Deon L.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120170208 (E.E.O.C. Oct. 17, 2018)

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

Deon L.,1
Complainant,

v.

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

Appeal No. 0120170208

Hearing No. 570-2014-0024X

Agency No. DOS-F-124-10

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s
September 20, 2016 final order concerning an 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.

At the time of events giving rise to this complaint, Complainant worked as a GS-13 Program
Analyst at the Agency’s Consular Affairs, Consular Systems and Technology, in Washington, D.C.
On September 9, 2010, Complainant filed a formal complaint, subsequently amended, alleging
that the Agency discriminated against him on the bases of race (African-American), color (black),
and reprisal for protected EEO activity when:

1. His request for compensatory time or overtime was denied on July 16, 2010;

2. His request for an administrative transfer was denied between January 2010 and August
2, 2010;

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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3. The Agency subjected him to an ongoing hostile work environment that was
characterized by, but not limited to, threats of negative performance evaluations and
degrading comments;

4. His request to take annual leave was denied on September 23, 2010;

5. His request to take sick leave was denied on September 23, 2010;

6. He was constructively discharged at the end of December 2010; and

7. On December 29, 2010, he received an annual performance rating of “Fully
Successful” in the categories of “Interpersonal Skills and Communications” and
“Participation and Teamwork.

After investigation of the complaints, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Both parties filed motions for
summary judgment and their oppositions and replies. On March 21, 2016, the AJ issued an Order
Scheduling Hearing, Prehearing Conference and Prehearing Report, finding no issues of material
fact with respect to claims 1, 2, 3, and 6. In the March 21, 2016 Order, the AJ also scheduled a
hearing on claims 4, 5, and 7, which went forward as scheduled on May 10, 2016.

On August 15, 2016, the AJ issued her decision granting partial summary judgment on claims 1,
2, 3, and 6 in favor of the Agency and also found no discrimination as to all of the claims.

The Agency issued its September 20, 2016 final order adopting the AJ’s conclusion that
Complainant failed to prove discrimination as alleged. The instant appeal followed.

Summary Judgment on Claims 1, 2, 3, 6
Regarding the grant of partial summary judgment, the Commission's regulations allow an AJ to
grant summary judgment when he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if
it has the potential to affect the outcome of the case. In rendering this appellate decision, we must
scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de
novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final
action shall be based on a de novo review…”); see also Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised,
August 5, 2015)(providing that an administrative judge’s determination to issue a decision without
a hearing, and the decision itself, will both be reviewed de novo).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law.
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Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding
that the agency was motivated by discriminatory animus. Here, however, Complainant has failed
to establish such a dispute as to claims 1, 2, 3, and 6. Even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s
favor.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.

Hearing on Claims 4, 5, 7

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 EEO
MD-110, Chapter 9, at § VI.B.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that substantial evidence of record supports the AJ’s
determination that Complainant has not proven discrimination by the Agency as alleged.

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

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.
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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).

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.

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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

October 17, 2018
Date