Conrad H.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (International Trade Administration), Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

0120170462 (E.E.O.C. Dec. 13, 2018)

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

Conrad H.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(International Trade Administration),
Agency.

Appeal No. 0120170462

Hearing No. 460-2012-00093X

Agency Nos. 55-2010-00567,
55-2012-01820

DECISION

On November 14, 2016, 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
October 11, 2016 decision concerning his equal employment opportunity (EEO) complaints
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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s decision.

BACKGROUND

At the time of events giving rise to the consolidated complaints, Complainant worked as an
International Trade Specialist at the Agency’s United States Export Assistance Center (USEAC)
in Houston, Texas. He began his employment with the International Trade Administration in
October 1999. Continuing from April 2003, he held the position of an International Trade
Specialist in the USEAC.

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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On October 27, 2010, Complainant filed a discrimination complaint (Agency No. 55-2010-
00567)2 alleging that the Agency discriminated against him by subjecting him to a hostile work
environment on the bases of sex (male) and retaliated against him for associating with an EEO
complainant when:

1. On February 17, 2010, Complainant’s supervisor (S1) commented to Complainant, “I
know you are talking to [EEO complainant] and I can abide by a lot of things
[Complainant], but one thing I can't abide by is disloyalty particularly with [EEO
complainant].” Complainant believes that this was a threatening statement because S1
had previously expressed to him how much he disliked [EEO complainant] and about
three times in that conversation alone reminded him that he was “beginning to sound
like [EEO complainant].”

2. Complainant received his personnel file (7B) from the Director, Office of Domestic
Operation, on June 23, 2010. S1 had previously refused to turn the file over to him,
even when directly ordered to so by the Network Director on April 30, 2010. Upon
review of his personnel file, Complainant noticed:

a. that the file contained no performance plans and no reviews for Fiscal Year (FY)
2007, FY 2009, and FY 2010.
b. that the first page of his FY 2008 performance plan was forged (though he notes
that he had previously seen and reported other forged signatures on his FY 2009
mid-point review and FY 2008 final, year-end performance appraisal.
c. that there is no FY 2006 performance plan signed and put in place before that
performance year went into effect and there was no signed mid-term review.

3. S1 has taken away duties from him and given them to his female colleagues with little
or no explanation, and advised him not to attend office-wide trade events, and, at other
times, threatened to deprive him of the resources necessary to do his job.

4. He has not been offered the opportunity to travel domestically or internationally for the
Department over the past three years.

5. As a means to harass and retaliate against him, S1 threatened to close the satellite office
where Complainant worked.

6. He is often excluded from meetings held by S1 with his colleagues during which
specific work assignments are handed out. For example:

2 This complaint was previously before the Commission on an appeal which challenged the
Agency’s dismissal on the grounds of the untimely filing of the complaint. We reversed the
Agency’s dismissal and remanded the matter to the Agency for further processing. See EEOC
Appeal No. 0120111169 (Nov. 1, 2011).
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a. During a conversation with S1 on February 17, 2010, S1 stated that he made a
“spontaneous decision” to hand out assignments to the Africa Summit in February
“to the women” and did not afterwards inform the men in the office of this decision
or opportunity. During this meeting, S1 told him, “I know you are talking to [EEO
complainant].”
b. He has been made aware of organized events for his sectors that he was not given
any advanced notice of or otherwise invited to attend, such as the Eco-Petrol Event
in April 2009 and the April 7, 2010 event on Egypt.
c. S1 has not invited him to speak at the Export Academy nor even approached him
to explain what it is and why the Houston, Texas U.S. Export Assistance Center
was involved in the initiative. Meanwhile, his female colleagues had routinely been
invited to participate over the past two and a half years, and recruit clients there.

7. Complainant and other male staff members are required to pay for entrance to U.S.
Export Assistance Center events whereas female staff members are provided free
access. He cites the following:

a. In a June 9, 2010 e-mail message to the Network Director, S1 said his office
policy was for all staff members to pay for events and register. However,
female staff members stated in e-mail messages to the Network Director on
June 28, 2010 that they were “comped” and that they are never charged for
events, and indicated that they don't know of any such office policy.

On March 29, 2012, Complainant filed a second discrimination complaint (Agency No. 55-2012-
01820) in which he alleged that the Agency subjected him to harassment based on his sex (male),
age (41), and retaliation based on prior protected activity and association with EEO complainant
when:

1. On June 20, 2011, while he was on leave, although a meeting was held and assignments
were changed, which directly affected his territory and workload, he was not provided with
notice of this meeting or an opportunity to participate in it.
2. On November 9, 2011, the Director excluded him from a “decisive” staff meeting in which
the database and new assignments were discussed.
3. On November 10, 2011, when meeting with his supervisors and receiving his new
assignment, Complainant discovered that none of the prior concerns he had expressed to
staff and to the Director were taken into consideration, although the concerns of all other
staff members were addressed in the territory assignments given to them.
4. On December 19, 2011, he discovered the file, “Final Master List Update,” after new
industry assignments were given to staff and he was not permitted to attend the meeting at
which other staff members were notified of this update. He had no involvement with or
knowledge of this file, and the Director did not ask him to work on it. On this date, he also
discovered other files on territory changes from November 10, 2011 and February 23,
2011, but he had not previously been permitted to review many of these files, and his input
and suggestions were not considered.
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5. On December 19, 2011, he discovered files indicating that although Employee
A was named Executive Secretary, he was neither informed of the availability nor
considered for it.
6. On December 6, 2011, the Director did not advise him of an opportunity to serve as Acting
Director in the Director’s absence.

After the Agency investigated the complaints, Complainant timely requested a hearing before an
EEOC Administrative Judge (AJ) on each complaint. The AJ consolidated the complaints and
held hearings on March 20, 2015, and August 25, 2015. She issued a decision on September 21,
2016, finding in favor of the Agency. The Agency subsequently issued its decision adopting the
AJ’s finding that Complainant failed to prove discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

The AJ held a two-day hearing at which six witnesses testified, including Complainant. She found
that Complainant did not establish a causal connection between his claimed bases and the
Agency’s actions. She also found that Complainant had not alleged an incident that rose to the
level of an adverse employment action or which supported his allegation of a hostile work
environment. The record showed that Complainant provided an affidavit for another employee’s
EEO complaint in 2005, whereas the comments made by S1 did not allegedly occur until 2010.
Further, the AJ noted that when Complainant complained, the Agency promptly removed S1 from
his supervisory chain of command and investigated Complainant’s allegations. The AJ found that
all of the alleged incidents occurred sporadically over a few years, with approximately two
incidents occurring every year. She concluded that these factors combined to dispute the
pervasiveness of the actions, and that even if accepted as true, none of the incidents were severe
enough to rise to the level of a creating a hostile work environment. As to his disparate treatment
claims, the AJ found that Complainant had not shown the Agency’s legitimate, nondiscriminatory
reasons to be pretext for discrimination. The AJ’s decision concluded that Complainant had not
been discriminated against or subjected to a hostile work environment.

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Upon careful review of the record and having considered all the arguments raised on appeal, the
Commission concludes that the AJ’s finding that Complainant was not subjected to discrimination
as alleged is based upon substantial evidence of record.

CONCLUSION

Accordingly, we AFFIRM the Agency’s decision which adopted the decision of the AJ finding 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 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).
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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

December 13, 2018
Date