U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Drew N.,1
Complainant,
v.
Michael R. Pompeo,
Secretary,
Department of State,
and
Mark Green,
Administrator,
Agency for International Development,
Agencies.
Appeal No. 2019003270
Agency No. DOS023218
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the State Department’s decision dated March 12, 2019, dismissing his
complaint of unlawful employment discrimination alleging a violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked for the United States Agency for International
Development (USAID) at the U.S. Embassy in Bangkok, Thailand.
On May 7, 2018, Complainant filed a formal complaint alleging that the State Department
subjected him to discrimination based on race (Asian), national origin (Japanese), color and/or
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 or around August 2018, he learned that based on rumors regarding his family
bathing customs, since June 2016, he has been subjected to a hostile work
environment, including disparaging remarks about his wife’s culture during an
interview with Diplomatic Security, his family involuntarily being sent to Arlington,
Virginia, and being subject to search and confinement. Complainant further alleges
that the Agency deviated from standard procedure regarding the processing of his
security clearance.
2. In March 2018, Complainant’s security clearance was suspended.
In its final decision, the State Department dismissed the complaint in its entirety. The Agency
determined that the USAID Office of Security suspended Complainant’s security clearance, and
that the Department of State did not suspend the clearance. The State Department therefore
concluded that Complainant filed the instant matter with the wrong agency. The State
Department found that because Complainant is employed by USAID, the complaint against it
(the State Department) must be dismissed.
This appeal followed.
On appeal, Complainant, through counsel, argues that the determination that the State
Department was not involved is inconsistent with the fact that employees from its Diplomatic
Security (DOD/DS) are alleged to have made the disparaging comments at issue. Complainant
further argues that although employed by the USAID, Complainant remained under the authority
and control of the U.S. Embassy DOS/DS Agents in Bangkok, Thailand, where the alleged
discrimination occurred. Complainant’s representative further indicates that on or about June 13,
2016, DOS/DS agents acted on an unsubstantiated report that Complainant’s family was open
about nudity and engaged in family bathing. Based on that report alone, DOS/DS agents
determined that Complainant had sexually abused his daughter. According to Complainant, on
June 15, 2016, he and his family were separated, Complainant’s wife and daughter were ordered
to stay at a hotel and meet with the Virginia Department of Human Services (DHS) and DOD/DS
agents after which Complainant’s daughter was separated from her mother and sent to a foster
home. Ultimately, the USAID Office of the Inspector General (OIG) interviewed Complainant
after he filed a grievance against the Agency for its treatment of his family. Complainant alleges
on appeal that the USAID OIG agent threatened Complainant that he would keep his file open
and continue to monitor his emails for evidence of misconduct. Ultimately, on December 29,
2017, Complainant was notified that his security clearance was suspended by USAID security, in
part due to Complainant’s cultural practice of family bathing. Complainant’s representative
argues therefore that both the State Department and USAID discriminated against Complainant
as alleged.
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ANALYSIS AND FINDINGS
As an initial matter, we note that this case initially came before the Commission in EEOC
Appeal No. 0120182724 (November 6, 2018). Therein, the Commission reversed the State
Department’s earlier dismissal of the complaint on the grounds that Complainant’s EEO
counselor contact in claim 1 was untimely and that claim 2 failed to state a claim. The
Commission remanded the complaint back to the State Department for further processing.
On remand, however, by final decision dated Marcy 12, 2019, the State Department again
dismissed the complaint, now asserting it was filed with the wrong agency. It is this decision
that is the subject of the instant appeal.
A fair reading of the formal complaint establishes that it contains a harassment claim beginning
first with the alleged conduct of State Department employees and their investigation into an
unsubstantiated report against Complainant that resulted in the separation of his family and his
daughter being placed in foster care. However, the alleged discriminatory events also involve
USAID and its suspension of Complainant’s security clearance as a result of the investigation
into Complainant’s alleged misconduct. The record establishes that although an employee of
USAID, Complainant was under the control and supervision of the State Department in his
position with the U.S. Embassy in Bangkok.
It is clear that liability for the alleged discriminatory harassment must be determined here by
examining the actions and decisions by management at both the State Department and USAID.
Moreover, implementation of any remedy to be provided in this case would necessarily require
the participation of both the State Department and USAID. It is the policy of the Commission
that, when two agencies bear joint responsibility for an act of alleged discrimination, both
agencies are proper respondents and the complaint must be jointly processed. See Velez v.
Department of Veterans Affairs & Department of the Air Force, EEOC Appeal No. 01961480
(February 6, 1997). See also, Fauntroy v. Department of the Treasury, EEOC Appeal No.
01980259. The State Department’s decision that Complainant filed his complaint with the wrong
agency is inconsistent with the joint responsibility which both agencies bear. This policy ensures
that all agencies that are indispensable parties to the adjudication of a complaint are joined.
Therefore, the Commission will join USAID as a party to this matter and require it to participate
in the further adjudication of the instant complaint.
CONCLUSION
Accordingly, the State Department's decision dismissing the complaint is REVERSED. The
Agency for International Development (USAID) is joined as a party to this case. We further
notify SAID by this decision of its joinder as a party to the matter. The complaint is
REMANDED to the State Department and USAID for further processing in accordance with this
decision and the ORDER below.
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ORDER
The Department of State is ORDERED to take the following actions:
(1) The State Department is ORDERED to contact the Agency for International
Development (USAID) to jointly process Complainant's complaint. The two agencies
shall commence the joint processing of this case by sending Complainant a joint letter
acknowledging receipt of the remanded complaint within thirty (30) calendar days of the
date this decision becomes final.
(2) Following an investigation by both agencies, the agencies are ORDERED to provide
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). If Complainant requests an immediate final decision, the agencies are ORDERED
to jointly issue a final decision, pursuant to 29 C.F.R. § 1614.110(b), with appeal rights to
this Commission, in which each agency addresses the issue of its respective liability for
the discriminatory hostile work environment. This joint final decision shall be issued
within sixty (60) calendar days of the date this decision becomes final.
(3) A copy of the letter of acknowledgement to Complainant that his complaint is being
jointly processed by the State Department and USAID, and a copy of the joint final
decision on liability must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.†29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999).
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If the Complainant files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency or filed your
appeal with the Commission.
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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. 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
August 29, 2019
Date
