[Redacted], Jarrett C., 1 Complainant,v.Anthony Blinken, Secretary of State, U.S. Department of State, Agency.

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2020003186 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarrett C.,1 Complainant, v. Anthony Blinken, Secretary of State, U.S. Department of State, Agency. Appeal No. 2020003186 Agency No. DOS-0339-19 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 March 3, 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. 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 Defensive Security Coordinator, Grade 10, at the Agency’s U.S. Embassy in Yemen. On April 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Arabian) and national origin (Yemen) when: 1. Complainant was denied overtime compensation for work he performed since 2015, and as recently as April 3, 2019; 2. Complainant has been denied a higher base salary level commensurate with his other American citizen colleagues; and 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. 2020003186 2 3. He was subjected to a hostile work environment, characterized by, but not limited to, his supervisor’s requests that he return his U.S. government-issued vehicle. The most recent request was March 18, 2019.2 Complainant was hired by the Agency in 2010, as a Local Hire under the Local Hire Program at the U.S. Embassy. Complainant has dual citizenship; he was born in Yemen and became an American citizen on September 22, 2006. He averred management knew his race and national origin because he was a Local Hire. Claim 1 - Denial of Overtime (OT) Compensation since 2015 Complainant claimed that he held two different positions with the Agency. First, Complainant stated that he performed Defensive Security Coordinator duties from January 2014 to July 2019. Complainant stated that he had been granted overtime for years in this position prior to the Embassy’s evacuation in 2015. Secondly, Complainant claimed that he performed Regional Security Officer (RSO)/Team Lead duties from February 2015 to November 2015. Complainant claimed that his duties increased after taking on that role. Complainant alleged that he was called at all hours of the day and night. On February 12, 2015, the Embassy where he worked was forced to evacuate. Shortly thereafter, in March, war ensued. After Complainant worked to coordinate the evacuation, he returned to the U.S. The Embassy suspended operations in 2015. The record indicates that Complainant’s entire work history was destroyed along with all other employee files that were kept onsite. The record indicates, however, that he remained on the Agency rolls until July 2019. Complainant stated that after the evacuation, his work continued and he says his responsibilities escalated, but he was not fairly compensated. Complainant alleged that he sent an email to management officials, including his supervisor at the time (S1-2), listing all of the dates he worked overtime but he received no response. Further, Complainant claimed that he was told that they would try to process it, but he might have to wait until the Embassy reopened. S1-2 acknowledged that Complainant held the Defensive Security Coordinator position and was eligible for overtime, but only with a prior authorization from his supervisor. He averred that he was the one to approve, but he averred “no requests for overtime were made.” S1-2 further confirmed, however, that Complainant provided information in support of his claim for 1,952 hours of overtime. S1-2 said that he forwarded the overtime claim to the Department and asked Complainant for further documentation. Complainant submitted an email to his supervisor regarding his overtime on December 12, 2018, and after he did not receive a reply, he reached out to the Office of Civil Rights. 2 The Agency dismissed several additional claims for untimely EEO Counselor contact. Complainant raised no challenges regarding these matters and the Commission finds no basis to disturb the dismissal. 2020003186 3 He received a reply on April 3, 2019. In the response, S1-2 informed Complainant that there was no record or documentation regarding his overtime requests or preapproval for the overtime as was required. Therefore, there was no basis to grant the overtime pay. Claim 2 - Denial of Higher Compensation Given to American Colleagues While working in the RSO section, Complainant believed that he was entitled to a higher base salary. Complainant averred that he should have received a new contract, inasmuch as he was promised a promotion. Complainant alleged that his former supervisor (S1-1) tasked him with controlling everything but did not ensure that he was compensated fairly. In addition, Complainant alleged that numerous officials over the years failed to ensure that he was compensated fairly or transition his job status. Complainant asserted that all of the issues stemmed from the fact that he was hired as a Locally Employed Staff. Complainant averred that, unlike his non-Arabian colleagues, he had to pay for his family to evacuate Yemen because of the war, but the government paid for the other employees’ families to evacuate. Complainant state that he was also put on at least one Reduction-in-Force list, but the notice was rescinded. S1-2 described Complainant’s service as that of a Defensive Security Coordinator, the senior member of the local Guard Program which was responsible for the management and leadership of the guard, and residential security and surveillance detection programs, but S1-2 testified that, as a Locally-Employed staff employee, Complainant was still compensated in accordance with the Locally-Employed staff guidelines and regulations. In addition, the record indicates that Complainant did not formally ask for a pay adjustment until after the war started. By then, the relevant records were no longer available. Although Complainant sometimes referred to himself as a “Regional Security Officer,” Agency officials denied that he served in that position. The RSOs are federal law enforcement officers, who are trained and hired into the Bureau of Diplomatic Security as Special Agents with a Foreign Service Specialist skill code. Complainant was a Foreign Service National Investigator. He had been performing similar functions, but he was not the RSO. Complainant stated that he should have been given a new contract when he was given new responsibilities, instead of being kept at a lower pay status assigned to him because of his national origin. He is also claiming abuse of authority, contending that officials failed to adhere to the Agency policy that required that adjustments be made, as an employee’s responsibilities change. Complainant averred that he thought he could “work his way up” because of his American citizenship status. He acknowledged that he was hired as a Locally Employed Staff employee, which does not have a Career Ladder progression.3 3 The Agency asserted that there is no process for a transfer from the Locally Employed Staff to a direct hire position. The Locally Employed Staff work under a completely different pay scale 2020003186 4 The Federal Government compensation is for a LE Staff position salary and the benefits are guided by the Local Compensation Plan. The Agency asserts that Complainant would have had to apply or compete for a new position, perhaps as a contract employee to achieve a higher salary. Claim 3 - Hostile Work Environment/Demand for Vehicle Return Before the February 2015 evacuation of the Embassy where Complainant worked, he had been assigned a vehicle. The car is still parked at his relatives’ home in Yemen. When he and others were forced to flee in 2015, it was assumed that he would be able to come back in about a month. He averred the Agency stopped him from going back because of the risks for him. On February 4, 2019, S1-2 issued a directive that the car be returned to service. The two communicated via email during the period February 23, 2019 to March 14, 2019. Complainant told him that he feared his family would be placed in danger if the vehicle was retrieved. To protect his family still in Yemen, Complainant asked for certain safeguards. There were no further communications after April 2019. Complainant averred that “all I want, in order to return the car over, is a proper receipt, in Arabic, with Embassy letterhead and a picture of the ID of the person picking it up, so that if anything happens, his family can show that they handed the car over.” Complainant claimed that S1-2 said he was only willing to send an email in English saying the car has been given back. Complainant claimed that it was too much of a risk. Complainant averred this was not an issue before he asked for overtime. “Once I began asking about getting overtime paid and seeing if there was something that could be done about inadequate pay, he started asking me to return the car he was granted.” In addition to unlawful harassment, he is claiming abuse of authority, contending that the Agency had the authority and the ability to fix the issues, but refused to follow the protocol to take the steps necessary to address his concerns. 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant was not subjected to discrimination as alleged. This appeal followed. and position description than an RSO. Yemini Staff were Locally Employed Staff who were employed under a local compensation plan. 2020003186 5 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”). Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. The prima facie inquiry may be dispensed with where, as herein, the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Regarding claim (1), as discussed above, Complainant was unable to show that he received prior approval for the claimed overtime and was unable to provide the documentation that the Agency was requiring to justify his claim. Regarding claim (2), the Agency stated that Complainant was paid the appropriate pay in accordance with the compensation plan applicable to the position which he held. While Complainant believed he should have been paid at a higher rate or have more opportunities for advancement, the Local Hire Program dictated his compensation and promotion eligibility. As to claim (3), regarding the Agency’s demand for the return of the vehicle, the Agency stated that the vehicle was property of the U.S. Government and it had not authorized the vehicle to be given to a family member for safekeeping. The manager offered to provide a receipt to help facilitate the return of the government vehicle and avoid unnecessary risk. Complainant did not show that these reasons were a pretext for unlawful discrimination. 2020003186 6 Complainant did not show that the stated reasons were a pretext for unlawful discrimination. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory motivation. As a result, we find that Complainant was not subjected to the discrimination as alleged. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that, under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's hostile work environment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). CONCLUSION Accordingly, for the reasons stated herein, we AFFIRM the Agency’s Final Decision. 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 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. 2020003186 7 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. 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. 2020003186 8 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 July 6, 2021 Date