Jules H.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120170931 (E.E.O.C. Dec. 4, 2018)

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

Jules H.,1
Complainant,

v.

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

Appeal No. 0120170931

Agency No. DOS-0230-16

DECISION

On January 24, 2017, 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
January 23, 2017, 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.

ISSUE PRESENTED

The issue presented in this case is whether the Agency’s final decision (FAD), erred in finding that
Complainant was not subjected to discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management Officer
at the Agency’s Consulate Dhahram facility in Saudi Arabia. Complainant maintained that he was
subjected to discrimination upon arriving at his post. He believed his treatment was based on his
race, national origin, and color. He indicated that management was not used to seeing someone
that looked like him being in charge and doing a good job.

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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He indicated that his supervisor (S1) interacted with him in a hostile manner, which included
stating falsehoods about him to upper management. Complainant indicated that he complained to
S1 about a problem that he was having with the Community Liaison Officer (CCLO), where the
CCLO had called him a liar. A meeting was held to discuss their relationship. S1 determined that
the behavior was due to a misunderstanding and did not issue any discipline. Thereafter, S1,
treated him in a hostile manner. Specifically, he was admonished without being given an
opportunity to tell his side of the story, he was blamed for incidents that were simply
misunderstandings, he was given an Employee Evaluation Report (EER), that had draft written all
over it, and he was involuntarily curtailed which meant that he could not complete his EER, which
prevented him from being able to apply for promotions.

On June 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Asian), national origin (Asian), and color (Brown) when:

1. Management failed to take action when he reported allegations of misconduct on March
6, 2016;
2. In April 2016, he received a negative Employee Evaluation Report (EER); and
3. On April 19, 2016, he was involuntarily curtailed.2

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. 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 failed to prove that the Agency subjected him to discrimination as alleged.

The Agency maintained that even when assuming, arguendo, that Complainant established a prima
facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons, for its
actions. With regard to claim no. 1, on March 6, 2016, Complainant submitted a memorandum
entitled “Allegations of Misconduct” to S1. Complainant reported that the CCLO, had called him
a liar and had “badmouthed” his work group. S1 looked into the matter and determined that the
incident was due to a misunderstanding. He asked that the parties try to work more effectively
together. Complainant maintained that S1 should have investigated to see whether the CCLO’s
behavior was discriminatory, and whether discipline was warranted. S1, indicated that he had no
evidence that discrimination was involved and the parties had agreed to work more effectively
together. Also, S1 indicated that it was not up to Complainant to decide if discipline was
warranted.

Regarding claim no. 2, the Agency explained that Complainant did not receive a negative EER. A
draft copy was sent to him in order for him to add needed information to the form. Complainant
did not add the information and also did not sign the EER. Soon thereafter, he was involuntarily
curtailed so he was unable to provide the necessary information.

2 The claims have been renumbered to reflect their chronological occurrence.
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With respect to claim no. 3, the Agency explained that Complainant was involuntarily curtailed
because his interactions with coworkers, peers, direct reports, and contractors, were often hostile,
and disrespectful and were beginning to effect productivity. S1 indicated that Complainant was
told many times to change his management style. It was reported that morale was low and it was
believed that his management style attributed to it. It was also noted that Complainant had had
poor interactions with a female coworker, a nurse and a daycare worker, among others.

The FAD found that Complainant did not demonstrate that the Agency’s legitimate,
nondiscriminatory reasons were pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that he has always done an outstanding
job, and that this was the first time he has been treated in such a discriminatory manner.
Complainant argues that the finding of no discrimination should be reversed because the Agency
did not tell the truth regarding its explanations. Complainant maintains that the Agency indicated
that he was involuntarily curtailed because of numerous complaints and counseling, Complainant
maintains, however, that this is not true. He maintains that had he been given the opportunity to
explain, there would not have been a problem. For example, Complainant indicates that he was
accused of offending a coworker but that was not the case. He explains that while processing
paperwork for the coworker’s boy-friend, he told her “to be discreet whenever the two of them are
outside their home to avoid the wrath of the religious police or Mattawa.” Complainant maintains
that he was taking care of a younger diplomat, and the comment was not made to offend her. Also,
with regard to the daycare, Complainant maintains that he was called by an irate day care worker
regarding the decision to have Consulate children go to the day care after school. Complainant
maintains that he was surprised by the call because he had not been involved with the initial
discussion regarding this decision. Finally, he explains that he asked one of the nurses that he
supervised if she had coordinated her leave with the two other nurses in the unit so that they could
ensure coverage. For whatever reason, the nurse assumed that he was picking on her and
complained. Complainant maintains that he was told to file an EEO complaint against the nurse
in order to protect himself from repercussions. Complainant explains that none of these incidents
were hostile or disrespectful and had he been allowed to explain what occurred he would not have
been involuntarily curtailed.

Complainant maintains that he was treated with blatant disrespect, disregard, and discrimination.
He believes he was treated this way because S1 did not like the fact that a man of his race, national
origin, and color was a full diplomat.

In response, the Agency contends among other things, that the FAD should be affirmed because
management articulated legitimate, nondiscriminatory reasons for its actions, and other than
disagreeing with the reasons, Complainant failed to show that the articulated reasons were pretext
for discrimination.

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ANALYSIS AND FINDINGS
Standard of Review

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”).

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume arguendo that Complainant
established a prima facie case of discrimination as to all of his protected bases, the Agency
articulated legitimate, nondiscriminatory reasons for its actions, namely, with regard to claim no.
1, S1 investigated the matter and determined that the incidents complained of by Complainant
were due to a misunderstanding. The parties agreed to work on their relationship and S1 believed
the matter was resolved. With regard to claim no. 2, the Agency explained that Complainant did
not receive a negative EER. His EER was delayed because Complainant initially failed to provide
requested information, refused to sign the EER and then was involuntarily curtailed so he did not
complete it. Finally, with respect to claim no. 3, the Agency indicated that Complainant was
involuntarily curtailed after he refused a voluntary curtailment. The Agency explained that he was
moved due to various negative interactions and incidents that had been reported by coworkers,
peers and vendors regarding their meetings with Complainant.

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With respect to Complainant contentions on appeal, we find that even accepting his contentions
that a serious of misunderstanding and overreactions took place while Complainant was at the
Saudi Arabia location, we find that other than his conclusory statements, he has not provided any
evidence which suggests that discriminatory animus was involved, or that, the Agency’s
articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Therefore, we
find that Complainant has not demonstrated that he was subjected to discrimination.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that the preponderance of the evidence
did not show that Complainant was subjected to 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.
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).
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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

December 4, 2018
Date