Israel J.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120180764 (E.E.O.C. Sep. 17, 2019)

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

Israel J.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120180764

Agency No. OBD-2016-00484

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 December 12, 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 an Information
Technology Specialist, GS-2210-13, at the Agency’s facility in Washington, D.C. On June 21,
2016, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile
work environment and discriminated against him on the basis of reprisal for prior protected EEO
activity when:

1. From February 2, 2014, his supervisor (S1) required him to attend weekly meetings;
2. On November 24, 2015, a female coworker (CW1) pushed him and threatened him;
3. From 2013 to the present, several coworkers made hostile remarks about Complainant to
other employees and contractors;

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.
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4. On May 15-16, 2016, S1 contacted him through his personal email account, and failed to
call him during a training exercise;
5. From 2013 to the present, management failed to send him critical emails and failed to give
him timely notice of scheduled laptop maintenance; and
6. On October 26, 2016, S1 issued him a counseling memorandum concerning his behavior
in the workplace.

In his formal complaint, Complainant also alleged that he was subjected to unlawful reprisal when:
(7) since 2014, management has been grooming a contractor to become a government employee;
(8) in March 2015, a coworker disclosed his birth year to contractors and staff, commenting that
she “cannot believe he is that old”; (9) on May 4, 2016, the Director overheard a coworker state
that she has accessed Complainant’s personal email, and she had been ordered to monitor his
personal account; and (10) on May 24, 2016, he observed a contractor engaged in a personal
services violation. The Agency dismissed these claims, pursuant to 29 C.F.R. § 1614.107(a)(1).
Specifically, the Agency dismissed (7)-(9) as being previously raised in Agency No. OBD-2015-
00001. The Agency also dismissed claim (10) for failure to state a claim as Complainant failed to
show that he was aggrieved.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

Initially, we address the Agency’s procedural dismissals. The regulation set forth at 29 C.F.R. §
1614.107(a)(1) provides that an agency shall dismiss a complaint that fails to state a claim or states
the same claim that is pending before or has been decided by the agency or Commission. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21,
1994).

The record shows that Complaint previously raised claims (7)-(9) in Agency No. OBD-2015-
00001. In addition, Complainant failed to show harm to a term, condition, or privilege of his
employment by his observation of the contractor. Consequently, we affirm the Agency’s dismissal
of these claims.

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).
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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”).

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
802 n. 13. 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).

In the context of retaliation, Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination.
Complainant v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in accordance with the burdens
set forth in McDonnell Douglas, a complainant may establish a prima facie case of reprisal by
showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected
activity; (3) subsequently, the complainant was subjected to adverse treatment by the agency; and
(4) a nexus exists between the protected activity and the adverse treatment. Complainant v. Dep't
of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of reprisal
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. With respect to claim (1), the record shows that Complainant received an unsatisfactory
rating in his performance appraisal for fiscal year 2013. S1 states that, in order to assist
Complainant in bringing his performance up to the satisfactory level, he required Complainant to
meet with him on a weekly basis to “help clarify requirements of work assigned, identify any
errors, training requirements, or additional guidance to strengthen work products, and to help
[Complainant] meet expectations.”

As to claim (4), the record shows that the Agency conducted a continuity of operations training
exercise that involved management contacting all employees, and employees indicating that they
had received the message. S1 states that Complainant provided his personal cell phone, home
phone, Agency email, and personal email as contact details to be used during the training exercise.
S1 further states that when Complainant did not timely respond to the message left by phone, he
contacted Complainant on his personal email to which Complainant sent the required response.
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With respect to claim (5), S1 states that laptop maintenance occurs every 90 days and that
Complainant should have been aware of this fact as he had been using his Agency laptop for
telework. S1 states he only sent reminders to those employees who did not regularly use their
laptop. Further, S1 states that when Complainant expressed a desire to be informed of potential
training opportunities, he arranged for him to receive notification of any such opportunities. We
find that Complainant failed to show that the Agency’s articulated reasons for its actions were a
pretext for unlawful reprisal.

With respect to claim (6), the record shows that the Agency’s security and emergency planning
staff received a memo, dated September 12, 2016, including statements from five of Complainant’s
coworkers, addressing Complainant’s behavior in the workplace. In response to the allegations,
management issued Complainant a counseling memorandum, dated October 26, 2016, stating that
“employees have stated that you have been taking pictures of staff without their knowledge and
consent, recording conversations without consent, and following them around the office. Several
who have come forward with these observations are female and feel uncomfortable with your
actions toward them and others in the office.” The memorandum further stated that the letter would
not be placed in his official personnel record, but that the expectation was for Complainant to cease
the identified behavior immediately. Again, we find that Complainant failed to show that the
Agency’s articulated reasons for its actions were a pretext for unlawful reprisal. Further, as to
claims (2) and (3), we find that Complainant failed to proffer any evidence, beyond his mere
assertions, that these incidents either occurred as alleged or were motivated by reprisal for his prior
protected EEO activity.

Finally, insofar as Complainant contends that the incidents alleged constitute retaliatory
harassment, the Commission finds that (even if we consider claim (10)), since he failed to refute
the legitimate, nondiscriminatory reasons proffered by the Agency for its actions, he also failed to
establish that such actions were taken for retaliatory reasons. Accordingly, we find that
Complainant failed to establish that he was subjected to a discriminatory hostile work
environment. See Complainant v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).

CONCLUSION

The Agency’s final decision is AFFIRMED.

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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.
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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

September 17, 2019
Date