[Redacted], Daniel C., 1 Complainant,v.Jeffrey A. Rosen, Acting Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2019006008 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daniel C.,1 Complainant, v. Jeffrey A. Rosen, Acting Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2019006008 Hearing No. 410-2016-00130X Agency No. DEA-2015-01419 DECISION On September 30, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Drug Enforcement Administration’s (Agency or DEA) July 17, 2019, 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. 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 Special Agent GS- 1811-12 (SA) in the Atlanta Division Office (ADO) located in Atlanta, Georgia. On February 2, 2015, Complainant filed an EEO formal complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal (prior protected EEO activity) when: (1) on December 4, 2014, he was reassigned to Duty Agent (DA) in the radio room (RR) without any warning; (2) on December 15, 2014, he was advised by his second-line supervisor (S2A) that he was a liability, that he would never be promoted to GS-13, that he would never be able to move around in Atlanta, and that his only chance for advancement would be to leave Atlanta; (3) on 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. 2019006008 2 January 8, 2015, he was reassigned from the RR as the DA to a receptionist position followed by receiving a memorandum that he would be placed on administrative leave for five days for failing to follow supervisory instructions; (4) on January 16, 2015, he was issued a memorandum stating that he would be placed on an additional five days of administrative leave; (5) on June 4, 2015, an Associate Special Agent-in-Charge (ASAC) told his new second-line supervisor (S2B) that Complainant was “roaming the halls’” and (6) on June 5, 2015, ASAC refused to allow Complainant to attend a mandatory “all-hands” meeting.2 After 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. 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. FACTUAL BACKGROUND Complainant has not performed enforcement-related duties since approximately October 2010. The record shows that Complainant has a disciplinary record based on misconduct and unprofessionalism dating back to 2008. One example involved misconduct that impacted Complainant’s credibility as a government witness in a criminal trial. The record indicates that Complainant’s misconduct served to disqualify him from key aspects of the SA position (e.g., working with confidential sources and testifying on behalf of the government in a criminal indictment). In addition, prior to the events at issue herein, the record shows that Complainant had been charged with sexual harassment on multiple occasions by numerous female contractors and/or employees.3 On December 4, 2014, management reassigned Complainant from the Special Support Unit to the RR as the permanent DA. Management explained that Complainant’s new duties were aligned with his limited capacity and history of sexual harassment. S2A further explained that management assessed every possible place to assign Complainant so that the government could derive some benefit from his employment and decided to assign Complainant as the DA in the RR to minimize Complainant’s contact with female employees, contractors, and confidential sources. S2A also stated that the DA position was not likely to require any courtroom testimony. On December 15, 2014, responding to Complainant seeking an explanation from S2A for the decision to assign him to the DA position, S2A provided Complainant with “a frank assessment of his career status.” S2A reminded Complainant that because he could not testify in criminal cases in the Northern District of Georgia, he could not be assigned to an enforcement group. 2 The Agency dismissed two additional claims as untimely raised with an EEO Counselor. Complainant does not challenge the dismissal of these claims; therefore, they will not be addressed herein. 3 Internal investigations found the allegations substantiated. 2019006008 3 S2A also advised Complainant that he was not qualified for promotion to GS-13 grade-level because he could not work cases. In addition, S2A addressed the allegations of sexual harassment and explained to Complainant that management had an obligation to protect female employees and contractors. S2A further explained to Complainant that DEA would not allow someone who could not perform the duties of a SA to serve as an instructor for state and local law enforcement counterparts. S2A also said he shared “hard truths” with Complainant and told him that his future career opportunities in the ADO were seriously limited and that it would be hard for him to transfer because another SAC would be reluctant to take him due to his history of misconduct. On January 8, 2015, Complainant learned that he was being reassigned from his DA position in the RR to a receptionist position pending the outcome of an Office of Personal Responsibility (OPR) investigation pertaining to new allegations of sexual harassment against Complainant. ASAC stated that moving Complainant to the receptionist position was designed to more severely restrict Complainant's movement within the office and to allow two ASACs to closely monitor his whereabouts. ASAC also stated that he instructed Complainant to have no contact with females in the office. Complainant never reported to the receptionist position because later that day, management issued Complainant a memorandum informing him that he was being placed on administrative leave for five days for insubordination after Complainant tried to contact the female contractor who had lodged the most recent sexual harassment allegation against him. ASAC testified that after management determined that Complainant posed a significant threat to female employees in the ADO, on January 16, 2015, he was placed on another five days of administrative leave by an Agency Headquarters Human Resources official. Following this second five-day period of administrative leave, Complainant was assigned to a room in the basement of the building and was prohibited from entering the DEA office spaces on the building's upper floors. Complainant’s building access badge was also suspended so that he would have to enter through the building's main security entrance every day. S2A explained that he took whatever steps he could to reduce Complainant's potential contact with sexual harassment victims and to prevent opportunities for him to engage in similar behavior. On June 4, 2015, ASAC became aware that Complainant sent an e-mail to a select group of employees, including women, inviting them to join him in a “prayer meeting.” ASAC further explained that Complainant was not allowed to be away from his office without an escort. When he could not locate Complainant in his assigned office, ASAC went to make a cell phone call and states that he observed Complainant “ducking quickly into an elevator.” ASAC stated that he talked to Complainant’s new second-line supervisor (S2B) (Black) about the matter who confirmed that Complainant had left his assigned area without permission to hold a prayer session. This incident of insubordination was referred to OPR. However, ASAC stated that he did not recall telling S2B that Complainant was “roaming the halls.” 2019006008 4 On June 5, 2015, ASAC informed S2B that Complainant could not attend the all-hands meeting with the DEA Administrator because he felt he needed to do whatever he could to prevent Complainant from having interactions with female employees. He said Complainant cannot be trusted around female employees and is a danger to them due to his well-documented history of sexual harassment and predatory behavior. 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”). Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant asserts that race and reprisal for his prior protected EEO activity motivated the management’s alleged statements and employment conduct at issue herein. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the record establishes that management articulated legitimate, non-discriminatory explanations for the alleged employment conduct and statements. Specifically, Complainant was assigned to a position with duties that were better aligned with his limited capacity and provided with a frank assessment of his career status given his history of misconduct and sexual harassment. Management also explained that Complainant was placed on administrative leave due to new allegations of sexual harassment. Management officials further explained that given the numerous allegations of sexual harassment against Complainant by many different women over a period of years, and Complainant’s lack of compliance with management directives, management felt that he had to be closely monitored and separated from the female employee/contractor population to mitigate the risk of harm and liability. 2019006008 5 We also find that the record is devoid of evidence of pretext or discriminatory or retaliatory animus on the part of any responsible management official. We note that the record contains evidence of multiple OPR investigations that resulted in sustained charges against Complainant dating back to 2008, for behavior related to his official duties and for numerous instances of sexual harassment. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION Accordingly, 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. 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). 2019006008 6 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. 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 22, 2021 Date