Dalton C.,1 Complainant,v.Betsy DeVos, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Feb 2, 2018

0120160278 (E.E.O.C. Feb. 2, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dalton C.,1
Complainant,

v.

Betsy DeVos,
Secretary,
Department of Education,
Agency.

Appeal No. 0120160278

Hearing No. 570-2015-00785X

Agency No. ED-2013-OGC-0024

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the September 23, 2015 final Agency decision (FAD) 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 Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deputy General
Counsel in the Office of General Counsel (OGC) at the Agency’s Headquarters in Washington,
D.C. Complainant was a Schedule C political appointee. Complainant alleged that his
supervisor, the Acting General Counsel (S1) took credit for comments Complainant provided in
the Office of Inspector General (OIG) semiannual report when they were colleagues in late-2010
or early-2011. Complainant claimed that he discussed this with S1 and he eventually apologized.
Complainant stated that this negatively impacted his professional reputation among his
colleagues while enhancing S1’s reputation.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In October 2011, Complainant claimed that he received a “High Results Achieved” rating, the
second-highest rating, on his performance appraisal even though he performed at a higher level
than the previous year. Complainant stated that he received the highest rating, “Outstanding,” on
his 2010 performance appraisal. Complainant claimed that when he asked S1 why he was
downgraded, S1 told him that it was because he was not an exemplary employee.

In or around October 2011, Complainant alleged that he emailed S1 requesting to attend a Senior
Management training class. Complainant stated that he attended the event in 2010 and that the
event was highly recommended. Complainant claimed that S1 failed to respond until after the
event occurred.

In mid-2011, Complainant claimed that he overheard S1’s conversation with another senior
Agency official over speakerphone while standing in the doorway of S1’s office. Complainant
claimed that S1 was unaware that he was standing there and he heard S1 tell the senior official
that Complainant had made a statement about a Government Accountability Office (GAO) report
that he did not make. Complainant stated that he quickly interjected and clarified what he said.
Complainant contended that this was another attempt by S1 to diminish his credibility within the
office.

Complainant alleged that shortly after becoming his supervisor, S1 began excluding him from
the Deputy General Counsel meetings which he previously attended. Complainant claimed that
S1 informed him that he was prohibited from attending the meetings because Complainant was
not responsible for a specific division, implying that the subject matter of the meetings was
limited to Division supervisors. Additionally, Complainant claimed that every Deputy General
Counsel had an iPad except him. Complainant alleged that he discussed the matter with S1 and
he was again denied an iPad. Complainant stated that he was not aware if it was required and he
was not aware of what other technological capabilities he had been denied.

Around June 2012, Complainant claimed that S1 denied his request to use religious
compensatory time he had accrued. Complainant stated that he had 14.30 hours of religious
compensatory time, but S1 denied his request.

In or around October 2012, Complainant received a rating of “High Results Achieved” on his
2012 performance appraisal. Complainant declined to appeal the rating and claimed that S1
again explained to him that he was not an exemplary employee. Complainant alleged that he
asked S1 to provide an example of an employee who was rated “Outstanding” to model his
performance, but S1 refused.

On or about June 13, 2013, S1 issued Complainant a Notice of Separation. The Notice stated
that Complainant had previously been informed in April 2013 that the Agency would no longer
need his services due to a change in direction with regard to the work he had performed. The
Notice further stated that Complainant had been given the opportunity in April 2013 to resign by
June 14, 2013, but that he had yet to do so. The Notice informed Complainant that he could still
resign by the close of business on June 14, 2013, but if he failed to do so, the personnel action
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would be considered a termination. Complainant failed to tender his resignation and he was
terminated effective June 14, 2013.

On September 12, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), national origin (St. Kitts
West Indies), and color (Black) when:

1. In late 2010 or early 2011, his supervisor, who was then his colleague, took credit
for comments he provided on the OIG semiannual report without acknowledging
his contributions;

2. In or around October 2011, he received a rating of High Results Achieved on his
performance appraisal;

3. In 2011, his supervisor failed to respond to his request to attend senior
management training at a public high school in Virginia;

4. In or around the middle of 2011, his supervisor attempted to diminish his
credibility by telling another Agency employee that he made a certain statement
about the GAO report even though he had not made such a statement;

5. Since 2011, his supervisor has declined to invite him to weekly Deputy General
Counsel’s meetings;

6. Since 2011, he has been denied the use of an iPad and other technology
equipment;

7. In or around October 2012, he received a rating of High Results Achieved on his
performance appraisal;

8. Around or after June 2012, his supervisor denied his request to use compensatory
time that he had earned, which was erroneously categorized as religious
compensatory time; and

9. On or about June 14, 2013, his supervisor terminated his employment at the
Agency.2

2 The Agency dismissed claims (1) – (8) as discrete acts for Complainant’s failure to timely raise
them with an EEO Counselor. The Agency noted, however, that these claims would be
considered as background evidence in support of Complainant’s hostile work environment claim.
Additionally, the Agency dismissed reprisal as a basis of discrimination based on Complainant’s
failure to show any prior protected EEO activity. Complainant raised no challenges to the
Agency’s dismissals on appeal; therefore, the Commission will exercise its discretion to only
address those issues specifically raised on appeal.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew
his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the alleged conduct was based on discriminatory animus. For example, with
respect to the one timely claim, claim (9), S1 stated that Complainant was a Schedule C political
appointee and served at the pleasure of the President and the Secretary. S1 averred that he
concluded, in consultation with the Chief of Staff to the Secretary; her deputy; and the
Department’s White House Liaison, that Complainant’s work was no longer at the high level of
priority at OGC that it had been, and that the work could be done more appropriately by the
program office and other offices within the Department. S1 affirmed that he concluded in
consultation with other officials that the Office needed to devote their limited resources to other
priority areas. The record included a letter from S1 to Complainant discussing the decision to
separate Complainant, explaining the nature of Complainant’s Schedule C position, and noting
the Department’s ability to exercise its discretion to retain Schedule C employees when they
were no longer needed.

The Agency concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s investigation into his complaint was
inadequate as it was missing relevant documents and testimony from key witnesses. Further,
Complainant argues that he was treated less favorably than a Caucasian political appointee and
that the Agency’s reasons for his termination of “limited resources” and “change of direction”
are pretextual. Complainant claims that the Agency should have transferred him to another
position because the Office of General Counsel was hiring at the time of his termination.
Additionally, Complainant contends that the FAD failed to analyze the totality of the
circumstances in evaluating whether he was subjected to a hostile work environment.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
investigation of his complaint. Complainant claims on appeal that the investigation was
inadequate and that key information and witnesses were not included. Upon review of the entire
record, the Commission is not persuaded that the investigation into Complainant's complaint was
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incomplete or improper. The Commission notes that Complainant withdrew his request for a
hearing with a Commission AJ, a process which would have afforded him the opportunity to
conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced
arguments, the Commission determines that the investigation was properly and adequately
conducted.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, 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 his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Even assuming that the alleged conduct was sufficiently
severe or pervasive to create a hostile work environment, the Commission finds that
Complainant failed to show that the Agency’s actions were based on discriminatory animus. For
example, as to claim (1), S1 denied taking credit for Complainant’s comments. S1 explained that
he often provided collected comments from OGC personnel to offices such as the Executive
Secretariat on behalf of OGC, and sometimes did not identify the specific individuals that
submitted individual comments. ROI, at 117. S1 stated that on such occasions, he believed it
was clear these were collective comments by various office personnel, but provided names of
individuals when that seemed helpful, such as when follow-up conversations with individual
OGC commenters was requested or seemed helpful. Id.

With respect to claim (2), S1 affirmed that he rated Complainant as “High Results Achieved” in
his 2011 performance appraisal because Complainant provided very good services, especially in
advocating the interests of the Department. ROI, at 117. S1 asserted that Complainant
continued to show professional growth in collaborative skills, and he expected Complainant to
show further initiative and collaborative and productive efforts in the next year. Id. S1 added
that he discussed with Complainant that he could improve on his way of providing legal advice
and his customer or client services, and that it affected his effectiveness and the clients’
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willingness to bring issues to OGC’s attention. ROI, at 117, 167-71. As to claim (3), S1 recalled
a management symposium in October 2011 that Complainant expressed interest in attending. Id.
at 118. S1 stated that the previous year’s event received mixed reviews at best, and he did not
believe that it was sufficiently useful to the work of the office. Id. Further, S1 asserted that he
did not think that it would be beneficial to Complainant because he did not supervise staff. Id.

Regarding claim (4), neither S1 nor the senior official Complainant identified had any
recollection of S1’s alleged inaccurate comment he attributed to Complainant. ROI, at 119, 142.
As to claim (5), S1 stressed that the weekly meetings referenced by Complainant were conducted
with his Chief of Staff and the two Deputy General Counsels who had supervisory authority for
divisions and employees of OGC to discuss the activities and work responsibilities of these
divisions. Id. at 120. S1 added that Complainant did not supervise any divisions or employees;
therefore, his attendance at these meetings was not requested or required. Id. S1 noted that he
met with Complainant at least once a week and sometimes as much as three or four times a
week, and Complainant attended other senior staff meetings. Id.

With respect to claim (6), S1 stated that the iPad is not an authorized piece of equipment required
by OGC employees. ROI, at 120. S1 added that he received iPads on a pilot basis and asked the
two Deputies who supervise divisions to try them out. Id. S1 emphasized that he selected them
to participate in the pilot program because of the large volume of work, the large number of
employees they supervise, and the likelihood that they would need to respond to emails and write
and review memoranda on very short notice. Id. at 120-21. S1 stated that the two Deputies tried
them out for a short period of time and did not think they were useful for them. Id. at 121. S1
affirmed that as a result, he and the Deputies thought the iPads would be more helpful to
litigators, and he made them available to them. Id. S1 was not aware of any technology that
Complainant may have requested and was denied. Id.

As to claim (7), S1 stated that he rated Complainant as “High Results Achieved” on his 2012
performance appraisal because Complainant was a fine attorney who had many advocacy skills
that enriched his work; however, he could still improve on his way of providing legal advice and
his customer or client services which affected his effectiveness and the clients’ willingness to
bring issues to OGC’s attention. ROI, at 121. S1 noted that Complainant never formally
disputed his rating of record. Id. at 122. With respect to claim (8), S1 could not recall
Complainant requesting to use compensatory time and stated that any request should have been
entered into the Agency’s time and attendance system. Id. The record shows that Complainant
had a balance of 14.30 hours of religious compensatory time as of June 2013; however, there is
no evidence in the record that he entered a request to use that time in the Agency’s time and
attendance system. Id. at 106.

Finally, as to claim (9), S1 stated that he concluded, in consultation with numerous senior
officials that Complainant’s work, especially with regard to the primary area of GAO audits, was
no longer at the same high level of priority to OGC that it had been. ROI, at 123. S1 affirmed
that he and the senior officials concluded that the work could be done more appropriately by the
program offices and other offices within the Department. Id. Management concluded that the
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office needed to devote limited resources to other priority areas. Id. The record reveals that
Complainant was informed in April 2013 that his services would no longer be needed due to a
change in direction with regard to the work he performed. Id. at 190. Complainant was given
the opportunity to resign by June 14, 2013, but had not submitted a letter of resignation by June
13, 2013. Complainant was informed that if he did not resign, he would be terminated. Id.
Complainant refused to resign, and he was terminated effective June 14, 2013. Id. at 192.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. The Commission notes
that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as
to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc.,
523 U.S. 75, 81 (1998). The Commission concludes that Complainant has not shown that he was
subjected to a discriminatory hostile work environment. Moreover, to the extent Complainant
claims that he was subjected to disparate treatment, the Commission finds that Complainant has
not proffered any evidence showing that the Agency’s articulated reasons were a pretext for
discrimination. As a result, the Commission finds that Complainant was not subjected to
discrimination or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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
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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.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 2, 2018
Date