[Redacted], Ward B., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2022002543 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ward B.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2022002543 Hearing No. 570-2019-01337X Agency No. DOS-0346-18 DECISION 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 March 15, 2022, final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Senior Watch Officer at the Agency’s Baghdad Diplomatic Support Center in Bagdad, Iraq. Complainant’s position was a temporary Personal Service Contract, which was non-status and non-permanent, and required a medical clearance. Report of Investigation (ROI) at 80-1. On September 27, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race/national origin (Hispanic),2 color (White), and 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 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, herein the Commission acknowledges Complainant’s self-identification of his race as Hispanic. 2022002543 2 disability (post-traumatic stress disorder (PTSD)), and in reprisal for prior protected EEO activity, when: 3 1. on May 19, 2018, Complainant’s badge was removed, and he was forcibly confined to a room; 2. following a May 19, 2018, email, expressing a loss of confidence in Complainant’s ability to perform his duties, Complainant was required to leave his assignment in Baghdad, Iraq; 3. on July 1, 2018, Complainant’s employment contract was terminated; and 4. from July 8, 2017, through July 17, 2018, Complainant was subjected to a hostile work environment, including but not limited to, when actions were taken to undermine Complainant’s authority; false accusations were made against him; threats were made to have him removed from his position; and belittling and demeaning behavior was exhibited against him. After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. When the Agency did not issue its final order, the AJ’s decision became the Agency’s final action. The instant appeal followed, but Complainant did not file a brief in support of his appeal. The Agency opposed Complainant’s appeal. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 3 Complainant withdrew the bases of race, color, and disability for claim 1; race and color for claim 2; and disability for claim 4. ROI at 33. 2022002543 3 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and he must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to offer any arguments on appeal, and he did not establish such a dispute. Assuming, arguendo that Complainant established a prima facie case of discrimination based on his color, disability, and race, and in reprisal for prior protected EEO activity for claims 1-3, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. Complainant’s Supervisor (Supervisor) explained that, on May 19, 2018, Complainant exhibited behaviors that affected his ability to perform his duties related to critical security functions, such as lack of orientation and anxiety/paranoia. ROI at 295. Complainant’s second-line supervisor, the Deputy Regional Security Officer (DRSO), added that, later that afternoon, he observed Complainant wandering around and loudly weeping. Complainant was then seen by a Behavioral Health Specialist (BHS) for an assessment of his mental health. BHS recommended a MEDEVAC for an emergency psychiatric evaluation of Complainant. ROI at 342. On May 20, 2018, Complainant came to work and appeared to be paranoid. When the Supervisor and DRSO tried to speak with Complainant, he refused to step into DRSO’s office and stated that he wanted to speak with a representative and an EEO counselor. DRSO informed Complainant of his right to contact anyone for assistance and encouraged him to speak with BHS. They stated that Complainant could not be at the office and Complainant became confrontational, and they asked for his badge, radio, and cell phone. ROI at 342. The Supervisor averred that Complainant was not confined to his room. ROI at 299. Throughout the night, Complainant made calls to the Operations Center sounding confused, paranoid, and despondent. An Emergency Response Team was dispatched, and Complainant was taken to the hospital. Complainant was assessed with acute psychosis and an immediate threat to himself or others. Complainant was taken by MEDEVAC to Jordan for an emergency psychiatric evaluation. ROI at 343. Complainant was subsequently deemed medically unfit for his Senior Watch Officer position. ROI at 344. The Medical Director modified Complainant’s medical clearance, and Complainant was not cleared for overseas duty, effective June 22, 2018. ROI at 402. Complainant’s contract was terminated based on a change in his medical clearance and inability for deployment in a high-threat environment. ROI at 377. Complainant did not provide any evidence to prove that the Agency’s reasons were pretexts for discrimination. As such, we find that Complainant did not establish that the Agency discriminated against him based on his color, disability, or race, or in reprisal for protected EEO activity, for claims 1-3. Regarding Complainant’s allegation of a hostile work environment (claim 4), even crediting Complainant’s version of events, we find that he failed to show that the complained of conduct was based on a protected category. 2022002543 4 Complainant’s affidavit contained two examples of the alleged harassment when on April 25, 2018, an employee did not follow the Supervisor’s instructions and did not inform Complainant of the instructions, and Complainant was blamed; and on May 14, 2018, the Supervisor blamed Complainant for his employee’s unprofessionalism and stated that the issue would not have occurred if Complainant had asked the employee where he went. ROI at 370. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Vet. Aff., EEOC Appeal No. 0120130465 (Sept. 12, 2014). There is no evidence that the work- related incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment based on his color or race. In addition, to ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Here, Complainant presented no evidence of a retaliatory motive aside from his bare assertions, and as such, we find that Complainant did not prove that he was subjected to retaliatory harassment. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the Agency’s arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action on the AJ’s 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 2022002543 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. 2022002543 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 October 12, 2022 Date