Ronny S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120132198 Agency No. 200H-0532-2012100521 DECISION Complainant timely filed an appeal from the Agency's March 27, 2013, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts this appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. ISSUES PRESENTED The issues presented before the Commission are whether Complainant has proven discrimination on the bases of sex (male, sexual orientation), age (47), and reprisal (prior EEO activity) when he was: (1) not selected for one of several vacant supervisory positions; (2) denied leave on one occasion; and (3) allegedly subjected to discriminatory harassment.2 BACKGROUND During the time at issue, Complainant worked as a Health Science Specialist, GS-11, for the Veterans Crisis Line at the Agency's National Call Center for Homeless Veterans, at the Canandaigua VAMC in Canandaigua, New York. On December 21, 2011, and subsequently amended, he filed a formal complaint in which he alleged discrimination on the bases of sex (male, sexual orientation), age (47), and reprisal (prior EEO activity) when: (1) he was not selected for several vacant supervisory positions; (2) was denied leave on one occasion; and (3) was subjected to discriminatory harassment. The Agency accepted the identified issues for investigation. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency found that Complainant failed to prove discrimination as alleged. The Agency assumed that Complainant had established a prima facie case of sex, sexual orientation, and age discrimination. It specifically found that Complainant had established a prima facie case of reprisal discrimination. Complainant filed a prior EEO complaint in December 2010, claiming discrimination based on his sex, sexual orientation, and reprisal; two of the named responsible management officials in the instant complaint were also named in the previous complaint, and therefore had knowledge of his EEO activity; the events of the instant complaint took place close in time to the previous incidents and filing of his complaint; and a causal relationship could be inferred. The Agency found that it had articulated legitimate, nondiscriminatory reasons for its actions, and it concluded that Complainant had not shown those reasons to be pretext for discrimination. The Agency also found that Complainant had not established a claim of hostile work environment harassment. It found that he had not presented sufficient evidence to show that he was subjected to verbal insults or intimidating physical conduct, and had not shown that the conduct at issue was based on a protected class. The Agency concluded that his claim of harassment consisted of his dissatisfaction with job-related events and conduct that did not rise to the level of a legally hostile work environment. Complainant thereafter filed this appeal. CONTENTIONS ON APPEAL On appeal, Complainant contends that the EEO Investigator assigned to his case mishandled the investigation. He further contends that the Agency's final decision does not mention that he was finally offered a supervisory position in July 2012. Finally, he contends that the Agency did not consider the fact that the leave request at issue in this decision regarded a request for religious observance, in other words, a religious accommodation. The Agency contends that Complainant failed to provide the Agency a copy of any brief or statement he may have filed in support of his appeal; therefore, Complainant failed to offer reasons as to why the final decision should be overturned. The Agency further contends that because the 30 day time period within which such brief should have been filed has expired, the Commission should decline to accept any such brief that may be filed in the future. The Agency closes by requesting that the Commission affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), 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"). ANALYSIS AND FINDINGS Initially, we note that the Agency contends on appeal that Complainant failed to provide the Agency a copy of any brief or statement Complainant may have filed in support of his appeal. That allegation, however, is not supported by documentary evidence in the record. See Complainant's April 24, 2013, Statement on Appeal (showing that the Agency's Office of Employment Discrimination received and date-stamped Complainant's appeal statement on April 30, 2013, and that its Office of Resolution Management received and date-stamped the same statement on May 8, 2013). We conclude that Complainant did indeed provide the Agency a copy of his statement on appeal, and did so in a manner consistent with the Commission's time requirements. Therefore, we find that we may properly consider the contentions in Complainant's brief. Sexual Orientation Complainant claimed that his sexual orientation was also a basis for the alleged discrimination in this complaint. In its final agency decision, the Agency noted that sexual orientation is not explicitly covered by Title VII. It went on to take notice, however, of the then-recently issued Commission decision in Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), which found that a transgender applicant could file a sex discrimination claim under Title VII because, "an employer may not take gender into account in making an employment decision." The Agency stated that "when an employer makes an employment decision based on an employee's sexual orientation, the employer impermissibly takes the employee's sex or gender into account in violation of Title VII." It went on to state that, "In light of the EEOC's decision in Macy, a claim of discrimination based on sexual orientation is cognizable under Title VII as a claim of sex discrimination and should be processed under the EEOC federal sector complaint process pursuant to 29 C.F.R. Section 1614." The Agency noted that Executive Order 13087 prohibits discrimination based on sexual orientation in the federal workplace, and that it had adopted a policy which would provide for administrative review of complaints of sexual orientation discrimination. The Agency stated that it would apply the legal principles of Title VII to sexual orientation complaints. It also informed Complainant that he could appeal the Agency's finding on his sexual orientation claims to the Agency's Office of Employment Discrimination Complaint Adjudication, or that he could file a complaint with the Office of Special Counsel. It notified Complainant that his claims of sex, age and reprisal discrimination were appealable to the Commission. We find that the Commission has jurisdiction over Complainant's sexual orientation discrimination claims pursuant to our finding in Baldwin v. Department of Transportation, which held that a claim of sexual orientation discrimination is a claim of sex discrimination, and therefore covered under Title VII and properly processed under the 29 C.F.R. Part 1614 process for EEO complaints. See Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). Accordingly, we will analyze Complainant's claim of sexual orientation discrimination along with his claims of sex, age and reprisal discrimination. Disparate Treatment Nonselections In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this three-step process, Complainant must first establish prima facie cases of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume Complainant has established a prima facie case of discrimination with respect to his sex, sexual orientation, age, and prior EEO activity. Complainant alleged discrimination on the bases of sex (male/sexual orientation), age (47) and reprisal (prior EEO activity) when he was not selected for four supervisory positions: (1) Supervisory Health Science Specialist, GS-12, on October 24, 2011, announced in Vacancy Announcement No. 528F-11-142-SMC-528076; (2) Supervisory Health Science Specialist, GS-12, on April 9, 2012, announced in Vacancy Announcement No. 528F-12-080-608961-SMC; (3) Supervisory Health Science Specialist, GS-12, on May 16, 2012, announced in Vacancy Announcement 528F-12-80-60891-SMC; and (4) Supervisory Program Specialist, GS-13, on July 2, 2012, announced in Vacancy Announcement No. 528-12-118-661141-VD-R19.3 We now turn our attention to whether the Agency has met its burden to articulate legitimate, nondiscriminatory reasons for its decision to not select Complainant for one or more of the nonselections at issue. Regarding each nonselection, the Agency stated that Complainant failed to completely or fully answer the questions asked during the interviews. To support its reasons, the Agency supplemented the evidentiary record with a "Performance Based Interviewing" (PBI) rating sheet that was used in scoring applicants for the positions. The rating sheet indicates that each applicant was scored using the following scale: (1) did not address the questions with job-relevant or job-competent examples; (2) answered only part of the question with non-specific or questionably-competent work examples; (3) answered most parts of the questions with some relevant, competent work examples; (4) answered all parts of the questions with relevant, fully-competent work examples; and (5) provided relevant, exceptionally competent, job-specific examples and fully answered all of the question. See Complaint File at 258. The Agency explained that the questions asked were taken directly from the PBI Question Bank on the VA Employee Education section of the Agency's intranet. Id. at 259. The Agency further explained that each panel consisted of interviewers familiar with the Department's PBI process. Id. The Agency admitted that Complainant was qualified for each position by virtue of the fact he was selected to interview for the vacancies but because other employees were also qualified and performed better during their interviews (i.e., gave more relevant and complete answers), Complainant was not selected. More specifically, the Agency stated that as to the first nonselection, Complainant was given a total score of 72, which did not place him among the top four candidates. Regarding the second and third nonselections, the Agency stated that Complainant scored in the bottom two-thirds; therefore his application was not forwarded for consideration. Regarding the fourth nonselection, the Agency stated that the selectee gave examples of how she worked with subordinates, and how she clarified issues and collaborated with others to recover working relationships after mistakes, whereas Complainant did not go in depth concerning collaborative processes with employees. We find that the Agency has stated legitimate, nondiscriminatory reasons to support its decisions to not hire Complainant for the positions at issue. Because the Agency has successfully met its burden of stating legitimate, nondiscriminatory reasons for the nonselections, we shall consider whether Complainant has proven that the Agency's stated reasons were pretext designed to mask discriminatory animus. When asked why he believes he was more qualified than some of the selectees, Complainant elaborated on his academic training, specifically, his two master's degrees, his doctoral work, and his extensive supervisory experience. None of these reasons, however, challenges whether the selectees performed better in their interviews. Further, the reasons given by Complainant reveal his belief that he was more qualified than those selected. In an attempt to prove pretext, Complainant may establish that his qualifications are "plainly superior" than those selected. See Patterson v. Dep't of the Treas., EEOC Request No. 05950156 (May 9, 1996). Additionally, the Commission has found that an employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. See Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 259 (1981). However, Complainant did not submit, and the record does not reflect, evidence showing that his qualifications were plainly superior to those selected. We note that much of the testimony provided by Complainant concerns his belief that he would have been selected for one or more of the positions at issue but for his sex, sexual orientation, age, or prior EEO activity. However, such statements and speculations, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). As such, we find that Complainant did not prove that the Agency's stated reasons were pretextual. Denial of Leave Complainant alleges discrimination on the bases of sex, sexual orientation, age, and reprisal when his leave request was denied for April 7, 2012. The Agency stated that Complainant was denied leave due to staffing needs; several employees were already off and the unit in which Complainant worked needed appropriate coverage. The Agency further stated that, based on the union contract, the most senior employees are allowed to take off first. The Agency explained that Complainant was informed that if he could find another employee to switch with him, then he would be allowed to use leave on April 7, 2012. We note that Complainant stated that he was given a denial which stated "not enough staff . . . you may switch with someone." See Complainant's Affidavit ("Aff.") at 56. We find that the Agency has stated legitimate, nondiscriminatory reasons for its actions. Complainant offered no credible evidence to show that the Agency's reasons were pretextual. He argued that the leave was denied following an incident where his union representative walked out of a meeting with management, and after Complainant met with Regional Counsel to discuss Complainant's prior EEO activity and the allegedly fraudulent educational degree of the management official who denied his leave request (who was the named responsible management official in Complainant's previous EEO complaint). This information, however, does not provide a sufficient link between Complainant's prior EEO activity and the Agency's stated reasons. Therefore, we find that Complainant did not demonstrate that the Agency's stated reasons were pretextual. Religious Accommodation We note that, on appeal and in his affidavit below, Complainant stated that he requested the leave on April 7, 2012, for religious purposes to observe Easter Vigil; therefore, Complainant has alleged religion and failure to provide a religious accommodation as a basis of discrimination. Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment, (2) he or she informed the agency of this belief and conflict, and (3) the agency nevertheless enforced its requirement against the employee. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Once an employee establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate the religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by the employee could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). Pursuant to 29 C.F.R. § 1605.2(a)-(e), the Commission's "Guidelines on Discrimination Because of Religion," alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977). Complainant stated in his affidavit that he was given an opportunity to voluntarily swap his requested day off with another employee. See Complainant's Aff. at 56. There is nothing in the record to indicate that Complainant was offered any other option that would enable him to take leave for a religious observance that day. Likewise there is nothing that shows he was given the opportunity to suggest alternatives, or that there was any discussion around the issue at all. The Commission has found acceptable several alternatives for accommodating conflicts between work schedules and religious practices, including voluntary substitutes and swaps, flexible scheduling, or lateral transfer and change of job assignments. See 29 C.F.R. § 1605.2(d). With regard to voluntary substitutions or swaps, the Commission believes the obligation to accommodate requires employers to facilitate the securing of a voluntary substitute. Samuelson v. U.S. Postal Service, EEOC Appeal No. 0120112777 (February 19, 2013). Some ways of doing this are publicizing policies regarding accommodation and voluntary substitution, promoting an atmosphere in which substitutions are favorably regarded, or providing a central file, bulletin board, or other means for making voluntary substitutes available. See Hoffman v. U.S. Postal Service, EEOC Appeal No. 01A01092 (June 29, 2001), request to reconsider denied, EEOC Request No. 05A10911 (November 16, 2001). The record does not show that the Agency took any action to facilitate voluntary swaps. Instead, management placed the burden solely on Complainant. Consequently, we do not find that the Agency's suggestion that Complainant ask colleagues to swap schedules constituted a good faith effort to reasonably accommodate Complainant's religious beliefs. See Complainant v. Dep't of Defense (Defense Commissary Agency), EEOC Appeal No. 0120150382 (May 1, 2015). Therefore, we find the Agency failed to accommodate Complainant's religious beliefs. Harassment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinnev v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). To establish a claim of hostile environment harassment based on sex (sexual orientation), age, or reprisal, Complainant must show that: (1) he is a member of the statutorily protected classes; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected classes; (3) the harassment complained of was based on the statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Complainant alleged harassment when: 1. On August 26, 2011, the Care Line Manager failed to respond to a Report of Contact he submitted on August 19, 2011; 2. On September 29, 2011, and November 3, 2011, he was not granted compensatory time for immunizations required for Disaster Emergency Medical System (DEMPS) eligibility and possible deployment that were given outside his tour of duty; 3. On October 27, 2011, he was informed that, although he was granted Veterans Day off, he was still expected to work a full 40 hours during the week of Veterans Day; 4. In October 2011, he did not receive a package that was sent to him from the Rochester Institute of Technology, which was related to an activity with the local EEO office; 5. On November 8, 2011, the Shift Supervisor (Shift Sup. 1) told him and a peer not to meet behind closed doors; 6. On November 16, 2011, the Shift Supervisor (Shift Sup. 2) assigned him to answer telephones prior to the start of his shift although he was scheduled to attend a planned union representatives' meeting; 7. On January 10, 2012, he became aware that the EEO Intern questioned the Special Emphasis Programs (SEP) minutes he authored, and on December 20, 2011, directed the SEP Program Manager to have him send meeting minutes to her for review and dissemination; 8. On January 24, 2012, management failed to notify department police of an event regarding signs placed in a lesbian's cubicle calling her a "she-devil" and warning that she ate children; 9. On January 29, 2012, the Supervisory Health Science Specialist (SHSS-1) told him he should "talk in a higher voice" when a chat referral guest declined to speak with him and requested to speak to a female instead; 10. On February 21, 2012, the Program Management Officer assigned him the responsibility of creating a "Safety Check Implementation;" 11. On February 23, 2012, Supervisory Health Science Specialist (SHSS-2) assigned him and a coworker the task of designing an hour-long presentation regarding hotline basics; 12. On March 1, 2012, the Case Line Manager failed to send him an anniversary card; 13. On or about March 14, 2012, he was assigned to an office space in which to respond to Office of Resolution Management concerns, and the space was filled with files in excess of 75 boxes and contained soiled items, and assorted debris; 14. On April 4, 2012, during training for the Veterans Texting Program, he received homophobic practice text messages on his personnel cell phone and management failed to take action when put on notice; 15. On April 9, 2012, SHSS-2 silently monitored his call with a veteran and notified him that he would conduct a synopsis monitoring; 16. On April 11, 2012, the Program Management Officer told him that she preferred that he not talk with his supervisor of record until after meeting with the interview panel when he asked her about one of the nonselections discussed above; 17. On an unspecified date, he became aware that the Program Management Officer and the EEO Manager were maintaining an electronic file on him; 18. On April 14, 2012, Shift Sup. 1 instant-messaged his peers asking if Complainant needed police or ambulance assistance, due to him allegedly being suicidal; 19. On April 16, 2012, the HR Director provided him a copy of an ethics report which did not address all the aspects of his claims of alleged ethics violations; 20. On April 18, 2012, Shift Sup. 2 told a co-worker that he was "hanging with the wrong crowd" when Shift Sup. 2 encountered Complainant and two lesbian co-workers conversing with the co-worker; 21. On April 22, 2012, the HR Specialist denied his request to photograph the asbestos abatement project and made a report to department police regarding the matter; 22. On April 24, 2012, the HR Specialist directed him and a coworker to move a podium from the stage in the auditorium to the floor and referred to them as "strong men"; 23. On April 24, 2012, the HR Specialist distributed training material to insure he was the last recipient, and physically positioned herself between Complainant and the trainer, requesting to speak with the trainer before Complainant could; 24. On April 28, 2012, SHSS-1 delivered a training to employees on standards of ethical practice compliance and noted that the department would not be adopting the New York State definition of marriage, but the federal definition; 25. On May 7, 2012, the Program Management Officer and Shift Sup. 1 met with him regarding the April 14, 2012, incident, namely the incident where Shift Sup. 1 asked whether Complainant needed an ambulance or police assistance incident, and stated that he would not be asked to speak but only listen; and 26. On July 13, 2012, the Program Management Officer assigned him the task of reading a book on people skills as a training exercise.4 We address management's responses regarding each alleged incident of harassment below. 1. Regarding the Report of Contact incident submitted on August 19, 2011, management stated that this information was shared with the EEO Manager and that an e-mail was released informing all supervisors to be aware of their positions in a room so as not to be perceived as blocking the exits of a veteran or employee. The Program Management Officer confirmed that an e-mail was sent out, which stated that entryways to offices should be left such that a person could enter and exit without any problems. 2. As to compensatory time for immunizations required by DEMPS, the Program Management Officer admitted that Complainant did not receive compensatory time because he failed to follow proper policy, which mandated that compensatory time be requested in advance. 3. Regarding being granted off for Veterans Day, the Program Management Officer stated that the holiday fell on Complainant's normal off-day and that Complainant wanted to move the holiday to a different day but per department policy he could not. We note that the Program Management Officer did not state whether Complainant was given a day off for the holiday. 4. With respect to Complainant not receiving a package related to the local EEO office, management stated that it had no knowledge of this event. 5. As to the allegation regarding Complainant meeting with a peer behind closed doors, the Program Management Officer stated that she spoke to the named shift supervisor about this incident and further stated that the shift supervisor denied knowledge of this event. The shift supervisor stated that Complainant is allowed to meet behind closed doors to discuss union matters and does not know why Complainant would make such an allegation. 6. Regarding Complainant being assigned to answer telephones even though he had a previously scheduled union meeting, management stated that it was forgotten that such a meeting had been scheduled but, once reminded, Complainant was instructed to proceed to the meeting. Complainant admits that he was on telephone duty for 16 minutes before being allowed to report to the meeting. 7. Concerning allegation 7, the named employee stated that Complainant was sending out meeting minutes before they were reviewed or approved by the Program Manager and that it was appropriate that the meeting minutes be reviewed before dissemination. 8. Regarding the "she-devil" incident, the Program Management Officer stated that she discussed this incident with the parties involved and they stated they did not feel they were harassed. The parties involved informed the Program Management Officer that they regarded "she-devil" as just a cartoon character, it was part of an on-going joke among co-workers, and no one took offense because of their sexual preference. 9. Regarding being asked to speak in a higher voice, the Program Management Officer stated that the she spoke to the named responsible official. The named responsible official denies knowledge of this event but stated that he understands that veterans sometimes ask to speak to someone of a particular gender and that he accommodates them when appropriate. 10. Concerning allegation 10, the Safety Check Implementation issue, the Program Management Officer stated that Complainant expressed concern on several occasions about people tripping over extension cords and such and that she asked Complainant if he would be interested in tracking these concerns and capturing them in a report. The Program Management Officer stated that Complainant accepted her request but never followed through. She further stated that her only intent in asking Complainant to write up a report on the matter was so that the events about which Complainant complained could be formalized. 11. As to the allegation about Complainant and a coworker being given the task of designing an hour-long presentation on LGBT issues, management stated that this was a task for which Complainant volunteered and that Complainant in fact came up with exercises and scheduled a room for the event. 12. Regarding not receiving an anniversary card for Complainant's time with the Agency, management stated if Complainant did not receive such a card, it was an oversight and once put on notice, he was given a card. The Case Line Manager stated that it was her practice to send an anniversary card to employees to acknowledge their hard work. Complainant's card was sent late due to her secretary's unexpected leave. 13. As for being placed in an office with soiled items, the Program Management Officer stated that she was unaware that the office Complainant was assigned was in such a poor state but noted that Complainant was assigned that office to work on an assignment so that he could have the privacy he needed to do the job, not because of ill-will. The Program Management Officer noted that other employees had been assigned that room as well to perform tasks. 14. Regarding Complainant's receipt of inappropriate, homophobic text messages, the Program Management Officer stated she had no knowledge of this event. The messages cited by Complainant were two messages stating, "Don't trip over your dress," and "I will be your worst nightmare." 15. Regarding Complainant's telephone calls being silently monitored, the Program Management Officer stated that all employees received silent monitoring, that this was department practice, and that Complainant usually received high marks. SHSS-1 confirmed that all employees are silently monitored for the purpose of quality assurance. He explained that "synopsis monitoring" refers to reviewing written documentation that an employee provides for each call he or she receives, and that the purpose of such monitoring was quality assurance, which is useful in providing feedback to employees about their documentation. 16. As to the allegations about Complainant being told not to speak to his supervisor after the meeting with the interview panel, the Program Management Officer admitted that she preferred that Complainant not meet with his supervisor because she wanted the candidates to speak with the entire interview panel. The Program Management Officer also stated that she indicated to Complainant that he could speak with his supervisor to get her advice or perceptions regarding his performance. She further stated that she does not know whether Complainant ever spoke with his supervisor. 17. Regarding maintaining an electronic file on Complainant, the Program Management Officer stated that the EEO Manager sent her a list of questions regarding an EEO complaint Complainant had filed and that because the e-mail traffic she received from Complainant was voluminous, she kept a file on her computer labeled "[Complainant]" file. She stated that when she responded to the EEO Manager regarding issues Complainant wanted addressed, she simply put "for [Complaint] file" but noted that she was not maintaining an electronic file on Complainant. The EEO Manager confirmed the Program Management Officer's characterization of the information the two exchanged. 18. Regarding the e-mail sent by Shift Sup. 1 asking Complainant's peers if Complainant needed police or ambulance assistance due to being suicidal, Shift Sup. 1 stated that the chat line was unusually light and the chat staff seemed to be in a humorous mood. She goes on to state that she received an e-mail from an employee joking that another employee was screaming due to the stress and another employee stating that Complainant was at the window. She admits that she sent an e-mail asking whether Complainant needed to be rescued and indicated that she regrets this communication was interpreted as anything other than employees in the unit joking around to celebrate the rare break in their work schedules. The Program Management Officer stated that she met with Complainant and Shift Sup. 1 about the incident and Shift Sup. 1 stated that that her e-mail was a joke. 19. As for the ethic reports allegation, the Program Management Officer denies knowledge of this event. The HR Director, the alleged responsible management official, stated that she researched the matter contained in the alleged ethics violation and that when her investigation was complete she provided Complainant a copy of the report. 20. Regarding the "hanging with the wrong crowd" statement, Shift Sup. 2 admitted to making the statement but did so without any regard to anyone's sexual orientation. The Program Management Officer stated that the matter was reported to her and it was her conclusion that Shift Sup. 2 did not intend to harass anyone and that his comments fell into the category of "things people sometimes say." Shift Sup. 2 testified that he only meant that if the co-worker did not want to work hard, he was hanging with the wrong crowd because Complainant and the other employees were usually very busy. 21. As to the photographs Complainant wanted to take of the asbestos abatement project, the HR Specialist admitted that Complainant was not allowed to take photographs or contact the city police but was advised that he could report the situation to department police.5 The Program Management Officer stated that other employees were also taking pictures of the project but once she was put on notice that they were, she informed their supervisors this was not allowed. 22. Regarding the request by the HR Specialist for Complainant and another employee to move the podium from the stage to the floor, the Program Management Officer stated that she had no knowledge of this occurrence. 23. As for the HR Specialist positioning herself between complainant and the trainer during a training event, the Program Management Officer denies knowledge of this ever happening. 24. Regarding allegation 24 above, SHSS-1 admitted that he advised employees that to avoid conflicting financial interests as they related to employees and spouses, the department would abide by the federal government's definition of marriage [in effect at that time]. SHSS-1 explained that this was done during a time when the department and federal government had a different legal definition of marriage in comparison to New York State's definition of marriage. 25. The Program Management Officer stated that regarding the April 14, 2012 incident, when Shift Sup.1 instant messaged employees asking whether Complainant needed ambulance or police assistance, the Program Management Officer stated that Complainant told her that the union indicated that he did not have to speak to management about the matter, she agreed and asked Complainant to listen. Shift Sup. 1 stated that the Program Management Officer asked her to apologize for the incident so she and Complainant could work through any misunderstanding and that she obliged but Complainant did not accept, reject, comment, or acknowledge her apology. 26. Regarding the allegation where Complainant was asked to read a book on people skills, the Program Management Officer admitted that this was true but that all supervisors were asked to read the book, in this case, over 100 supervisors, so they could be informed about the "12 roadblocks to good communication." The Program Management Officer further stated that this request was not made in response to Complainant's protected bases, but rather because he was a new supervisor and it was a part of supervisory training. Upon review of the record and the totality of evidence, the Commission is not persuaded that the incidents Complainant claims to be discriminatory based on his sex (sexual orientation), age, or in reprisal for his prior EEO activity establish a hostile work environment. With the exceptions of allegations 8, 14, and 20, Complainant has not shown that he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected classes. He has not provided evidence or testimony which links the actions which he found to be unwelcome to his protected bases. With respect to allegations 8, 14, and 20, we find that, assuming these allegations specifically refer to either Complainant's or other coworkers' sexual orientation, these incidents are not sufficiently severe or pervasive such that they rise to the level of creating a legally hostile work environment. Complainant has not established the elements of a successful hostile work environment claim, and we find that the Agency properly concluded such. Finally, we find no evidence that the EEO Investigator mishandled his investigation of this matter. We also find that the Agency's failure to mention in the final agency decision Complainant's July 2012 promotion into a GS-12 supervisory position did not adversely affect the Agency's analysis of his complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not proven discrimination on the bases of sex (sexual orientation), age, and reprisal when he was not selected for one of several vacant supervisory positions; was denied leave on one occasion; and allegedly was subjected to discriminatory harassment; but further find that Complainant has established that the Agency failed to provide him with a religious accommodation. Accordingly, the Agency's final decision is AFFIRMED in part and REVERSED in part. ORDER The Agency is ORDERED to take the following remedial actions within one hundred-twenty (120) days of the date on which this decision becomes final: 1. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's failure to provide a religious accommodation in April 2012 and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 2. The Agency shall provide eight (8) hours of in-person EEO training to all managers and supervisors in the Agency's National Call Center for Homeless Veterans in Canandaigua, New York, regarding their duties and responsibilities under Title VII, with special emphasis on religious accommodation, and on sex and sexual orientation discrimination. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management official(s) who denied Complainant's request for religious accommodation. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official has left the Agency's employment, the Agency shall furnish documentation of his departure date. 4. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its National Call Center for Homeless Veterans facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 May 17, 2016 Date 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. 2 Complainant also alleged discrimination when he was not selected for a TeleHealth Coordinator vacancy on August 25, 2011, and when his already-approved official time was reduced from eight hours to six hours on September 16, 2011. The Agency dismissed these allegations for untimely EEO Counselor contact. Complainant does not expressly challenge these dismissals on appeal. We do not address them herein, as the Commission exercises its discretion to review only those matters specifically raised on appeal. EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at § IV.A (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on those issues specifically raised on appeal."). 3 The second and third nonselections were from the same certificate, which was valid for 90 days. 4 Not all of Complainant's allegations of harassment are listed here, as they are analyzed in the "Disparate Treatment" section as discrete events or were dismissed by the Agency and not challenged by Complainant on appeal. 5 Evidence in the file indicates that the HR Specialist had retired from the Agency, and was not available for an interview with the EEO Investigator. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132198 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 19 0120132198