Dwight B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 26, 2018

0120182219 (E.E.O.C. Sep. 26, 2018)

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

Dwight B.,1
Complainant,

v.

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

Appeal No. 0120182219

Agency No. DOS024717

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 15, 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 was a Senior Director in the Office
of Anticrime Programs at the Agency’s headquarters in Washington, D.C.

On September 6, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Hispanic)2 and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 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.
2 The Commission views “Hispanic” as a national origin designation and not as a racial
designation. Banco v. Department of Justice, EEOC Appeal No. 01A03601 (December 12, 2002);
Morales v. Department of the Navy, EEOC Petition No. 03930096 (December 10, 1993).

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1. Since 2016, high profile assignments were removed from his work portfolio; and
2. In May 2017, his work assignments were reduced.3

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). The decision concluded
that Complainant provided insufficient evidence to show that the Agency’s explanations were a
pretext for unlawful discrimination. The Agency found that Complainant did not carry his ultimate
burden of proving that his national origin or protected activity were factors in management’s
conduct or show that the conduct at issue was sufficiently severe or pervasive to be actionable
under a hostile work environment theory. Therefore, the Agency determined that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

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”).

On appeal, Complainant alleges that the Agency discriminated against him and subjected him to a
hostile work environment on the bases of his national origin (Hispanic) and in retaliation for
opposing discriminatory policies or practices. Complainant contends that his supervisor slowly
took away high-profile projects from him over a period of 18 months, beginning in January 2016.
He claims that his supervisor kept some of the high-profile assignments for herself and transferred
other projects to non-Hispanic employees. Complainant also reports that his supervisor also
falsely accused him of insubordination and represented him in a negative light after he complained
about harassment.

To establish a claim of harassment, Complainant must show that: 1) he belongs to a statutorily
protected class; 2) he was subjected to unwelcome verbal or physical conduct involving the
protected class; 3) the harassment complained of was based on a statutorily protected class; 4) the
harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and 5) there is a basis for imputing liability to the employer. See
Complainant v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).

3 The Agency issued a separate final decision with regard to Complainant’s constructive discharge
claim that is not at issue in this appeal.
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With regard to Complainant’s allegation that he was subjected to harassment, we will assume
arguendo that the events occurred as Complainant described and were unwanted. However, he has
not shown that the conduct occurred because of his protected class, and we find that the alleged
instances of harassment were related to Complainant’s job duties or his conduct. To the extent
that Complainant and his colleagues argue that his immediate supervisor acted unprofessionally
towards Complainant and other employees, the Commission notes that Title VII is not a civility
code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the
victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
Complainant has not shown that his supervisor’s conduct had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating, hostile, or offensive work
environment. Furthermore, we find no persuasive evidence that the supervisor’s actions were
reasonably likely to deter an individual from pursuing his EEO rights. Accordingly, we find that
the conduct at issue was not sufficiently severe or pervasive enough to result in a hostile work
environment.

Even if we treat the incidents as discrete acts, we still find no discrimination. Assuming, without
deciding, that Complainant established a prima facie case of discrimination, we find that the
Agency has offered legitimate, nondiscriminatory reasons for its actions. The record shows that
Complainant’s job description had remained unchanged for approximately 10 years. When
Complainant’s supervisor joined the office in January 2016, she began updating the job
descriptions of her staff to reflect the current goals and needs of the office. In so doing, she
obtained guidance and approval from human resources to ensure compliance with the Agency’s
SMART-Q Framework (establishes job descriptions). Complainant has not shown by a
preponderance of the evidence that the Agency’s articulated reasons were pretextual in nature.

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.

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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 (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.
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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

September 26, 2018
Date