[Redacted], Carter R., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2020003120 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carter R.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020003120 Agency No. DOS-0201-19 DECISION On March 30, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 4, 2020, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer, GS-0830-14, at the Agency’s Overseas Buildings Operations (OBO) in Rosslyn, Virginia. On April 8, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Baptist), age (68), and in reprisal for prior protected EEO activity when he was subjected to a hostile work environment characterized by, but not limited to, verbal slurs; insults; and inappropriate comments and behaviors. 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. 2020003120 2 In his affidavit, Complainant discusses tax consequences that resulted from a reclassification of his position in the early 1990s and broadly suggests that multiple, unidentified persons in the Agency discussed his tax information. Complainant alleges that an employee released information on his background, but Complainant does not identify the information. Complainant describes an incident on August 6, 2018, when “a person unknown to me, acting as an agent, sits down” with a coworker (CW1) and talks about Complainant’s background, including information given in an investigative interview process. On August 7, 2018, another coworker (CW2) discussed information that Complainant contends was only in a Federal Bureau of Investigations (FBI) background report. Complainant says he raised these concerns with an EEO investigator in a prior case. Further on August 8, 2018, a third coworker, (CW3) also discussed his background while passing by Complainant’s cube. Regarding all of these incidents, Complainant does not detail what part of his background was discussed. Complainant also claims that personal data concerning his investments, taxes, or relationships are discussed, along with his travels to Bratislava, but he does not identify the information discussed or who discussed it. Complainant alleges that he is suffering ongoing harassment and stalking and sought protective orders several times in November and December 2018. The attempts to obtain protective orders are not in the record, and Complainant provides no further details. Complainant asserts that he raised most of these concerns with the Office Director in a meeting on August 16, 2018. That day, Complainant also asked the Office Director for a performance review. Complainant disputes that his work was “exceeds expectation” and “reaffirm[s his] work effort as ‘outstanding.’” Complainant contends the review was the result of fraud but does not provide specific evidence or point to any specific portion of his review. Complainant suggests that he has been stalked on three occasions, once by an unidentified geospatial engineer on May 21, 2018, once by “at least three agents; 2 talking in a middle-eastern language” on December 12, 2018, and once by another individual who was running on the trails near where he lived. Complainant contends he was stalked to and from work on the bus. Complainant asserts that he was discriminated against because of his age because he is the oldest civil servant and the most experienced in the commissioning program. Complainant alleges that employees have asked when he is retiring, and that another said that Complainant “won’t leave.” Complainant contends he received unsolicited comments from a fourth coworker, an eLearning Curriculum Specialist, about “thermodynamics” or “entropy.” The eLearning Curriculum Specialist provided an affidavit for the record in which she denied harassing Complainant and said that she knows nothing about thermodynamics and entropy and that she was not an engineer. Complainant asserts, “ADEA has a non-retaliation provision. I can prove there is retaliation. I believe a judge would be interested in this claim.” Complainant does not provide this evidence for the record. Complainant argues he was discriminated against based on his religion because the Agency violated the Privacy Act. 2020003120 3 The OBO Branch Chief denied hearing, or receiving any reports of, any discriminatory remarks or conduct directed at Complainant. The OBO Program Manager, Complainant’s reviewing officer, denied Complainant’s allegations and added that she did not believe the allegations to be based in fact. The Program Manager acknowledged she occupied the cubicle next to Complainant, but flatly denies uttering any ageist remarks. The Division Director, an indirect supervisor of Complainant, denied witnessing or being aware of any harassment toward Complainant. The Division Director acknowledged having a meeting with Complainant on August 16, 2018 but asserts that Complainant asked him to support his efforts to complain of discrimination. In response, the Division Director said he generally supports all employees in their efforts, including any concern for fair treatment, and adds that Complainant’s allegations seem “inconsistent with the workplace attitude or behavior of either fellow employees or supervisors.” The Project Director of OBO-Nassau said he did not observe a hostile work environment in the office and does not have access to Complainant’s FBI report. A coworker of Complainant’s, a construction engineer, said that he has known Complainant for over 20 years and considered him a friend. During a meeting in July 2017, the construction engineer thought Complainant seemed anxious and tried to put him at ease by making light conversation. The engineer said he was contemplating retirement himself and shared his retirement plans with Complainant, then asked about Complainant’s plans. Complainant did not indicate he was offended by the engineer’s question and the conversation soon shifted. The engineer denies asking Complainant about retirement beyond this one conversation. At the conclusion of the 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). 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 the Agency subjected him to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant articulates a wide variety of conclusory arguments that the Agency subjected him to harassment and retaliation. Complainant notes that the EEO investigator did not interview certain witnesses he suggested during the investigation. Complainant also attaches more than 40 exhibits to his appeal, none of which appear in the Agency’s report of investigation and does not explain why these exhibits are being presented for the first time on appeal. Accordingly, Complainant requests that the Commission reverse the final decision. 2020003120 4 ANALYSIS AND FINDINGS 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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 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”). As a preliminary matter, we address Complainant’s arguments raised on appeal. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant failed to request a hearing, a process which would have afforded him the opportunity to conduct discovery and to cure alleged defects in the record. However, Complainant chose a final decision and chose not to provide evidence during the investigation, thereby foreclosing the opportunity to engage in discovery. Accordingly, we can only render a decision based on the investigative file currently before us. Additionally, Complainant seeks to introduce upwards of 40 new pieces of evidence on appeal. A review of these exhibits indicates that at least one is a reproduction of the Agency’s report of investigation in this matter, but the vast majority relate to discovery productions in another matter. Generally, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). Complainant offers no explanation why such documents were not previously available. Hostile Work Environment To establish a hostile work environment, 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; 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; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. 2020003120 5 Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, Complainant simply has not shown that he was subjected to a hostile work environment. Most of Complainant’s allegations lack any specificity. To the extent that they may be sufficiently specific, Complainant does not provide any evidence demonstrating that the actions he alleges to be hostile were because of his age, sex, or prior EEO activity. We note that, when asked why he believed the Agency discriminated against him because of his age, Complainant responded that it was because he was the oldest civil servant and the most experienced. Mere conjecture is insufficient to prevail. Moreover, with the exception of one co- worker, all employees interviewed in the investigation denied Complainant’s allegations. That one co-worker, the engineer, said that he asked Complainant about his retirement plans only in the context of talking about his own plans, and to make small talk. The engineer never raised the issue again. Further, with respect to Complainant’s claims of sexual harassment, Complainant has provided no specific details or evidence demonstrating that he was subjected to any conduct of a sexual nature. Finally, to the extent Complainant seeks to establish reprisal, he has provided no evidence tending to demonstrate any Agency action occurred because of his prior protected EEO activity. Complainant’s arguments on appeal are of a conclusory nature, and do not function to demonstrate how the facts in the record prove his allegations. The available evidence in the record demonstrates that Complainant has failed to prove, by a preponderance of the evidence, that he was subjected to a discrimination, reprisal, or a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2020003120 6 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). 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. 2020003120 7 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 May 25, 2021 Date