Aldo B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120172598 (E.E.O.C. Dec. 14, 2018)

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

Aldo B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120172598

Agency No. DOS011716

DECISION

On August 22, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 22, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Technical Information
Management Specialist in Washington, D.C.

On March 30, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency subjected him to a hostile work environment and discriminated against him based on
race (African-American), sex (male), age (62), and in reprisal for prior protected EEO activity
when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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1. in August 2016, the Agency deducted Complainant's salary because of
overpayment of Skills Incentive Program pay; 2

2. as recently as May 12, 2016, Complainant has not received an award for the
length of his service;

3. on April 16, 2016, the Agency began garnishing Complainant's wages;

4. on January 29, 2016, the Agency provided inaccurate information and delayed
notification of the Internal Revenue Service's intention to garnish Complainant's
wages;

5. on January 27, 2016, Complainant discovered that his access to Employee
Express and HR Online was denied; and

6. Complainant has been subjected to a hostile work environment characterized by,
but not limited to, intimidating comments and behavior regarding his retirement
paperwork.

The Agency conducted an investigation into Complainant’s allegations. The investigative record
reflects the following evidence relating to the subject claims.

Complainant did not name either his first or second line supervisors as responsible management
officials. In fact, we note that none of the named individuals in the formal complaint have any
working relationship with Complainant, and none are in similar departments to him.
Complainant stated that he engaged in EEO activity in 2003, but did not provide further details.

Claim 1

Complainant stated that Agency Skills Incentive Program (“SIP”) provides additional income to
IT personnel with specific skills. Complainant qualified for the program as a certified Computer
Information System Security Professional, and was therefore receiving an additional 14% in
salary. Complainant said he has been in the program since 2011. On August 3, 2016, he was
notified that he had not been qualified for the program since Pay Period 07, 2016. The Payroll
Department requested the incentive be stopped, and that his wages be garnished for the
overpayment between Pay Periods 7-14. Complainant appealed this action. Following his appeal,
the garnishment was cancelled, his funds returned, and he regained full participation in the
program.

The Financial Management Specialist (female; race and color unknown) stated that
Complainant's eligibility for the SIP incentive was discontinued in the summer of 2016 based on

2 Complainant amended the formal complaint to add this claim, which was accepted on August
31, 2016.
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request from the Foreign Service Institute. She did not provide additional information on the a
request. She confirmed that following the appeal Complainant was reinstated in the program. She
denied that the initial action had to do with Complainant’s protected classes or EEO activity.

Claim 2

Complainant stated he has been in the Civil Service for over 42 years, with positions in various
federal Agencies. Complainant said he was entitled to a 35-year and 40-year pins recognizing his
service, but that pins were not presented to him. The EEO Investigator noted that Complainant
did not identify to whom he had spoken regarding the pins.

The Supervisory HR Specialist stated that Complainant’s service computation date is April 22,
1974, and that he is entitled to both the 35 and 40 year pins. She stated that she was unaware of
the reason why Complainant was not presented with the pins. She was unaware of the
circumstances around the 35-year pin, but stated that the 40-year pin was not provided as an
administrative oversight. However, actions were taken, and he was presented with a 40-year pin
on August 29, 2016.

Claim 3

Based on a garnishment request from the Internal Revenue Service (“IRS”), the Agency’s
Payroll department initiated the IRS garnishment action in April 2016. Complainant filed for
bankruptcy based on his belief that the bankruptcy filing would “stay” the IRS’s ability to
garnish his wages. Complainant notified the Payroll Department, and asked that the garnishment
be stopped, and that all funds be returned to him. Complainant believed that the Agency’s
Payroll department acted discriminatorily when it garnished his wages, but did not provide
further details.

The Supervisory Financial Management Specialist (African-American, female, over 40) stated
that an initial garnishment deduction was set-up in Complainant's payroll account in the amount
of $2575.60 per pay period. However, on February 25, 2016, a Release of Levy from the IRS
was received by the Agency which cancelled the garnishment. Complainant was then
immediately reimbursed for the previously garnished wages.

Claim 4

On or about January 29, 2016, Complainant received notification from the Agency’s Payroll
Department that the Internal Revenue Service (“IRS”) requested to garnish his wages for back
taxes. Complainant avers that this was the first time he was notified of the IRS’s intentions.
Complainant contacted Payroll for clarification. Because Complainant was not able to reach a
live person, he left two voice mail messages to two individuals. Complainant never received a
call back.

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The Supervisory Financial Management Specialist stated that her office received a Notice of
Levy, dated January 14, 2016, from IRS on January 29, 2016. She said Complainant was notified
the same day of the Notice of Levy. She acknowledged that Complainant tried to contact her on
February 1, 2016, but because she was out of the office, and her auto-reply directed him to an
email address for assistance. Complainant sent an email, and an employee responded to
Complainant instructing him to fill out certain forms. Complainant filled out the necessary forms
and submitted them on February 2, 2016. The form requested that the pending garnishment
action be stopped by IRS.

Claim 5

Complainant stated that he tried to gain access to his Employee Express and HR Online accounts
on or about January 27, 2016, and was denied access to both accounts. Complainant noted that
he was able to log-on to the accounts in late December 2015. He does not know why he was
denied access. He contacted appropriate parties and was given access a few weeks later.

The Program Specialist (female; race, and color unknown) stated that two data systems are used
by employees: Employee Express, and HR Online. HR Online is managed by the Office of
Personnel Management, and in late 2015/early 2016, there was a major system update. While
that might have had an impact upon Complainant’s access, she stated that she was not familiar
with Complainant’s issue. The Supervisory HR Specialist (African-American, female, over 40)
stated that she does not know Complainant, and that there was no record of him approaching HR
to allege being denied access to HR Online.

Claim 6

Complainant did not identify any specific incidents or provide testimony on who he informed
that he was being subjected to a hostile work environment. He said he filed a grievance on the
treatment but declined to provide any further information.

After the investigation into his complaint, 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 (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
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factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here,
Complainant had a variety of claims, but aside from rather generalized statements, did not
provide details regarding his allegations, either during the investigation or on appeal. For
example, Complainant argued that he was discriminatorily removed from the Skills Incentive
Program (“SIP”). In the instant matter, the Agency acknowledged that he was temporarily
removed from the program, but also confirmed that following an administrative appeal, he was
reinstated (claim 1).

Regarding his length of service, and lack of recognition, the record does not have a clear answer
as to why Complainant failed to receive a 35-year pin, but does demonstrate that he received his
40-year pin. Complainant alleged that he had raised the issue, but when asked by the EEO
investigator to provide specifics, he failed to provide any. Here, the Supervisory HR Specialist
stated that she was unaware of the circumstances around the 35-year old pin, but stated that it
was a mere oversight that he did not receive the 40-year pin. She noted that he was given the 40-
year pin and recognition on August 29, 2016 (claim 2).

Regarding the garnishment from the Internal Revenue Service (“IRS”), the record does not
demonstrate that the Payroll or HR department acted with any discriminatory or retaliatory
animus in either his requests for information, or when it started to garnish his wages (claims 3
and 4). Here, Complainant was aware that the IRS wanted to garnish his wages in January 2016.
He contacted the Payroll department, which sent him the appropriate forms to fill out as a request
to stop the pending garnishment. Those forms were not a guarantee that the garnishment would
stop, and it was necessary that the Agency receive a release of levy prior to stopping the
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garnishment. The Payroll Department received such notice on February 25, 2016, which allowed
it to stop garnishing Complainant’s wages.

Complainant also alleged discrimination by the HR department in the form of being barred from
the Employee Express and HR Online portals (claim 5). Here, there is no evidence that the HR
department singled out Complainant and barred him from gaining access. The Program
Specialist testified that in late 2015/early 2016, there was a major system update to the portals
which likely impacted Complainant’s access. Additionally, Complainant stated that upon raising
the issue with the appropriate authorities, he regained access.

Finally, Complainant alleged that he was subject to a hostile work environment. However,
despite being provided with the opportunity to do so, failed to provide any detailed incidents.
Based on the record, we find that the claims, even if proven to be true and viewed in a light most
favorable to Complainant, would not indicate that Complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the
alleged Agency actions were not of a type reasonably likely to deter Complainant or others from
engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410
(November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).

In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory
animus. Complainant has not provided any evidence that suggests that the Agency's reasons were
pretext for discrimination or that discriminatory or retaliatory animus was involved.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
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shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

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.

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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
Carlton M. Hadden, Director
Office of Federal Operations

December 14, 2018
Date