2024004494•EEOC Appeal 2024004494
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Walter B.,1 Complainant, v. Markwayne Mullin, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2024004494 Hearing No. 510-2023-00216X Agency No. HS-CIS-01981-2022 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 final order concerning his equal employment opportunity (EEO) complaint of 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 finding no discrimination. 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.
2024004494 2 At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Assistant (ISA), at the Agency’s Tampa Field Office in Tampa, Florida. On August 17, 2022, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Catholic), disability (mental and physical), and in reprisal for prior protected EEO activity when: 1. In 2020, management instructed him not to wear a respirator designed to stop airborne contaminants but to only wear cloth or medical masks when returning to the office; 2. In 2020, management assigned his duties to other team members to make it look like he was incapable of performing his duties from home; 3. In 2020, his request for keyboard, mouse, and dual monitors was denied; 4. On December 16, 2020, he was made to come to the office to pick up files while approved for COVID-19 flexibilities; 5. In 2021, management requested him to return to the office and asked him to submit medical documentation several times; 6. In 2021, he was assigned more work than his colleagues, required to track thousands of files and conduct a “massive” inventory, then told to manage his time better; 7. In 2021, he was required to pick up office files daily instead of weekly, and management was dismissive when he came to pick up files, making him wait on one occasion for almost two hours; 8. On unspecified dates, management denied making adjustment to his time when he had to deliver files on his day off; 9. On an unspecified date, management “gave him a hard time” for not printing the cover sheets for boxes he was bringing back to the office, even though management refused to give him a printer until coworkers complained of having to scan so many boxes; 10. In 2021, management ignored his e-mails, texts and phone calls after returning to the office; 11. On March 24, 2022, he was denied a one-month extension of remote work COVID-19 flexibilities; 12. On March 24, 2022, management took a screen shot of him during a Teams meeting;
2024004494 3 13. On March 28, 2022, his access to the file room and mailroom was denied; 14. On March 28, 2022, he was accused of displaying threatening images in a virtual meeting; 15. On April 4, 2022, he was assigned substantially more work than his colleagues without additional assistance; 16. On April 7, 2022, management responded to his request for assistance with, “Yes Satan;” 17. In April/May 2022, management required him to process 50 boxes of files within two hours with a coworker; and 18. On unspecified dates, management allowed coworkers to insult him without consequences. 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 requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on June 27, 2024. 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 AJ considered claims 1 – 5 and 11, to constitute an alleged denial of a reasonable accommodation. We find that Complainant failed to present evidence to prove that the Agency failed to provide him with a reasonable accommodation or that the accommodations offered by the Agency would have been ineffective. The record shows that Complainant was granted full-time telework from March 23, 2020 to March 26, 2022, as part of the Agency’s temporary COVID-19 Flexibilities Program. The Agency gave him full-time telework as an alternative to wearing a gas mask in a position where he had public-facing duties. Complainant was provided with the option to wear a cloth or surgical mask and was instructed to not wear a gas mask when in the office building. Further, since the ISA position requires direct customer service (front facing) and office work, to allow Complainant to telework full-time the Agency removed and made changes to some of Complainant’s major functions and duties. Some of Complainant’s functions and duties were temporarily redistributed and given to other ISAs.
2024004494 4 The evidence shows that during this timeframe Complainant was provided with office supplies, which included a laptop with screen, touchpad, and a printer. In addition, the Agency arranged for Complainant to receive his work files out of the building so he did not have to come into the building. Further, the pick-up and drop-off of Complainant’s work files were done during his duty hours. The evidence shows that only on one occasion was Complainant asked to deliver a file on his day off because of an urgent situation. Nevertheless, Complainant was paid accordingly. The record shows that Complainant admitted that on February 25, 2022, he requested remote work. On or about March 4, 2022, the Agency notified all the employees that the COVID-19 Flexibilities Program would end on March 26, 2022. The Agency advised that employees who required additional time to make alternate work/life arrangements may have their flexibilities extended up to April 23, 2022, with supervisory approval. In addition, the Agency advised that employees could request a reasonable accommodation if the employee’s medical condition met the reasonable accommodation criteria of having a disability as defined by the Rehabilitation Act. In the same communication, the Agency provided instructions to request such an extension and/or reasonable accommodation. Complainant requested an extension of his full-time telework under the COVID-19 Flexibilities Program extension. Also, during the same timeframe Complainant continued inquiring about the possibility of reclassifying his position as a remote position. On March 25, 2022, Complainant was informed that under the criteria that would allow an extension he was not eligible. In addition, he was informed that the reclassification of his position was not possible due to the nature of the ISA position as a public front-facing position. Complainant made no reasonable accommodation request concerning teleworking after March 25, 2022, that is at issue in this complaint. To the extent that his request in 2020 for a keyboard, mouse, and dual monitors was allegedly denied, the record shows that Complainant was given the same equipment as other employees who teleworked and that such a request was never part of a reasonable accommodation request or in any way linked to a claimed disability.
2024004494 5 Regarding Complainant disparate treatment claim, we find that Complainant cannot establish a prima facie case of discrimination because the record does not include evidence on which a reasonable factfinder could find that the alleged conduct occurred because of Complainant’s protected classes. Complainant only offers broad allegations that he was discriminated against because of his protected bases without any details or supporting evidence. His bare assertions are insufficient to prove that the alleged actions were motivated by a discriminatory animus. As for Complainant’s allegation of harassment, even if the incidents alleged occurred in the manner described, we find that Complainant failed to persuasively show that his protected bases were the reason for the Agency’s alleged actions. Moreover, we find that even if the alleged incidents occurred in the manner described, the Agency’s actions are not sufficiently severe or pervasive to constitute a hostile work environment. In reaching this conclusion, we carefully considered Complainant’s allegation that the Agency failed to respond to his allegation of harassment by coworkers. We find that Complainant identified only one incident, which he brought to his Supervisor’s attention. The alleged incident occurred when Complainant complained to Supervisor about a coworker’s behavior and Supervisor allegedly responded “Yes, Satan.” Complainant explains that as a Roman Catholic he interpreted such a comment as offensive and that it meant Complainant was an “evil man.” Supervisor denied knowing what Complainant’s religion was and denied making the comment. For purposes of summary judgment, we presume the comment was made as alleged. The evidence shows that the incident was addressed by the Supervisor and the coworker was verbally counseled. This one remark, assuming it was made for the purposes of this decision, is insufficient to constitute a discriminatory hostile work environment. We note that anti- discrimination statutes are not civility codes designed to protect against the “ordinary tribulations” of the workplace. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). Accordingly, we AFFIRM the Agency’s final order finding no discrimination.
2024004494 6 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 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.
2024004494 7 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. The court has the sole discretion to grant or deny these types of requests.
2024004494 8 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 23, 2026 Date
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