EEOC Appeal 2020000901

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Saul B.,1
Complainant,
v.
Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 2020000901
Hearing No. 430-2019-00066X
Agency No. 5V1C1800302
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 August 26, 2019, decision of an
Administrative Judge concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2
BACKGROUND
During the period at issue, Complainant worked as a Unit Program Coordinator/Security
Specialist, GS-7, at the Agency’s 4 Aircraft Maintenance Wing at Seymour Johnson Air Force
Base located in Goldsboro, North Carolina.
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 The record does not indicate that the Agency issued a final order indicating that it would fully
implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. 	§ 1614.109(i), the AJ’s
decision is the final Agency action

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On March 8, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him and subjected him to a hostile work environment based on his
disability (Post Traumatic Stress Disorder/“PTSD”) when on February 2, 2018, the Senior
Master Sergeant (“SMSgt”) harassed Complainant by verbally assaulting him stating, “I’m sick
of your f—ing shit” and “you must not give a f—k about your job,” aggressively pointed at him,
stood up and chased him down the hall while continuing to say, “I don’t give a shit, go ahead and
report me to the base commander, screaming his name is [SMSgt].”
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). 	Complainant timely requested a hearing.
On August 7, 2019, the AJ issued a Notice of Intent to Issue a Decision without a Hearing
(“Notice”). Complainant and the Agency responded to the AJ’s Notice. On August 26, 2019, the
AJ issued a decision by summary judgment, in favor of the Agency.3
The instant appeal followed.
On appeal, Complainant, through counsel, asserts that the AJ incorrectly determined that
SMSgt’s actions towards Complainant were not made because of Complainant’s disability, but
“in spite of” Complainant’s disability. Complainant further argues that the SMSgt continued to
yell, curse, and chase Complainant after Complainant revealed that he suffered from PTSD.
Complainant also argues that the Agency failed to take prompt and effective remedial action to
stop SMSgt’s discriminatory conduct.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 	EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. 	The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). 	A “material” fact has the potential to affect the
outcome of a case.
3 The AJ summarily adopted and incorporated by reference her August 7, 2019 Notice as well as
the Agency’s response to her Notice in the August 26, 2019 decision.

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On appeal, Complainant argues that the AJ erred in issuing summary judgment, asserting that
there are material facts at issue. 	However, 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. While Complainant has, in a general sense, asserted that facts are
in dispute, he has not pointed with any specificity to particular evidence in the investigative file
or other evidence of record that indicates such a dispute that is material to the outcome of his
claim. For the reasons discussed below, we find that, even construing any inferences raised by
the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
To establish a claim of discriminatory environment harassment, Complainant must show that: (1)
she belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his statutorily protected class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, Complainant must establish that he was subjected to conduct that was either so
severe or so pervasive that a “reasonable person” in Complainant’s position would have found
the conduct to be hostile or abusive. 	Complainant must also prove that the conduct was taken
because of a protected basis – in this case, his disability. Only if Complainant establishes both of
those elements – hostility and motive – will the question of Agency liability present itself.
Our review of the record indicates that the AJ correctly determined that Complainant was not
subjected to a hostile work environment.
Complainant testified that in 2004-2005, a traumatic incident occurred while he was serving in
the military. 	Because of this incident, Complainant explained that he was diagnosed in 2013
with PTSD. 	Complainant stated that his PTSD is a permanent condition that limited major life
activity and he required monthly doctors’ visits to treat his condition.4
Complainant indicated that he verbally notified his former lieutenant commander (former
supervisor) and the former Senior Master Sergeant (“FSMSgt”) that he had PTSD and they
accommodated his condition by providing him an office. 	Complainant stated that he believed
that FSMSgt informed SMSgt that he had PTSD when FSMSgt trained SMSgt for the senior
master sergeant position sometime between 2016 – 2017. Additionally, Complainant stated that
before the February 2018 incident, he asked SMSgt if FSMSgt had told him about his condition
and SMSgt confirmed that he had.
4 We presume for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.

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However, Complainant stated that he did not inform the lieutenant commander, his first level
supervisor 	(“S1”), 	about 	his 	PTSD 	until 	immediately 	after 	the 	February 2018 	incident.
Complainant clarified that he did not submit any medical documentation, as requested by S1,
regarding his condition until after the February 2018 incident.
Complainant asserted that SMSgt’s actions on February 2, 2018, had a trigging effect on his
PTSD and Complainant felt “assaulted” when SMSgt yelled, cursed, and chased him down the
hallway. On the day in question, Complainant indicated that he asked SMSgt about obtaining an
external hard drive and he also indicated that he wanted to complete his time card. Complainant
further indicated that SMSgt told him that he needed to call him when he arrived and left work.
Complainant then informed SMSgt that SMSgt was not his supervisor and he would email
SMSgt about his arrival and departures. 	In response, Complainant stated that SMSgt “just
started going off” and began yelling and cursing at him and Complainant asked SMSgt to stop
because he had PTSD and that he would report him to the commander. 	Because of SMSgt’s
actions, Complainant stated that he has been seeing doctors every week because his PTSD
conditions worsened after the February 2018 incident. Specifically, Complainant stated that after
the incident, he could not drive for a month, he had nightmares, he had to relocate his family, and
he had to relearn how to interact and talk with customers.
Complainant conceded that there were no incidents between him and SMSgt before or after
February 2, 2018. 	Complainant explained that after the incident, he went home on medical
leave, returned to the office until April 16, 2018, and SMSgt had retired by the time Complainant
returned to the Agency. 	Subsequently, Complainant ended up leaving the Agency in July 2018
to take another position with the Department of the Navy in Hawaii.
S1 confirmed that Complainant first notified him of his PTSD on February 2, 2018, immediately
after the incident with SMSgt. 	S1 indicated that he did not believe that the dispute between
SMSgt and Complainant had anything to do with Complainant’s disability. 	S1 explained that
Complainant was not meeting the expectations of his unit and had performance issues earlier that
year. 	Consequently, S1 indicated that in January 2018, he issued Complainant a leave abuse
letter and he placed Complainant on a Performance Improvement Plan (“PIP”). 	S1 further
explained that he had directed SMSgt, since S1 was out of the office in February 2018, to inform
Complainant that he needed to sign in and out of the office for accountability purposes.
Because S1 was out of the office on the day of the incident, S1 instructed another employee to
drive Complainant home and initiate an investigation. 	S1 explained that the EEO office
investigated the February 2, 2018 incident after Complainant filed an EEO complaint. 	S1
received the investigation report and determined that Complainant’s harassment complaint was
unsubstantiated. 	Specifically, S1 indicated that the witness statements reflected that incident
involved “an argument between two individuals that got heated.” S1 acknowledged that the
witness statements indicated that Complainant informed SMSgt that he had PTSD and that
SMSgt 	was 	triggering 	his 	symptoms. 	However, 	S1 	determined 	that 	the 	discussion 	of
Complainant’s leave abuse letter and PIP was what initiated the argument between Complainant
and SMSgt.

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Considering the February 2, 2018 incident, even if true, Complainant has not shown evidence
that his disability motivated management’s actions toward Complainant. 	The record supports
that S1, who was not aware of Complainant’s disability, specifically instructed SMSgt to monitor
Complainant’s attendance while S1 was away from the office. 	The record further supports that
the altercation 	between 	Complainant 	and 	SMSgt 	originated 	from 	a 	discussion 	involving
Complainant’s attendance that escalated when Complainant indicated that he would email,
instead of call, SMSgt about his arrival and departure times. In response, Complainant stated that
SMSgt “started going off” and then proceeded to yell and curse at Complainant. 	The record
further indicates that Complainant neither informed S1 about his condition until after the
February 2, 2018 incident nor did Complainant provide documentation regarding his condition
until after February 2, 2018. Lastly, aside from Complainant’s assertion, there is no support in
the record that SMSgt was aware of Complainant’s condition before February 2, 2018.
Additionally, S1 indicated that an EEO investigation was conducted and the results of the
investigation failed to substantiate that SMSgt’s actions toward Complainant were based on
Complainant’s disability.
In addition, the February 2, 2018 incident Complainant alleges is not sufficiently severe or
pervasive to constitute hostile work environment/harassment in violation of the Rehabilitation
Act. We note that the record supports that the alleged harassment was isolated to a single
incident and Complainant concedes there were no other altercations between Complainant and
SMSgt before or after February 2, 2018. 	The record supports that after the altercation,
Complainant went home on medical leave and SMSgt had retired from the Agency when
Complainant returned to the office. 	We have held that claims of isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim. 	See Phillips v. Dep’t of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (Feb. 16, 1995). 	Further, Complainant has not shown
that the terms and conditions of his employment were adversely affected by this isolated
incident. The record supports that Complainant had performance issues before February 2, 2018,
which continued after he returned to the office in April 2018. 	The EEO laws are not a civility
code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the
victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Therefore, even accepting the February
incident occurred as alleged by Complainant, we conclude that while SMSgt’s conduct was an
unprofessional response to a dispute with Complainant, it was an isolated incident that did not
amount to a violation of the Rehabilitation Act.
CONCLUSION
After careful review of the record, including Complainant's contentions on appeal, we find that
Complainant failed to demonstrate that the Agency discriminated against him as alleged. The
AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) 	calendar days of 	receipt of 	another 	party’s timely request 	for
reconsideration in 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). 	All requests and arguments must be submitted to the
Director, 	Office 	of 	Federal 	Operations, 	Equal 	Employment 	Opportunity 	Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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 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.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2020
Date