Ike D.,1 Complainant,v.Margaret Weichert, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120172730 (E.E.O.C. Nov. 9, 2018)

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

Ike D.,1
Complainant,

v.

Margaret Weichert,
Acting Director,
Office of Personnel Management,
Agency.

Appeal No. 0120172730

Agency No. 2014013

DECISION

On August 4, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 31, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Special Agent at the Agency’s Federal
Investigative Services (FIS) Division, Field Management Central Region. Complainant was
assigned to the Fort Bragg Field Office in Fort Bragg, North Carolina.2

On February 7, 2014, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him in reprisal for prior EEO activity when:

1. since September 2012 and ongoing, he has been subjected to a hostile work
environment; and

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 reflects that FIS became the National Background Investigation Bureau in October
2016.
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2. on December 11, 2013, he was accused of divulging details of his EEO
complaint/investigation to his coworkers.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however,
subsequently withdrew the hearing request. The Agency issued the instant final decision on July
31, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Divulging Information from Prior EEO Complaint

Complainant alleged that on December 11, 2013, he was accused of divulging sensitive
information from a prior EEO complaint/investigation to his coworkers, and subsequently
reprimanded by his supervisor as a result.

The Supervisory Agent-in-Charge (“SAC”), Complainant’s first level supervisor, stated that in
November 2013, one of his subordinate agents (“Agent 1”) informed him that Complainant had
told another colleague, who informed Agent 1, that Complainant had copies of his colleagues’
performance appraisals, including that of Agent 1, which he had obtained through his prior EEO
complaint. The SAC stated that Agent 1 “was distressed that Complainant knew information
about her performance evaluation. As her supervisor, it was my obligation to look into the
matter.” The SAC confirmed that he contacted the Area Chief and Human Resources concerning
Agent 1’s concerns.

Further, the SAC stated that Human Resources turned the information over to the Integrity
Assurance Office for an investigation. Specifically, the SAC stated that following the
investigation, the Integrity Assurance Office sent the investigative report to Human Resources,
who in turn suggested to the SAC that he issue Complainant a letter or warning. The SAC stated
that he disagreed with Human Resources, and chose instead to issue Complainant a “written
counseling” in which he reminded Complainant of “the EEO regulation stating that one is to
keep EEO information private and not to divulge it to another party unless there is a ‘need to
know.’”

The Area Chief stated that he was made aware of the incident by the SAC and it was referred to
the Integrity Assurance by Human Resources. The Area Chief stated, “I do know from
discussions with [the SAC] though that complainant was counseled in writing on the proper
procedures for safeguarding sensitive employee information ensuring he knew what the
regulation required.”

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The Lead Investigator, Integrity Assurance Office, stated that during the relevant period he was
the investigator concerning allegations that Complainant divulged details of his EEO
complaint/investigation to his coworkers. The investigator stated that during their interviews,
two of Complainant’s coworkers asserted that Complainant divulged performance rating
information concerning three coworkers, including one of the two coworkers who were
interviewed. The investigator stated that the coworker, “was uncomfortable that Complainant
had information on her rating and that he was aware of what she received, and she reported it.”
The investigator stated that during his interview, Complainant denied sharing any performance
rating information with anyone.

The anti-retaliation provisions of the employment discrimination statutes seek to prevent an
employer from interfering with an employee’s efforts to secure or advance enforcement of the
statutes’ basic guarantees, and are not limited to actions affecting employment terms and
conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct.
2405 (2006). To establish a viable case of retaliation, Complainant must prove that: 1) he was
subjected to an action which a reasonable employee would have found materially adverse, and 2)
the action could dissuade a reasonable employee from making or supporting a charge of
discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues,
No. 915.004 (August 25, 2016).

Here, after careful review of the record, we conclude Complainant has failed to meet his burden
of proving unlawful retaliation. Although management initiated an investigation, it did so in
response to a complaint from an employee that Complainant was divulging sensitive information
about her performance appraisal to other coworkers, which he had allegedly obtained during the
investigation into a prior EEO complaint. The investigation into the coworker’s charge
culminated in the issuance of a written counseling memo to Complainant rather than any
disciplinary action. The counseling memo simply reminded Complainant not to divulge sensitive
information gathered during an EEO investigation unless the recipient of the information had a
need to know. Based on the circumstances presented in this case, we find that this incident,
without more, was insufficient to dissuade a reasonable employee from exercising his EEO rights
to make or support a charge of discrimination. As such, we find Complainant failed to prove
unlawful retaliation in this matter.

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

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In other words, 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 basis – in this case, his prior EEO activity.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, Complainant simply has provided insufficient evidence to
support his claim that his treatment was the result of his prior EEO activity.

Complainant alleged that since September 2012 and ongoing, he has been subjected to a hostile
work environment. Specifically, Complainant claimed that he has worked under the SAC since
March 2007. Complainant’s affidavit addressed, in general terms, that he had been harassed and
retaliated against by the SAC by denial of training, transfers, and “unfair” performance ratings
and recommendations for potential promotions, as well as verbal and written reprimands.
Complainant, however, provided few details to support his allegations.

With regard to reprimands, Complainant focused his attention on the written counseling he
received from the SAC, already discussed in this decision, concerning divulging sensitive
information. However, as already determined, this matter was not the result of unlawful
retaliation.

The record shows that for the 2012-2013 performance year, Complainant received an overall
rating of “Exceeds Fully Successful,” a higher rating than he received the prior year, which
undercuts his claim of retaliatory animus. Complainant also provided insufficient evidence to
suggest that this rating was “unfair” and did not reflect his work performance.

Complainant also alleged that the SAC was responsible to denying him promotions. However,
the record shows that in two of the selections for GS-13 positions during the relevant period,
Complainant was not referred to the selecting official because of the number of candidates who
were veterans who scored ahead of him. In the remaining promotional opportunity during this
time period, the selecting official (who as not the SAC) interviewed Complainant along with
eight other candidates, but ranked him as the fifth highest candidate based on the interviews.
Moreover, it appears that much of these selection processes occurred prior to Complainant
engaging in the EEO complaint process, further undermining his retaliation claim.

In sum, we conclude that the Agency management offered legitimate reasons for its actions in
response to Complainant’s bare bones allegations of a hostile work environment. Complainant
proffered no evidence to support his allegation that his prior EEO activity played any role in
decisions made by the SAC or in the SAC’s treatment of him. While there is some evidence to
suggest the Complainant experienced some personality clashes with the SAC, who had similar
clashes with other employees, there is no evidence to tie these clashes with any retaliatory
animus.

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CONCLUSION

We have reviewed the record in its entirety, and we AFFIRM the Agency’s final decision finding
no discrimination because the preponderance of the evidence of record does not establish that
unlawful retaliation 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
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).

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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. 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

November 9, 2018
Date