Morton P.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Nov 22, 2017

0120150823 (E.E.O.C. Nov. 22, 2017)

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

Morton P.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120150823

Agency No. FBI-2013-00068

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the November 4, 2014 final Agency decision (FAD) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the
Agency’s Phoenix Division, Sierra Vista Resident Agency (SVRA) in Sierra Vista, Arizona.
Complainant experiences complications from bilateral neuropathy and bilateral carpel tunnel
syndrome. Complainant stated that he has received reasonable accommodations from the
Agency in the form of speech-to-text software, ergonomic equipment, a hands-free headset, a
9mm Glock firearm with a smaller grip, and an electrical stimulation device.

Complainant had requested a voluntary transfer to the SVRA, and was selected as the preferred
candidate by the Supervisory Senior Resident Agent (S1-1) in March 2012. In September 2012,

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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Complainant claimed that learned that S1-1 had made negative comments about him to several
co-workers. Complainant alleged that S1-1 told an Intelligence Analyst that Complainant was “a
psychopath and master manipulator” and that S1-1 had intended to assign Complainant low-
priority cases. Further, Complainant claimed that S1-1 told the co-worker that he would have
him sit near Complainant to “keep an eye” on him. Complainant claimed that he was told that
S1-1 attempted to prevent Complainant’s transfer to the SVRA. Complainant alleged that a
Special Agent confirmed what the Intelligence Analyst told him. Complainant claimed that the
Special Agent told him that S1-1 said not to discuss counterintelligence cases with Complainant,
Complainant had previously been removed from counterintelligence cases while at the Austin
Resident Agency, and Complainant had “jumped over supervisors’ heads to get a terrorist into
the United States.” Complainant claimed that he had conversations with other co-workers who
were aware of S1-1’s comments and that the remarks had a “chilling effect” upon his arrival to
the SVRA.

Additionally, in September 2012, Complainant claimed that S1-1 commented on his Glock
handgun that he was issued as a reasonable accommodation. Complainant alleged that S1-1
stated that his handgun was “cute” and was the type of gun that “girls” or those “who could not
qualify” on a .40 caliber handgun would use. Complainant contended that S1-1 knew
Complainant used the 9mm as a reasonable accommodation. Complainant alleged that S1-1
inappropriately shared his medical information with the Administrative Specialist.

S1-1 transferred to Agency Headquarters in October 2012. Complainant claimed that his new
supervisor (S1-2) told him that S1-1 had previously informed S1-2 that he was “creating work
zones and program responsibilities” that would isolate Complainant. Complainant alleged that
S1-2 told him that it was clear that S1-1 was “creating a hostile working environment” for
Complainant and that he “wanted no part of it.”

On February 13, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of
disability and in reprisal for prior protected EEO activity when in September 2012, Complainant
learned that his supervisor made numerous derogatory comments about him to his co-workers.
Specifically, Complainant claimed that S1-1 said that he was warned about Complainant, that
Complainant is a psychopath, a master manipulator, could not be trusted, an eye should be kept
on him, that he was kicked out of the Counterintelligence Program, and he went outside the
chain-of-command to get a terrorist into the country. Additionally, Complainant alleged that his
former supervisor said not to share case information with him; his former supervisor tried to
prevent his transfer to the Sierra Vista Resident Agency; and expressed his intentions to relegate
Complainant to working only trivial complaints and keep him from border-related crimes.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal

2 Complainant withdrew a claim regarding denial of reasonable accommodation during the
investigation.
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Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the allegations at issue were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that management’s actions were motivated by discriminatory or retaliatory animus.
More specifically, the Agency found that the record established that Agency managers openly
discussed Complainant with S1-1, including their concerns based on second-hand information
about Complainant’s involvement in a particular counterterrorism investigation and their own
personal experiences with Complainant. S1-1 acknowledged sharing these discussions and his
concerns about the potential adverse effect Complainant’s arrival in the SVRA would have on
the office with Complainant’s soon-to-be co-workers. S1-1 said, and Complainant’s co-workers
believed, that he did so to effectively manage an employee he assumed would be problematic.
These discussions occurred several months before Complainant arrived in the SVRA, and
Complainant did not learn of the comments until several months after he arrived and just before
S1-1 transferred from the SVRA. The Agency noted that Complainant’s concern about his
reputation among his co-workers was valid; however, his co-workers’ statements indicated that
they observed nothing after Complainant’s arrival that supported S1-1’s comments. Thus, while
S1-1’s comments had the potential to damage Complainant’s reputation, there was nothing in the
record to support a finding that S1-1’s comments actually did. Further, the Agency concluded
that Complainant failed to show that the “cold reception” he may have initially received from his
co-workers was in any way hostile or abusive, especially since there was no evidence that it
continued after his co-workers were able to judge his character and integrity for themselves.

S1-1 denied that he tried to stop Complainant’s transfer, but admitted that he asked about the
status of the transfer and asked about various options concerning Complainant’s selection.
Further, S1-1 stated that he told others that he did not want Complainant to work on national
security matters, but denied expressing any intention of assigning Complainant only trivial
matters. S1-1 affirmed that he decided to assign Complainant public corruption investigations
because those types of investigations had been previously unaddressed and were a potentially
significant investigative area. Finally, with respect to S1-1’s comment about Complainant’s use
of a 9mm Glock firearm, the Agency determined that it was clearly unprofessional, but fell well
short of the type of comments that have been found to support a hostile work environment claim.

The Agency concluded that the wisdom and value of S1-1 passing along second-hand
information can be debated, but it was not unreasonable for managers to share information with
one another about transferring employees. The Agency concluded that there was insufficient
evidence in the record to support a finding that the Agency’s managers’ collective discussion of
Complainant and their perception and/or recollection of certain events in Complainant’s career
were motivated by discriminatory or retaliatory animus. As a result, the Agency found that
Complainant had not been subjected to a discriminatory or retaliatory hostile work environment
as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the totality of the circumstances and evidence demonstrate
that he was subjected to a hostile work environment. Complainant argues that the FAD provided
only a surface-level analysis rather than an extensive view of the extent to which S1-1 “poisoned
the waters” beyond his co-workers at the SVRA. Complainant claims that the investigation was
incomplete and did not include relevant evidence. Complainant contends that the FAD failed to
consider the lasting effects of S1-1’s comments, including how those comments affected
Complainant’s future career opportunities. Complainant argues that Agency officials went far
beyond their duties to defame him. Accordingly, Complainant requests that the Commission
reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. Here, Complainant asserted that based on his protected
classes, he was subjected to a hostile work environment based on several derogatory comments
made by S1-1 to his co-workers prior to his transfer. The record is clear (and S1-1
acknowledges) that the comments to Complainant’s new co-workers were inappropriate,
unprofessional, and ill-advised. However, the Commission concludes that the conduct alleged
was insufficiently severe or pervasive to establish a hostile work environment. The Commission
has consistently held that the discrimination statutes are not civility codes. Petty slights, minor
annoyances, and simple lack of good manners occur in the workplace. Not every unpleasant or
undesirable act which occurs constitutes a discrimination violation. See Shealey v. Equal Emp’t
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Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of
Transp., EEOC Appeal No. 0120093688 (Dec. 19. 2009)). What the discrimination statutes
forbid is behavior so objectively offensive that it alters the conditions of a complainant’s
employment. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or retaliatory
animus played a role in any of the Agency’s actions. The record indicates that prior to
Complainant’s arrival to SVRA, S1-1 stated that he spoke to several management officials who
had direct and/or second-hand information about Complainant’s past history with the Agency.
ROI, at 83. These management officials described their direct interactions with and impressions
of Complainant and information that had been shared by others in management meetings. Id.
S1-1 informed the Assistant Special Agent-in-Charge (ASAC) of the information he had
received about Complainant and she indicated that it was consistent with the information she had
received. Id. at 86. ASAC made arrangements for S1-1 to brief Executive Management about
the negative information they had received about Complainant and his potential impact on the
office. Id. at 86-87. S1-1 subsequently informed the Special Agent working counterintelligence
that he would not assign Complainant to any counterintelligence matters based on his concerns
about negative, second-hand information he had received about Complainant. Id. at 89. S1-1
affirmed that he had similar conversations with several other employees based on his concerns
about Complainant’s impending transfer to the office. Id. S1-1 acknowledged that having these
discussions was a poor decision, but that he did so only to prevent potential problems. Id. at 90.

S1-1 denied attempting to stop Complainant’s transfer to the SVRA, and stated that he did not
have the ability to do so. ROI, at 90. S1-1 added that he did inquire about the status of the
transfer and asked if there were any available options regarding his selection. Id. Further, S1-1
denied expressing to others that he would be assigning Complainant trivial work; rather, he
simply said that he did not want Complainant working on national security matters. Id. S1-1
explained that he assigned Complainant to work a public corruption investigation, which he
perceived as a potentially significant investigative area. Id. at 90-91. S1-1 denied calling
Complainant’s 9mm handgun “cute” or stating that it was used by people who could not qualify
with a .40 caliber handgun. Id. at 91.

The Commission finds that Complainant has not shown that he was subjected to conduct
sufficiently severe or pervasive to rise to the level of a hostile work environment. In addition,
the Commission finds that Complainant failed to show that these incidents were unlawfully
motivated by discriminatory or retaliatory animus. As a result, the Commission finds that
Complainant was not subjected to a discriminatory or retaliatory hostile work environment as
alleged.

Improper Disclosure of Confidential Medical Information

Finally, to the extent that Complainant is alleging that S1-1 improperly disclosed confidential
medical information to the Administrative Specialist, the Rehabilitation Act specifically
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prohibits the disclosure of medical information except in certain limited situations. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, No. 915.002, Question 42 (revised Oct. 17, 2002). The
Commission has articulated limited exceptions to the Rehabilitation Act’s confidentiality
requirements, and Agency officials may share confidential medical information about an
employee with other Agency officials on a “need-to-know” basis, if doing so is necessary to
ensure compliance with the Rehabilitation Act. See Skarica v. Dep't of Homeland Sec., EEOC
Appeal No. 0120073399 (Mar. 5, 2010) (finding that the Agency did not violate the
confidentiality provisions of the Rehabilitation Act when the complainant’s supervisor consulted
with a personnel official and agency physician to ascertain how to accommodate complainant’s
medical condition, because these officials had a legitimate “need to know” complainant's
medical information).

Here, there is no evidence that S1-1 improperly disclosed any information about Complainant’s
condition. S1-1 confirmed that the Administrative Specialist was contacted regarding equipment
that the SVRA would need to install to accommodate Complainant. ROI, at 91. S1-1 stated that
Complainant learned that they were contacted about this and accused them of inappropriately
talking to the San Antonio Administrative Officer. Id. Further, Complainant disputed whether
he needed the equipment. Id. S1-1 informed Complainant that management would provide or
install any equipment required, but that Complainant would need to address any changes to his
reasonable accommodations with the appropriate Agency office. Id. There is no evidence that
Complainant’s confidential medical information was disclosed to anyone or was otherwise
accessed improperly. Accordingly, the Commission finds that Complainant failed to establish
that the Agency unlawfully disclosed his confidential medical information as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted 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.

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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

November 22, 2017
Date