[Redacted], Augustine P., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 30, 2021

Appeal No. 2020000364 (E.E.O.C. Jun. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Augustine P.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020000364 Agency No. DOS-0096-19 DECISION On October 3, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a September 6, 2019 final Agency decision (FAD) on 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Level 2 Operational Medical Instructor at the Agency’s Diplomatic Security Training Center, Organizational Medical Unit, in Summit Point, West Virginia. On December 17, 2018, Complainant filed an EEO complaint alleging discrimination based on his national origin (Mexican/Hispanic), sex (male), disability (Traumatic Brain Injury, Post- Traumatic Stress Disorder, and bilateral lumbar fracture), and reprisal for prior protected EEO activity when: 1. he was subjected to a hostile work environment characterized, but not limited to, unsolicited derogatory comments and scrutiny from March 2017 - October 23, 2018; 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. 2020000364 2 2. on November 1, 2018, he was terminated retroactive to October 15, 2018. Following an investigation, the Agency gave Complainant a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. He requested a FAD without a hearing. The Agency dismissed the complaint for failure to state a claim because Complainant was not its employee under common law in that he acknowledged the staffing firm hired him as its employee to serve the Agency as a contractor, he routinely communicated with staffing firm management, and the staffing firm took care of his compensation. In the alternative, the Agency found no discrimination. It concluded on issue 1 that Complainant did not prove a hostile work environment because the incidents which comprised it either did not occur as alleged or were not severe or pervasive enough to be a hostile work environment. On issue 2, the Agency found that the evidence showed Complainant was terminated for the legitimate, nondiscriminatory reason of abandoning his job by accepting another full-time job as a firefighter with Frederick County, Maryland. His firefighter training academy schedule showed five eight-hour days weekly from October 15, 2018 - April 12, 2018, which conflicted with performing his instructor duties, and his expected firefighter schedule did not show the conflict would be resolved. Complainant did not prove this reason was a pretext to mask discrimination. The instant appeal followed. On appeal, the parties make no comment. ANALYSIS AND FINDINGS As an initial matter, while the Agency’s final decision dismissed Complainant’s complaint for failure to state a claim asserting he was not its employee, we note it nevertheless conducted a thorough investigation into the merits of his claims of discrimination and analyzed the evidence gathered to also make a determination that no discrimination was proven. As such, we find it unnecessary to address the procedural dismissal and will instead consider its determination on the merits of Complainant’s complaint. Issue 1- Hostile Work Environment To establish a claim of 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 her 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 2020000364 3 Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). After reviewing the record, we find there was no hostile work environment because the incidents which comprised it either did not occur as alleged by Complainant or occurred for non- discriminatory reasons. For example, the staffing firm changed Complainant’s timesheets because he claimed overtime for ineligible times and work, and the Agency Team Lead credibly denied that he required Complainant to notify him whenever he went to another location in the office, including using the restroom. Issue 2 - Termination To prevail on his termination claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with for this claim, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The record shows he Complainant abandoned his position. He was unavailable to perform his core duties while attending a six-month training at a firefighter academy. Most Agency classes were offered from 7 AM - 6 PM, and the firefighter academy had a similar schedule. Agency management’s statement that it believed this conflict would continue after Complainant graduated from the Academy is credible. Complainant contends the Agency did not give him the option to choose between the two jobs. Rather, he was led to believe his absence and scheduling requests were under review, and was blindsided when he was suddenly terminated. While it is true the staffing firm did not deny Complainant’s leave request until November 1, 2018, he stopped showing up for work on October 15, 2019, even though his request had not been approved. CONCLUSION The FAD’s conclusion that no discrimination was established in this matter is AFFIRMED. 2020000364 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000364 5 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 June 30, 2021 Date