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

Equal Employment Opportunity Commission

Sep 29, 2021

Appeal No. 2020003819 (E.E.O.C. Sep. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marlon H.,1 Complainant, v. Antony Blinken, Secretary Department of State, Agency. Appeal No. 2020003819 Agency No. DOS-0432-19 DECISION On May 22, 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 April 29, 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. 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 Passport Specialist, GS-0967-11, in the Agency’s New York Passport Agency at the Bureau of Consular Affairs in New York, New York. On August 8, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when, on June 4, 2019, management referred a matter for consideration of disciplinary action against him. Complainant identified his immediate supervisor, the Passport Specialist Supervisor (S1), the Adjudication Manager, his second-level supervisor (S2), the Assistant Director, the third level 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. 2020003819 2 supervisor (S3) and the Agency Director (S4) as the responsible management officials in this matter. As part of his duties, Complainant is responsible for securing sensitive information. That responsibility is shared by all of the employees, who are expected to follow the Agency’s security policies. Complainant explained that afterhours on June 3, 2019, a hardcopy of the combinations to the Duty Officer safe and the Book Print room had been left out. Complainant had opened and closed the duty officer safe from that evening. Complainant stated that he allegedly left the information unsecured at Window 30 at the public counter. Complainant had accessed the duty safe on the evening of Monday, June 3, 2019, at approximately 8:30 p.m., because he had an emergency application. The next morning, on June 4, 2019, a coworker averred he found a folded paper, which appeared to contain the combination to the Duty Officer Safe and Print Book room, at the coworker’s workstation. The coworker stated he placed the paper, face-down, on top of the safe, due to the Duty Officer Safe’s proximity to his workstation. Shortly, thereafter, S2 entered the Duty Officer Safe Area. The coworker informed S2 that he (the coworker) placed the paper on top of the Duty Officer Safe. At that point, S2 left the Duty Officer Safe area, but she later returned with S1 and requested that the coworker give a written statement. Complainant stated that S1 informed him that because this was a violation of the internal controls, he was forwarding the matter to Employee Relations/Human Resources. S3 affirmed that he forwarded the matter for disciplinary action because the incident created a substantial vulnerability. Complainant was subsequently counseled by S1. Complainant acknowledged that he could not be sure whether he had left the combination exposed at Window 30. Complainant stated, when asked by S1 if he left the combination, he responded that he could “neither confirm [nor] deny.” He advised that he did not recall leaving the combination out and as far as he could recall, he had shredded all the personally identifiable information (PII) before leaving the office that evening. Complainant claimed that management officials failed to follow protocol in making the referral. Complainant alleged that the matter was not appropriately investigated and “the manner through which the Agency acted violated the Agency’s collective bargaining agreement.” He said there was no fairness or a reasonable explanation how management concluded that he was at fault. Complainant alleged that by sending this matter to Employee Relations, S3 demonstrated that he would rather scapegoat Complainant and assign blame to Complainant for his failure of managing the duty officer program that he oversaw. Although the matter was referred for discipline, the record shows that no disciplinary action had been taken against Complainant as of July 19, 2019. The HR Division Office of Employee Relations determined that the counseling session Complainant had with his supervisor was sufficient. 2020003819 3 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency determined that Complainant failed to show that he was subjected to reprisal as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency engaged in retaliatory conduct against him when it selectively chose which security incidents to report to the Diplomatic Security and that the same officials were themselves guilty of engaging in misconduct and security breaches. Accordingly, Complainant requests that the Commission reverse the final decision. 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2020003819 4 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case, the record shows that no disciplinary action was taken against Complainant. Even assuming that Complainant established a prima facie case of reprisal, we find that the named officials articulated legitimate, non-retaliatory reasons for their actions, as discussed above, and the record does not otherwise substantiate Complainant’s claims. Specifically, Complainant was told the matter was referred for potential disciplinary action because officials believed he failed to follow instructions regarding the safeguarding of sensitive material. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant does not carry his burden here. Accordingly, the Commission finds that Complainant was not subjected to reprisal as alleged. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record conclusively establishes that the incident at issue was insufficiently severe or pervasive to give rise to a hostile work environment. CONCLUSION Accordingly, 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 2020003819 5 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). 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. 2020003819 6 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 September 29, 2021 Date