2025004472•EEOC Appeal 2025004472
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Felton M.,1 Complainant, v. Todd Blanche, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency. Appeal No. 2025004472 Hearing No. 530-2023-00181X Agency No. ATF-2022-00962 DECISION On September 18, 2025, 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 September 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. 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.
2025004472 2 At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency’s Firearms Ammunition Technology Branch facility in Martinsburg, West Virginia. On October 11, 2022, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Native American), disability (physical), and reprisal for prior protected EEO activity when: 1. from January 2022 to the present, Complainant was denied assistance with performing assignments because of the increasing workload in the Firearms and Ammunition Technology Division (FATD) due to Complainant’s co-worker being on an extended detail assignment; 2. On unspecified dates, all requests to provide Complainant with a work cell phone was denied; 3. He was subjected to harassment, including when: a. From January 2022 to the present, Complainant was denied assistance with performing assignments because of the increasing workload in FATD due to Complainant’s co-worker being on an extended detail assignment; b. On September 13, 2022, the Acting Division Chief made several comments which Complainant believed were accusatory, borderline hostile, and unprofessional; c. On September 13, 2022 and September 30, 2022, Complainant’s requests to be transferred out of FATD were not addressed. Complainant stated that his most recent EEO complaint was in 2018 and ended with a settlement and more recently, he has served as a witness in his co-workers’ complaints. See Report of Investigation (ROI) at 165. He asserted that he is a 30% disabled veteran with temporomandibular joint (TMJ) issues, migraines, and tinnitus but that he is able to perform his job without a reasonable accommodation. See ROI at 165. He asserted that since his co-worker (Co-worker 1) went on a detail assignment in January 2022 that was extended in June 2022 and then was permanently transferred, he was “set up for failure” because he became the only administrative person left in FATD to support a growing office, needing to perform many of Co-worker 1’s duties as well as his own. See ROI at 166.
2025004472 3 He stated that he requested assistance from his Supervisor but the former FATD Chief, who has since retired, refused the request.2 See ROI at 166-67. The Deputy Assistant Director (Deputy Director) explained that at the time, the FATD was dealing with a shortage of internal personnel and limited access to detailee support from other directorates so that every branch was understaffed and faced workload challenges. See ROI at 250. He stated that to his understanding, Complainant was provided with support with detailees and the option to receive overtime pay. See ROI at 250. Complainant’s Supervisor stated that he and another chief attempted to post a detail to replace Co-worker 1 while she would be gone but division leadership did not post the position and so Co-worker 1’s duties needed to be spread between other team members, including Complainant, but that to his knowledge, Complainant was able to keep up with the increased work and received overtime as well. See ROI at 260. Co-worker 1 agreed that management did not provide Complainant with assistance to deal with the increased work load, asserting it was due to “a lack of pre-planning, foresight, and carelessness,” and asserting that it is “a sanctioned practice to place a target on an employee’s back when it suits management,” and that she felt management denied Complainant support out of spite because Complainant’s suggestions in order to improve FATD processes were taken as being in conflict with management’s visions and agenda. See ROI at 276. Complainant also took issue because his request for a work cell phone was not approved. He asserted that his Supervisor asked if Complainant had ever received the phone that the Supervisor had ordered, the Supervisor was disappointed and stated that he suspected it had been denied by the former Chief. See ROI at 168. He stated that having a work cell phone would permit him to work from home if his internet went down because he has an agreement to telework five days a week. See ROI at 168. He asserted that he “does not know” why he was singled out for harassment by the former Chief but speculated that it was because of his prior EEO complaint and possibly because he is Native American, a disabled veteran, and has no children. See ROI at 169. Complainant further took issue because at an all-hands division meeting held by the Acting Division Chief after the former Chief retired, the Acting Division Chief made some comments which Complainant found to be offensive and hostile, such as making comments about how if you are not happy, find another job and that they need to change their attitudes and be more flexible and that there are people who would be happy to take their seats, which he viewed as a 2 The former Chief did not submit an affidavit.
2025004472 4 threat. See ROI at 170. He further asserted that at that meeting, the Acting Division Chief said that if anyone was unhappy, they should let him know so Complainant did so, requesting to transfer out of FATD but he never heard anything further. See ROI at 172-73. The Supervisor asserted that he requested that Complainant be given a cell phone because he felt it would be useful for Complainant to have to serve as back-up because there had been an occasion where Complainant lost internet access at his home for an extended period and was unable to telework. See ROI at 261. The Acting Division Chief stated that generally, only employees within a specific job series are authorized cell phones and program analysts were not among the jobs that were issued cell phones. See ROI at 237. He also asserted that cell phones are not required in order to telework and, in fact, according to Agency policy, an employee is not permitted to use a cell phone exclusively when teleworking. See ROI at 237. Another of Complainant’s co-workers (Co-worker 2) stated that she too requested a cell phone and was denied until she was assigned additional duties and was able to demonstrate a mission-based need for a cell phone. See ROI at 309. He explained that at the all-hands meeting, he was only trying to acknowledge the former Chief’s retirement and contributions to the Agency after more than 30 years of government service and he simply communicated that he wanted to try to help employees to find a job within the Agency where they could be happy. See ROI at 242. The Supervisor stated that at the meeting, the Acting Division Chief said complimentary things about the former Chief that Complainant took exception to. See ROI at 262. The Deputy Director explained that he received Complainant’s request to be transferred but explained that it is not a “wave of a magic wand type of scenario,” because there are competing operating factors and administrative demands, as well as budget uncertainties, a new hire shortage, and changes in leadership that all need to be taken into consideration. See ROI at 253. He asserted that Complainant’s request is still pending and under evaluation. See ROI at 253. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing before an AJ.
2025004472 5 The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ granted the Agency’s motion and issued a decision by summary judgment in favor of the Agency, finding no discrimination. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that there are material facts in dispute that should have required a hearing. The Agency filed a brief in response urging affirmance of the AJ’s decision. As this is an appeal from a decision issued without a hearing, the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”); see also 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). The Commission’s regulations allow an AJ to grant summary judgment when they find 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A fact is “material” if it has the potential to affect the outcome of the case. Id. When considering summary judgment, facts and inferences must be viewed in the light most favorable to the non-moving party. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009). 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. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see
2025004472 6 also EEO MD-110, at Chap. 7, § III.E. 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 has failed to establish such a dispute. Contrary to Complainant’s argument on appeal, none of the factual disputes Complainant cites are material facts as they are all ultimately irrelevant to the issue of discriminatory or retaliatory intent. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Upon our review of the record, we find that the AJ correctly determined that Complainant failed to establish a dispute of material fact and properly granted summary judgment. We find that the record does not support Complainant’s assertions that he was subjected to disparate treatment. At the outset, we note that Complainant did not establish a prima facie case because he did not identify any similarly-situated employees who were treated more favorably and he also asserted that his most recent EEO activity occurred around two years prior to all the incidents at issue. In any event, we also find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not establish that the Agency’s reasons were a pretext for discrimination. See Complainant v. Dep’t of the Air Force, EEOC Appeal No. 0120133200, (Dec. 18, 2014) (finding one year in between events “too remote to supply the necessary nexus”). Moreover, Complainant himself admitted that he did not actually need a cell phone in order to do his work but only that it would have been helpful as a back-up while Co-worker 2 stated that her request for a cell phone was not granted until she demonstrated a mission-based need for it. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Charlie O. v. Dep’t of the Navy, EEOC Appeal No. 2021002639 (March 29, 2022); Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019). We further find that the evidence in the record does not establish that Complainant was subjected to unlawful harassment as alleged. We find that all the alleged incidents of harassment amount to little more than routine workplace occurrences such as disagreements over work assignments, procedures, and personnel matters which are not sufficiently severe or pervasive to constitute a hostile work environment.
2025004472 7 See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant’s race, sex. or age). Moreover, the record indicates that the Acting Division Chief’s comments that Complainant found to be offensive or hostile were addressed generally to all the staff and said in the context of acknowledging the former Chief’s retirement. While Complainant may well have disagreed with the comments due to his own contentious interpersonal relationship with the former Chief and his disagreement with the way the former Chief handled management matters, his subjective perception of the comments as somehow directed at him is not sufficient to meet the objective standard required to establish unlawful harassment. See Mattson v. Dep’t of Homeland Sec’y, EEOC Appeal No. 0120052563 (July 3, 2007) (stating that a hostile work environment is established by an objective standard and not a complainant’s subjective perceptions). The Commission has repeatedly stated that EEO laws are not a civility code and do not guarantee a complainant a right to work in a pleasant or stress-free environment, but merely one that is free from discrimination. Not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Cher C. v. Dep’t of the Treasury, EEOC Appeal No. 0120161929 (Dec. 8, 2017). Having thoroughly reviewed the record and construing any inferences raised by the undisputed facts in favor of Complainant, we find that a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing 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:
2025004472 8 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 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).
2025004472 9 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. 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 __________ Gul Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector September 23, 2026 Date
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