0120123571
03-08-2013
Tod Duran, Complainant, v. John Kerry, Secretary, Department of State, Agency.
Tod Duran,
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120123571
Agency No. DOS-F-062-11
DECISION
On September 20, 2012, Complainant filed an appeal from the Agency's July 6, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Officer at the Agency's Consulate facility in Hamburg, Germany.
On April 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when:
1. Management took steps to remove part of Complainant's portfolio, diminish his accomplishments, and exclude him from meetings and work assignments; and,
2. Since October 2010, Complainant has been subject to a hostile work environment.
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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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
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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant asserted that there were several incidents that collectively eroded others' perception of his authority and effectiveness in the management section, the post security office and the consulate in general. He claimed that his female superiors provided disproportionately greater recognition of the accomplishments of female employees and exhibiting greater empathy for their needs. He also believed that his supervisor (Supervisor) transferred work from him to her, thereby resulting in a negative perception of Complainant. He also asserted that his work accomplishments were diminished. He also related information pertaining to the Agency's proposal to outsource the housekeeping staff. Complainant believed that this move by senior management ran counter to other guidance. When the matter was announced, Complainant asserted that the Supervisor shared a memorandum with the female staff in order to create an atmosphere of anger towards him. He indicated that this hostile work environment continued until his departure in July 2011. The Supervisor then determined that Complainant was no longer needed to travel to Berlin on a quarterly basis. She stated that she did not believe in it and the program did not work. Complainant also pointed out that he believed that females were given preference when it came to leave requests. Finally, Complainant also alleged that the Supervisor made comments about his family and referred to it as his precious family.
Upon review, the Supervisor responded to Complainant's claims that he was subjected to harassment. The Supervisor clearly showed that she found Complainant's actions to be deceptive and found that Complainant would orchestrate actions that he wanted to happen. She also averred that Complainant did not make an effort to improve morale.
Based on the record, we find that Complainant has not established that he was subjected to a hostile work environment based on his sex. It appears that Complainant and the newly appointed Supervisor did not agree on procedures or the direction of the Agency's Consulate. However, Complainant failed to show that their difference in direction or that the conflicts were due to his sex. Therefore, we conclude that Complainant has not shown that he was subjected to unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
March 8, 2013
__________________
Date
2
0120123571
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123571