[Redacted], Cletus W., 1 Complainant,v.Kelu Chao, Acting Chief Executive Officer, U.S. Agency for Global Media, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021004568 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cletus W.,1 Complainant, v. Kelu Chao, Acting Chief Executive Officer, U.S. Agency for Global Media, Agency. Appeal No. 2021004568 Agency No. OCR-21-11 DECISION On August 12, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 13, 2021 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On February 2, 2020, Complainant was hired as a Career Conditional Appointment as an International Broadcaster (Multimedia) (Afaan Oromo), GS-1001-12, in the Voice of America (VOA) at the Agency’s African Division, Horn of Africa Service in Washington, D.C., subject to one-year probationary period.2 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 record reflects that Complainant served in the same International Broadcaster position in the Africa Division as a contract employee for 15 years before he was offered the career- conditional position. 2021004568 2 On March 15, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of national origin (Ethiopian, Oromo) and age (over 40) when, on January 27, 2021, he was terminated from his position without notice during his probationary period. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on July 13, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 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, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The responsible Agency officials articulated legitimate, non-discriminatory reasons for the disputed actions as detailed below. The Chief, Horn of Africa (Ethiopian, over 40) stated that she was Complainant’s managing editor, who supervised him along with Complainant’s duty editor. The Chief stated that she began reviewing Complainant’s work after the duty editor advised her that Complainant was not accepting work from him. 2021004568 3 The Chief noted Complainant was doing minimal work and this caused problems between Complainant and the duty editor, who was constantly complaining to her that Complainant was not carrying his load. The Chief also noted that on several days, Complainant opened his radio show by invoking an artist’s name and narrative that had nothing to do with the content of the program. She asserted that, on one program, Complainant made an editorial statement that was against VOA’s Charter and did not reflect balanced and unbiased reporting. The Division Director (Ethiopian, over 40) was Complainant’s third level supervisor. He stated during the relevant period, Complainant’s performance was unsatisfactory and violated the Agency’s Charter and Best Practice of Journalism. Specifically, he stated that Complainant violated the Agency’s standards from June 30, 2020 until July 8, 2020. The Director averred that the Office of Program Review had translated into English Complainant’s broadcasts from that period and learned, for the first time, that Complainant had violated the Agency’s standards. The record contains a copy of the Notice of Separation dated January 27, 2021, in which the Director placed Complainant on notice that he would be separated from the U.S. Agency for Global Media for “Unsatisfactory performance.” Therein, the Director stated that based on supervisory evaluations, he determined that Complainant’s performance failed to meet their expectations. Specifically, the Director stated as an International Broadcaster, Complainant was required to research, write, and produce original materials including scripts, segments, news reports and interviews for on-air programs and digital distribution. He stated, however, Complainant produced reports “which did not meet applicable VOA standards and question his abilities as VOA journalist. You have displayed your disregard with the Agency’s journalist best practices and therefore have failed to meet our expectations in that regard.” Beyond his bare assertions, Complainant did not produce any evidence that the proffered reasons provided by the management witnesses for his termination during his probationary period were a pretext masking discriminatory animus on any of the bases alleged. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2021004568 4 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004568 5 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 November 22, 2021 Date