0120090549
07-29-2010
Terence Warren, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Terence Warren,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120090549
Agency No. DOS-F-017-08
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as an Electrical Engineer, GS-14, in the Program Support Branch,
Facilities Management Division (FAC), Operations and Maintenance Office
(OM), Bureau of Overseas Building Operations (OBO), in Newington,
Virginia. Report of Investigation (ROI), at 3. Believing that he
was victim of discrimination, Complainant sought EEO counseling and
subsequently filed a formal complaint.
Complainant alleges that he was subjected to discrimination in reprisal
for prior EEO activity when:
1. In January 2007, Complainant was not provided an opportunity to apply
for a team leader position.
2. On March 6, 2007, Complainant was assigned to work outside his job
description and not provided any guidance to successfully complete the
assignment.
3. On March 6, 2007, Complainant's work requirements were changed and he
was not provided with enough time to complete them in order to receive
a fair performance evaluation.
4. On September 10, 2007, Complainant's supervisor sent him an electronic
mail message, stating that he was informed of a rumor about complainant's
concern with the travel orders for another employee.
As an amendment, Complainant also alleges that he was subjected to
discrimination on the bases of age (over 40), national origin (United
Kingdom, naturalized United States citizen) and in reprisal for prior
EEO activity when:
5. Since approximately November 2007, Complainant has been subjected to
a hostile work environment.1
On December 17, 2007, the Agency issued a notice of partial
acceptance/dismissal in which it dismissed claim 4 pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency found
that Complainant failed to show that he suffered an adverse action as a
result of the incident alleged or that he was denied a loss or harm to a
term, condition, or privilege of employment with regard to the incident.
The Agency accepted the remaining issues for processing.
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a final decision from the Agency on the merits of
his complaint.
On October 17, 2008, the Agency issued a decision endorsing and
incorporating by reference the December 17, 2007 dismissal of claim 4.
The Agency also found no discrimination as to claims 1, 2, 3, and 5.
Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Claim 4
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an Agency shall dismiss a complaint that fails to
state a claim. An Agency shall accept a complaint from any 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We concur with the Agency and find that Complainant is not aggrieved as
a result of the incident alleged in claim 4. Nothing in the record
indicates that Complainant suffered any harm or loss with respect
to a term, condition, or privilege of employment for which there is
a remedy. Complainant failed to explain how this incident rendered
him aggrieved. Specifically, there is no evidence that any management
official took any action against him affecting a term, condition or
privilege of his employment.
Claims 1, 2, & 3
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 EEOC Management
Directive 110, Chapter 9, � VI.A. November 9, 1999) (explaining that 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").
Upon review, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim 1, the
Chief Program Support Branch (Chief), Complainant's immediate manager,
stated that the Program Manager/Team Leader position was originally
posted in January 2007, and Complainant was not identified as being on
the certification of eligibles (if, in fact, he did apply). The Chief
asserted that the selectee for the Program Manager/Team Leader position
(selectee) had been on a special assignment with "rights" to return to OBO
upon completion of the assignment (one year). The Chief claimed that the
selectee was well qualified for the vacancy and, with appropriate Agency
approvals, was placed in the assignment based on his "return rights."
The Chief said that Complainant's prior EEO activity was not a factor
in placing the selectee. ROI, at Affidavit B.
As to claims 2 & 3, the Chief stated that one of his responsibilities as
the Program Support Branch Chief included the establishment of goals and
objectives and end of year performance appraisal (subject to higher level
approval). The Chief asserted that Complainant, consistent with his past
behavior, did not agree to the Fiscal Year (FY) 2007 Performance Plan
expectations. The Chief claimed that the expectations were consistent
with the Agency guidelines and established for Complainant without his
acknowledging signature. The Chief stated that the critical elements
established for Complainant were the same as his co-workers. The Chief
argued that he met with Complainant on March 6, 2007 to discuss the
expectations and progress. The Chief stated that Complainant provided
workload updates and they discussed next steps. The Chief asserted that
he offered to meet with Complainant on a daily basis (if he wished) to
discuss this progress; however, Complainant declined the offer. The Chief
claimed that, when the selectee arrived in April 2007, Complainant told
him he no longer wished to meet with him. The Chief said that he and
Complainant met on October 17, 2007 and had a follow-up meeting on October
29, 2007, to discuss his progress towards meeting the Critical Elements.
The Chief stated that Complainant was uncooperative during the October 17,
2007 meeting. The Chief argued that the Division Director participated
in the October 17, 2007 meeting and told Complainant that the Critical
Elements would remain in effect, with no changes. The Chief asserted that
Complainant delayed the interim evaluation meeting until October 17, 2007,
and consistently demonstrated unacceptable behavior. The Chief claimed
that there were no changes to the Critical Elements and his specific
assignments were consistent with the established Element requirements.
The Chief argued that Complainant did perform and meet the Critical
Elements for 2007 and that his end of year evaluation was "Excellent."
The Chief said that Complainant's performance expectations were the
same as his co-workers and Complainant was not treated differently due
to prior EEO activity. ROI, at Affidavit B.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). 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 v. Forklift Systems, Inc.,
510 U.S. 17, 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).
To establish a claim of hostile work environment, Complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on his statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
With respect to claim 5, the Agency noted that Complainant's alleged
discriminatory harassment consisted of incidents in November 9, 2007 and
March 7, 2008. Specifically, Complainant stated that, on November 7,
2007, he received a Letter of Reprimand, which Complainant characterized
as a "total fabrication." Complainant said that the letter was based
on a performance review discussion between himself, the Chief, and
the Division Director, and was issued "without cause" and constituted
hostility. Additionally, Complainant stated that he had a confrontation
with the Chief on March 7, 2008, in which the Chief, in a hostile tone,
asked "Why are you looking at me?" Moreover, Complainant stated that,
eighteen months ago, he was place with a group of "older people" (defined
by Complainant as aged 60 or over) by the Chief. Complainant stated
that the reassignment was against his will and displaced him from his
normal duties as an Electrical Engineer. Complainant said the group,
to which he was assigned, was not provided with funding, and he had
no work to perform. Complainant further stated that the group was all
"foreign born." ROI, at Affidavit A.
The Chief stated on March 7, 2008, he walked into Complainant's office
area and asked how the group was doing. The Chief said that Complainant
stood, said nothing, and "piercingly stared me down." The Chief
asserted that he asked Complainant if he had any concerns whereupon he
(Complainant) responded, "Why are you so paranoid." The Chief claimed
he then left the area without comment. The Chief argued that a meeting
was held on October 17, 2007, with Complainant, the Division Director,
and himself (at the Division Director's request) to discuss goals,
responsibilities, and Complainant's responsiveness to his supervisor.
The Chief articulated that Complainant was argumentative, demonstrated
unacceptable behavior during the meeting, and was disrespectful to
the Division Director. The Chief stated that proposed Complainant to
be issued a Letter of Reprimand as a result, and to his knowledge, the
disciplinary action remains in effect. The Chief said approximately 18
months ago, a new unit was established and required temporary staffing.
The Chief claimed that nine employees were assigned to the unit.
The Chief asserted that Complainant and three other employees were
returned to their regular duties after ninety days, where they were all
currently employed. ROI, at Affidavit B.
The Agency found that, while Complainant has established his membership
in the relevant protected classes, he had not shown, however, that he
was subjected to any physical or verbal conduct or harassed in any manner
where his age, national origin, or prior EEO activity was referenced or
considered. The Agency determined that Complainant failed to demonstrate
that the actions of his supervisors constituted a pattern of harassment,
to which he was subjected to on a prolonged basis, nor was there any
evidence that the actions caused him to suffer any measurable personal
harm. The Agency articulated that, even assuming the facts most favorable
to Complainant, the conditions of employment were not so altered or
sufficiently severe or pervasive to create a hostile work environment.
After a careful review of the record and contentions on appeal, the
Commission finds that Complainant failed to rebut the Agency's articulated
legitimate, nondiscriminatory reasons for its actions. Additionally, the
Commission finds that Complainant has failed to show, by a preponderance
of the evidence, that he was subjected to discrimination on the basis
of reprisal with respect to the work assignments', work requirements',
and work opportunity claims. Moreover, Complainant failed to show,
by a preponderance of the evidence, that he was discriminated against
on the bases of age, national origin, or reprisal with respect to the
harassment claim. Furthermore, Complainant has failed to show that
the alleged harassing incidents, when considered together, constitute
a hostile work environment. Final Agency Decision, at 11, 12.
The Agency's decision dismissing claim 4 and finding no discrimination
as to claims 1, 2, 3, and 5 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court
that the Court appoint an attorney to represent you and that the Court
also permit you to file the action without payment of fees, costs,
or other security. See Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request
is within the sole discretion of the Court. Filing a request for an
attorney with the Court does not extend your time in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 29, 2010
__________________
Date
1 We have reordered and renumbered the allegations.
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0120090549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013