[Redacted], Michal J., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

May 2, 2022

Appeal No. 2021002523 (E.E.O.C. May. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michal J.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021002523 Agency No. FBI-2019-00265 DECISION On April 22, 2021, Complainant filed an appeal2, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 9, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the AJ’s decision finding of no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Intelligence Analyst at the Agency’s Terrorist Screening Center in Vienna, Virginia. On July 14, 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 Appeals to the Commission must be filed within 30 calendar days after a complainant receives notice of the Agency’s final action, pursuant to 29 C.F.R. § 1614.402(a). Upon review, Complainant’s appeal appeared to be untimely. However, as the Agency did not object to the timeliness of the appeal, nor did it provide documentation demonstrating when Complainant receive the final Agency decision. As such, the Commission shall utilize our discretion to review the matter. 2021002523 2 2019, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment on the bases of disability (mental) and age (50) when: 1. a Supervisory Management and Program Analyst (Supervisor) stated that Complainant “rub[bed] her the wrong way,” and she did not want to talk to him; 2. Complainant’s Agency supervisors isolated him and would not speak to him; 3. the Supervisor was dismissive of his complaint about noise levels, and observed that his complaint was ironic given that he had himself been the subject of a complaint about noise; 4. the Supervisor constantly asked him to perform menial tasks; and 5. the Supervisor accused Complainant of having a problem with female supervisors. The Agency accepted the complaint for investigation. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant’s Agency supervisors were the Supervisory Management and Program Analyst (Supervisor) and the Unit Chief. Complainant asserted that his contract company supervisors (Contractor 13 and Contractor 24) informed him that he rubbed the Supervisor the wrong way, and to avoid her. Report of Investigation (ROI) at 66-67. Contractor 1 and the Supervisor denied this statement. ROI at 79; 94. Contractor 1 and the Supervisor both stated that Complainant had a good heart but had issues at work. ROI at 79; 95. Contractor 2 clarified that he had informed Complainant that he generally rubbed people the wrong way because he was abrasive. ROI at 86. Complainant felt that the work environment was toxic and isolating and that management never made him feel like he was part of the team. ROI at 68-70. For example, Complainant asserted that he was targeted by the Supervisor to perform menial tasks such as carrying bulk food items for the Agency employee store and performing janitorial duties. ROI at 70. Contractor 1 and Contractor 2 asserted that contrary to Complainant’s statement, he frequently volunteered to help around the office. ROI at 80; 88. Contractor 1 recalled an incident when Complainant became upset and stated that all he was good for was cleaning up and carrying sodas. ROI at 80. After that comment, his future offers of help were always declined. ROI at 81; 95. In June 2019, Complainant raised concerns about the general noise level of the office to the assistant to the Supervisor. ROI at 72. A few days later, the Supervisor sent an email stating that Complainant’s concerns were ironic, and Complainant was accidentally copied on this email. Id. The Supervisor acknowledged sending the email and stated that while Complainant was frequently loud, she also reminded all staff to watch their tones. ROI at 94. 3 Name found in the ROI at 77. 4 Name found in the ROI at 85. 2021002523 3 Contractor 1 stated that Complainant could be loud on work calls and when he previously asked him to be quieter, he seemingly took offense. ROI at 80. Contractor 2 stated that while Complainant often complained about the noise levels in the office, Complainant too was often very loud. ROI at 88. Complainant asserted that he was wrongly accused by the Supervisor of having problems with young female supervisors. ROI at 71. Contractor 1 and Contractor 2 asserted that Complainant had personality conflicts with coworkers and particularly seemed to take issue with younger people and females supervising him. ROI at 79; 81; 88. Contractor 2 detailed several incidents where either a younger or female employee would be instructing and/or correcting Complainant and Complainant would not take it well. ROI at 88-89. The Supervisor found that Complainant did not like taking directions from younger individuals, female individuals, or from people who did not have a law enforcement background like him. ROI at 95-96. 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). When the Agency did not receive a response from Complainant, it issued a final Agency decision on March 9, 2021, pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that the Agency subjected him to a hostile work environment or discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant’s appellate brief largely focuses on his disagreements with management’s characterization of him. Complainant also reiterates his previously raised arguments. In response, the Agency asserts that Complainant’s appeal fails to provide sufficient arguments and evidence to warrant a reversal of its final decision. The Agency requests that the Commission affirm its decision. 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”). 2021002523 4 ANALYSIS AND FINDINGS In considering whether any of the actions listed by Complainant, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct; (3) the harassment complained of was based on a statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Generally, in assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (Mar. 19, 1990); Cobb v. Dep’t of the Treasury, Request No. 05970077 (Mar. 13, 1997); Lashawna L. v. Nuclear Reg. Comm’n., EEOC Appeal No. 2019002093 (Sept. 22, 2020), req. for recon. denied EEOC Request No. 2021000455 (Dec. 30, 2020) (complainant detailed several incidents of harassment and provided names of witnesses who corroborated her claims and agency failed to meet its burden of articulating legitimate, nondiscriminatory reasons). Moreover, 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.’” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive it to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001). Assuming, arguendo, that Complainant established parts 1 and 2 of a prima facie case of harassment, we find that based on the record Complainant has not met the requirements of parts 3 or 4. In order to prevail, a complainant must provide more than just generalized allegations of harassment. See Alise A. v. U.S. Postal Serv., EEOC Appeal No. 2019005036 (July 20, 2021) (complainant alleged that her coworker frequently disparaged her and initiated a verbal and physical altercation due to her protected classes. However, complainant failed to provide evidence beyond her own conclusory statements. Sympathetic witness statements attested that complainant and the coworker had a contentious relationship but did not connect such conflict to the complainant’s protected classes). Ultimately, conclusory statements of harassment, without more, will not support a complainant’s claim of harassment. 2021002523 5 Here, in support of his claim, Complainant provided examples of how he was subjected to a hostile work environment. For example, he asserted that the Supervisor informed other management members that he “rub[bed] her the wrong way”, and that she did not want to talk to him (claim 1); that supervisors isolated him (claim 2); and that he was accused of having issues with female supervisors (claim 5). In claims 1 and 2, there is no evidence that the Supervisor made any such comments. Even if she did, there is no indication that she made the comments based on his protected classes. In claim 5, management did attest that Complainant seemingly had issues with younger individuals or female individuals supervising him. Even though management acknowledged this belief, there is nothing to indicate that any actions came from it. In claim 3, Complainant asserted that management, particularly the Supervisor was dismissive of his concerns regarding noise levels and that he was targeted to keep his voice down. While Complainant was informed to keep his voice down, there is nothing in the record to support his contention that he was targeted, or the only one to be told to watch his noise levels. Management frequently informed employees, including Complainant, to be mindful of their tone in the office. Complainant also asserted in claim 4 that he was constantly tasked with menial chores such as carrying supplies and cleaning trash cans in the office. The record does not support this contention. Instead, Complainant frequently volunteered to help around the office but when he made it known that he was seemingly always sought out to perform such tasks, his future offers of help were always declined. There is no evidence that Complainant was targeted to carry out menial work tasks. Aside from his generalized allegations of harassment, Complainant has not provided actual evidence, witness statements, or anything beyond his conclusory statements to support his assertions. Further, based on Complainant’s submissions and the record as whole, we find that the examples provided above, taken together, do not demonstrate that Complainant was subjected to a hostile work environment. We note that discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005); see also Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784, 35 FEP Cases 601 (E.D. Wis. 1984) (opining that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive”). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final decision finding no discrimination. 2021002523 6 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). 2021002523 7 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. 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 May 2, 2022 Date