0120150303
01-07-2016
Arthur J.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arthur J.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120150303
Agency No. DOS-F-072-13
DECISION
On September 22, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 26, 2014, 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 EEOC accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed with staffing firm 1, a subcontractor of staffing firm 2, serving the Agency as a Senior Software Developer at its Foreign Service Institute (FSI) in Arlington, Virginia.
On February 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his sex (male) and national origin (American) when he was terminated on November 30, 2012.
The Agency dismissed the complaint , in relevant part, for failure to state a claim, reasoning he was not an employee of the Agency. In EEOC Appeal No. 0120132731 (Jan. 24, 2014), the EEOC found that under common law, the Agency jointly employed Complainant, and reversed the dismissal.
Following an investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). After he did not respond, the Agency issued a FAD finding no discrimination.
On November 29, 2012, Co-worker 1 (female, Complainant believed her national origin was Iran), a contract employee who started serving the Agency in November 2012, reported to her Agency Information Technology (IT) Project Manager an alleged incident with Complainant. In emails, management relayed the following: Co-worker 1 was so upset by the incident that she left the building in distress and went home on sick leave. Before leaving or when she returned the next day, Co-worker 1 communicated to her IT Project Manager that she was "creep[ed] out" by what Complainant did, was not comfortable, and did not want to go back to the same work area. Management temporarily moved her to a different cubicle. Complainant's IT Project Manager reported the matter to the Agency FSI Project Manager.
On November 30, 2012, the FSI Project Manager (United States, male) discussed with Co-worker 1 what happened. He stated Co-worker 1 said the following: Complainant stopped by her desk, as he had done before, to discuss his interest in the Persian language, and his visits were unwanted, but tolerated. She felt Complainant was quite knowledgeable about the language. At some point he wrote down a Romanized version of a word and repeatedly asked her to pronounce it for him. Co-worker 1 was extremely uncomfortable because she believed Complainant was trying to get her to say a well-known Farsi slang for vagina. The FSI Project Manager asked Co-worker 1 if she felt that Complainant made a mistake due to ignorance, but she felt that he knew what he was asking.
In an email, Complainant's IT Project Manager wrote that in the morning of November 30, 2012, he spoke with Co-worker 1 who confirmed that [Complainant] wrote a word down on a piece of paper and attempted to get her to pronounce it, which made her very uneasy.
By the morning of November 30, 2012, the FSI Project Manager relayed the situation to the Agency Contracting Officer. In the afternoon, the Contracting Officer replied that he ran the situation by the Office of Civil Rights which opined this was a conduct issue and should be handled as such. The FSI Project Manager stated that on the same day he reported the incident to the Human Resources Manager for staffing firm 2, advising it was the Agency's consensus that this was an unacceptable conduct issue. The Chief Financial Officer for staffing firm 2 stated that the Human Resources Manager asked the Agency FSI Project Manager if Complainant could be counseled or if the Agency preferred that he be removed, and the response was removal was preferred albeit he was told not to come out and say so specifically.
Thereafter, staffing firm 1 cut off Complainant's service to the Agency, and for this reason staffing firm 2 terminated him on November 30, 2012.
Prior to contacting staffing firm 1, no one at the Agency contacted Complainant. Complainant stated that prior being terminated, he also was not contacted by anyone at staffing firms 1 and 2.
Complainant writes that the English word in question that he wrote down was "cause," and he strongly denied that he asked Co-worker 1 to pronounce it or that he knows any "dirty" words in Persian. He stated that he only met Co-worker 1 briefly a few days earlier and did not say more than "hello." Complainant explained that he is interested in foreign languages, and as such studied the Farsi alphabet and knew about a dozen Farsi words. Complainant relayed that in discussing language with Co-worker 1, he randomly raised and pronounced the English word "cause," writing it down for clarity, as an example of the absurdities of English spelling and how pronunciation of words evolve.
Complainant averred that the English word "cause" is pronounced KAWZZ, and the Farsi slang for the word vagina is pronounced KOHSS, which are distinctly different. He supports this with letters by two native Farsi speakers.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Agency explained that it in effect made a request to staffing firm 2 to cut off Complainant's services (which resulted in his termination), because Co-worker 1 reported an incident where Complainant's behavior with her rose to the level of misconduct. Agency management indicated that Co-worker 1 was shaken by the incident - she left the building for the day on sick leave, and at that time or the next day stated she was "creep[ed] out," indicated she was uncomfortable, and asked to move to another area away from Complainant.
In an effort to prove pretext, Complainant points out that he was removed without due process - no one asked for his side of events before his removal. Further, he postulated that he was taken as a male being offensive to a female.
We agree that Complainant's service to the Agency was cut off without due process, and this resulted in his termination by staffing firm 1. But Complainant has not shown that the Agency's reason for asking that his service be cut off was pretext to mask national origin or sex discrimination. Co-worker 1 made a strong allegation that Complainant engaged in misconduct with her, and was shaken by the experience. Complainant started serving the Agency in July 2012, and it is apparent it viewed him as someone just providing a service and not an Agency employee - it is apparent that it felt that given the service arrangement, it had wide latitude. Complainant has not shown he was disparately treated. He has not proven discrimination based on his national origin and sex.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 7, 2016
__________________
Date
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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