[Redacted], Rob W., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2021002305 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rob W.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021002305 Agency No. DOS-0328-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 19, 2021, dismissing his complaint of unlawful 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 Acting Information Programs Officer at the Agency’s U.S. Consulate General in Guangzhou, China. On December 23, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. on September 21, 2020, Complainant encountered offensive photographs hanging in an office common area;2 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. 2 According to the EEO counseling report, the photos were of a monkey smoking a cigar, an underwear advertisement featuring Pete Rose with multiple bats in his hand, and a third image that Complainant did not recall. 2021002305 2 2. as recently as September 22, 2020, Complainant was required to clear external emails with his manager; and 3. as recently as September 22, 2020, Complainant’s manager excluded him from one-on-one meetings with the Management Officer. The Agency dismissed claim 1 for mootness and claims 1-3 because they failed to allege a present harm to a term, condition, or privilege of employment. The Agency also found that even if framed as a hostile work environment (as opposed to discrete acts), the claims would be dismissed for failure to state a claim. Complainant filed the instant appeal. On appeal, Complainant contends he is the only one on his team who is constantly scrutinized for things he says and does. He alleges there is a consistency of microaggressions, unconscious bias, intimidation, and bullying. He further stated the stress he had been under resulted in frequent visits to the health unit with flare ups and headaches. In response, the Agency contends the reasoning behind the dismissal was correct. The Agency also argued that the alleged retaliatory actions complained of actually happened prior to Complainant’s initial complaint (his protected activity) of offensive images in the workplace. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (March 13, 1997); Becerra v. Dep’t of the Navy, EEOC DOC 0120083490 (Jan. 13, 2012). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. Thus, a claim of harassment...should not be dismissed for failure to state a claim where the complainant has made factual allegations which, when construed in the light most favorable to the complainant, i.e., when considered together and treated as true, are sufficient to state a claim.” Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). 2021002305 3 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris, 510 U.S. at 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: “conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993). Keeping in mind Complainant's contentions on appeal, we still find his allegations fail to state a claim of discrimination, retaliation, or hostile work environment. Regarding claim 1, an Agency shall dismiss a complaint that is moot. 29 C.F.R. § 1614.107(a)(5). In this case, Complainant emailed his manager (“Manager”) on September 21, 2020 about offensive photos (“the Photos”) being hung in the workplace. Regardless of the exact offensive nature of the photos, it is undisputed by Complainant that Manager took the photos down as soon as Complainant complained about them and spoke to the contractor who hung them. Complainant does not allege on appeal that this issue continues or that any similar incident has occurred. Thus, relief has already been afforded to Complainant and the Agency correctly dismissed Claim 1 as moot. Regarding claims 1-3, Complainant has failed to allege a present harm to a term, condition, or privilege of employment. Complainant alleges discrimination including the Photos, having to copy Manager on emails to other parties, and not being included in Manager’s meetings with the Management Officer. He further indicated that the latter two issues were retaliation for reporting the Photos. Despite including additional emails between Manager and Complainant as part of his appeal, Complainant has not provided any explanation of the actual harm to his employment that has occurred as a result of these actions. Complainant states the Photos were offensive, but without more, this isolated incident has not been shown to be particularly egregious to allege a present harm to a term, condition, or privilege of employment. Having to clear external emails with a manager is within the confines of a normal subordinate-manager relationship and Complainant has provided no explanation to show how this constitutes a present harm to a term, condition, privilege of employment (especially considering his Manager had raised some performance concerns). Similarly, it is unusual for a subordinate to be invited to one on one meetings between his manager and that manager’s superior. Complainant has not provided any allegation or explanation to show how he was harmed by not being included in such meetings when it does not appear any of his colleagues or peers were invited or matters crucial to his work were discussed. 2021002305 4 Complainant has also not shown how the latter two issues constitute retaliation for reporting the photos, especially as it is undisputed that Manager apparently started these actions, as well as a list of performance concerns, prior to Complainant’s report of the Photos. Thus, the Agency correctly dismissed claims 1-3 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Lastly, taking claims 1-3 together (as opposed to treating them as separate incidents) and considering Complainant’s claims of retaliation, they fail to state a claim for harassment or hostile work environment because the conduct complained of, even if proven true, is not sufficiently severe or pervasive to alter the conditions of Complainant’s employment. As indicated above, harassment is actionable as a claim of employment discrimination only if, allegedly, the harassment is sufficiently severe or pervasive to alter the conditions of a complainant's employment. Thus, even taken in the light most favorable to Complainant and assuming his allegations are true, he has failed to state a justiciable claim for harassment, regardless of the merits of his complaints. The Agency correctly dismissed claims 1-3 for failure to show harassment or a hostile or abusive work environment. CONCLUSION The Agency's final decision dismissing claims 1-3 is AFFIRMED for the reasons discussed above. 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 2021002305 5 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. 2021002305 6 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 June 17, 2021 Date