Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Sep 4, 2013

0120113409 (E.E.O.C. Sep. 4, 2013)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120113409

Agency No. FBI-2009-00014

DECISION

On July 9, 2011, Complainant filed an appeal from the Agency’s June 10, 2011 final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq. Our review is de novo. 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 GS-14
Intelligence Analyst at the Agency’s San Francisco Division in Oakland, California.
Complainant had no supervisory responsibilities. Complainant had been transferred from the
Denver Division to the San Francisco Division in 2005. Complainant was assigned to a
counterterrorism squad and in February 2007 was transferred to a field intelligence group.
Complainant served as a Reports Officer for the on-line national security squad and conducted
analysis of counterintelligence. During this time, he was supervised by S1. In December
2007, Complainant was assigned to a new Supervisor (S2). Pursuant to a strategic
reorganization in June 2008, Complainant wanted to remain in the counterterrorism program in
order to utilize his language and cultural skills. However, S1 recommended that he be
transferred to the team handling cyber crimes and child pornography. In July 2008,
Complainant was assigned to squad CY-1 to handle cyber crime and innocent images.

On December 8, 2008, Complainant filed an EEO complaint wherein he claimed that the
Agency harassed him on the bases of his race (African-American), national origin
(African/Egyptian), age (60), and in reprisal for prior protected activity from February 2007 to
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December 2008, including but not limited to, derogatory and hostile comments made by S1,
being reassigned to another squad, being directed to move his belongings to another office and
receiving an “inaccurate” rating on his performance appraisal with an attached narrative
containing negative allegations.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

In its decision, the Agency acknowledged that there was significant friction between S1 and
Complainant. The Agency explained the friction as being due to Complainant having achieved
a GS-14 level position without having supervisory responsibilities and with having deficient
writing skills. Although it appears that Complainant was highly skilled, he was resented for
being difficult to work with and because his work product required a lot of revising and
editing. The Agency acknowledged that other employees attested to the fact that S1 was very
critical of Complainant but concluded that her hostility was not based on his protected classes.

With regard to the reassignment in July 2008, the Agency explained that there was no longer
an available spot on the squad for which Complainant expressed a preference, that everyone
was expected to move his or her belongings and that Complainant’s personal assessment of his
performance differed from that of S1, who believed that the work product of a GS 14 level
analyst should require little to no editing. The Agency concluded that Complainant failed to
prove he was a victim of harassment.

ANALYSIS AND FINDINGS

To prove his harassment claim, Complainant must establish that he was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in his position would have
found the conduct to be hostile or abusive. Complainant must also prove that the conduct was
taken because of a protected basis, i.e., in this case, race, national origin, age or prior
protected activity. Only if Complainant establishes both of those elements, does the question
of vicarious liability for supervisory harassment present itself.

Upon review of the record, we note that there is testimony from S1 explaining her attitude
towards Complainant, including the fact that she found him “creepy”; from former supervisors
concerning Complainant’s poor writing skills; as well as from other employees suggesting that
S1’s conduct towards Complainant may have in fact been tainted by race or national origin
animus as well as other animosity.1

1 Outside of Complainant’s presence, S1 made a derogatory comment about an individual
wearing a turban and complained about her difficulty understanding Complainant’s accent.
Complainant argues on appeal that nothing S1 or the
Assistant Special Agent in Charge attest to is believable because they were romantically
involved. However, because Complainant failed to request a hearing, we do not have the
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benefit of an AJ’s credibility determinations with regard to any of the aforementioned
testimony.

We conclude that the weight of the evidence presented is in the Agency’s favor. We find the
only real incident alleged that is sufficient to render the work environment hostile is S1’s
conduct, as the other incidents were adequately explained, and we are not sufficiently
persuaded that her conduct was based on unlawful animus towards Complainant’s protected
classes. While there is anecdotal evidence suggesting S1 was not comfortable with individuals
unlike herself, the preponderant evidence suggests that her negative comments were motivated
by resentment that Complainant had attained a high grade level without having to perform at
the same level as others and without having to supervise. While we do not find that S1’s
conduct as a supervisor reflects well upon the Agency, we are not persuaded by the record that
it was unlawfully motivated. For this reason, Complainant’s claim fails, and we AFFIRM the
Agency’s final decision.

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
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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

September 4, 2013
Date