EEOC Reverses @StateDept Dismissal of Reasonable Accommodation Complaint Over Housing Assignment

 

 

Via EEOC Appeal No. 2021001832:
At the time of events giving rise to this complaint, Complainant was employed as a Criminal Investigator, GS-1811-13, with the Department of Justice – Drug Enforcement Agency (DEA), Caribbean Division – Curaçao, Netherlands Antilles Country Office, and stationed at the Department of State’s (hereinafter Agency or State) U.S. Consulate – Curaçao. On January 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint against State alleging he was discriminated against based on his disability (asthma and association with his minor son with asthma who was part of his household) and reprisal for prior protected EEO activity under the Rehabilitation Act (requesting reasonable accommodation) when:
1. he was denied reasonable accommodation regarding his housing assignment in Curaçao; and
2. his assignment to US Consulate Curaçao was terminated on September 13, 2019.
State conducted an EEO investigation and then issued a FAD dismissing the complaint for failure to state a claim because Complainant was not a State employee, it had no decisionmaking authority on him, and it took no action “independent” of the DEA, Complainant’s employing agency. On appeal, Complainant submits a State regulation which indicates the Chief of Mission (Ambassador or Consul General) has full responsibility for the direction, coordination, and supervision of all U.S. executive branch employees in their country, with exceptions that do not apply here. We note that in his investigatory statement, the Consul General at Curaçao stated he was responsible for overseeing the activities of the DEA at his post, including Complainant, and that DEA asked if he would concur with curtailment (terminating the tour), which he did.
Additional details:

Complainant repeatedly articulated his view that State discriminated against him. See e.g., EEO complaint, at Bates No. 4; Affidavit A, at Bates Nos. 59, 60, 71; Rebuttal letter by Complainant’s former counsel writing Complainant “rebuts… that [the Consul General’s] actions to curtail… his assignment at… Curacao was at the request of DEA” at Bates No. 200; Complainant’s appeal statement that, “State was unilaterally responsible for the denial of a request for reasonable accommodation with respect to complainant’s housing assignment on September 13, 2019 (claim #1) and complainant’s assignment to… Curacao was broken on September 13, 2019 (claim #2)…. At no point in time did any individual from [DEA] request to break the… assignment at… Curacao or deny [my] request for a reasonable accommodation.”

Under a plain reading of 29 C.F.R. § 1614.106(a) – and this Commission’s own case law – Complainant’s belief alone is enough to enable him to file a discrimination claim with State. See e.g., Pion v. OPM, EEOC Request No. 05880891 (Oct. 18, 1988) (pointing out that the forerunner to current 29 C.F.R. § 1614.106(a) had once been amended precisely to guarantee the right of complainants “to bring a complaint against any agency they believed engaged in discriminatory conduct”); Warren v. OPM, EEOC Request No. 05950295 (Aug. 17, 1995) (ruling that “[i]n the present case, although [complainant] is clearly an employee of the Department of Agriculture, the Commission finds that the complaint was properly made against [OPM], the agency which allegedly discriminated against [him]”); Koch v. OPM, EEOC Appeal No. 01A13849 (Dec. 21, 2001) applying all the above cited cases. Thus, on these particular facts, State had no right to reject complainant’s complaint on the grounds that it was filed with the wrong agency.
[…]
The Agency is ordered to process the remanded claims, as redefined herein, from the point processing ceased. This means the Agency shall, within 10 days from the date of this decision, shall again notify Complainant that he has the option to request a hearing before an EEOC Administrative Judge (AJ) or an immediate FAD within 30 days of receipt of the notice in accordance with 29 C.F.R. § 1614.108(e). 2 If Complainant requests a FAD without a hearing, the Agency shall issue a final decision on the merits of the claim within sixty (60) days of receipt of his request.
[…]
Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

Full decision is available to read here (PDF).

Click to access 2021001832.pdf

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EEOC Reverses @StateDept’s Dismissal of Ongoing Harassment Complaint

 

 

EEOC Appeal No. 2020004444:
Opal V. v. Dep’t of State, EEOC Appeal No. 2020004444 (Oct. 8, 2020)(Complainant’s complaint was more properly characterized as one of ongoing harassment by her supervisor and several subordinates.  Complainant alleged a series of events which created a hostile work environment over several months, including one incident involving a meeting with her supervisor that occurred within the 45 days prior to her email contact with the EEO Counselor.  The EEO Counselor’s report specifically referenced Complainant’s allegation of a hostile work environment based on her sex.  Therefore, Complainant stated a viable claim.  The Agency’s assertion that Complainant failed to show a nexus between her sex and the alleged harassment went to the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).
Excerpt:

At the time of events giving rise to this complaint, Complainant worked as an Information Programs Supervisor, FS-03, at an Agency facility in Brussels, Belgium.

On May 31, 2020, Complainant filed a formal EEO complaint. The Agency, in its dismissal decision, characterized the complaint as alleging that Complainant was subjected to discrimination on the basis of sex (female) when:

1. On February 25, 2020, Complainant was verbally counseled.


2. Complainant was subjected to an ongoing hostile work environment characterized by management communicating directly with Complainant’s subordinate employees without her, and management’s failure to admonish subordinates about using the term “mothering” and management’s own use, and condoning, of the use of terms and actions that Complainant found sexist and offensive.

On July 5, 2020, the Agency issued a final decision dismissing the complaint for failure to state a claim and for untimely EEO contact, reasoning that Complainant initiated EEO contact on April 28, 2020. The Agency stated that, “even if Complainant did not have actual knowledge [of the timeframes for initiating EEO counseling], she had constructive knowledge because she completed a No Fear training on March 3, 2009,” and the Agency had notices posted on the Agency’s website regarding the EEO process. The Agency dismissed the second allegation, reasoning that it did not rise to the level of an adverse action. The Agency found that referring to Complainant as “mothering” and “tasking her subordinate employees, without including her is not sufficiently severe or pervasive to rise to the level of a hostile work environment.”
[…]
On appeal, Complainant argues that when the Agency dismissed her complaint for failure to state a claim “the essence of the complaint is being ignored, that she was subjected to sex-based harassment by two employees over a six-month period, which was condoned by management.” The EEO Counselor’s Report stated that Complainant claimed that “because of sex, she was subjected to a hostile work environment characterized by, but not limited to, her supervisory position being treated as irrelevant” and that she was in a work environment that continually subjected her to “offensive gender-based comments or treatment”. Complainant also stated that management condoned the subordinate employees’ sexist attitudes. The EEO Counselor’s Report also stated that Complainant claimed that her male supervisor “has a practice of tasking her with all of the section’s trivial errands and personnel issues, while reserving the allocation of desirable, high profile projects for him to assign.”

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Significantly, Complainant claims that her male supervisor, on an ongoing basis, undermined her own authority with her subordinates andcondoned what she believed to be sexist comments and attitudes directed against her because of her sex. We conclude that Complainant has made sufficient allegations to state a viable claim of discriminatory harassment which requires further investigation and processing. While the Agency claims that Complainant has failed to establish a nexus between her sex and the alleged harassment, this is addressing the merits of the claim without a proper investigation and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No.
05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).


For the reasons stated above, we find that Complainant’s complaint was improperly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. We caution the Agency that, on remand, it should avoid fragmenting Complainant’s overall hostile work environment claim in a piecemeal manner.

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EEOC: @StateDept Liable For Supervisor’s Harassment of Pregnant Subordinate at US Mission/UNVIE

Via EEOC: Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
Sex Discrimination & Sexual Harassment Found.  Complainant, an Assistant Public Affairs Officer, filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when her work responsibilities were altered; she received written performance counseling; and she was subjected to a hostile work environment, including receiving inappropriate comments and being excluded from meetings and emails.  On appeal, the Commission found that Complainant was subjected to discrimination and harassment as alleged.  The record showed that Complainant’s work duties were altered due to her pregnancy, and the Agency incorrectly concluded otherwise.  Complainant’s supervisor specifically stated that she could not supervise Complainant if Complainant was pregnant, and Complainant then ceased performing tasks that were under the supervisor’s purview.  The Agency also excluded Complainant from certain weekly meetings at the supervisor’s request.  The Agency conceded that Complainant was subjected to harassment based on sex that affected a term or condition of her employment.  The Commission found that the Agency was liable for the harassment.  The Commission noted that the Agency could not use an affirmative defense because Complainant’s changed work duties constituted a tangible employment action.  Furthermore, even if there were no tangible employment actions, the Agency failed to take prompt and effective action when it failed to fully remove the responsible management official from supervisory authority over Complainant.  The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and reinstate Complainant’s assignments.  Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
This Assistant Public Affairs Officer’s EEO case was investigated by the State Department (that would be S/OCR).
“The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged.”
BUT.
The EEOC found that the Complainant “has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.”
The Commission concluded that “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein” and reversed the Agency’s final decision.
It also remanded the case to the State Department for further processing in accordance with its decision and remedial actions ordered to include among other things, complainant’s entitlement to compensatory damages, disciplinary actions against responsible management officials, and a requirement of “no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment.”‘
Note that EEOC cases have randomly assigned pseudonyms which replace Complainants’ names when decisions are published to non-parties and the Commission’s website.
Excerpts:

At the time of events giving rise to this complaint, Complainant worked as an Assistant Public Affairs Officer (APAO), FS-04, at the Agency’s U.S. Mission to International Organizations in Vienna, Austria.

Complainant identified her first-level supervisor (S1), a Public Affairs Officer (PAO), as the individual who discriminated against and subjected her to a hostile work environment.

Complainant stated that over a series of days in early October 2017, following S1’s miscarriage, S1 sent Complainant Facebook messages discussing S1’s miscarriage, desire to curtail, and disappointment with how she felt that Complainant was treating her. Complainant averred that prior to October 2017, she and S1 were friends. However, S1 informed Complainant that she could no longer supervise her following her miscarriage and Complainant’s pregnancy.
[…]
On October 30, 2017, Complainant and S1 participated in mediation. Following the mediation, the mediator expressed concern that due to personal circumstances, S1 was hypersensitive to remarks and interaction with Complainant. The mediator stated that the it was “clear that [S1] rationalized her decisions as business appropriate and not based on personal situations.” The mediator added that S1’s remarks and the timing of events made it clear that S1 wanted to minimize contact with Complainant, however, it “look[ed] on face value as an effort to remove [Complainant] from places [S1] is attending and appears to lessen the exposure of [Complainant] to people and meetings she attended for over a year and a half.”

On November 3, 2017, management officials counseled S1, stating that they did not believe that S1 could properly carry out her supervisory responsibilities if she minimized direct contact with Complainant. Management officials informed S1 that excluding Complainant from Senior Staff meetings and removing her from the Senior Staff distribution list was inappropriate. On November 6, 2017, Complainant informed Human Resources officials that she was removed from her social media duties and inquired about what options were available.

On November 15, 2017, the Chargé d’Affaires informed Complainant that she wanted Complainant to attend Senior Staff meetings but did not feel the same way about the PAS meeting. She acknowledged that Complainant was experiencing a very difficult situation, stating “we know it is a bad situation and we want to, and are trying, to find a solution.” On the following day, Complainant informed the Chargé d’Affaires and S2 that the daily situation was worsening and complained of minimal communication from S1 and uncertainty about her portfolio because S1 outsourced areas of her portfolio. Complainant added that S1 did not talk to her, make eye contact, or provide information. In response, the Chargé d’Affaires informed Complainant that “if a simple solution existed, it would have been found and acted upon immediately.” She assured Complainant that she was involved in daily meetings and discussions to find a solution.

On November 20, 2017, Agency officials informed Complainant that her rater would be changed from S1 to S2. Further, coordination between Complainant and S1 would be conducted through email. Finally, Complainant would continue to attend Senior Staff meetings.

On November 30, 2017, Complainant reported that S1 remained in a position “where she is exercising biased supervision and decision-making over my work.”

On December 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when:

1. On October 15, 2017, Complainant’s work responsibilities were altered;

2. In October 2017, Complainant received written performance counseling; and

3. Complainant was subjected to a hostile work environment, characterized by, but not limited to inappropriate comments and being excluded from meetings and emails.

[…]
The Agency has already conceded in its final decision that Complainant established the first four elements of her prima facie hostile work environment case. The Agency held that Complainant failed to establish that it was liable for the hostile work environment, as it had established an affirmative defense. However, with respect to vicarious liability, element (5), the affirmative defense is not available to the Agency because we have found that S1’s actions culminated in a tangible employment action, changed worked duties.

Moreover, even if there was no tangible employment action, we find that the Agency failed to take prompt and effective action when it was notified of S1’s harassment of Complainant. While we acknowledge that the Agency initiated an informal investigation, counseled S1, and instituted a “carve-out” for evaluation purposes, we find that these actions were insufficient to meet the Agency’s full responsibility to take appropriate corrective action. ROI, at 500-501, 548-549, 599- 600, 621-623. Specifically, the Agency failed to fully remove S1 from supervisory authority over Complainant. According to counseling notes, it was S1 who stated that she did not want to rate Complainant and Agency officials initially encouraged S1 to work with Complainant despite the Agency’s contention that it did so at Complainant’s request. ROI, at 538-540. For example, on November 3, 2017, the Agency counseled S1 regarding her supervision of Complainant and instructed S1 to “provide regular guidance and coaching to help her develop professionally.” Id. at 538. The record further shows that S1 still exercised some level of control over Complainant’s work beyond November 2017 when the Agency changed Complainant’s rater.

For example, S2 “counseled [S1] to let Complainant know if there was action she should be taking that she was not” in December 2017. ROI, at 554. Even in January 2018, S1 continued to email Complainant in a supervisor capacity. Id. at 313-314. The record reflects that although S1 was removed from completing Complainant’s rating, S1 continued to harass Complainant. Complainant indicated that she reported the harassment, but it continued. Taking only some remedial action does not absolve the Agency of liability where that action is ineffective. Logsdon v. Dep’t of Justice, EEOC Appeal No. 0120081287 (Apr. 23, 2009).

The Agency asserted that it further took detailed and effective action when Complainant was offered an alternative position, which she declined, as a solution to her concerns. However, remedial measures should not adversely affect the complainant and Complainant viewed the offer as punitive. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 28-9. If it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Id. The Agency did not move S1, despite requests from Complainant and S1, until April 2018 while Complainant was on maternity leave. We find that the Agency failed to take prompt and effective action. Accordingly, we find that the Agency is liable for S1’s harassment of Complainant. For the foregoing reasons, we find that Complainant has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.

CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below.

ORDER The Agency is ordered to take the following remedial action:

1. Within ninety (90) calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation of Complainant’s entitlement to compensatory damages. The Agency is directed to inform Complainant about the legal standards associated with providing compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant shall be given 30 calendar days from the date she receives the Agency’s notice to provide all supporting evidence of her claim for compensatory damages. Within thirty (30) calendar days of the date the Agency receives Complainant’s submission, the Agency shall issue a new final decision determining Complainant’s entitlement to compensatory damages, together with appropriate appeal rights.

2. Within ninety (90) days of the date this decision is issued, provide no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved 9 2019001540 in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment. The Commission recommends that the Agency review the following EEOC publication: Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999).

3. The Agency shall consider taking disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s).

4. Within thirty (30) days of the date this decision is issued, the Agency shall reinstate Complainant’s assignments changed by S1 and remove all documentation and references to the October 2017 written performance counseling from all personnel records, including Complainant’s official personnel files.

5. The Agency shall post a notice in accordance with the Posting Order below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented.

Read the full case here: Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).

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