[Redacted], Dotty C., 1 Complainant,v.Antony J. Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jul 29, 2021

Appeal No. 2019003848 (E.E.O.C. Jul. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dotty C.,1 Complainant, v. Antony J. Blinken, Secretary, Department of State, Agency. Appeal No. 2019003848 Agency No. DOS-0268-18 DECISION On May 28, 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 Agency’s May 28, 2019, final decision concerning her 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 VACATES the Agency’s final decision and REMANDS the matter to the Agency for a supplemental investigation. ISSUES PRESENTED The issues presented on appeal are: (1) whether the Agency erred in dismissing reprisal as a basis for Complainant’s claims; and (2) whether the record is sufficiently developed to determine whether Complainant was subjected to discrimination based on sex, sexual orientation, and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a FS-03 Recruitment and Outreach Specialist in the Agency’s Bureau of Human Resources in Washington, D.C. Complainant began working as a Recruitment and Outreach Specialist on April 23, 2018. 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. 2019003848 2 Her first-line supervisor was the Deputy Division Chief for Recruitment Outreach (S1), and her second-line supervisor was the Division Chief for Recruitment Outreach (S2). Complainant is a heterosexual female, and she is a member of various employee affinity groups, including Gays and Lesbians in Foreign Affairs Agencies (GLIFAA), Blacks in Government (BIG), the Disability Action Group, Executive Women @ State, Asian-Americans in Foreign Affairs, and the Native American Foreign Affairs. Complainant stated that she engaged in protected EEO activity as a member of these employee affinity groups and when she opposed discrimination by telling S1 and S2 that they could not base employee assignments on their assumptions about an employee’s membership in a protected group. According to Complainant, she mentioned that she was a member of GLIFAA during her interview for the Recruitment and Outreach Specialist position with S1 and S2 in April 2018. Complainant alleged that, because she mentioned her involvement in GLIFAA, S1 and S2 assumed that she was a member of the LGBTQ community. Complainant stated that, during the interview, S1 and S2 discussed Complainant taking over the LGBTQ recruitment portfolio from another employee (C1). On April 27, 2018, S2 assigned Complainant recruitment duties including Bureau of Information Resource Management (IRM) recruitment, LGBTQ recruitment, and a USA Jobs data mining project. Complainant stated that, on May 2, 2018, she mentioned her husband while she was talking to S1 about her background and recruiting goals. Complainant averred that S1 responded that he thought Complainant was gay and that she replied that she was not. According to Complainant, she and S1 continued their discussion about recruiting goals. Complainant stated that, on May 3, 2018, she called S1 to discuss his comment from the day before. Complainant alleged that S1 apologized for saying that he thought that she was gay and stated that he had not meant to offend her. According to Complainant, she responded that she was not offended, and she asked S1 if he had assigned her the LGBTQ recruitment portfolio because he thought she was gay. Complainant averred that S1 said no, that was not the reason. Complainant stated that S1 indicated that he thought she was gay because she was a member of GLIFAA. Complainant averred that, on May 8, 2018, C1 invited her to a meeting with the GLIFAA President. According to Complainant, on May 8, 2018, S2 told her in that he was removing the LGBTQ recruitment portfolio from her duties. Complainant stated that S2 stated that he made this decision after talking to S1. Complainant averred that S2 told her that LGBTQ recruitment would be replaced with Overseas Building Operations (OBO) recruitment, which he characterized as a large, complex portfolio that needed a lot of attention. Complainant stated that, after S2 told her that he would be taking away the LGBTQ recruitment portfolio, she approached S1 and asked him not to change her assignments. According to Complainant, S1 became abrasive and started yelling at her that she had been offended that he had asked if she was gay. 2019003848 3 Complainant alleged that another Recruitment and Outreach Specialist (C2) overheard S1 yelling at her and stopped at Complainant’s cubicle later to ask what had happened. C2 denied hearing S1 yell at Complainant. According to C2, she heard S1 tell Complainant that she had been offended, but C2 stated that S1 used a normal tone of voice. At 2:31 p.m. on May 8, 2018, Complainant emailed S2 and asked to meet. In the email, she stated that she still wanted to have the LGBTQ recruitment portfolio and that she was confused about why it had been reassigned. Complainant stated that she met with S2 and told him that it was inappropriate and discriminatory for S1 to ask her about her sexual orientation and then change her duties as a result. According to Complainant, S2 asked when he could meet with her and S1 to discuss the matter. On May 9, 2018, S2 sent Complainant an invitation to a 10:00 a.m. meeting, and Complainant declined the meeting request. Complainant averred that S2 stopped by her cubicle after she declined the meeting request and told her that he did not think it was a good idea that Complainant did not want to discuss the matter. S2 stated that he offered multiple times to meet with Complainant and S1 to discuss their communication. According to S2, Complainant refused to meet. Complainant alleged that, after she declined S2’s meeting invitation, S1 began sending her multiple requests to speak at four events and to meet to work on the OBO recruiting portfolio over the course of 10 days. Complainant stated that she was overwhelmed by the amount of meetings and events. S2 stated that he was not aware of Complainant’s allegation that S1 began assigning her extra events to harass her until she filed her EEO complaint, but he noted that it is not unusual for employees to staff multiple recruitment events in one day. Complainant averred that, on May 10, 2018, S2 asked her to stop in his office and discussed meeting with S1. According to Complainant, she told S2 that asking her to meet with S1 made it seem as though she was causing a problem, when the issue was that she was pointing out that she should not be subjected to discrimination. Complainant stated that S2 responded that he wanted to make sure that she and S1 would be able to work together, to which she responded that she was a professional. On May 11, 2018, S2 sent a group email with the latest recruiting assignments attached. In the attachment, the LGBTQ recruitment portfolio had been removed from Complainant’s assignments and reassigned to C1. Complainant was on preapproved annual leave on May 11, 2018. According to Complainant, the change in assignment caused her significant stress and anxiety, diminishing her ability to enjoy her day off and the weekend. Complainant stated that she also took eight hours of annual leave on June 11 and on June 13, 2018, in order to avoid the uncomfortable situation with S1 and S2. On June 21, 2018, Complainant’s request to be assigned to a different office was approved, and that was her last day as a Recruitment and Outreach Specialist. 2019003848 4 S2 stated that he reassigned the LGBTQ recruitment portfolio to C1 as part of a general rebalancing of the recruitment workload. According to S2, there were as many as 10 Recruitment and Outreach Specialists based in D.C. at a time, and there were more than 20 recruiting portfolio areas. S2 averred that, although Complainant expressed interest in continuing to handle LGBTQ recruitment, he reassigned it based on overall workload. S2 denied that Complainant’s sex, sexual orientation, and/or protected EEO activity were factors in reassigning the LGBTQ recruitment portfolio. On August 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), sexual orientation (heterosexual),2 and reprisal for prior protected EEO activity when: 1. On May 8, 2018, the LGBTQ recruitment portfolio was removed from her duties; and 2. She was subjected to a hostile work environment that was characterized by constant scrutiny of her work product, unfair criticism, and scheduling of multiple work obligations within a short time period. According to the record, the EEO investigator did not interview S1 because he no longer worked for the Agency. The EEO investigator also did not interview C1, and the investigative record does not contain any demographic information about C1’s sex, sexual orientation, or prior protected activity. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission 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 Agency’s final decision dismissed reprisal as a basis for Complainant’s claims, reasoning that participating in an employee affinity group did not constitute protected EEO activity. The Agency found that Complainant could not establish a prima facie case of sex discrimination because there was no evidence of discriminatory animus or that the Agency treated a male and/or gay employee more favorably than Complainant. Assuming arguendo that Complainant could establish a prima facie case of disparate treatment, the Agency found that the legitimate, nondiscriminatory reason for adjusting Complainant’s recruiting assignments was that she was needed to take over the OBO recruiting portfolio as part of a rebalancing of workload, and the Agency determined that Complainant had not established that this legitimate, nondiscriminatory reason was pretextual. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2019003848 5 Regarding Complainant’s hostile work environment claim, the Agency found that Complainant only provided generalized allegations of harassment, that the preponderance of the evidence did not establish a nexus between the alleged harassment and her sex or sexual orientation, and that the alleged harassment was insufficiently severe or pervasive to constitute a hostile work environment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Neither Complainant nor the Agency make any contentions on appeal. 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 (EEO MD-110) 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”). Reprisal Although the Agency accepted reprisal as a basis for Complainant’s complaint, the Agency dismissed reprisal as a basis in its final decision. However, a determination that Complainant did not engage in prior protected activity goes to the merits of Complainant’s reprisal claim. See Montoya v. Dep’t of Navy, EEOC Appeal No. 01973222 (July 10, 1998). Accordingly, the Agency erred in procedurally dismissing Complainant’s reprisal claims.3 3 Moreover, Complainant asserted that she engaged in protected EEO activity in two ways. In addition to asserting that she participated in protected activity as a member of GLIFAA, Complainant stated that she engaged in protected activity by opposing discrimination when she complained to S1 and S2 that they should not assign work based on an employee’s actual or perceived sexual orientation because it constituted discrimination. The anti-retaliation provisions of the laws enforced by the Commission make it unlawful to discriminate against an individual because she has opposed any practice made unlawful under the employment discrimination statutes. Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), II (A)(2) (Retaliation Guidance). Protected “opposition” activity broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination. Id. An example of opposition includes complaining to anyone about alleged discrimination against oneself or others. Id. at II (A)(2)(e). Based on the record, it appears that Complainant engaged in protected EEO activity by opposing discrimination. 2019003848 6 Adequacy of the Record EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110 at Chap. 6, § IV.B. An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees...and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.” Id. at Chap. 6, § IV.C. Also, an investigator must identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at Chap. 6, § VI.D. EEOC Regulations provide that the Agency and any employee of a Federal agency shall produce such evidence as the investigator deems necessary. 29 C.F.R. § 1614.108(c)(1). The regulations further provide that, when the Agency or its employees “fail without good cause shown to respond fully and in timely fashion” to requests for documents, affidavits, the attendance of witnesses, or other evidence “the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal, may in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as it deems appropriate.” 29 C.F.R. § 1614.108(c)(3). Upon review, the Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the fact finder to address the ultimate issue of whether discrimination occurred. Complainant alleged that the LGBTQ recruitment portfolio was reassigned to C1 after S1 and S2 learned that she was heterosexual. In its final decision, the Agency found that Complainant could not establish a prima facie case of disparate treatment because there was no evidence that a male and/or gay employee was treated better than Complainant. However, there is no evidence in the record about C1’s sex,4 or protected EEO activity. This information is essential to Complainant’s ability to establish a prima facie case of discrimination. Moreover, because C1 held the LGBTQ recruitment portfolio before Complainant, attended a meeting with Complainant and the GLIFAA President, and was reassigned the LGBTQ portfolio after management learned Complainant’s sexual orientation, C1 could provide evidence about the circumstances of the portfolio being assigned to Complainant and reassigned back to C1 in a matter of weeks. 4 Although there is no evidence in the record of C1’s sex, C1’s first name is traditionally used by females. 2019003848 7 Complainant provided contact information for C1 to the EEO investigator and recommended her as a witness, but the investigator did not secure an investigative affidavit from C1 and did not explain the decision not to request an affidavit from C1. Moreover, even if the record were sufficiently developed to determine whether Complainant established a prima facie case of discrimination, the Agency’s explanation for its actions, as provided so far, would not meet its burden of providing a legitimate, nondiscriminatory reason for its actions. Although the Agency's burden of production is not onerous, it must provide a specific, clear, legitimate, and individualized explanation that provides an opportunity for Complainant to satisfy her ultimate burden of proof of pretext. Lorenzo v Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997). In his investigative affidavit, S2 generally asserted that he reassigned recruiting portfolios throughout the year based on available personnel. However, he did not specifically explain why, after assigning the LGBTQ recruitment portfolio to Complainant on April 27, 2018, he reassigned it to C1 on May 11, 2018. He also did not address the specific reason for rebalancing the workload in May 2018 or what other changes, if any, were made to employees’ recruiting portfolios at that time. The record also does not contain an organization chart or list of the employees in S1 and S2’s supervisory chain. We therefore find that the record is insufficiently developed, and that supplemental investigation is required to determine whether discrimination occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within 60 calendar days of the date this decision is issued, the Agency shall conduct and complete a supplemental investigation that shall include, at a minimum, the following: 1. An organizational chart for the Agency’s Bureau of Human Resources between April 1, 2018, and June 30, 2018. 2. A roster of all employees supervised by S1 and/or S2 between April 1, 2018, and June 30, 2018, annotated by position title, sex, and prior protected activity. 3. Documentary or other evidence concerning the recruiting portfolios assigned to employees supervised by S1 and/or S2 between April 1, 2018, and June 30, 2018, any changes to the recruiting portfolios during that timeframe, and a specific explanation for all changes made during that timeframe. 4. An affidavit from C1 which addresses any knowledge she or he has regarding the April 27, 2018, assignment of the LGBTQ recruiting portfolio to Complainant, 2019003848 8 the May 11, 2018, reassignment of the portfolio to C1, other changes to recruiting portfolios between April 1, 2018, and June 30, 2018, any comments regarding sexual orientation made by S1 and/or S2, and the frequency of events and meetings for recruiting personnel during this timeframe. 5. The EEO investigator shall attempt to contact S1 to obtain an investigative affidavit. 6. If the EEO investigator is unable to obtain relevant documentary evidence from the Agency or obtain investigative affidavits from C1, S1, or other relevant witnesses, the EEO investigator shall document the attempt(s) to obtain the evidence and/or affidavits and provide an explanation of why the documents or affidavits could not be obtained. 7. Complainant shall have the opportunity to review the affidavits and other evidence and submit a rebuttal affidavit. Thereafter, within 30 calendar days from the date the Agency completes the supplemental investigation, the Agency shall issue a new final decision in accordance with 29 C.F.R. § 1614.110(b), with the appropriate appeal rights. The decision shall adjudicate Complainant’s claims that she was subjected to discrimination based on sex, sexual orientation, and reprisal. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include a copy of the report of supplemental investigation and the new final decision. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2019003848 9 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2019003848 10 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 July 29, 2021 Date