0120121853
09-06-2012
James F. Cisek, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
James F. Cisek,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120121853
Agency No. DOS-F-060-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 16, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Officer (HRO) at the United States Embassy facility in Berlin, Germany.
On April 15, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of sex (male) and in reprisal for prior protected activity when:
1. on November 17, 2010, he was issued an "unsatisfactory" rating on his 2010 performance rating;
2. management did not follow Department policy regarding his departure procedures; and
3. he was subjected to a hostile work environment characterized by, but not limited to, inappropriate comments and behavior.
The Agency accepted the complaint for investigation. Regarding claim 1, during the investigation the Minister-Counselor stated that from April 2010 onward, she was Complainant's reviewing officer (RO) during the second part of his assignment in Berlin. RO stated that at that time, she participated in Complainant's rating and evaluation. RO stated that her interaction with Complainant became more frequent and close during the rating period from April 2010 to December 2010, after his rating officer departed from the post. RO acknowledged that she was made aware of Complainant's performance issues beforehand. RO stated that on one occasion she learned that Complainant was not typing his own emails and instead had his staff members perform that function for him; and "had problems with responding to emails in a timely fashion."
Further, RO stated that she and Complainant's reviewing officer from the first period (RO1) noted that Complainant "was having trouble grasping HR concepts and we both agreed that it was in his developmental interests to scale back his duties and have him focus on one area on HR work first, to mater that one area, then move on to the next." RO stated "in the absence of an SHRO for Mission Germany, and as someone who's had two tours in HR/CDA, I sat down myself four-five times with [Complainant] to do informal training, walking him through the various parts of the Assignment cycles, showing him where he could find information, and walking him through who had what role in Assignments back in EUR-I0/EX/Hr (where he'd had a 'bridge' assignment in the fall of 2009 of one-two weeks before coming to Berlin; I note that in June 2010 he could not remember the names of the EUR-10/IO/EX/HR Foreign Service staff who handled assignments for Germany). At each training session, I had to repeat the same information, because [Complainant] was not able to remember the information from the last session, or often, explanations I'd just given him a few minutes earlier."
RO stated that she used the office's funds to pay for two one-day trips for the more senior Foreign Service HR Officer to be Complainant's mentor, to come to Berlin to work with Complainant "both to establish a closer mentor/mentee relationship and also to get [FS's] 'take' on [Complainant's] knowledge, skills and abilities (KSAs) as an HRO and how best to craft a developmental plan for him. [FS] emailed [a] report to me on [Complainant's] KSAs [indicating that Complainant] was struggling; she noted, for example, that even after six months in the job he had no idea what each LE staff member of his section did. She also noted that he interrupted them frequently in a manner that kept them from performing their work and that she had counseled him to focus on learning his craft and to allow his excellent Locally Employed staff Hr specialists do their jobs without constant interruption."
RO stated that she drafted a Form 1974 (DS01974) to provide counseling to Complainant concerning his deficiencies, and provided a copy to him in order to allow him to think about areas in which she needed to improve his performance. RO stated that she was worried that the counseling would upset Complainant, so she never formally delivered a signed copy to him. RO stated, however, on September 10, 2010, she gave Complainant a written counseling statement cautioning him about the need to safeguard sensitive information such as HR or EEO information about employees. RO stated that periodically through the fall, Complainant's actions "continued to show serious lack of judgment."
RO stated that Complainant's sex and prior protected activity were not factors in her determination to give him an unsatisfactory rating. Specifically, RO stated that Complainant's rating "is a result solely of his own sustained poor performance that started coming to my attention from April 2009 onward, and which I continually addressed from April onward with [Complainant] himself."
Regarding claim 2, the Management Officer (MO) stated "employees generally complete the process of preparing for departure from post, also referred to as the 'check-out process' in stages, often starting weeks prior to their actual departure. There are numerous steps included, and many offices to visit/signatures to obtain, to ensure the employee has completed whatever steps are needed to wrap up their official and personal duties/tasks." MO stated that the final stages of the check-out are normally conducted in the last day or two the employee is in the office "in the final days before departure completing the check-out along with the remainder of their work-related duties [emphasis in its original]."
MO stated that on December 14, 2010, Complainant's final week at post, she urged him to cease working on Human Resources matters to focus on completing his out-processing. Specifically, MO stated "this allowed [Complainant] the remainder of Tuesday-Thursday, December 14-16 [2010], to complete his check-out." CAO stated, however, that on December 14, 2010, Complainant left the office mid-day "after advising an LE staff member that he would be working from home with my approval. I had not authorized his absence from the office, either verbally or in writing, and was perplexed. I had urged him earlier that day to allow me and others to handle HR matters, so that he could focus on his check-out post. I had understood that he had already completed the pack-out of his personal belongings from his residence, and the required residential inspection from his USG quarters, and expected he would remain on the premises in the Embassy, visiting various offices to administratively out-process from post, as it is required during the final check-out process. I tried, but was unsuccessful in reach him that day, despite calls to his office, home and cell phone (and messages left, where possible)."
Further, MO stated that on December 15, 2010, she received a call from the nurse in the Health Unit stating that Complainant was ill and was not permitted to work for the duration of the day. MO stated that the nurse also notified her that Complainant "had been provided with specific instructions regard whether he could work the next day. She wanted me to understand that he should be excused from work due to illness; for reasons of medical confidentiality, she did not disclose the specifics of his condition, nor did I ask." MO stated that she did not see Complainant again but communicated with him concerning several outstanding issues. MO further stated that Complainant was advised that on December 16, 2010, he was required to report to work to meet with the Ambassador and say good-bye to his staff. MO stated that after Complainant departed the post on December 17, 2010, he left behind two partially completed check-out sheets "but did not advise anyone there were signatures missing from steps he was unable to complete. This was discovered by HR staff, who had to work with him to complete the process on his behalf."
Regarding claim 3, MO denied subjecting Complainant to a hostile work environment. Complainant alleged that during his introductory meeting with the Cultural Affairs Officer (CAO), he noted a fairly large seminude picture by an artist named Man Ray in her office. The record reflects that Complainant told CAO that he felt that the artwork could be considered too revealing or offensive to others which CAO found annoying. MO stated that she was aware of Complainant's allegations concerning a seminude picture "which was later revealed to me as art work."
MO stated that she responded to Complainant's concerns and harassment allegations "in a respectful and professional manner, and in accordance with Departmental guidance and policy." The record reflects that Complainant alleged that on November 15, 2010, a gift was left on his desk that contained a picture of the handwritten note that stated "[Complainant] - this was screaming out your name. [named Agency employee]." Complainant found the picture embarrassing because it depicted semi-nude people, and noted that it was similar to the artwork in CAO's office that made him feel uncomfortable. The record reflects that the picture was an advertising pamphlet for a boutique store located in Paris, France, that sells upscale household products including cookware, children's clothing and office products. MO stated that on November 15, 2010, Complainant emailed her stating that he received a "gift" on his desk which he "alleged constituted a 'hostile work environment, or at least an abusive work environment.' The text of this message was attached to his e-mail to me, which indicated he had met with the DCM, and that the DCM had referred him to me. The text of the message did not provide details about a photograph."
MO stated that on November 16, 2010, she met with Complainant and "informed him that he should bring the matter to the attention of the EEO counselor at post and to the RSO (Regional Security Officer). I suggested this out of concern that an investigation might be appropriate regarding unauthorized access to his office and disposition of unsolicited material." MO stated that on November 17, 2010, Complainant sent her an email which included "a text from another e-mail that he noted showed 'congratulatory notes and verbal support' with his or for his HR team's performance, and noted names of others he stated were pleased with their support. He also included guidance on what he referred to as a policy covering next steps in his addressing his allegations regarding the photo, later identified as artwork." MO stated that she responding to Complainant's email letting him know that she was not familiar with the policy guidance he had forwarded to her and "asked for clarification as to its origin. That same day, [Complainant] forwarded me the link to 3 FAM [Foreign Affairs Manual] 1520, noting in specific sections 1525.2-1 and 2-2, and 1526.2 and 1526.3. I reviewed these FAM references, but did not find that they matched the guidance [Complainant] had sent via e-mail November 17."
Further, MO stated that on November 18, 2010, she sent an email to Complainant "suggesting we meet and discuss his concerns surrounding the incident, as I felt it would be difficult to proceed or provide him with further guidance without additional details about the alleged incident. We met that day, and after talking with [Complainant], I filed the required harassment report, using the S/OCR [Security/Office of Civil Rights] automated link. [Complainant] advised me verbally he had already filed the report with S/OCR prior to our meeting, but I completed the form in his presence nonetheless and submitted it."
With respect to Complainant's allegation that CAO and MO were close friends which affected MO's conduct during the relevant time, MO denied it. Specifically, MO stated that her relationship with CAO "is professional and collegial. My relationship with [CAO] is strictly professional and we do not have a social relationship. I contacted [CAO] only on an as-needed basis, generally in response to a work-related issue." MO stated, however, she had a conversation with CAO sometime in the fall 2010 concerning outstanding HR issues "in which [Complainant] was mentioned." MO also stated that she had several conversations with CAO about time-position classifications and recruitments pending for her office.
CAO stated that during the relevant time she was responsible for managing a section of approximately 12 Americans and Germans who facilitate and originate cultural and educational programming to enhance bilateral relations. CAO further stated that her interaction with Complainant occurred because of a dramatic change in staffing.
CAO further stated that she and Complainant "talked regularly and our conversations regularly included the Man Ray photo because I thought it was a neutral topic of conversation. In the beginning, I was trying to determine what might be considered offensive by other people and I thought [Complainant] was concerned about that as well. After a while, it became my default topic of conversation when I was otherwise flabbergasted, aghast, frustrated, angry, or otherwise unhappy with [Complainant's] ability to meet my Human Resources needs. I do not remember anyone in management ever talking to me or taking any action regarding the Man Ray photo."
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on February 16, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its February 16, 2012 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his sex and prior protected activity.
Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation because he of his "intentional or unintentional cavalier attitude" concerning his discrimination and harassment allegations. We note Complainant's extensive arguments on appeal, which include but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
September 6, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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