[Redacted], Terry L. Steele, 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2022002063 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terry L. Steele,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2022002063 Hearing No. 570-2019-00342X Agency No. DOS 0358-17 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 3, 2022 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer, GS-0830-14, in the Agency’s Bureau of Overseas Building Operations in Rosslyn, Virginia. On December 11, 2017 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Baptist), age (67), and in reprisal for prior protected EEO activity when: 1. from 2016 to the present, Complainant was subjected to a hostile work environment characterized by, but not limited to interfering with his work, disparaging questions and comments, and intimidating behaviors including stalking; 2. on or about August 2, 2017, Complainant received an “Exceeds Expectations” rating on his 2016 performance evaluation; and 1 The Commission typically uses pseudonyms in lieu of a complainant's real name when publishing its appellate decisions. In this instance, however, Complainant requested that his real name be used. 2022002063 2 3. on or about March 6, 2018, Complainant received a negative performance evaluation for 2017.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant maintains he established a prima facie case of discrimination, but otherwise advances generalized and conclusory arguments that summary judgment was inappropriate. Complainant also does not controvert the Agency’s articulated explanations for its actions. Complainant further speculates that the AJ in this matter issued a decision in favor of the Agency in large part as motivation to clear her workload. ANALYSIS AND FINDINGS As an initial matter, the Commission will address Complainant's contentions regarding the manner in which the AJ handled his case. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see also Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed all documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2 The Agency dismissed an additional allegation for failure to state a claim. The Commission can find no basis to disturb the Agency’s dismissal of this claim. 2022002063 3 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s performance evaluations. In 2016, Complainant’s technical skills “Exceeded Expectations” but his communication and teamwork skills needed improvement. Thus, Complainant’s supervisors declined to rate him as “Outstanding” and instead rated him as “Fully Successful.” The Agency noted that only one out of seven other employees received an “Outstanding” rating in 2016, and that employee was approximately 63 years old. Five of the remaining six, as did Complainant, received “Fully Successful” ratings. The Agency offered similar explanations for the 2017 performance evaluation. In this cycle, three employees were “Fully Successful” and two were “Outstanding.” Complainant has presented no evidence demonstrating that the Agency’s reasons for its actions were pretextual. With respect to his hostile work environment claim, the Agency noted that Complainant’s testimony offered no evidence of timely harassing conduct directed at Complainant. Rather, Complainant testified as to conduct he witnessed toward others and he claimed that the employees would confirm the conduct took place. Those employees provided testimony in which they collectively disclaimed witnessing any of the alleged conduct. Further, any potentially harassing conduct toward Complainant, based on Complainant’s own testimony, occurred most recently in 2008, but generally in the 1990s and 1980s, and he had not interacted with any of the involved individuals in decades. Thus, the Commission finds that Complainant was not subjected to conduct sufficiently severe or pervasive to establish a hostile work environment nor has he shown that any of the incidents alleged were based on discriminatory or retaliatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2022002063 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022002063 5 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 (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 January 5, 2023 Date