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

Equal Employment Opportunity Commission

Dec 18, 2018

0120170838 (E.E.O.C. Dec. 18, 2018)

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

Solomon B.,1
Complainant,

v.

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

Appeal No. 0120170838

Agency No. DOS000216

DECISION

On December 18, 2016, 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
November 28, 2016, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision (FAD).

ISSUES PRESENTED

Whether Complainant established that he was discriminated against based on his race (Caucasian),
age (45), sex (male) and reprisal (prior EEO activity), when: he was denied an opportunity to
telework, was subjected to a hostile work environment, received an appraisal that he regarded as
negative, and his request for a higher-level performance appraisal review was denied.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst GS-
13 at the Agency’s Information Management Bureau facility in Arlington, Virginia.

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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On December 22, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him as set forth above. M1 (African-American, female) was his first level
supervisor. M2 (Caucasian, male) was his second level supervisor.

Claim 1:

Complainant testified that on September 16, 2015, he recommended that all office employees be
allowed to telework in order to test the Agency’s GO System. At the time, the area was anticipating
the arrival of the Pope. Employees whose commute to work was expected to be impacted by traffic
congestion during the Pope’s visit, were given the opportunity to telework. Complainant’s
recommendation was denied. Complainant stated that M1 said that “no one will telecommute.”
Complainant stated that he later learned that two female African-American employees were
permitted by M1 to telecommute.

M1 stated that testing the GO system was not part of Complainant ‘s job. She stated that she did
not deny Complainant’s request to telework, had no record of Complainant requesting to telework
during the Pope’s visit, and that Complainant had an apartment in Arlington, Virginia; therefore,
his commute was not likely to have been impacted by the Pope’s visit. M1 stated that Complainant
teleworks every Friday. Complainant also requested telework for September 3, 2015, which was
approved. M1 denied that Complainant’s race, sex, age, or prior EEO activity were factors in her
decision.

M2 confirmed that employees can telework one day per pay period, but management allows
employees to telework one day per week. M2 maintained that Complainant’s race, sex, age and
prior protected activity were not factors in the decision.

Claim 2:

Complainant alleged that he was subjected to a hostile work environment characterized by, but not
limited to, threats, derogatory and inappropriate comments, excess scrutiny, and tasked with
assignments outside of his authority.

Complainant stated that M1 constantly criticized his work, threatened to move him out of his
position, required him to work on projects that were beyond his scope, stopped the process for his
career-ladder promotion to a GS-14 without justification, stated that he would never be promoted
under her watch, stated that she didn’t care what he did, “emasculated him in front of his colleagues
when he put on his reading glasses,” made racially derogatory comments overheard by others,
made other comments Complainant contended were racial or inappropriate, and displayed “a
demeanor and attitude towards him.” Complainant stated that his complaints to M2 went ignored.

Complainant contends his race, sex, and age are factors because there was one other white male
who was “past his 40s,” and M1 treats him in “similar fashion.” He stated that his EEO activity
was a factor because his EEO counselor told him she met with M1 and M2, and he needed to watch
his back because they are “coming for him.”
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M1 stated that Complainant’s descriptions of incidents were not accurate. M2 had authorized M1
to make all decisions regarding Complainant. M1 denied she made comments to Complainant that
he would never be promoted “on her watch” or anything similar to that. M1 had no recollection
of an incident in which she told Complainant how old he looked when he put his glasses on. M1
denied she stated an employee was loud “like every other ghetto Black man.” She stated she never
made a comment about a stereotypical “ghetto Black man.” She also denied that Complainant’s
treatment as an employee was ever based on his protected categories.

M1 denied Complainant’s promotion request, but it was agreed that she would reconsider the issue
after 90 days provided Complainant completed certain assignments. At the end of the 90 days,
M1 determined that Complainant had failed to complete his assignments. M1 stated that she did
not discriminate against or subject Complainant or any other employee to a hostile work
environment. Complainant was given work assignments within the scope of his assigned tasks that
he did not complete. The work assignments were based on his job/position description and created
strategically so he would be able to showcase his work to senior leaders. Complainant did not take
advantage of this opportunity. M1 maintained that most of Complainant’s time was spent away
from the office, either on leave or supporting other missions outside of the office he was assigned
to support.

M2 stated that he was not aware of any scenario in which Complainant was told not to complain
to him. He was aware of several conversations M1 had with Complainant about getting his
assigned work completed. Complainant wanted to do the work of the IRM Emergency Manager
which was not part of his position description. M2 stated neither Complainant nor anyone acting
on behalf of Complainant ever told him that his or anyone else’s actions constituted harassment or
a hostile work environment.

Claim 3:

On February 5, 2016, Complainant stated that he received a negative 2015 performance appraisal.
He disputed the accuracy of the information on his 2015 performance appraisal because he
contended it was “untrue.” Complainant stated that all detailed accounts of his accomplishments
directly contradict M1’s “misinformation, accusations and false statements.” He maintained that
all tasks assigned to him by M1 and M2 were completed or were on track to being completed, and
were always ahead of schedule.

Complainant stated that he was not tasked with establishing his role as Unit Security Officer (USO)
for the Information Assurance Directorate in 2015, because that had been in effect for years before
he arrived. Complainant stated that when he became the USO in 2014, it was only for SA-9’s, and
he approached all duties and assignments and “almost immediately completed all tasks associated
with the role.” He stated that he provided the documentation to M1 to close out the OIG and
management findings, and that she ignored his documentation.

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Complainant stated that he successfully developed and positively coordinated contingency plan
practices to “develop a robust and repeatable process.” He stated that he deserved his performance
appraisal rating to be changed to reflect an “Outstanding” or “Exceeds Expectations.”

M1 stated that the evaluation accurately reflected Complainant’s performance during 2015. She
noted that Complainant held a different position in 2014, and worked for a different supervisor.
M1 identified several tasks she or M2 assigned to Complainant which were not completed and
were not on track to be completed. She contended that Complainant ignored items that were a part
of his job. M1 further stated that Complainant created a new process that they were unable to staff.

M2 stated that the rating accurately reflected Complainant’s performance during 2015. He stated
that they had a constant problem with Complainant. Complainant performed work that was not
part of his position description, and did not perform the work that was assigned to him by M1. As
an example, M2 explained the two types of security they are concerned with are physical security
and systems security. M2 stated that Complainant was responsible for systems security, but he
worked on physical security issues. The work Complainant performed on design and development
of the SharePoint ISCP sites, the development of the BETA of SharePoint ISCP site, and the
development of a proactive integrated site that tracks the ISCP status were outside the scope of
Complainant’s position description.

M2 stated that Complainant’s race, sex, age or protected activity were not factors in his decision.

Claim 4:

Complainant stated that he did not have a chance to request a higher-level review of his 2015
appraisal because he was working with his new supervisor to write a letter “to disprove M1’s
narrative.” He stated that his new supervisor recommended he contact HR for guidance.
Complainant stated that he was told that HR’s reviewing official was reviewing it and would
correct any issues.

Complainant stated that while he was waiting for HR, he received an “appraisal approved”
notification. Complainant stated that he subsequently requested a higher-level review of his
appraisal. He stated that his request for a higher-level review, through his Union, representative
was denied.

M1 stated that an employee has 10 days to respond to his/her evaluation. She stated that
Complainant sent her an email, on March 31, 2016, challenging the accuracy of the evaluation.
She stated that she denied his challenge based on timeliness, but agreed to waive steps 1 and 2 of
the grievance process on April 19, 2016. As stated, Complainant’s request for a higher-level review
was denied. M1 stated that her decisions were consistent with policy. M2 was not aware
Complainant had requested a higher-level review.

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The record contained an email dated February 16, 2016 indicating that the Agency provided a
notification to Complainant that his appraisal for the period 4/19/2015 to 12/31/2015 had been
approved by the Rating Official and Reviewing Officer. Thereafter, no further “higher” action by
the Agency was required.

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. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

CONTENTIONS ON APPEAL

The parties did not provide statements on appeal.

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

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

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To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant
needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC
Appeal No. 0120160132 (Sept. 14, 2017).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, sex, and reprisal, we find that the Agency presented legitimate, nondiscriminatory reasons
for its actions with regard to Complainant’s teleworking requests, assignments, performance
rating, and the failure to obtain a higher-level review of his performance appraisal. Complainant
did not provide persuasive evidence that the Agency’s reasons were a pretext for discrimination.2

Harassment Claims

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” The Court explained that an “objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether
the harassment is sufficiently severe to trigger a violation of Title VII must be determined by
looking at all the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.”

To establish a claim of harassment, Complainant must show that: (1) he is a member of 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 the protected class; (4) the
harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement
Guidance on Harris). The evaluation “requires careful consideration of the social context in which
particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998).

2 As Complainant did not request a hearing, we do not have the benefit of an Administrative
Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based
on the weight of the evidence presented to us.
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In this case, the record does not support a finding that the Agency subjected Complainant to
discriminatory harassment. The evidence does not establish that the incidents set forth in claim 2
either occurred as alleged, or if it did occur, that they occurred because of his race, sex, or were in
reprisal for prior EEO activity. For the most part, most the incidents set forth in claim 2 appear to
have been normal workplace instructions, activities and tensions found in a work environment.
Further, Complainant failed to demonstrate that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
an offensive work environment.

With respect to claims 1, 3, and 4, we find that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must
also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
above that Complainant failed to establish that any of the actions taken by the Agency in claims 1,
3, and 4 were motivated by discriminatory animus. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s FAD.

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.
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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.
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 18, 2018
Date