coworker 2 as a witness during the hearing.
Complainant also complains that there was no investigation since the eyewitnesses
to the “monkey” comment were not questioned, but the Supervisor testified that he
spoke with both witnesses about the incident. The Supervisor also noted that
Coworker 1 did not deny making the statement. Hearing Transcript at 162-3. One
of the witnesses confirmed that the Supervisor talked to him and the other witness
after the incident. Hearing Transcript at 191.
Complainant asserts that an employer should take immediate and corrective action
but “no such action was taken to end or prevent reoccurrence.” Complainant
Appeal Brief at 6. However, the Supervisor counseled Coworker 1. Complainant
further argues that Coworker 1 had a “long history of prior disciplinary actions
based on his patte[r]n of using ‘offensive’ language cited in proposed removal
which was not taken into consideration by either [the Supervisor] or the AJ.”
Complainant Appeal Brief at 19. A review of Coworker 1’s proposed removal
shows that his prior discipline was largely based on failure to follow directions and
working in a careless and unsafe manner. Coworker 1 was previously suspended
for “use of offensive language,” but there is no evidence that this offensive
language was based on race or color. The Supervisor testified that the suspension
resulted from an incident when Coworker 1 almost ran over another employee with
a cart and cursed at him. Hearing Transcript at 183-4. The Lock Master examined
Coworker 1’s previous conduct in support of his removal and only noted the
“monkey” comment as discriminatory. ROI at 120-1. Complainant cites to no
evidence of Coworker 1’s “long history” of discriminatory remarks. Despite
having 	an 	opportunity 	to 	provide 	relevant 	testimony 	during 	the 	hearing,
Complainant 	only 	offered 	vague 	statements 	that 	Coworker 	1 	“had 	racial
tendencies,” without supportive facts. Hearing Transcript at 38.
The Lock Master subsequently proposed Coworker 1’s removal after he stated to
Coworker 3, “at least this one will be white,” in reference to a new employee.
Coworker 1 resigned in lieu of removal. ROI at 118-26.

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Complainant maintains that Coworker 1 should have been removed after the
“monkey” comment. However, a Supervisory Human Resources (HR) Specialist
testified that a supervisor could issue discipline of a counseling for an allegation of
harassment up to a removal, but he did not think a removal for a first offense of
harassment was warranted. The Supervisory HR Specialist added that a zero-
tolerance stance of harassment does not mean that the Agency must remove an
employee. An informal counseling can be issued, even with a prior suspension.
Hearing Transcript at 224.
In considering the particular circumstances of this case, we find that substantial
evidence 	supports 	the 	AJ’s 	finding 	that 	the 	Agency 	took 	immediate 	and
appropriate action against Coworker 1, and that Complainant did not establish his
claim of a hostile work environment based on race or color.
CONCLUSION
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 order
adopting the AJ’s decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
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 Sector
(OFS) 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

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Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at
Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, 	Complainant 	can
submit their request and arguments to the Director, Office of Federal Sector, 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 OFS 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 their 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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.

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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:
T. Gimbrere __________ Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 17, 2026
Date