Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 1, 2015

01-2013-0342-0500 (E.E.O.C. Sep. 1, 2015)

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

,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120130342

Hearing No. 570-2010-00773X

Agency No. DOS-F-011-09

DECISION
On November 7, 2012, Complainant filed an appeal from what became the Agency’s final
action 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

. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R.
§ 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final
action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer
Utility Manager at the Agency’s work facility in Arlington, Virginia. On October 20, 2008,
Complainant filed an EEO complaint wherein he claimed that the Agency harassed him on the
basis of reprisal for his prior protected EEO activity when in May 2008, he was subjected to a
hostile work environment when he and his neighbors received a false and threatening letter in
the mail at their homes.

On December 5, 2008, the Agency dismissed the complaint on the grounds of failure to state a
claim. Complainant filed an appeal with the Commission. In Complainant v Department of
State, EEOC Appeal No. 0120090923 (April 15, 2009), we reversed the Agency’s final
decision and remanded the complaint for further processing. The Agency filed a request for
reconsideration. In Complainant v. Department of State

, EEOC Request No. 0520100004
(October 23, 2009), we denied the Agency’s request for reconsideration.
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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). Complainant timely requested a hearing.
The AJ held a hearing on July 12, 2012, and issued a decision on September 10, 2012.

The AJ found that that the Agency was not liable for the harassment that occurred. The
complaint focused on Complainant’s relationship with a coworker who had filed an EEO
complaint in 2004, against Complainant’s Supervisor, and Complainant had testified
unfavorably toward the coworker. In 2006, Complainant filed an EEO complaint against the
Agency wherein he claimed that the same coworker had subjected him to retaliatory
harassment characterized by, but not limited to, threats and false accusations. The AJ in that
matter found that Complainant failed to establish that he had been subjected to a retaliatory
hostile work environment. The AJ in the instant complaint noted that the decision in the prior
complaint encompassed all activity prior to the May 2008 letters giving rise to the instant
matter.

On May 6, 2008, Complainant, his wife, and his neighbors received a letter allegedly from an
entity that indicated it did EEO investigative work. The letter stated that the entity had been
contacted by Complainant to defend him against charges being brought against him by the
Agency. The charges included that while traveling in Thailand, Complainant had engaged in
sexual activity with child prostitutes, violated government ethics involving his private business
and conspired with foreign nationals to break currency, ethics and conspiracy laws.

Complainant stated that he received the letter the day after the coworker failed to appear for
his deposition in the 2006 complaint filed by Complainant. Complainant maintained that the
letter’s content was fabricated and intended to humiliate him and ruin his reputation in his
neighborhood. The AJ noted that on May 14, 2008, Complainant informed the Agency that he
and his neighbors received letters containing malicious and slanderous content. Complainant
stated that he believed the coworker was the source of the letters. The Agency appointed a
Special Agent to investigate the situation.

The AJ noted that the Special Agent learned on May 14, 2008, that the letters had been mailed
in the Northern Virginia area. The Special Agent submitted three letters and their envelopes to
the Department of Homeland Security, Forensic Document Laboratory for analysis, along with
the coworker’s fingerprint from his security file. On May 15, 2008, the Special Agent
received from another Special Agent anonymous letters mailed between October and December
2007, that targeted the Director of Facilities Management for Overseas Building Operations.
These letters were also submitted to the Forensic Document Laboratory for analysis. In June
2008, the Special Agent learned that the Forensic Document Laboratory had determined that
the letters targeting Complainant and those targeting the Director were from the same printer.

On July 21, 2008, the Special Agent was informed that the printer at issue was a Lexmark
model C912 shipped in September 2004 to a Richmond-based company. On July 31, 2008, the
Special Agent was told by a former company employee that the coworker had visited the
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company between 2002 and 2005 and had received a printer from the company President. On
August 29, 2008, the Special Agent was informed by the company’s former Comptroller that
the coworker had visited the company on numerous occasions. On September 30, 2008, the
Special Agent learned that the fingerprint analysis of the letters was inconclusive. On
November 10, 2008, the Bureau of Diplomatic Security’s computer forensics division
discovered the coworker’s declaration in an EEO complaint from his computer that had been
printed by a Lexmark C912 printer. On January 30, 2009, the Special Agent interviewed the
company’s President and was told that the coworker had asked for and received company
surplus equipment in the past, but he did not recall the coworker receiving a printer.

The Special Agent interviewed the coworker on June 18, 2009. The coworker denied
receiving a computer printer from the company, denied ever owning a Lexmark printer, and
also denied producing or ever seeing the letters regarding Complainant or the Director. In
August 2009, the Special Agent secured documents from the coworker’s complaints and
submitted them to Homeland Security’s Forensic Document Laboratory. Subsequently, the
Forensic Document Laboratory coordinated with the Secret Service Forensics Laboratory to
secure information necessary to link particular printed pages to its printer of origin. On May
14, 2010, the Special Agent learned that the analysis results revealed that a single printer had
printed five pages from the coworker’s affidavit addendum in February 2006, the anonymous
letters received by Complainant and his neighbors and the anonymous letters to the Director.
On June 16, 2010, the Bureau of Diplomatic Security installed security cameras to monitor the
front of Complainant’s residence.

By letter dated June 22, 2010, the Executive Director of the Bureau of Overseas Building
Operations placed the coworker on administrative leave, effective immediately. By letter dated
September 30, 2010, the Agency informed the coworker of its proposal to remove him. The
AJ noted that the proposed removal was based on multiple charges. The charges were
improper personal conduct and a lack of candor. The charge of improper personal conduct
contained four specifications, one concerning writing a malicious letter about the Director
which was sent to the Office of the Inspector General, and three specifications relating to
malicious letters about Complainant that were sent to Complainant and his neighbors. The
charge of lack of candor contained five specifications concerning the coworker’s responses to
investigators. The Notice of Proposal Removal referenced various aggravating factors,
including the coworker’s prior disciplinary history and the fact that the letters created at least
the appearance of reprisal for protected activity and interference with Complainant’s right to
participate in the EEO process.

The AJ stated that the coworker retired on November 19, 2010, and was officially separated
from the Agency on December 1, 2010. The retirement was classified as “in lieu of
involuntary action.” The AJ noted that throughout the period encompassing this situation
Complainant received numerous awards and was rated Outstanding on his performance
appraisals.

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The AJ emphasized in his analysis that the only action before him potentially representing a
hostile work environment concerned the May 2008 letters. The AJ found that the letters were
sufficiently severe to constitute harassment. However, the AJ found that the Agency exercised
reasonable care to promptly correct the alleged harassing behavior. The AJ noted that the
Agency reacted to the letters as soon as it learned of the incident. The AJ stated that at no
point did the Agency dismiss Complainant’s concerns or delay its investigation. The AJ
rejected Complainant’s argument that the Agency should have more promptly linked the letters
to the coworker, given his history with Complainant. The AJ reasoned that Complainant did
not prove a hostile work environment in his prior EEO complaint and therefore the Agency
could not be faulted for conducting a thorough investigation and not immediately identifying
the coworker as the culprit. Further, the AJ noted that the Agency referred the matter to the
Department of Justice, but the Department of Justice declined to file criminal charges against
the coworker. The AJ observed that other steps the Agency undertook were to allow
Complainant to work from home during the investigation and that the Supervisor for both
Complainant and the coworker had separated them to ensure their professional responsibilities
did not require them to interact. Additionally, the AJ stated that the Agency promptly
terminated the coworker upon receiving the results of the investigation.

When the Agency did not issue a final action within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R.
§ 1614.109(i).

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the incidents prior to the May 2008 letters were not
presented as evidence to demonstrate a hostile work environment but rather to show that the
Agency was aware of the previous problems between the coworker and him. Complainant
maintains that the prior actions against him are factors in determining whether the Agency
exercised reasonable care in promptly correcting the harassing behavior. Complainant argues
that the Agency was dilatory in linking the letters to the coworker.

In response, the Agency asserts that its duty to take action was not triggered until it learned of
the May 2008 letters. The Agency maintains that it initiated a comprehensive investigation as
soon as it became aware of the harassment and that it took appropriate action against the
coworker upon the conclusion of the investigation.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
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finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
Complainant claims that he was subjected to retaliatory harassment by a coworker. To
establish this claim, 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).
An agency is liable for harassment by a coworker or other non-supervisor when it “knows or
should have known of the conduct, unless the Agency can show that it took immediate and
corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate
depends upon “the severity and persistence of the harassment and the effectiveness of any
initial remedial steps.” Taylor v. Department of the Air Force

, EEOC Appeal No. 05920194
(July 8, 1992).
The appropriateness of the Agency’s conduct in response to harassment depends upon “the
particular facts of the case, the severity and persistence of the harassment, and the
effectiveness of any initial remedial steps.” Owens v. Department of Transportation, EEOC
Appeal No. 05940824 (September 5, 1996). Appropriate corrective action is a response that is
reasonably calculated to stop the harassment. When an agency becomes aware of alleged
harassment, it has a duty to investigate such charges promptly and thoroughly. See Rodriguez
v. Department of Veterans Affairs

, EEOC Appeal No. 01953850 (August 29, 1996).
In the instant complaint, we observe that Complainant received on May 6, 2008, a letter
allegedly from an entity that stated he had contacted the entity for purposes of defending him
against charges being brought by the Agency. The charges pertained to engaging in sexual
activity with child prostitutes overseas, violating government ethics involving his personal
business, and conspiring with foreign nationals to break currency, ethics and conspiracy laws.
It is clear that the nature of the letters at issue was sufficiently severe to constitute harassment.
The letters were not sent within Complainant’s workplace, but they were related to his work.

Complainant informed the Agency on May 14, 2008, that he and his neighbors received letters
containing malicious and slanderous content. The Agency promptly assigned a Special Agent
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on May 14, 2008, to investigate the situation. Within three and a half months, the Special
Agent learned that the letters had been mailed in the Northern Virginia area, he had received
from another Special Agent anonymous letters mailed between October and December 2007,
that targeted the Director of Facilities Management for Overseas Building Operations, he
submitted the letters to the Forensic Document Laboratory for analysis, he learned that the
Forensic Document Laboratory had determined that the letters targeting Complainant and the
Director were from the same printer, a Lexmark C912, and he became aware that the printer
had been shipped in 2004 to a Richmond-based company. The Special Agent was told by a
former employee of that company that the coworker had visited the company between 2002
and 2005 and received a printer from the company’s President, and he was also informed by
the company’s former Comptroller that the coworker had visited the company on numerous
occasions. In November 2008, the Bureau of Diplomatic Security’s computer forensics
division discovered the coworker’s declaration in an EEO complaint from his computer had
been printed by a Lexmark C912 printer.

In January 2009, the Special Agent interviewed the company’s president and in June 2009, the
Special Agent interviewed the coworker. In August 2009, the Special Agent obtained
documents from the coworker’s complaints and submitted them to Homeland Security’s
Forensic Document Laboratory. Thereafter, the Forensic Document Laboratory coordinated
with the Secret Service Forensics Laboratory to secure information necessary to connect
particular printed pages to its printer of origin. On May 14, 2010, the Special Agent was
informed that the analysis results disclosed that a single printer had printed five pages from the
coworker’s affidavit addendum in February 2006, the anonymous letters received by
Complainant and his neighbors, and the anonymous letters to the Director.

On June 16, 2010, the Bureau of Diplomatic Security installed security cameras in front of
Complainant’s residence. The coworker was placed on administrative leave, effective
immediately, on June 22, 2010. The Agency issued a proposal to remove the coworker on
September 30, 2010, and the coworker was officially separated from the Agency on December
1, 2010, subsequent to his retirement. It is evident from the steps undertaken by the Agency,
given the unique circumstances of this case, that it promptly reacted to Complainant’s concerns
involving the coworker and that it conducted a thorough and effective investigation that
resulted in the coworker being identified as the culprit responsible for the May 2008 letters.
We find that the Agency exercised reasonable care to promptly investigate and stop the alleged
harassing behavior. Therefore, the Agency is not liable. The Agency’s final action 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:
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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
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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

Date
September 1, 2015