Donny F.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Sep 25, 2018

0120182220 (E.E.O.C. Sep. 25, 2018)

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

Donny F.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120182220

Agency No. HSUSCG017732017

DECISION

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 May 18, 2018, final
decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant served as a deck watch officer
aboard the United States Coast Guard Cutter (USCGC) Vigorous.

On July 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of national origin (French) when on May 1, 2017, he was rated as a
marginally performing officer and was not recommended for promotion on his Officer Evaluation
Report (OER). At the conclusion of 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 (AJ). In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

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.
0120182220

2
The decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

The Agency determined that management had articulated legitimate, nondiscriminatory reasons
for assessing Complainant as a “marginally performing officer” and not recommending him for
promotion. Specifically, the Agency noted that the low OER rating and non-promotion
recommendation were based on Complainant’s failure to pass the deck watch officer examination,
which resulted in his inability to fulfill his primary duty aboard the USCGC Vigorous. The Agency
also noted that Complainant did not conduct himself properly in front of subordinates, thereby
calling into question his leadership, professionalism, and accountability as an officer in the U.S.
Coast Guard. In finding no discrimination, the Agency found that Complainant failed to prove by
a preponderance of the evidence that management’s legitimate, nondiscriminatory reasons were
pretext for discrimination based on national origin.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993). 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. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983).

The Agency has offered legitimate, nondiscriminatory reasons for assessing Complainant as a
“marginally performing officer” and not recommending him for promotion. Specifically, as noted
in the report of investigation, Complainant’s superior officers warned him that his repeated failure
to pass the examination would adversely affect his performance appraisal.
0120182220

3
Despite these warnings, Complainant repeatedly failed to qualify as a deck watch officer and
consequently received a low performance appraisal. Moreover, the record shows that
Complainant’s conduct aboard the USCGC Vigorous led management to question his leadership,
professionalism, and accountability.

Complainant has failed to demonstrate that the Agency’s legitimate, nondiscriminatory reasons
were pretext for discrimination. Though Complainant relates his poor performance appraisal and
non-promotion recommendation to discrimination on the basis of national origin (French), the
record shows that he repeatedly failed an examination that was essential to his job, joked about his
failure to subordinates in a carefree manner, and declined offers of assistance to help him improve
his examination performance.

Moreover, there is no evidence to suggest that his superiors were aware of his national origin. To
the contrary, the record shows that Complainant’s superiors all viewed him as an American, based
on his fluency in English. While some of Complainant’s superior officers were aware of his
proficiency in French, they viewed Complainant’s language skills as an asset to the mission. We
note that while comments about accents or language skills may raise an inference of national origin
discrimination in some instances, merely asking questions about languages that Complainant
might speak or expressing an inability to understand a person’s manner of speaking do not
necessarily reflect animus based upon national origin. See Complainant v. Dep’t of the Army,
EEOC Appeal No. 0120102086 (March 28, 2013), request for reconsideration denied, EEOC
Request No. 0520130391 (September 26, 2013).

Absent discriminatory motive, the Commission cannot second-guess the Agency’s personnel
decisions unless there is evidence of discriminatory motivation on the part of the officials
responsible for making those decisions. Consequently, we find that Complainant has failed to
show that the Agency discriminated against him.

CONCLUSION

We AFFIRM the Agency’s decision 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.
0120182220

4
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.

0120182220

5
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

September 25, 2018
Date