0120083794
03-06-2009
Brian L. Browne, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Brian L. Browne,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120083794
Agency No. DOS-F-072-07
DECISION
On September 7, 2008, complainant filed an appeal from the agency's August
1, 2008 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant was
employed as Consul General at the U.S. Embassy in Lagos, Nigeria.
Complainant served in this capacity from July 2004 until June 2007.
While posted in Lagos, the Embassy's Deputy Chief of Mission (DCM) served
as complainant's immediate supervisor. In a formal EEO complaint dated
July 14, 2007, complainant alleged that the agency subjected him to a
hostile work environment on the bases of race (African-American), color
(Black), and reprisal for prior opposition activity,1 including making
false accusations against him, subjecting his performance to heightened
scrutiny, and failing to nominate him for performance awards.
The agency conducted an investigation of complainant's harassment/hostile
work environment claim. At the conclusion of its 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) or an immediate final agency decision. In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
Specifically, the final decision stated that complainant failed to show
that the agency's actions were motivated by discriminatory factors.
The instant appeal from complainant followed.
During the investigation, the DCM (Caucasian/White) stated that Lagos
embassy employees accused complainant of improperly engaging in a sexual
relationship with a female subordinate. On May 7, 2007, the DCM and a
Human Resources Officer met with complainant to discuss the allegations.
The Human Resources Officer confirmed during the investigation that
the Ambassador and the DCM were approached by several employees under
complainant's management who reported that complainant and a female
subordinate were possibly having an affair. The DCM stated that, during
the May meeting, they presented complainant with the evidence pointing to
the sexual relationship and informed complainant that because the involved
subordinate worked for him they believed the relationship constituted a
hostile work environment for other junior officers under his supervision.2
Complainant denied having a sexual relationship with his subordinate,
and claimed that the DCM had not conducted an adequate investigation
of the allegations. Complainant asserted that the DCM indicated that,
despite complainant's denial of the alleged relationship, he would be
writing a report to the Department on the allegation. Complainant never
received a copy of the report.
Complainant stated that several days after the meeting, he spoke with
the Chief of Staff/Senior Advisor (African American/Brown) for the
Department's Bureau of African Affairs in Washington, D.C., about
the matter, who notified him that he would be removed from his post in
Lagos two months early3 and transferred to another assignment elsewhere.
Complainant asserted that the Chief of Staff/Senior Advisor told him
that it did not matter if the allegations of sexual impropriety were
actually correct because the rumors and gossip within the mission and the
junior officers' perceptions about the matter had undermined complainant's
ability to be effective. The DCM confirmed that the Chief of Staff/Senior
Advisor for the Africa Bureau decided that complainant should depart his
Lagos post two months early because complainant was deemed "detrimental
to the overall functioning of the post." Complainant was reassigned to
the position of Deputy Director, Office of Central African Affairs,
Washington, D.C. However, complainant apparently resigned from the
State Department before assuming this position.4
Complainant also asserted that the DCM was generally critical of his
management abilities during his tenure in Lagos and overly scrutinized
his work. He stated that the DCM often held him responsible for problems
that were actually created by other employees. The DCM stated that he had
counseled complainant about his "passivity" in addressing the problems
created by his subordinates. Complainant further contended that the DCM
nominated other employees for awards in 2005 and 2006 for accomplishments
that were actually led by complainant, while he was not nominated.
The DCM stated that he had not personally nominated either of the
employees mentioned by complainant. He also said that he was unaware
that complainant felt that others received recognition for his work.
The DCM stated that both he and the Ambassador had praised complainant's
political reporting in his annual performance appraisal.
The Chief of Staff/Senior Advisor for the Department's Africa Bureau
stated that following reports of that complainant might be involved in
an inappropriate relationship with a female subordinate, the decision
was made in Washington that the overall situation within the Consulate
General in Lagos was dysfunctional and that complainant, as the Consul
General, should relinquish his position two month early. She stated that
she called complainant and informed him of the decision. She acknowledged
that complainant denied the sexual affair, but said that she told him that
there were other concerns about his overall management of the office which
were causing damage to the morale and effective operations of the post,
including his "distance" from management problems, including his handling
of a 2006 "visa for sex" scandal involving one of his subordinates.5
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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 the 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.")
Here, complainant alleges that he was subjected to a hostile work
environment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he is a member of 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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In the instant case, we find, assuming the actions complainant alleged
rose to the level of a hostile work environment, complainant failed
to show that the said actions were based on discriminatory motives.
Further, to the extent that complainant alleged disparate treatment,
we find that he failed to show, by a preponderance of the evidence,
that the agency's proffered reasons for its actions were a pretext for
discrimination. Finally, we find that, to the extent complainant is
claiming a constructive discharge, he has not established the elements
of such a claim because he has not shown that being called home two
months early and assigned to another management position at the same
grade level created "intolerable" conditions forcing his resignation.
Moreover, he has not established that his race, color or reprisal
motivated management's decision to reassign him to the new position.
Accordingly, we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (S0408)
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.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 6, 2009
__________________
Date
1 Complainant characterized his protected activity as privately
counseling employees who believed they were threatened with dismissal,
as well as working on revisions to the internal grievance procedure.
Management witnesses denied knowledge of these activities.
2 Complainant acknowledged awareness of the agency's policy prohibiting
consensual sexual relationships between superiors and subordinates.
3 Complainant had been previously scheduled to leave in August 2007,
but was required to leave in June 2007.
4 It is not clear from the record whether or not complainant is also
alleging a discriminatory constructive discharge. However, we note the
agency addressed this issue in its final decision, finding complainant
failed to establish he was constructively discharged.
5 On appeal, complainant argues that this incident, which involved
an employee who was not his direct report, could not have been one
of the reasons for his reassignment because the matter was uncovered
approximately six months before the decision to reassign him and no
action was taken against complainant at the time.
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0120083794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083794