Wade K.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Feb 13, 2019

0120171886 (E.E.O.C. Feb. 13, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Wade K.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120171886

Agency No. 201600008

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 23, 2017, final
decision 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Battle Analyst, GS-
13, at the Agency’s Rivanna Station at the Asia Pacific Regional Center (APRC) in
Charlottesville, Virginia, where he had worked since March 1, 2016. Prior to that position,
Complainant had been stationed at the DIA Headquarters since April 2010. During all events
giving rise to this complaint, Complainant was a part of the Defense Resources and
Infrastructure (DRI) section.

On March 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male) when:

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.
0120171886

2
1. He was subjected to sexual harassment and a hostile work environment as
evidenced by the following events:
a. Between mid-August and mid-September 2014, Staff Director, who was
Complainant’s second-level supervisor came over to his workspace, moved a
chair extremely close to him, leaned in towards his face and stated, "I love
you. No, you don't understand, I really love you and I always have. You know
what I'm all about. You know what makes me happy. You know what I want.
Will you help me out?";
b. Sometime between October and November 2014, Staff Director noticed him
walking down the hallway and shouted from afar, "[Complainant], you need
to return as a contractor";
c. On or about November 2014, Staff Director told him, "Let me tell you
something ... don't get in any kind of trouble or need me or expect my help in
any situation. You won't help me and don't come to me";
d. On or about August 2015, he submitted a request to Deputy Staff Director,
Complainant’s former supervisor, for a standing desk, in which he did not
receive a follow up concerning the status of his request;
e. On October 15, 2015, Deputy Staff Director denied him the opportunity to
attend an office temporary duty (TDY) to Langley Air Force Base (AFB),
after Branch Chief, Complainant’s direct supervisor at the time, made the
announcement, "we have plenty of money if anyone wants to go TDY";
f. In October 2015, Deputy Staff Director did not include his input to the weekly
significant acts (SIGACTS) report; and
g. In October 2015, Staff Director frequently came in his workspace and had
loud and jovial conversations with the new Division Chief for DRI-1.

The Agency sent Complainant a Notice of Partial Acceptance letter informing him of the partial
acceptance of some of his claims for investigation. The Agency dismissed claims 1a – 1c in
accordance with 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency also
informed Complainant that in addition to constituting part of his hostile work environment claim,
claims 1d and 1e also constituted discrete acts and would be investigated and analyzed as such.2

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 Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency’s final decision analyzed the dismissal of claims 1a-1c and found that those
incidents were not severe or pervasive enough to constitute harassment. Specifically, the gap in
time between when the last dismissed claim occurred, November 2014, and the next incident

2 The EEO investigator and the Agency referred to Claim 1d and Claim 1e as claims 2 and 3,
respectively.
0120171886

3
occurred, August 2015, was too large for the earlier incidents to be considered part of the same
unlawful harassment. The Agency found that the alleged incidents taken together did not
establish a prima facie case of harassment, as such actions were insufficiently severe or
pervasive to create a hostile work environment, and could not be attributable to Complainant’s
protected class. Regarding claims 1d and 1e as discrete acts of discrimination, the Agency
determined Complainant did not establish a prima facie case of discrimination on the basis of sex
because he failed to show he was subjected to an adverse employment action and that he was
treated less favorably than other similarly situated employees outside of his protected class. The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Complainant appealed.

ANALYSIS AND FINDINGS

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”).

Claims (1a- 1c)

We agree with the Agency’s decision to dismiss claims 1a-1c because these incidents were not
severe or pervasive enough to constitute a hostile work environment. We agree with the Agency
that when considering the nature of the incidents, the gap in time between when the last
dismissed claim occurred, November 2014, and the next incident occurred, August 2015, was too
large for the earlier incidents to be considered part of the same unlawful harassment. Because
we find, as discussed herein, that Complainant has failed to show that any of the remaining
incidents in the complaint were motivated by discrimination, claims 1a-1c, even when
considered with the remainder of the complaint, are not sufficiently severe or pervasive to
constitute a hostile work environment. Therefore, we find that claims 1a-1c were properly
dismissed for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1) and even if
considered to be part of a hostile work environment claim with the remainder of the complaint,
we find no discrimination.

Disparate Treatment Claims (1d and 1e)

0120171886

4
In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000). Moreover, to establish a prima facie case of reprisal Complainant
must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air
Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Here, assuming arguendo Complainant established a prima facie case of sex discrimination, the
Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual.

Regarding claim 1d,3 assuming, arguendo, Complainant did submit a request to Deputy Staff
director for a standing desk and was never informed of the status of his request, Complainant
failed to provide any evidence to support that the delay in the accommodation request was based
on a discriminatory basis, namely his sex. Even if Complainant could establish the delay in
receiving a standing desk was due to his protected status, the Agency has articulated a legitimate
nondiscriminatory reason for its actions. The Agency stated it never received a formal request for
a standing desk accommodation from Complainant. Moreover, Complainant has failed to provide
a rebuttal that the Agency’s reason was a pretext for discrimination or identified any similarly
situated individuals outside his protected class who were treated more favorably.

For claim 1e, Complainant failed to provide any evidence to support his claim that the denial of
TDY was based on his sex. Complainant failed to identify any other individuals who were given
this opportunity for TDY. Complainant admitted the reason TDY was denied was that after the
unit was informed of the opportunity, the Agency was informed all participants would have to be
funded by the Agency, not the Central Intelligence Agency (CIA) which was hosting this
training. Additionally, the Deputy Staff Director said the TDY was outside the scope of their
work and not necessary training for Complainant.

Upon review, the Agency found and we agree that there is no evidence that the Agency’s
articulated reasons were untrue or otherwise indicative of pretext.

3 Complainant has not alleged a denial of a reasonable accommodation.

0120171886

5
Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were
motivated by discrimination as he alleged.

Harassment Claims (1d – 1g)

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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 at 6 (March 8, 1994).

Complainant has failed to provide any evidence that the incidents cited in the complaint, if they
occurred as Complainant alleged, were motivated by discrimination. Moreover, the incidents
must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s]
employment and create an abusive working environment.” Harris, 510 U.S. at 21. The harasser’s
conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994). The incidents in claims 1d-1g are not sufficiently severe to
constitute a hostile work environment.

As discussed previously, Complainant failed to establish a discriminatory animus behind claims
1d and 1e. Regarding claim 1f, Complainant failed to provide evidence showing how not being
including in the SIGACTS report affected his employment or was intended to create a hostile
work environment. Additionally, Complainant failed to establish how his exclusion from the
SIGACTS reports were based on his protected status. Regarding claim 1g, as the Agency argued
in its brief, Complainant admitted Staff Director had reason to be in the area, was friendly with
other members of his unit, and there was no evidence to support that the “loud and jovial”
comments were based on Complainant’s protected status.

Complainant has not proffered sufficient evidence to show that the alleged harassment was based
on his protected bases. Accordingly, Complainant has failed to establish he was subjected to a
discriminatory hostile work environment.

CONCLUSION

We AFFIRM the Agency’s final decision.

0120171886

6
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
0120171886

7
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

February 13, 2019
Date