[Redacted], Coleman H., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jan 26, 2022

Appeal No. 2021000634 (E.E.O.C. Jan. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coleman H.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021000634 Hearing No. 570-2019-00614X Agency No. DOS-0154-18 DECISION On November 1, 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 October 30, 2020, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-12, at the Agency’s Executive Office for the Bureaus of Administration and Information Resource Management (“A-IRM/EX”) in Washington, D.C. On May 8, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when: 1. On September 6, 2016, Complainant’s request to review his position description was denied; 2. On or about December 19, 2016, Complainant’s request for training was denied; 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. 2021000634 2 3. On January 4, 2017, Complainant’s request to telework was denied; 4. As late as March 2017, Complainant was not selected for a Human Resources Specialist position (Vacancy No. VA-16-0230); 5. As late as March 2017, Complainant was not selected for a Human Resources Specialist position (Vacancy No. ST-10000719-19-16-KB); 6. In or around June 2017, Complainant was not selected to receive an award; 7. On January 12, 2018, Complainant’s request to reschedule his telework day was denied, unlike his similarly situated coworker; and 8. Complainant was subjected to a hostile work environment, characterized by, but not limited to false accusations and heightened scrutiny. The Agency dismissed claims 1 through 6 for untimely EEO counselor contact. The Agency accepted claims 7 (hereinafter “Claim 1”) and 8 (hereinafter “Claim 2”), and then conducted an investigation into the matter. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 18, 2020 motion for a decision without a hearing and issued a decision without a hearing on September 29, 2020.2 The AJ’s decision, the Agency’s Motion for Summary Judgment, Complainant’s Opposition, and the Report of Investigation showed that on January 9, 2018, Complainant verbally asked his first line supervisor (“Supervisor”) if he could switch his regular core telework day of Monday, January 15, 2018 due to it falling on a Federal holiday (Martin Luther King, Jr. Day). Supervisor indicated she would have to ask her supervisor/Complainant’s second line supervisor (“Director”). Supervisor stated it was her understanding that office policy did not permit individuals to move their core telework day just because it fell on a Federal holiday, but she wanted to confirm her understanding of this policy with Director. Director confirmed this policy and denied Complainant’s request to change his telework day. 2 On June 18, 2020, the Agency filed its Motion for Decision Without A Hearing. Complainant filed his Opposition on July 7, 2020. The Agency filed its Reply on July 7, 2020. Complainant filed a sur- reply on July 20, 2020. On June 20, 2020, the Agency filed a Motion to Strike Complainant’s Sur- Reply. The AJ granted the Agency’s Motion to Strike, finding that Complainant did not seek permission of a sur-reply and Complainant’s belief that he was permitted to continue to respond to arguments was inconsistent with the orders issued in the matter. 2021000634 3 On January 12, 2018, Supervisor informed Complainant that his request was denied by Director. Complainant emailed Director that same day to ask why his request was denied. Director responded that “The Telework Enhancement Act, which is the basis for federal government telework, is silent on the question of whether an employee is automatically entitled to substitute his/her telework day if it falls on a Federal holiday. As a matter of policy, when an employee's core telework day falls on a holiday, there is no automatic expectation the employee will be allowed to telework the following day or another workday during the week of the holiday. As telework is primarily an agreement between the manager and employee, however, the manager has the discretion to determine if he/she will allow the employee to substitute another day. Unfortunately, our management will only allow the us to switch our telework days or to request for a situational telework day when we are sick.” (Complaint File, p. 93). Supervisor and Director attested they never approved any of their reports to move their scheduled core telework day solely because it fell on a Federal holiday. The record shows a female coworker of Complainant’s (“Coworker”) made a request to Supervisor to switch her telework day of February 19, 2018 since it fell on a holiday (President’s Day), and this was approved. However, Supervisor attested that while this request was initially made via email and mentioned only the Federal holiday, Coworker verbally informed Supervisor that she needed to attend a medical appointment with her mother that day. Supervisor testified that due to the need to attend a medical appointment, she approved Coworker’s request to switch her telework day. Coworker later provided documentation to support this. Director indicated she was not aware of Coworker’s request to switch her telework day. However, Director also noted that she had denied the request of a different female coworker to reschedule her core telework day because it fell on a Federal holiday. Supervisor and Director both testified that Complainant’s sex did not play any role in the denial of his telework request. Complainant was allowed to change his telework day on another occasion to accommodate home repairs. Complainant also stated that he had been subjected to a hostile working environment that was characterized by, but not limited to, false accusations and heightened scrutiny. Complainant believed he was subjected to a hostile work environment when Supervisor would be very analytical about his completion of telework forms. However, he admitted he had not reported his hostile work environment to management. Complainant reported the only actions he took were to question why he was being scrutinized so closely. He stated that on approximately January 23, 2017, he was falsely accused by Supervisor of not submitting the second half of his telework report that was due at the end of the day on January 19, 2017, when he had actually submitted it at the end of the workday on January 19, 2017. Supervisor stated in an email to Complainant that he was “not being accused, it didn’t come to me that’s why I asked.” (Complaint File, p. 210). 2021000634 4 Supervisor stated she later spoke to Complainant by phone, whether she further explained that she located his submission in her junk email folder, to which Complainant responded “ok.” (Complaint File, p. 192). Complainant described instances of “heightened scrutiny” to include being provided a copy of an outdated position description when he started in September 2016 (although the position description had not been updated). He also stated that in January 2017, he informed Supervisor that some of the Agency’s telework policy was in violation of telework guidance from the Office of Personnel Management (“OPM”), but nothing changed. He believed he was scrutinized as a male because he to document his work while teleworking and he had to submit one on one work reports every two weeks. Complainant stated he was made to adhere to more accountability requirements than others. However, he had “continued to be a self-starter who does not have to be told to get to work, or do [his] job”. Both Supervisor and Director denied having any knowledge that Complainant believed he was being subjected to a hostile work environment. They stated he never reported it to them or made them aware. Supervisor testified that all employees under her supervision are required to submit telework reports and the IRM team is required to submit One-on-One reports. Director also stated that One-on-One reports are required by each team under her supervision, although Complainant submits his report to Supervisor. The Agency provided emails showing Supervisor emailed subordinates with a reminder to submit reports, and that Supervisor requested a female employee supplement her telework report. Supervisor also stated that one of her former direct reports did not consistently comply with the requirements to submit reports despite continual reminders. She stated that the consequences of this would have precluded this employee from being rated as “fully successful”, but the employee retired in February 2018 so not rating was issued. Supervisor stated Complainant’s sex did not play any role in the required submission of the required reports. Director stated she did not agree there was a hostile work environment and that sex would not be a factor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. He did not file a statement in support of his appeal, but we have considered his opposition to the Agency’s Motion for Summary Judgment in addition to the other documents in the record. The Agency filed an appeal brief contending the Complainant had failed to point to any new argument which would support his appeal of the AJ’s decision, and he had not argued or otherwise demonstrated in any meaningful way that the AJ’s decision was inaccurate or improper. The Agency contends that summary judgment in favor of the Agency was proper because Complainant failed to raise a genuine issue of material fact regarding the existence of discriminatory intent; there was insufficient evidence to support Complainant’s hostile work environment claim and his claim that he was subjected to discrimination when he was not permitted to move his core telework day on one occasion. 2021000634 5 The Agency also contends that Complainant failed to provide any evidence linking his sex to any of the incidents alleged to comprise the hostile work environment, or to the Agency’s denial of his request to reschedule his telework day, which was made consistent with Agency policy. The Agency stated the FAD should be affirmed for these reasons and those stated in the Agency’s Motion for Summary Judgement and the AJ’s decision. ANALYSIS AND FINDINGS Dismissed Claims 1 through 6 As an initial matter, we note the Agency properly dismissed six of the claims raised in Complainant’s formal complaint. EEOC regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination must be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The allegations raised in these claims occurred between September 2016 and June 2017. Complainant did not contact an EEO Counselor until February 2018, months after the most recent 45-day period would have ended. We also conclude that Complainant has not asserted there was a sufficient nexus between Claims 1-6 and Claim 8 to tie them together into a related claim of ongoing harassment. Therefore, we agree Complainant’s EEO counselor contact was untimely, and these claims were properly dismissed by the Agency. Decision by Summary Judgment - Claims 7 and 8 The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 2021000634 6 An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Telework Denial as a Discrete Act of Sex Discrimination A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant must show that the agency's action was more likely than not motivated by discrimination, that is, that the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Baker v. U.S. Postal Serv., EEOC Petition No. (May 13, 1999). Absent a showing that the agency's articulated reason was proffered to mask discrimination, complainant cannot prevail. Burdine, 450 U.S. at 256; Crosland v. Dep’t of the Army, EEOC Petition No. 03990018 (July 1, 1999); Mongere v. Dep’t of Defense, EEOC Appeal No. 01970738 (March 18, 1999). Here, even assuming arguendo that Complainant has established his prima facie case of sex discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Agency states that it relied on its telework policy for the denial of Complainant’s request to switch his telework day. Director noted that when an employee’s core telework day falls on a holiday, there is no automatic exception that the employee would be allowed to telework another day instead. Director noted a female employee was also denied her request to switch her telework day solely because it fell on a Federal holiday. 2021000634 7 Coworker was allowed to switch her telework day that fell on a Federal holiday, but only after she indicated that she needed to switch in order to accompany her mother to a medical appointment that day (and she later provided documentation for this). Complainant has failed to show that these reasons were in fact pretext, as opposed to business decisions. Complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). He has not provided any such explanation here. In his Opposition to the Agency’s Motion for Summary Judgment, Complainant argued the evidence presented by the Agency was not relevant, but he failed to explain why he thinks the Agency’s actions were pretextual or motivated by discriminatory animus. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Thus, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. Hostile Work Environment To establish a claim of 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; (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). 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 hostile work environment 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 class. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that, based on his sex, management officials subjected him to a hostile work environment. However, the record fails to show that he notified management that he believed he was being subjected to a hostile work environment or that he was treated different than any other employee. 2021000634 8 He contends he was falsely accused of not submitting a telework report. However, Supervisor stated she was not accusing him of anything, just that she had not received it. She advised Complainant that she later located his report in her junk mail. Similarly, the record reflects that all employees were required to submit telework and One-one-One reports, and that failure to do so could result in not being graded as “fully successful.” The Agency submitted evidence showing that multiple employees were reminded to submit reports and that at least one female employee was asked to supplement one of her reports. The Commission finds that the totality of the conduct at issue was insufficiently 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, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. Rather, the evidentiary record as described above reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. In sum, Complainant has not established that he was subjected to a discriminatory 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. 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 2021000634 9 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. The court has the sole discretion to grant or deny these types of requests. 2021000634 10 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 January 26, 2022 Date