[Redacted], Tressa L., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001680 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tressa L.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020001680 Agency No. DOS-03080-17 DECISION On December 19, 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 November 25, 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 for further processing. ISSUE PRESENTED The issue presented concern whether the Agency properly dismissed some of Complainant’s claims pursuant to 29 C.F.R § 1614.107(a)(1). BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment. She had applied for a career Foreign Service Officer (FSO) position.2 Complainant also applied for the non-career Professional Associate (Political) position at the U.S. Embassy in 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 Complainant did not apply for any specific location. 2020001680 2 Copenhagen, Denmark, through the Agency’s Expanded Professional Associates Program (EPAP) for overseas spouses. She and her career FSO spouse have filed at least nine EEO complaints against the Agency since Fall 2011. See Report of Investigation (ROI) at 00098. With regard to Complainant’s application for the career FSO position, the record reflects that she received a conditional offer of employment; however, her candidacy abruptly ended on May 22, 2013, when the Staff Director of the Agency’s Board of Examiners notified Complainant that the Agency’s Final Review Panel (FRP) found her to be unsuitable for the position. ROI at 00400- 402. In his letter, the Staff Director explained that the FRP’s adverse suitability determination was based on evidence that Complainant had engaged in criminal, dishonest, or disgraceful conduct, examples of which included a D.C. Superior Court civil judgment in the amount of $11,500 for “assaultive and harassing conduct” towards a neighbor, as well as negative performance reviews and references from her two prior supervisors at a large government contractor. Id. The Staff Director advised Complainant that the denial did not constitute a denial of a security clearance, as the FRP’s decision solely addressed Complainant’s suitability for the position. Id. Complainant was advised that she could appeal the FRP’s decision within 60 days of receipt of the decision, but that the FRP would only consider new evidence that addressed the grounds for the initial denial. Id. Complainant subsequently filed at least 10 requests for an extension, each lasting 60 days, so that she could obtain documentation from the Agency under the Freedom of Information Act (FOIA), prior to appealing the FRP’s decision. The Agency granted all of Complainant’s requests. In February 2015, while Complainant’s FOIA requests were pending, she applied for the non- career position of Professional Associate (Political) at the U.S. Embassy in Copenhagen, Denmark. ROI at 00108 and 00145. The Agency had posted the position pursuant to the EPAP hiring authority. Under the terms of the EPAP vacancy announcement, candidates were required to have at least one year remaining on their overseas posting and commit to serving at least one year. Id. at 00171. Because Complainant’s spouse was assigned to Copenhagen until June 2018, Complainant met the basic requirement for employment under the EPAP hiring authority. Shortly after Complainant submitted her application for the Professional Associate position, the Agency informed her that it had decided not to fill the position. ROI at 00109. She subsequently filed an EEO complaint in June 2015, alleging that the Agency’s failure to hire her was due to reprisal. Id. The Agency then reposted the vacancy announcement in August 2015, which Complainant again applied for. Id. In November 2015, Complainant was given a conditional offer of employment, contingent on passing an anti-nepotism review and obtaining a top-secret security clearance. Id. at 00162-3. Complainant submitted the required security clearance forms in early December 2015; however, the Agency’s Bureau of Diplomatic Security (DS) declined to grant Complainant an interim top- secret security clearance and opened a full investigation into Complainant’s background. ROI at 00308. The Agency completed the anti-nepotism review in June 2016, six months after Complainant submitted the required information. Id. at 00109. Complainant asserted that the six- month wait was an unusually long time for conducting an anti-nepotism review. Id. 2020001680 3 The delays in processing Complainant’s top-secret security clearance application lasted even longer and continued well into the following year. Complainant maintained that in July 2017, she became ineligible for the Professional Associate position under the original EPAP rule, which required at least a year remaining at post. Id. at 00110. In October 2017, Complainant received the requisite top-secret security clearance; however, she was informed by an official at the U.S. Embassy in Copenhagen that while the Agency was not withdrawing EPAP offers based on the minimum remaining time at post requirement, the Agency nevertheless could not onboard Complainant due to the hiring freeze that the new Administration had imposed in January 2017. ROI at 00111 and 00190. The Embassy Official advised Complainant that the Agency may consider waiving the minimum remaining time at post requirement once the freeze was no longer in effect. Id. Complainant believed that the Agency was obligated to grant her an exception to the hiring freeze because it had issued hundreds of exceptions to the hiring freeze, including approximately 884 exceptions for eligible family members. Id. The hiring freeze was subsequently lifted in December 2017; however, no one from the Agency contacted her to continue the onboarding process. Complainant ultimately departed Copenhagen in April 2018, when her spouse was recalled back to Washington, D.C., nearly four months earlier than his anticipated return. Id. Notably, Complainant alleged that while she and her spouse were stationed in Copenhagen, Embassy Officials engaged in reprisal against her family by entering their Embassy leased residence without notice and ignoring their requests to fix non-functioning household appliances. Id. at 00006. The record further reflects that on June 9, 2017, during the pendency of her EPAP security clearance review, she filed an appeal challenging the Final Review Panel’s May 22, 2013, decision to terminate her candidacy for the career FSO position based an adverse suitability determination. ROI at 00247-53. Even though Complainant ultimately received a top-secret security clearance in October 2017, the Agency’s Appeals Committee rejected Complainant’s appeal of the FRP’s decision on November 17, 2017. Id. at 00568-72. In rejecting the appeal, the Appeals Committee concluded that the evidence that Complainant submitted in support of her appeal did not constitute new evidence, as it only challenged the weight that the FRP gave to the positive versus negative aspects of her background, rather than the underlying incidents. Id. That determination ended Complainant’s candidacy for the career FSO position. Complainant believed that the Appeals Committee’s decision was discriminatory and based on reprisal because the Agency failed to inform the Appeals Committee that she had recently been granted a security clearance for the non-career Professional Associate position. Id. 00120-22. Complainant maintained that the Appeals Committee should have found her to be suitable, as the non-career Professional Associate position was functionally equivalent to the career FSO position. Id. EEO Complaint On October 23, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 2020001680 4 1. The Agency delayed processing of her suitability investigation and security clearance, resulting in her being ineligible for the EPAP position that she was conditionally offered; 2. Between July 16, 2017 to September 15, 2017, Embassy Staff entered or provided access to her residence without informing her; 3. She was subjected to a hostile work environment characterized by, but not limited to, management visiting her residence and not responding to her requests for maintenance; and 4. The Department failed to reimburse her spouse’s legal fees; Complainant subsequently requested an amendment to her formal complaint, wherein she alleged that the Agency subjected her to discrimination on the basis of reprisal when: 5. On November 17, 2017, her appeal of the decision to terminate her candidacy for the Foreign Service Officer position was denied. On November 21, 2017 and December 28, 2017, the Agency informed Complainant that it would only accept two claims, 1 and 5, for investigation because Complainant failed to show that she had been aggrieved with regard to claims 2 to 4. The Agency further explained that claim 4 was not actionable because it involved her spouse’s complaint, and not a term, condition, or privilege of her employment. 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). Complainant timely requested a hearing; however, she subsequently withdrew her request after the assigned AJ notified the parties of her intent to issue a sua sponte decision without a hearing in favor of the Agency. 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 her to discrimination as alleged. In finding no discrimination, the Agency first considered whether its initial procedural dismissal of claims 2 to 4 was appropriate. Having reviewed the record, the Agency affirmed the dismissal of these claims because the Agency again determined that Complainant failed to show that she suffered some harm or loss to a term, condition, or privilege of employment. The Agency also reiterated that Complainant could not recover her husband’s legal fees because that matter involved her husband’s concern with the Agency and was not about her. The Agency then turned to the merits of claims 1 and 5 and found that management had legitimate, nondiscriminatory reasons for their actions. With regard to claim 1, concerning the delay in processing Complainant’s suitability and security clearance, the Agency acknowledged that there was indeed a delay for an extended period of time. However, the Agency found that the delay was not intentional and that it was not unusual for the Agency’s security officials to deny interim security clearances. 2020001680 5 The Agency emphasized that the amount of time needed to complete a security clearance investigation varied greatly from candidate to candidate, and there was no specific time period for completing the process. The Agency further emphasized that when Complainant received the requisite security clearance in October 2017, the Agency could not onboard her due to a hiring freeze. The Agency maintained that Embassy Officials in Copenhagen did not request an exception to hire Complainant because Complainant’s position was not mission critical and has since been abolished. As for claim 5, concerning Complainant’s appeal of the FRP’s decision, the Agency cited Complainant’s failure to refute the factual bases for the initial denial as the reason for denying the appeal. Though Complainant argued that such explanations were pretext for reprisal, the Agency concluded that Complainant could not persuasively establish pretext. This appeal followed. CONTENTIONS ON APPEAL We shall discuss Complainant’s contentions, infra. The Agency did not submit any contentions in response to Complainant’s appeal. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS We will first address the Agency’s decision to procedurally dismiss claims 2 to 4 due to Complainant’s failure to show that she suffered some harm or loss to a term, condition, or privilege of employment. Through her attorney, Complainant contends on appeal that the Agency “misapplied the standard for an aggrieved employee for substantive discrimination claims.” She asserts that for reprisal claims, a materially adverse action need only be sufficient to deter a reasonable employee from complaining about discrimination. In this regard, Complainant maintains that the Agency should have accepted claims 2 and 3 for investigation “[b]ecause whether an action is likely to deter protected activity depends on the surrounding facts, an investigation into these claims is always appropriate and a procedural dismissal is inappropriate.” Complainant further contends that it was improper for the Agency to have dismissed claim 4 because the anti-retaliation provisions of Title VII extend to the spouses of complainants. 2020001680 6 In support of her contention, Complainant cites to two Commission cases where the Commission permitted reprisal claims based on retaliation against a complaining employee’s spouse. See Young v. U.S. Postal Serv., EEOC Appeal No. 01A01072 (Sept. 27, 2000) (reversing the dismissal of a claim, wherein the complainant had alleged that the agency retaliatorily transferred her husband because she had engaged in protected EEO activity); Battle v. U.S. Postal Serv., EEOC Appeal No. 0120110487 (Mar. 24, 2011) (allowing complainant to proceed with her claim that the agency had subjected her to reprisal by forcing her husband to undergo a drug test because she had engaged in protected EEO activity). As a general matter, we note that our regulations set forth at 29 C.F.R. Part 1614, requires federal agencies to 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 disability. 29 C.F.R. §§ 1614.103, 1614.106(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 (Apr. 21, 1994). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle him or her to relief. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). In determining whether a complaint states a claim, the proper inquiry is whether the alleged conduct would constitute an unlawful employment practice under EEO statutes. Id. However, when a complainant alleges reprisal for prior protected EEO activity, he or she need not show that the agency’s conduct affected a term, condition, or privilege of employment or constituted an “ultimate employment action” such as hiring, firing, demotion, denial of promotion or leave, or adverse pay decisions. Rather, any allegation of adverse treatment that is based upon retaliatory motive and is reasonably likely to deter complainant or others from engaging in protected activity will suffice to state a claim. See Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016). With regard to claims 2 and 3, the record reflects that Complainant alleged in her formal complaint that the Agency subjected her to reprisal when, from July 16, 2017 to September 15, 2017, Embassy Officials repeatedly entered her locked Embassy leased residence without her prior knowledge or consent, while she and her spouse were away from Copenhagen on leave. Complainant further asserted that upon her return, Embassy Officials cut the power to her broken refrigerator and oven and refused to compel the landlord to fix the appliances. Complainant noted that, as the Agency was the tenant of Complainant’s residence, the Agency was in the better position to raise these issues with the landlord. Complainant maintained that these actions were part of a retaliatory scheme that included the intrusion on June 13, 2017, by the Embassy’s Management Officer, who entered her residence approximately seven days after being named as a responsible management official in her spouse’s EEO complaint. 2020001680 7 In claim 4, Complainant alleged in her formal complaint that the Agency’s failure to reimburse her spouse’s legal fees constituted reprisal because “[t]he denial of funds affects me and my husband as a family and is unacceptable retaliation for protected activity.” Having reviewed the record, we find that claims 2 and 3 should have been accepted and considered together as part of Complainant’s overall retaliatory hostile work environment claim. Given the nature and severity of these allegations, which include the repeated unwelcome intrusion into Complainant’s shared abode, we find that these allegations, if true, state a viable claim of reprisal that would reasonably deter Complainant or others from engaging in protected activity. With regard to claim 4, we note that the Commission has long held that reprisal against a complainant’s spouse may constitute reprisal against the complainant. See, e.g., Rhinesmith v. Dep’t of the Treasury, EEOC Appeal No. 01983350 (Jan. 13, 2000) (holding that retaliation against a close relative of an individual who opposed discrimination can be challenged by both the individual who engaged in protected activity and the relative, where both are employees). As Complainant’s underlying allegation in claim 4 could be interpreted as claiming that the Agency retaliated against her spouse because of her [Complainant] EEO activity, we find that the Agency should have also accepted this claim for investigation as part of Complainant’s overall retaliatory hostile work environment claim. We turn now to Complainant’s request for a remand due to the Agency’s alleged failure to develop a complete and impartial factual record. As we are remanding claims 2 to 4 for an investigation, we find that Complainant should be given the opportunity to further develop the record on claims 1 and 5, so that an informed decision can be rendered as to whether the underlying incidents in claims 1 to 5, when considered collectively, amounted to an actionable retaliatory hostile work environment. See 29 C.F.R. § 1614.108(b). 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 for further processing. ORDER The Agency shall take the following actions: 1. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall issue Complainant a written notice accepting claims 2, 3, and 4 for investigation and complete an investigation into the merits of these claims. The Agency shall also conduct a supplemental investigation into claims 1 and 5. As part of the investigation, the Agency shall allow Complainant to request relevant records and obtain affidavits from relevant witnesses. If the Agency declines any of Complainant’s requests, the Agency should provide clear reasons for denying the request(s) and include the articulated reasons in the report of investigation. 2020001680 8 2. Within thirty (30) calendar days of completion of the investigation, the Agency shall issue a new final agency decision on the merits of the entire complaint, to include Complainant’s overall retaliatory hostile work environment claim encompassing claims 1 to 5. The final agency decision shall provide Complainant with appeal rights to the Commission. 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 supporting documentation that the corrective action has been implemented. 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). 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. 2020001680 9 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). 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). 2020001680 10 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 12, 2021 Date