Hassan B.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Apr 13, 2016

0120141137 (E.E.O.C. Apr. 13, 2016)

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

Hassan B.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120141137

Agency No. IRS-13-0171-F

DECISION

Complainant filed an appeal from the Agency’s December 19, 2013, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Revenue Officer,
GS-1169-11, at the Agency’s work facility in Clinton Township, Michigan.

On February 16, 2013, Complainant filed a formal EEO complaint wherein he claimed that the
Agency discriminated against him on the bases of his race (Arab-American), national origin
(Arab-American), color (olive brown) and in reprisal for his prior protected EEO activity
under Title VII when on November 29, 2012, he was removed from the Criminal Investigation
training program.

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
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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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 Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Complainant began training on July 1, 2012, as a Criminal
Investigator, and was enrolled in the program until his removal from the program on
November 29, 2012. As part of the class regimen, Complainant took multiple choice tests and
also participated in practical exercises based on mock cases. The Agency stated that if a
student failed three tests or practical exercises and did not achieve a course score of 80%, the
student was dismissed from the training. Complainant claimed that he passed his first fifteen
multiple choice exams but failed his sixteenth exam with a score of 78.95. Complainant lost
points for incorrect formatting and he claimed that he failed the test because he was unfamiliar
with the Microsoft Excel software program. Complainant asserted that the Supervisory
Academy Instructor, his first-level Supervisor for the training, told him while discussing this
exam that “this job is not for you.” In October 2012, during a slide show, an instructor
explained to students that they needed to be able to spot a terrorist at an airport. He then
showed a slide of a camel in the middle of a parking lot. Complainant acknowledged that he
did not complain to anyone about the slide show at the time.

The next item that Complainant failed was a 17-20 page special agent report. Complainant
scored 75.6% with points deducted for overwriting. Complainant retook three sections of the
exam and his score went down to 75.17%. Complainant was subsequently informed by the
Supervisor that he would be removed from the training program. The Supervisor explained
that Complainant had failed his first practical exercise as he left four lines blank on the
Summary of Receipts and Dispositions – 2008 and failed to accurately document Appendix A-
7. The Supervisor maintained that Complainant’s mistakes were not formatting issues, but
technical issues where Complainant did not total the columns nor label them. With regard to
Complainant’s statement that she told him “maybe the job was not for him,” the Supervisor
commented that she told Complainant that if he believed multiple choice testing was the best
way to evaluate a candidate, maybe the job was not for him. According to the Supervisor, the
job involved judgment, application of accounting and legal principles, as well as good oral and
written communication skills.

As for the second test that Complainant failed, the Supervisor explained that Complained failed
the report writing practical exercise due to not including several relevant facts as well as errors
in spelling, grammar, logical presentation and conciseness. The Supervisor noted that
Complainant did not in many instances document facts from the interview in the books and
records section of the report. In another area, the Explanation and Defense of Subject, the
Supervisor stated that Complainant did not provide possible rebuttals to defenses.

The official who scored Complainant’s retake of the special agent report stated that he failed
again due to deficiencies in several areas. According to this official, Complainant did not
check boxes in the Other Pertinent Data and Willfulness sections and also lost points for logical

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presentation and conciseness. The official noted that Complainant also did not include rebuttal
information in the Explanation and Defense of Subject section.

In a memorandum recommending Complainant’s removal, the Director of the Training
Academy stated that Complainant was considered uncooperative. The Supervisor noted that
during one review session, Complainant became upset, stating that he could not score lower on
the retake than on the original test. The Agency stated on another occasion, he told his class
advisor his grade was “bullshit” and she should give him the points he needed. Complainant
was not considered amenable to constructive feedback or offers of assistance.

The Supervisor stated that four other students failed the specific item practical exercise and
four other students failed the report writing practical exercise. The Supervisor asserted that
during her tenure as a Supervisory Academy Instructor, she has recommended the removal of
approximately nineteen other students due to academic failure. In terms of Complainant’s
training class, the Supervisor noted that one other student was removed due to academic
failure. The Supervisor stated that she was unaware of this student’s race, color, or national
origin. Complainant claimed that that student was Jewish and brown like him, and sometimes
was mistaken for him.

The Agency determined that assuming arguendo Complainant established a prima facie case
under the alleged bases, it nevertheless articulated a legitimate, nondiscriminatory reason for
Complainant’s removal from the training program. The Agency stated that Complainant failed
three tests by committing many technical errors and that failure warranted removal from the
program. The Agency determined that Complainant failed to show that this reason was
pretextual. The Agency stated that Complainant’s only evidence was the camel joke event but
that he did not complain about the event at the time. According to the Agency, when
management was made aware of the incident, the instructor was counseled that the joke was
inappropriate and not tolerated. The Agency determined that Complainant did not establish an
evidentiary link between the instructor’s action and his scores. Further, the Agency
determined that Complainant did not set forth a prima facie case of reprisal given that no
witnesses were aware of Complainant’s EEO activity and Complainant showed no link between
his opposition to the camel joke and his removal. The Agency noted that although
Complainant identified one other student, who was removed for exam failure, as the same
color as him, that by itself is not sufficient to warrant a finding of color discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that his failure of the specific item practical exercise was due
to score manipulation by the same instructor who made the camel joke. Complainant maintains
as to his failure of the retake that he had the correct answers but he was not given credit
because he memorized the school solution and did not learn the concepts. Complainant claims
that the instructor encouraged him by telling him he could remember the information.
Complainant argues that the instructors were more lenient with the grading of other students’

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practical exercises. Complainant also questions whether his Supervisor told other students that
the job was not for them after their first failure four and a half months into the training.

In response, the Agency asserts that Complainant failed to establish a prima facie case of
discrimination under the alleged bases. The Agency states that Complainant failed to identify
similarly situated individuals outside his protected classes who were treated more favorably or
established an evidentiary link between his removal from the training program and his
protected categories. The Agency attempts to negate Complainant’s claim by stating that his
primary arguments consist of mere disagreement with how the training instructors scored and
evaluated him. With respect to the reprisal claim, the Agency asserts that the claim must fail
largely because none of the named Agency witnesses knew that Complainant had engaged in
prior EEO activity.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under each of the alleged bases. The Agency stated that Complainant was removed from the
training program after he failed three practical exercises. According to the Agency, the
removal was pursuant to the training program’s three strikes policy. Complainant committed
errors on the various practical exercises that were mistakes of omission, inaccuracy,
overwriting, spelling and grammar errors, and deficiencies in logical presentation and
conciseness. The Agency further explained that Complainant was argumentative and was not
considered amenable to constructive feedback or offers of assistance. We find that the Agency
articulated legitimate, nondiscriminatory reasons for Complainant’s removal from the training
program.

Complainant attempts to establish pretext by disputing how the failed practical exercises were
scored. Complainant argues that the scores of individuals outside his protected groups were
evaluated more leniently but he does not offer persuasive evidence to support this contention.

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Complainant suggests that the instructor who showed the slide with the camel in the parking lot
discriminated against him in the grading of the first practical exercise that he failed. This
argument, however, by itself is not sufficient to establish discriminatory intent. Complainant
contends that his Supervisor’s discriminatory motivation was evidenced by her remark that
maybe the job was not for him. We do not discern discriminatory intent in this comment as we
find it credible that the Supervisor made this statement as part of a challenge to Complainant’s
apparent belief that multiple choice testing was the best method to evaluate a candidate. We
also take note of the Supervisor’s statement that she has recommended for removal
approximately nineteen other students due to academic failure. Upon review of the record, we
find that Complainant has not presented sufficient evidence to establish that the Agency’s stated
reasons for his removal from the training program were pretext intended to hide discriminatory
motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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

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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. 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

April 13, 2016
Date