EEOC Appeal 2025003419

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Claud R.,1
Complainant,
v.
Sean Duffy,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2025003419
Agency No. 2022-29260-FAA-05
Hearing No. 560-2022-00115X
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s
June 12, 2025, final order concerning an 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 reasons that follow, we AFFIRM the Agency’s final order.
Beginning on February 16, 2020, Complainant was employed as a FV-0346-H
Logistics Management Specialist (Provisioner) at the Agency’s Mike Monroney
Aeronautical Center facility in Oklahoma City, Oklahoma.
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 5, 2021, Complainant initiated contact with an EEO counselor. On
October 22, 2021, Complainant filed an EEO complaint alleging discrimination by
the Agency on the bases of race (African American), sex (male), color (Black), and
disability (mental) when:
1. 	When he started in his position, he was told that he and a female employee
would be splitting the workload but, shortly thereafter, she returned to her
previous position. Management told him that, due to budget constraints, the
workload would now be all his.
2. 	On or about February 21, 2020, he had to travel for work without notice, and
he had to use his own funds because he was not issued a government credit
card.
3. 	On or about March 2, 2020, management questioned his request for leave in
order to donate blood, and they told him that he did not automatically get
four hours.
4. 	On or about March 13, 2020, management admitted they had left him off of
multiple group emails.
5. 	On or about September 8, 2020, management said four hours was too long
for donating blood, changed the process for blood leave, and stated that, if
he had a different type of job, four hours would be necessary.
6. 	On or about October 20, 2020, management did not trust his advice on
needing supervisory approval via email for a solicitation of interest.
7. 	On or about October 21, 2020, engineering refused to work with second-
level engineering, which resulted in extra work for him to complete.
8. 	On or about October 29, 2020, management decided they would approve
future four-hour blood leave requests, but he decided he would make blood
donations on his own time from that point. Management mentioned that
going to his physician was at his discretion, he was to provide updates when
he did so, and they wanted him to self-quarantine for 14 days. He then
decided he would submit a leave slip for blood leave instead.
9. 	On or about October 29, 2020, upper management began harassing him via
text, email, and phone calls regarding his leave request, including telling him
they would be happy to document their conversation with him, they needed
to know whether he took a Covid-19 test, and telling him that his sick leave
was not approved until he talked to them.
10. On or about November 17, 2020, he received his completed Family and
Medical Leave Act (FMLA) form from his physician and emailed it to

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management. He stated that the reasons for his anxiety were previous
experiences of being stressed and overwhelmed by management.
11. On or about November 19, 2020, management and Human Resources (HR)
forced 	him 	into 	the reasonable 	accommodation 	(RA) process 	after he
repeatedly insisted he was not seeking an RA. Management and HR stated
that he had to go through the RA process before they could approve his
FMLA request. Management falsified the RA memorandum by stating that
he “indicated [you] may be entitled to a reasonable accommodation.”
12. On or about November 19, 2020, he made a suggestion during a meeting that
was implemented, and he included this accomplishment in his performance
appraisal along with other accomplishments, but he did not receive a cash
award.
13. On or about November 20, 2020, management refused to sign his request for
FMLA leave.
14. On or about November 27, 2020, he submitted another leave request that
was ignored.
15. On or about March 2, 2021, management interrupted him with instant
messages while he was in another meeting.
16. On or about April 30, 2021, his request for FMLA was approved, after
speaking to a different HR employee than the one management had been
communicating with. She stated it was clear that he did not require an RA.
17. On or about August 17, 2021, management asked him to provide a Sparing
Model that was determined two months ago without explanation, and he did
so. He felt this was an attempt to see if he was organized or to attempt to
make him fail to provide needed information.
18. On or about September 9, 2021, management exhibited bias by showing him
a job posting on USAJOBS. He felt this was done to show he was not
wanted in the organization.
19. On or about September 10, 2021, he sent an email to management inquiring
about split shifts. Management told him that he could not work weekends
and that his split shift would not work because he was in a position that
required two people.
20. On or about September 17, 2021, he sent a text to management requesting
eight hours of FMLA annual leave. Management replied, calling him the “N
word.”
21. On or about October 8, 2021, he emailed management, upper management,
and senior management his Notice of Resignation.

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Complainant identified his disability as insomnia, racing heart, hyperventilation,
racing thoughts, anxiety, and hypertension. Complainant alleged that harassment
from management was the cause of his medical condition.
In November 2020, Complainant requested FMLA leave for his own serious
medical condition. After his doctor checked a box on a form indicating that
Complainant would be unable to perform one or more of the essential functions of
his position, the Agency initiated the interactive process to determine whether he
needed an accommodation. Complainant denied that he needed a RA. Complainant
was subsequently approved for FMLA leave, and his absences were retroactively
converted to FMLA leave.
On 	September 	17, 	2021, 	Complainant 	texted 	his 	supervisor 	(Supervisor-1),
requesting eight hours of FMLA leave. Supervisor-1 asked if Complainant wanted
annual 	or sick 	leave, and 	Complainant stated 	that 	he wanted 	annual 	leave.
Supervisor-1 replied, “Okay. Thanks. N”. Report of Investigation at 290. Several
hours later, Complainant replied, “Excuse me for asking, but I thought you would
have responded by now correcting the letter ‘N’ after thanks. Are u referencing me
as the ‘N’ word!” Id. Supervisor-1 apologized, stated that it was a typo, and stated
that he did “not use that word with anyone.” Id. Supervisor-1 reported the incident
to the Assistant Group Manager (Manager-1), who reported it to the Agency’s
Accountability Board. The incident was reviewed and found to be a typographical
error by the Accountability Board. Manager-1 counseled Supervisor-1 to pay more
attention to the accuracy of his communications.
On October 8, 2021, Complainant submitted notice of his resignation, effective
October 15, 2021. Complainant alleged that he felt he had to resign after a pattern
of ongoing discrimination and harassment.
After its investigation into the complaint, the Agency provided Complainant with a
copy of the report of investigation and notice of right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ
held a hearing and subsequently issued a decision in favor of the Agency.
The AJ considered allegations (18) through (21) as disparate treatment claims,
finding that Complainant failed to establish a prima facie case of discrimination on
any basis. The AJ also found that the Agency had articulated a legitimate,
nondiscriminatory reason for each issue.

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Complainant’s supervisor sent him a job posting for a position in the EEO Office
because he had expressed interest in civil rights work. The Agency denied
Complainant’s request for a split shift schedule based on the need for him to be
present during core hours to perform his Provisioner duties. The Accountability
Board investigated Supervisor-1’s text message and found was no evidence that the
inclusion of the letter “N” was anything other than a typographical error. The AJ
found that Supervisor-1 credibly testified that typing the letter N was a mistake,
noting that he appeared visibly disturbed while testifying about the possibility that
someone thought he intended to use a racial epithet. The AJ determined that the
evidence in the record established that Complainant voluntarily resigned. The AJ
further found that Complainant presented no evidence of pretext.
Evaluating Complainant’s harassment claim, the AJ found that Complainant failed
to demonstrate that the alleged harassment was based on his race, color, sex, or
disability. Although Complainant was frustrated by not being able to take leave
freely without being questioned by management, the AJ found that management’s
inquiries were reasonable and did not constitute harassment. The AJ found that
much of the alleged harassment consisted of the legitimate exercise of supervisory
oversight, such as assessing his workload and duties as a Provisioner, requesting
that he travel for work prior to receiving a government travel card, deciding on
performance awards, managing his work schedule, and notifying him of a job
opportunity in a field of interest. The AJ found that some instances of harassment
were literal mistakes, such as Manager-1 forgetting to add him to an email list after
he onboarded, Supervisor-1 sending him an instant message without realizing he
was in a meeting, Supervisor-1 correcting himself after realizing Complainant was
correct on a work question, and Supervisor-1 inadvertently adding the letter “N” to
a text message to Complainant about leave. The AJ found that Complainant had
not demonstrated that the alleged instances of harassment, either individually or
collectively, were sufficiently severe or pervasive to constitute a hostile work
environment. The AJ concluded that Complainant failed to demonstrate that he
was subjected to unlawful harassment as alleged.
The Agency issued its final order adopting the AJ’s conclusion that Complainant
failed to prove discrimination as alleged.
The instant appeal followed.

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On appeal, Complainant argues, among other things, that the AJ failed to consider
the cumulative effect of repeated incidents of harassment, which contributed to
stress, 	anxiety, 	and 	deterioration 	of 	his 	health. 	Complainant 	asserts 	that
management falsely asserted that he had indicated that he may be entitled to
reasonable accommodation. Complainant contends that, while the Accountability
Board may have determined that Supervisor-1’s text message was a typographical
error, 	his 	subjective 	reaction 	to 	the 	message 	and 	the 	emotional 	harm 	he
experienced 	were 	not 	unreasonable 	or unfounded. 	Complainant 	avers 	that 	a
reasonable person in his position would have felt compelled to resign because his
working conditions became intolerable. We will address Complainant’s arguments
below.2
The Agency argues, in pertinent part, that its final order should be affirmed.
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.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019)
(internal citation omitted). A finding regarding whether or not discriminatory intent
existed is a factual finding. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at § VI.B. (Aug. 5,
2015). An AJ’s conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held. Id. 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. Id.
2 Complainant appears to raise reprisal for prior protected EEO activity as a new
basis. We note that, absent a compelling reason, a complainant may not add a new
basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196
(May 11, 2000).
To the extent Complainant alleges retaliation for exercising his FMLA rights,
FMLA is governed by the Department of Labor. Complainant should raise any
concerns that his FMLA rights were violated or that he was subjected to retaliation
for exercising his FMLA rights with the Department of Labor. See Susie K. v. U.S.
Postal Serv., EEOC Appeal No. 2020003012 (June 2, 2020).

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EEO MD-110, Chap. 9 § VI.C, further provides that on appeal to the Commission,
the burden is squarely on the party challenging the AJ’s decision to demonstrate
that the AJ’s factual determinations are not supported by substantial evidence. See
id. In this case, this means that Complainant has the burden of pointing out where
and why the AJ’s findings are not supported by substantial evidence. Cf. id.
(pointing out that “[t]he appeals statements of the parties, both supporting and
opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it
can be determined whether the [AJ’s] factual determinations are supported by
substantial evidence”).
On appeal, Complainant argues that management falsely stated that he indicated
that he may require reasonable accommodation. However, as the AJ found,
Complainant’s doctor checked a box stating that Complainant would not be able to
perform one or more of his essential job functions. We find that substantial
evidence supports the AJ’s findings that it was reasonable for management to
initiate the interactive process based on the information provided by Complainant’s
doctor and that there was no evidence to support Complainant’s speculation that
management initiated the interactive process in order to intentionally stall the
approval of his request for FMLA leave.
Contrary to Complainant’s assertion on appeal, the AJ considered the cumulative
effects of the allegedly harassing incidents. We find that substantial evidence
supports the AJ’s determination that none of the incidents, whether considered
individually or collectively, were sufficiently severe or pervasive. Similarly, we
find that substantial evidence supports the AJ’s conclusion that Complainant did
not establish that the alleged harassment was based on his race, color, sex, and/or
disability. Regarding Supervisor-1’s text message, Complainant avers that he
subjectively 	perceived 	the 	letter 	“N” 	as 	offensive. 	Based 	on 	Supervisor-1’s
demeanor while testifying, the AJ determined that Supervisor-1 credibly testified
that the inclusion of the letter N in the text message was a mistake, and we find no
basis to overturn this credibility determination. Absent evidence of discriminatory
motive, Complainant cannot establish that Supervisor-1’s text message constituted
discriminatory harassment. We agree with the AJ’s conclusion that Complainant
did not establish that he was subjected to discriminatory harassment as alleged.
In this case, a finding of constructive discharge is precluded by our finding that
Complainant 	did 	not 	establish 	that 	he 	was 	subjected 	to 	discrimination 	or
harassment as alleged.

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See Val L. v. Dep’t of Veterans Affs., EEOC Appeal No. 2021004383 (Feb. 23,
2023) (“The law does not permit an employee’s subjective perceptions to govern a
claim of constructive discharge”).
Upon careful review of the AJ’s decision and the evidence of record, as well as the
parties’ arguments on appeal, including those not specifically addressed herein, we
conclude that substantial evidence of record supports the AJ’s determination that
Complainant has not proven discrimination 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:
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

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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.
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.

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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 	_________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 22, 2026
Date