EEOC Affirms No Reprisal in Quick Termination of a Foreign Affairs Officer

Posted: 12:33 am ET
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Via eeoc.gov

At the time of events giving rise to this complaint, Complainant worked as a Foreign Affairs Officer, GS-11 at the Agency’s Office of Intelligence and Threat Analysis, Bureau of Diplomatic Security facility in Rosslyn, Virginia. Complainant was terminated during her two-year probationary period, effective November 25, 2013. Management indicated that after a very good start, Complainant’s work product deteriorated in that her written articles required substantial editing. Complainant was advised to take basic writing and analysis courses to help correct her deficiencies. Complainant maintained that management’s comments about her writing were unsupported as the complaints she received were arbitrary and style comments and not comments regarding substance. On June 13, 2013, Complainant and a Special Agent had a disagreement when Complainant made a comment about Special Agents and he took offense. He yelled and cursed at Complainant while she was at her desk. Complainant indicated that she felt threatened because he had his gun on his waist. Following this argument, the Special Agent reported the incident to management. Management informed the Special Agent that his conduct was not acceptable. Management also spoke with Complainant, and the two apologized to each other. Therefore, management believed that the incident was over. Two days later, the Special Agent was made the team leader of Complainant’s unit. Complainant believed that, based on the verbal assault, his promotion was in retaliation against her. Complainant also maintained that after she filed her EEO complaint management engaged in other conduct which ultimately led to her termination.

On August 16, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On July 15, 2013, her portfolio responsibilities for Turkey were removed;
2. On July 31 and August 5, 2013, her requests for training were denied;
3. On August 1, 2013, she received a negative memorandum that served as her mid-year review regarding her performance;
4. On August 6, 2013, she was reassigned to the DS/Public Affairs Office;
5. On August 8, 2013, management informed her that her SCI security clearance and partial building access would be removed; and
6. Effective November 25, 2013, she was terminated from Employment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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 her to reprisal as alleged.

Specifically, the Agency determined that even if it assumed Complainant established a prima facie case of reprisal, there were legitimate, nondiscriminatory reasons for its actions.

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to reprisal is AFFIRMED.
[…]
To show pretext, Complainant argued that reprisal was a factor in Management’s action in Claim 1 because her portfolio was changed after she informed management of her intent to file an EEO complaint regarding the Special Agent incident. With respect to Claims 2 – 6, Complainant asserted that the manner in which she was treated with regard to training, her performance review, her detail, her security clearance and her termination was in retaliation for her initiation of an EEO complaint. The FAD found that Complainant’s subjective beliefs, without any evidence to support those beliefs were not evidence of pretext. No evidence in the record supported Complainant’s claim that any of the described actions were taken due to her EEO activity. According to the Agency, the record strongly supported management’s account of the events. Therefore, the Agency found that Complainant could not meet her burden of proving by a preponderance of the evidence that management’s reasons were untrue or unworthy of credence.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates her contention that two days after she reported the verbal assault by the Special Agent, he became her team leader, which she believes was undoubtedly an act of retaliation. Complainant maintains that on July 1, 2013, she reported to management that her working conditions were intolerable and that she was contacting the EEO office. Complainant also indicates that after she filed her complaint all adverse performance related issues were documented. On July 15, 2013, she maintains that she received an Unacceptable Performance Memorandum, indicating that her writing style was too academic. Complainant contends that she was held to a higher standard than needed and that in order to keep her job she needed only to get a fully successful rating, not an outstanding. Complainant also asserts that she should have been placed on a PIP before she was removed. Finally, Complainant maintained that work was late only when the Agency had not properly staffed the unit and she was there in the unit alone doing the work of three people. Complainant again asserts that in retaliation for her EEO complaint she was terminated on November 25, 2013.

In response, the Agency requests that the FAD be affirmed as Complainant did not show that the Agency erred in finding that she did not prove her case.

ANALYSIS AND FINDINGS

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions as addressed above. To show pretext, Complainant, among other things, maintained that the comments made about her written work product were arbitrary and concerned matters of style. She maintained that after she filed her EEO complaint criticisms about her work product increased. We find however, that the record supports the Agency’s position that Complainant was repeatedly spoken to regarding her work product and she did not conform to management’s concerns.

With respect to Complainant’s arguments on appeal, we find that other than her conclusory statements she has not provided persuasive evidence that she was subjected to reprisal. Complainant asserts that the Special Agent that assaulted her verbally was promoted to the team leader in order to retaliate against her. Notwithstanding the lack of evidence to support this contention, we note that the record indicates that the Special Agent never took the position. Complainant also maintained that if there were real concerns about her work that she should have been placed on a PIP. We find however that the Agency adequately explained that probationary employees do not have access to the PIP program. Finally, Complainant also maintained that due to a lack of staff on several occasions she was left alone and during those times she needed to request extensions for her work. While this may be true, we find that Complainant did not show how this was related to her claim of reprisal. Complainant acknowledged that she was left alone because her coworkers got off work at an earlier time than she did. With regard to Complainant’s termination during her probationary period, the Commission has long held that an Agency has broad discretion in terminating an employee during their probationary period as long as it is not for discriminatory reasons. In the instant case, we find no persuasive evidence of a discriminatory motivation.

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to reprisal is AFFIRMED.

Read in full here.

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U.S. Embassy’s Nurse Nightmare Not Subjected to Discrimination, EEOC Affirms

Posted: 1:24 am ET
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Via eeoc.gov:

This EEOC case involves an embassy nurse who filed an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) in 2013. Two things are striking about this case: 1) there was an incident that according to the EEOC decision involved the Complainant’s actions during a visit to a local hospital. According to the record, Complainant was so rude that “a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present” documenting his behavior and it was sent to the Embassy in Baku; and 2) an incident where the Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and “stormed out” of the area then, within five minutes, Complainant called their supervisor “demanding” that the four drivers see him to be medically evaluated for their fitness for work. On March 2017, the EEOC affirmed the State Department’s  decision that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Locally Employed Staff (LES), Registered Nurse at the U.S. Embassy in Baku, Azerbaijan. On October 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Azerbaijani), sex (male), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

(1) On May 24, 2013, he was issued a Letter of Reprimand;

(2) His EPR reporting period was extended beyond the one-year calendar cycle, contrary to normal practice;

(3) On September 10, 2013, his position was terminated; and

(4) He was subjected to a hostile work environment characterized by, but not limited
to isolation from co-workers, threats, and demeaning and inappropriate comments.

After 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 Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming Complainant established a prima facie case of discrimination and reprisal with respect to all his bases, management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding issue 1, Complainant was issued a Letter of Reprimand because in early May 2013 management was notified by their contacts at the Anti-Plague Section (APS) of the Azerbaijani Ministry of Health that Complainant had called them, yelled at their employee who had answered the call and when the employee refused to identify himself, Complainant called the Ministry of Health wherein he stated his name and indicated that he was calling from the American Embassy. He then proceeded to complain about the APS. Management indicated that this event damaged their relationship with the Ministry of Health. The Human Resources Officer indicated that she had to apologize and promise that Complainant would be re-trained on telephone etiquette.

Regarding issue number 2, the Agency explained that Complainant’s reporting period was extended beyond the one-year cycle because he had been placed on a Performance Improvement Plan (PIP) in November 2012, to address several issues, e.g., exceeding the legal scope of his nursing license. Shortly after he was placed on the PIP, Complainant took an extended period of leave beginning on November 29, 2012 and ending January 7, 2013. Because Complainant had been off work for more than eight weeks of the 120-day PIP period, the decision was made to extend the PIP for an additional 60 days. The Human Resources Officer advised that the 60-day extension period began on March 23, 2013 and concluded on May 24, 2013.

With respect to issue 3, Complainant’s September 10, 2013, termination. Complainant argued that his termination was due to complaints he made about unfair treatment and a hostile work environment. Management explained that Complainant’s termination was due to three instances of misconduct. The first incident involved the telephone call that was described in issue 1. The second incident involved Complainant’s actions during a visit to a local hospital. According to the record, Complainant was so rude that “a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present” documenting his behavior and it was sent to the Embassy in Baku. The third incident occurred when Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and “stormed out” of the area then, within five minutes, Complainant called their supervisor “demanding” that the four drivers see him to be medically evaluated for their fitness for work. Complainant’s supervisor determined that he was “us[ing] [his] position to bully other colleagues when [he was] angry.” Complainant’s supervisor maintained that Complainant was terminated because, among other reasons, she needed to protect the other employees from his abusive and erratic behavior. The supervisor felt that to allow Complainant to continue working as a caregiver when people were afraid of him was not prudent or reasonable, and that his actions reflected badly on the U.S. Government.

Finally, with regard to issue 4, Complainant alleged that he was subjected to a hostile work environment, when: he complained that he found Halloween decorations offensive; an employee from another organization “made a few remarks about his beard,” including that it made him look “like one of [the]bad guys;” written “Workplace Conduct Expectations,” were issued because of him; his supervisor claimed that in the Azerbaijani culture, girls get married at around 13 years of age and Complainant found this to be a stereotype that he found offensive; and he had a conversation with a coworker where he believed the coworker was insinuating that people living in Azerbaijan were not able to seek their rights.

Complainant maintained that he went to outside officials because he could not resolve his problems with management since they were harassing him. He maintained that the alleged harassment affected him because it made him “emotionally less stable, depressed and easier irritated.” He also alleged that he experienced medical problems and started taking medication due to the alleged harassment.

Management maintained, among other things, that Complainant believed that policies were being applied to him and were personal attacks against him. Management indicated, however, that Complainant was not subjected to harassment. Management explained that after Complainant indicated that he was uncomfortable with the Halloween decorations they were taken down. Further, the comments made about his beard were made from an employee from another agency and there was no evidence that the comment was made in a hostile manner. Management indicated that the “Workplace Conduct Expectations” did not just apply to Complainant. Regarding Complainant’s claim that his supervisor commented that Azerbaijani girls as young as 13 years were married, she indicated that she had been invited to give a talk to young women in the villages about nutrition and health. In doing research in advance of her speech, she had asked Complainant what types of situations young girls faced (e.g., HIV, family planning, sexually transmitted diseases), at which time Complainant told her that girls as young as 13 years old were often married. She emphasized Complainant never told her he believed he was being subjected to a hostile work environment.

Management indicated that Complainant was not subjected to harassment, as the issues claimed were not severe or pervasive enough to establish a hostile work environment.

The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, and/or harassment as alleged.
[…]
ANALYSIS AND FINDINGS

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of religion, sex, and national origin, discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as listed above. We find that Complainant has provided no evidence which suggests that the Agency’s reasons were pretext for discrimination or that discriminatory animus was involved in this matter. The record clearly showed that Complainant had a history of inappropriate and inflammatory behavior in the workplace. The Commission has long held that the Agency has broad discretion regarding its hiring and firing practices unless discrimination is shown. Accordingly, we find that discrimination has not been shown in this case. We also find that Complainant did not establish that he had been subjected to unlawful harassment in this case because the purported conduct, assuming it occurred as alleged, was neither severe or pervasive enough to establish a hostile work environment.

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment is AFFIRMED.

The full decision is available to read here.

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EEOC Case: “Complainant maintained his interpersonal skills were exceptional”

Posted: 1:52 am ET
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At the time of events giving rise to this complaint, the unnamed Complainant in this EEOC case worked as an entry-level Vice- Consul at the U.S. Consulate General in Karachi, Pakistan. The EEOC decision notes that the Complainant commenced duty in Karachi on July 18, 2011, and was involuntarily curtailed from post on April 7, 2012.

According to the EEOC, on September 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.

On January 24, 2017, the EEOC affirmed the State Department’s determination that no discrimination occurred.

Excerpt via eeoc.gov (PDF):

The Karachi Consul General stated that the curtailment was justified because Complainant was repeatedly insubordinate with his supervisors and he refused to accept feedback and/or guidance. The Consul General noted that making fun of a Foreign Service National was among the inappropriate actions taken by Complainant. The Consul General characterized Complainant as a very disturbing presence in the office. The Embassy Islamabad Consul General stated that he decided to request Complainant’s involuntary curtailment and that he sought concurrence of the Deputy Chief of Mission and the Ambassador. The Islamabad Consul General noted that Complainant refused to seek voluntary curtailment and took no responsibility for his actions. According to the Islamabad Consul General, Complainant’s repeated insubordination and aggressive behavior toward the consular managers affected their ability to manage and their emotional stability. The Ambassador’s cable to Washington requesting the involuntary curtailment stated that during and after each counseling session Complainant threatened he would file a grievance or a lawsuit against his supervisors.
[…]
With respect to his Employee Evaluation Report (EER), Complainant argued that it should have reflected an excellent job performance. The Supervisor, as Complainant’s rating officer, stated that she did not have a problem with Complainant’s substantive work performance. The Supervisor commended Complainant’s intellectual skills and work ethic. However, the Supervisor remarked that the conduct issues were significant and she could not recommend that Complainant be tenured based on his conduct while she supervised him. The Supervisor noted that Complainant informed her that he would not change his behavior.

Complainant maintained that his interpersonal skills were exceptional as reflected in his reviews from his prior posts. The Supervisor, however, asserted that Complainant did not display an ability to work in a team-oriented, collaborative approach with his colleagues. The Supervisor noted that Complainant continuously made disparaging comments about one of his colleagues and suggested on several occasions that this coworker be fired. The Karachi Consul General, as Complainant’s review officer, commented that while Complainant is a very intelligent and articulate officer, his inability to compromise and accept supervisory guidance make it unlikely he could succeed in the Foreign Service over the duration of a normal career. The Karachi Consul General explained that Karachi is a post where there are ongoing threats and they work in a constant state of crisis. The Karachi Consul General asserted that teamwork, sensitivity, and flexibility are critical to maintaining morale and assisting others in dealing with the stress.
[….]
The Agency determined that Complainant failed to establish pretext with respect to both the Letter of Admonishment and the involuntary curtailment. The Agency noted that Complainant stated in his affidavit that he did not believe his race and age were factors in the Letter of Admonishment. With respect to Complainant’s claim of age discrimination as to the involuntary curtailment, the Agency rejected that argument noting that three of the four management officials named in the complaint are substantially older than Complainant. As to Complainant’s claim of reprisal, the Agency discerned no persuasive argument from Complainant to challenge its reasons for the issuance of the Letter of Admonishment and the involuntary curtailment. In terms of the Employee Evaluation Report, the Agency stated that it sees no reason to disbelieve the consistent criticism by three officers in the chain of command regarding Complainant’s interpersonal skills.
[…]
Complainant stated that the Karachi Consul General referred to him as Señor. Complainant explained that this reference could be perceived as demeaning his standing in the community and stated that after some time he objected to the term. With regard to the Consul, Complainant claimed that he sought to elicit much information from him that was not directed toward a professional goal. Complainant maintained that the Consul was intimidated and threatened by his experience and made him feel uncomfortable by frequently asking him why he was in Karachi. According to the Supervisor, when she asked Complainant for examples of harassment by the Consul, Complainant stated that the Consul watched him too much and asked him why he joined the Foreign Service. The Karachi Consul General denied that Complainant raised a hostile work environment with him but acknowledged that Complainant was unhappy with Consular Section operations. The Karachi Consul General stated that he urged Complainant to make efforts to get along with management but that Complainant responded he had the ability to operate the Section more effectively than management. The Embassy Islamabad Consul General stated that he believed Complainant created a hostile work environment for his bosses and was not himself suffering from a hostile work environment.

The Agency noted that only one witness recommended by Complainant supported his description of the work environment. This witness stated that after Complainant spoke with the Deputy Chief Mission on March 12, 2012, the Supervisor began to question him to a larger extent than the other officers and otherwise shunned him. According to this witness, the Supervisor created a hostile work environment but not based on Complainant’s race or age. The witness stated that all of the Foreign Service Officers in the Section told him that the Supervisor mismanaged the Section. With regard to Complainant’s style of interpersonal communication, the witness stated that some of Complainant’s peers found him abrasive and unnecessarily argumentative. The witness added that Complainant was sometimes abrasive with his supervisors.
[…]
Complainant has not submitted persuasive evidence that the Agency’s scrutiny of various aspects of his work, the comments at issue, and his leave were greater than that of any of his colleagues or that the scrutiny was based on his age, race, or prior EEO activity. It appears that Complainant’s Supervisor may have had problems managing the Section, but those difficulties and her treatment of Complainant were not attributable to an impermissible discriminatory motivation. Complainant in turn engaged in interpersonal communication that was abrasive and unnecessarily argumentative with both management officials and coworkers, and the Embassy Islamabad Consul General believed that Complainant created a hostile work environment for management officials in Karachi. We find that Complainant did not establish that he was subjected to a legally hostile work environment based on his race, age or in reprisal for his protected EEO activity.

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FBI Agents Hung A Noose Over an African American DS Agent’s Workspace Twice, FBI Called It “Pranks”

Posted: 1:20 am ET
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This is a hostile environment harassment case originally filed in 2009 with the final EEOC decision issued in July 22, 2014. It involves an African-American Diplomatic Security Agent and FBI Agents assigned to the FBI’s Joint Terrorism Task Force (JTTF) in Tampa, Florida. The allegations include the hanging of a noose (twice) over the wall separating the DS Agent’s cubicle and adjacent workspace, and racially motivated comments  and use of the “n-word” against then-presidential candidate Barack Obama.

Previous to the 2014 final decision, the EEOC on the July 26, 2013 appeal writes:

“[W]e determined that Complainant’s claim involved an allegation of hostile work environment that occurred during the course of Complainant’s detail to the Department of Justice, Federal Bureau of Investigations (FBI).  We found that the Agency, as Complainant’s employer, and the FBI could potentially be liable for the alleged hostile work environment.  Our previous decision determined that while the Agency issued a decision concluding that there was no basis for holding it liable for the alleged hostile work environment, the FBI failed to issue an independent final decision or join in the State Department’s final decision.  In that regard, the previous decision vacated the Agency’s decision and joined the FBI as a party to the case.  The complaint was remanded to both agencies for further processing and they were ordered to issue a joint final decision addressing the issue of their respective liability for the discriminatory hostile work environment.  The record indicates that despite the Order, the agencies issued two separate decisions addressing their positions.”

According to the EEOC, the State Department’s September 30, 2013 final decision, determined that the DS Agent-complainant was “subjected to hostile working conditions which occurred on FBI premises by FBI personnel” and, therefore, it was not liable for the conduct of FBI employees.  Moreover, the State Department contended that its “management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.”  The Agency also emphasized in its decision that Complainant did not claim that any Agency official from the Department of State took any adverse or retaliatory action against him.  The State Department concluded that there was no basis for imputing liability to the Agency.

In its July 22, 2014 final decision, the EEOC affirmed the State Department’s decision saying, “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.”

Here are the facts from the EEOC case file:

At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency’s Diplomatic Security Section facility in Miami, Florida.

On October 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to a hostile work environment from 2008 to July 2009 characterized by, but not limited to, threatening, offensive and hostile acts, derogatory comments and racially inflammatory statements.

The evidence gathered during the investigation2 of this matter indicates that, in September 2007, Complainant began an assignment with the FBI’s Joint Terrorism Task Force (JTTF) based in Tampa, Florida.  Complainant was the only State Department employee on the JTTF, which was mostly comprised of other special agents employed by the FBI. Complainant was assigned to a 15-member JTTF squad that worked in an office with opened, modular cubicles.

There is little dispute between Complainant and both agencies over the facts of this case.  The parties agree that in the spring of 2008, a noose was hung over the dividing wall of Complainant’s cubicle.  According to Complainant, at the time, he did not consider the presence of the noose to be a personal attack, but as an African American believed the action was highly offensive. When Complainant discovered that a particular FBI agent (Agent F) (white male) was responsible for hanging the noose, Complainant spoke to him about it and Mr. F apologized for the incident and took the noose down.  Complainant did not complain to any Agency or FBI official about this incident at the time, as he believed that the matter had been handled after he spoke directly to Agent F about it.

However, in the fall of 2008, conversations in the office about the upcoming presidential election began to get “heated” and specific comments were made by Agent F and two other named individuals, Agent O and Air Marshall B (both white males), that Complainant perceived as racially motivated against then-presidential candidate Barack Obama.  According Complainant, these individuals made offensive remarks such as “we can’t let some Muslim motherfucker take office” and “when I see someone with an Obama bumper sticker I speed up to see who the fuck is driving the car.”  He also said the named individuals commented that they “should put Obama bumper stickers on [their] car and go raise some hell.”  According to Complainant, such inflammatory statements were not made about the white presidential candidate. Complainant also alleged that the “n-word” was used in referring to candidate Obama. Initially, Complainant indicates that he tried not take these comments personally and to remain calm.  However, he contends that, later, the comments began to affect his working environment negatively and made him feel uncomfortable because the individuals making the statements were the same individuals that Complainant had to rely on to perform his job and for his personal safety.  Complainant asserts that he began to perceive hatred from his co-workers against African-Americans based on these comments.  He began to wonder how his co-workers felt about him.

In October 2008, another noose was hung over the cubicle adjacent to his cubicle. A Halloween mask was placed in the noose to resemble a hanging. According to Complainant, he observed the other agents laughing about the noose.  After this second noose incident, Complainant reported the conduct to his first and second line supervisors at the Agency (State) and to the individual who supervised the FBI Agents on the JTTF.  According to statements from Complainant’s supervisors at the State Department, the FBI management assured them that the matter would be investigated by the FBI’s Office of the Inspector General (OIG), and that the responsible FBI agents would be assigned to other squads and away from Complainant.

Complainant was interviewed by the FBI OIG in November 2008 while the FBI agents were interviewed in February 2009. The record further indicates that Complainant’s supervisors at the State Department asked for, but never received, a copy of the OIG report of investigation.3  According to Complainant, although FBI officials advised his State Department supervisor that the offending agents would be moved to new assignments to remedy the situation, the FBI JTTF supervisory officials failed to enforce the reassignment and did not take the action necessary to relocate the agents involved.  These facts were verified by the supervisors at State.

In the FBI’s supplemental investigation, the FBI Supervisory Special Agents (SSAs) and the Special Agent in Charge (SAC) averred that as soon as they were informed about the second noose incident, they requested an investigation from the FBI’s Office of Professional Responsibility.  However, the FBI’s OIG opted to conduct the investigation.  The SAC also said that he directed that the three FBI agents involved in the incidents be immediately moved to work areas away from Complainant. However, the evidence shows that only the junior agent was immediately moved, and while the other two eventually moved, the SSAs and SAC all concede that the two agents were often in Complainant’s work area because they needed access to investigative materials housed there. The SAC further stated that, after the OIG investigation was completed; all three agents were eventually subjected to disciplinary action.

According to Complainant, the work environment became worse for him after he reported the second noose incident and the matters were being investigated.  Specifically, Complainant contends that no one spoke to him and that two of the agents who were supposed to be relocated objected to the move and remained in his work area. He indicates that the FBI agents often mocked him. Complainant asserts that he felt alienated from his co-workers and could not perform the job he was assigned to do because his peers would not interact with him.  Complainant asserts that one of the offending agents was moved only two desks away from him and that the reassignment was not an effective remedy to stop the harassing conduct.  Complainant’s supervisor at State was informed by Complainant of the deteriorating situation, and conducted a site visit himself and confirmed from his own observations that the situation was hostile for Complainant.

On January 4, 2009, Complainant’s supervisor at the State Department, frustrated because FBI management did not appear to be taking appropriate action to remedy the situation, told Complainant to pack his things, leave the JTTF office and work on taskforce duties from home. Complainant did so, believing this was the only thing his supervisor at the State Department could do to protect him from the hostile work environment in the office in the absence of any corrective intervention by the FBI.  However, Complainant felt that he was being punished by having to leave the office while the offending agents were still in the office performing their jobs. Complainant contends that the hostile work environment did not end until his assignment was changed in July 2009.

In its September 30, 2013 final decision, the Agency determined that Complainant was subjected to hostile working conditions which occurred on FBI premises by FBI personnel and, therefore, it was not liable for the conduct of FBI employees.  Moreover, the Agency contends that its management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.  In addition, the Agency emphasizes in its decision that Complainant does not claim that any Agency official from the Department of State took any adverse or retaliatory action against him.  Therefore, the Agency concluded that there was no basis for imputing liability to the Agency.

Excerpt below from the EEOC’s analysis and findings:

To establish a claim of hostile environment harassment, 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. […] The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance at 6.

FBI claims the two “noose” incidents were mere pranks

In applying this standard, we find that the evidence of record supports Complainant’s claim of two “noose” incidents, as well as a working environment where Complainant was subjected to derogatory comments and racially inflammatory statements occurring from the spring of 2008 to July 2009.  The FBI, however, has argued in its separate September 30, 2013 decision that the offending FBI agents were not motivated by Complainant’s race when, in two separate incidents, they hung a noose in Complainant’s work area.  The FBI claims that the incidents were mere pranks directed at another employee and not at Complainant based on his race.  The FBI also determined that the remarks by agents concerning the 2008 presidential election and candidate Barack Obama were not racially motivated.  The FBI argues that the agents merely expressed their opposition to a particular political candidate and that their comments were not a result of any animus toward Complainant’s protected class.

We disagree with the FBI’s position. In limited circumstances, the Commission has held that certain events, by themselves, may support a finding of discrimination under Title VII. See Juergensen v. Dep’t of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman’s noose is “a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans”);  Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996).  Moreover, the record is clear that derogatory and racially inflammatory language, including the use of a highly charged racial epithet (the n-word), was openly used by the FBI agents in Complainant’s presence.  Moreover, the fact that the remark was not specifically directed toward complainant is not dispositive.  See Barber, Eley, Powell and Johnson v. Department of the Navy, EEOC Requests Nos. 05A50657, 05A50771, 05A50972, 05A50973 (March 16, 2006).  Therefore, we find that the evidence of record supports a finding that Complainant was subjected to a racially hostile work environment while serving on the FBI task force in 2008 and 2009.

Agency’s liability

In considering the Agency’s liability for this discriminatory hostile work environment, we note that an Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992).  The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996).  Appropriate corrective action is a response that is reasonably calculated to stop the harassment.

FBI failed to advise the State Department of investigation results

The record establishes that when Complainant informed his State Department management of the hostile work environment to which he was being subjected, Agency officials immediately contacted Complainant’s FBI supervisors and were advised that the offending agents would be assigned to other teams.  Because of the unique circumstances involved in this matter, the Agency had no authority over the FBI agents and did not initiate an investigation because the matter occurred on FBI premises.  The Agency also indicates that although the FBI conducted an investigation, the FBI failed to advise the Agency of its results.  The record further indicates that Complainant’s State Department supervisor met with Complainant and advised him of the FBI’s plan to remove the offending agents and asked if Complainant wanted to take further action.  Complainant elected not to pursue any further action initially, believing that the FBI’s promised intervention into the matter would end the hostile work environment.  When Agency management later learned from Complainant that his work environment had not, in fact, improved, and that he was being alienated at the FBI offices, Complainant’s supervisor decided to have Complainant work from home in an attempt to eliminate Complainant’s exposure to the hostile work environment that the FBI had failed to end.

FBI failed to end hostile environment

The record reflects numerous emails sent between various members of Complainant’s management team at the Department of State in their efforts to support Complainant.  These emails support the affidavits of State Department officials and Complainant himself, that they initially thought that the FBI’s response to the alleged harassment was adequate.  However, when State Department management learned that the FBI had failed to end the hostile environment, it became disillusioned with the FBI’s efforts and removed Complainant from the workplace in order to protect him from further harassment. Complainant testified that he believed the Agency did everything it could to support him.

Diplomatic Security Agent-Complainant was removed from workplace

We find that when the State Department management learned of the harassment, it took prompt action by immediately contacting Complainant’s FBI supervisors in an attempt to address Complainant’s concerns and end the hostile environment.  However, because the hostile environment was created by FBI employees at an FBI location, Complainant’s supervisors had no direct authority to remedy the situation.  Instead, the Agency was forced to rely on their FBI counterparts in management to address Complainant’s concerns.  The record reflects that Agency officials kept in constant contact with Complainant during the course of the FBI’s investigation into Complainant’s allegations and, to the best of its ability, the Agency followed up on the progress of the FBI investigation.  The record further indicates that once the Agency learned that the FBI’s investigation did not alleviate the hostile environment to which Complainant was being subjected, the Agency removed Complainant from the environment and permitted him to work from home until his assignment with the FBI was terminated.  The Department of State admits that Complainant was subjected to a hostile work environment while working at the FBI.  However, record evidence shows that State Department management took prompt and immediate action to report Complainant’s claims to FBI officials and, when the FBI failed to remedy the situation, removed Complainant from the FBI work site in order to prevent further exposure to the hostile work environment.  Accordingly, we find that there is no basis for imputing liability to the Department of State for the discriminatory hostile work environment in this case.

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EEOC Case: Complaint Over Arranging Transportation to a Happy Hour in Baghdad

Posted: 12:35 am ET
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Via eeoc.gov

DECISION | Complainant filed a timely appeal with this Commission from the Agency’s decision dated January 21, 2014, dismissing her complaint of unlawful 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.  Upon review, the Commission finds that Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Foreign Services Officer at the  U. S. Embassy  in Baghdad, Iraq.

On December 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when she received an email from an official outside her chain of command requesting that she arrange his transportation to a happy hour.

Information in the record shows that the  email  stated “[Complainant], since you are such an expert could you put in a request for a vehicle.”   Both Complainant and  the involved official had been invited by the Australian  Embassy to go to the event, and the official’s office and Complainant’s office  had worked together in the past. The official said that Complainant had offered to arrange transportation to a meeting in the past. When the official learned that Complainant was upset by his email, he apologized.

Analysis and Findings

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition.  29 C.F.R. §§ 1614.103, .106(a).  The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.  Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).  If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.  29 C.F.R. § 1614.107(a)(1).

The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment.  See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant’s allegations, involving a one-time isolated email,  are insufficient to state a claim of a hostile work environment.

The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.  See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

The text of the entire decision is available to read here.

 

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