0120101409
05-01-2014
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120101409
Hearing No. 570-2006-00462X
Agency No. DOS-F-013-06
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's final action 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 action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer, FSO-01. From June 1997 to April 2000, Complainant served as a General Services Officer (GSO) at the U.S. Embassy in Jakarta, Indonesia. From September 2004 to May 2005, Complainant served as a Management Officer at the U.S. Consulate in Karachi, Pakistan.
Complainant's First Level Supervisor was the Consul General (S1). The Regional Security Office oversaw all functions of security and was part of the Bureau of Diplomatic Security (Diplomatic Security), the security and law enforcement arm of the Agency. The employees in the Regional Security Office included the Regional Security Officer (RSO) and the Assistant Regional Security Officer (ARSO). On November 9, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Asian Pacific Islander - Pakistani) and reprisal for prior protected EEO activity under Title VII when:1
1. From September 2004 to June 2005, RSO and ARSO subjected him to hostile work environment harassment, including citing him for security violations; and 2
2. The Agency did not select him for the following positions on his September 2005 bid list: (a) the Human Resources Officer position or the Supervisory GSO position at the U.S. Embassy in Bangkok, Thailand; and (b) the Supervisory GSO position at the U.S. Embassy in Jakarta.3
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On September 30, 2009, after an eight-day hearing, the AJ issued a bench decision concluding that Complainant failed to prove that the Agency discriminated against him as alleged.
Regarding claim 1, the AJ found the following facts: The U.S. Consulate in Karachi had extreme security requirements. At the time, Karachi, Pakistan was either the second or third most dangerous posting in the world, after Baghdad, Iraq and Kabul, Afghanistan. Neither RSO nor ARSO supervised Complainant; RSO was not in Complainant's supervisory chain of command and ARSO was not a supervisor at all. Early in Complainant's tenure, ARSO gave Complainant a security briefing and made a reference to "Pakis" and "Paki-Americans." S1 counseled ARSO about the use of the ethnic slur and ARSO did not use the ethnic slur again after the counseling. Complainant alleged that an unidentified Caucasian Agency employee said to him at a bar, "You don't have to worry about security procedures so much because you are dark-skinned; you look like them." Even if Complainant had discussed this incident with S1, there was nothing that S1 could have done about it because Complainant did not know who made the comment. As evidenced by a series of incidents, Complainant developed a pattern of disregarding security requirements.4 Complainant's behavior invited and justified his scrutiny by RSO and ARSO. RSO cited Complainant for three security violations involving incidents from January to March 2005. Although Diplomatic Security later cleared Complainant after he appealed, RSO nevertheless acted reasonably in citing Complainant for the three security violations. In a lengthy June 1, 2005 cable, accompanied by a detailed spreadsheet, RSO reported numerous security incidents involving Complainant to Diplomatic Security. RSO acted reasonably in reporting the security incidents to Diplomatic Security because of Complainant's pattern of disregarding security requirements. Although RSO had not sent a similar cable or spreadsheet about other employees to Diplomatic Security, RSO had reported other employees to Diplomatic Security.
Based on the above factual findings, the AJ determined that Complainant failed to establish a claim of hostile work environment harassment. Specifically, the AJ found that the harassment complained of was not based on Complainant's national origin or prior EEO activity. Instead, the AJ found that the harassment complained of was RSO's reasonable response to Complainant's pattern of disregarding security requirements. As to the ethnic slur by ARSO, the AJ found that this one incident by itself was not enough to support making a finding of national origin harassment that allegedly occurred over a period of several months. Moreover, the AJ found that the Agency was not vicariously liable for the actions of RSO and ARSO because they did not supervise Complainant.
Regarding claim 2, the AJ found the following facts: During Complainant's time in Jakarta, Complainant's secretary complained to Complainant's supervisor (JS1) about poor treatment by Complainant and subsequently transferred to a different position at a lower grade. An October 2000 cable from Jakarta to Diplomatic Security stated that Complainant treated Foreign Service Nationals (FSNs)5 "like dogs." The person who replaced Complainant's supervisor in Jakarta (JS2) stated that, when Complainant previously bid on another position in Jakarta, there was almost a rebellion among the FSNs and Complainant was not selected for that position.
Based on the above factual findings, the AJ determined that Complainant failed to establish disparate treatment. Specifically, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not selecting him for the positions; namely, Complainant's reputed poor treatment of FSNs in Jakarta from 1997 to 2000. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for national origin or reprisal discrimination.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).6
Complainant then filed the instant appeal. On appeal, Complainant contended that the AJ's decision is not supported by substantial evidence in the record.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Nov. 9, 1999).
Claim 1 - Hostile Work Environment Harassment
As an initial matter, we note Complainant's argument that the AJ fragmented his harassment claim by improperly analyzing each security incident as a separate claim. After reviewing the AJ's decision, we find that the AJ did not fragment Complainant's harassment claim. Fragmentation often results from a failure to distinguish between the claim a complainant raises and the evidence (factual information) he is offering in support of that claim.
EEO MD-110, Ch. 5, � III. Here, Complainant's claim is that RSO and ARSO engaged in a pattern of ongoing harassment by falsely accusing him of disregarding security requirements. The AJ properly identified Complainant's claim and then proceeded to consider the evidence - the numerous security incidents reported by RSO and ARSO - supporting Complainant's claim. Although the AJ made factual findings with respect to each incident, it is clear from the decision that he considered them not as separate claims, but as part of the evidence supporting Complainant's overall harassment claim. AJ's September 30, 2009 Decision, at 60.
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In a case of co-worker harassment, an employer is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. � 1606.8(d); EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, � I (June 18, 1999).
Upon review, we find that the AJ's finding of no discriminatory harassment is supported by substantial evidence in the record. Regarding the reporting of the security incidents, we agree with the AJ that Complainant failed to show that the actions of RSO and ARSO were based on his national origin or prior EEO activity. Regarding ARSO's use of the ethnic slur, we agree with the AJ that there is no basis for imputing liability to the Agency because ARSO was not a supervisor, S1 took immediate and appropriate corrective action by counseling ARSO, and ARSO did not use the ethnic slur again after the counseling. Below, we will address the arguments Complainant raised on appeal.
First, Complainant argued that the record contained the following direct evidence of national origin discrimination: (a) S1's testimony that the Karachi staff considered anyone who looked Pakistani to be a potential terrorist; and (b) ARSO's use of the ethnic slur.
Direct evidence of discriminatory motive may be any written or verbal policy or statement made by an agency or agency official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, EEOC Notice No. 915.002, � III.A (July 14, 1992). In contrast, direct evidence of bias, standing alone, does not necessarily prove that a discriminatory motive was responsible for a particular employment action. Id. Thus, a link must be shown between the agency's proven bias and its adverse actions. Id.
S1 testified to the following:7
Q: While [RSO] was assigned as Regional Security Officer in Karachi, he basically considered anybody who was Pakistani to be a potential terrorist, didn't he?
...
A: I would say that most of us felt that way.
Q: So [ ] there was a very high degree of scrutiny of anybody who was Pakistani or looked Pakistani, correct, by [RSO and ARSO]?
A: I would say by anybody, including our Pakistani guards who --- who were the first point of contact for anybody approaching the consulate.
Hearing Transcript (Hr'g Tr.), at 139-40.
Here, we find that neither S1's testimony nor ARSO's use of the ethnic slur constitutes direct evidence of discriminatory motive. The record reflects that, immediately prior to the testimony quoted above, S1 was responding to questions regarding RSO and ARSO denying access to the consulate compound to individuals not employed by the Agency. Hr'g Tr., at 135-39. Viewing the testimony in context, it appears that S1 was discussing the views of RSO and ARSO in relation to outsiders (i.e., individuals not employed by the Agency) of Pakistani national origin trying to enter the consulate compound. Accordingly, we find that Complainant failed to show the requisite link between S1's testimony and RSO and ARSO accusing him of disregarding security requirements. Similarly, we find that Complainant failed to show the requisite link between ARSO's use of the ethnic slur on one occasion and RSO and ARSO accusing him of disregarding security requirements.
Second, Complainant argued that the Agency's articulated reason for the reporting of the security incidents by RSO and ARSO - their concerns about his suitability for a security clearance - was an after-the-fact explanation raised for the first time during the hearing. Contemporaneous documentation in the record, however, reflects that RSO and ARSO had concerns about Complainant's suitability for a security clearance at the time they reported the security incidents. Specifically, RSO's June 1, 2005 cable to Diplomatic Security contained the subject line: "Suitability Concerns - Former Management Officer." ROI, at 527. In addition, one of the offices within Diplomatic Security that RSO sent the cable to was the Office of Personnel Security and Suitability (DS/SI/PSS), which was responsible for adjudicating security clearances for Agency employees. Id. at 547.
Third, Complainant argued that the reporting of the security incidents by RSO and ARSO was discriminatory because he had refuted each of the allegations as being false or exaggerated, Diplomatic Security had later cleared him of the cited security violations, and other employees were not subjected to the same level of scrutiny with respect to security matters. In finding that Complainant had a pattern of disregarding security requirements and that RSO's actions in documenting and reporting the security incidents were a reasonable response to Complainant's behavior, the AJ credited the testimony of RSO and ARSO over that of Complainant and other witnesses. While Complainant disagreed with the AJ's credibility determinations, Complainant failed to show on appeal that objective evidence (as opposed to other testimonial evidence) so contradicts the credited testimony or that the credited testimony so lacks in credibility that a reasonable fact finder would not credit it. In addition, we note that the AJ, in crediting the testimony of RSO and ARSO and in finding that RSO acted reasonably, explicitly considered the fact that Diplomatic Security had later cleared Complainant of the cited security violations. Moreover, we note that the AJ acknowledged that RSO treated Complainant differently from other employees by compiling the lengthy cable and detailed spreadsheet, but found that RSO's differing treatment of Complainant was based on his actions and not his protected classes.
Claim 2 - Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. 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 804 n.14. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that the AJ's finding of no disparate treatment is supported by substantial evidence in the record. Specifically, we agree with the AJ that Complainant failed to show that the legitimate, nondiscriminatory reason articulated by the selecting officials for his non-selections - Complainant's reputed poor treatment of FSNs in Jakarta from 1997 to 2000 - was pretextual. Below, we will address the arguments Complainant raised on appeal.
First, Complainant argued that the selecting officials took no action to determine whether his reputed poor treatment of FSNs in Jakarta was true. We note, however, that an employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. EEOC Compliance Manual, Section 15, "Race and Color Discrimination," No. 915.003, � V.A.2 (Apr. 19, 2006). Here, even if the selecting officials mistakenly relied on incorrect information about Complainant's treatment of FSNs in Jakarta, we agree with the AJ that Complainant failed to show that the selecting officials acted in a manner motivated by national origin or reprisal discrimination.
Second, Complainant argued that the Agency failed to present evidence supporting his reputed poor treatment of FSNs in Jakarta. Specifically, Complainant asserted that: (a) the Agency presented no testimonial evidence from the subjects of or witnesses to the alleged poor treatment; and (b) the contemporaneous documentation of his performance and conduct in Jakarta contained no evidence of the alleged poor treatment. We remind Complainant, however, that the burden incumbent upon an agency to respond to a complainant's prima facie case with a legitimate, nondiscriminatory reason for its actions is a burden of production, not persuasion. See Reeves, 530 U.S. at 142. Nevertheless, we note that the AJ credited JS1's testimony that, during Complainant's previous assignment in Jakarta, several employees came to her and expressed their concerns about his treatment of FSNs. Hr'g Tr., at 884-87. Although Complainant asserted that JS1's testimony was not credible because she did not document such concerns in her evaluation report and later recommended him for a promotion, we note that documentary evidence in the record corroborates JS1's testimony. For example, the October 2000 cable from Jakarta to Diplomatic Security contained the following information: (i) JS1 stated that she had counseled Complainant regarding his temper because he had lost his temper with some of his subordinates; and (ii) a GSO at Jakarta who had worked with Complainant stated that Complainant "treated the FSNs like dogs," demeaned the FSNs, and had a need to always be right. Agency Exhibit A19. Moreover, JS2 stated in an October 13, 2005 email to one of the selecting officials: "On [Complainant] - NO WAY. He previously served in Jakarta as the warehouse GSO and he left a legacy of fear and hatred in the FSNs. [Complainant] was bidding on the S/GSO job back when I was departing post, and the FSNs were in turmoil and imminent revolt at the thought that he might come back." Agency Exhibit A34.
Third, Complainant argued that RSO and ARSO were the first individuals to identify his alleged poor treatment of FSNs and that fact alone should render the purported legitimate reason as inherently suspect. As noted above, however, the record reflects that individuals other than RSO and ARSO raised concerns about Complainant's treatment of FSNs as early as 2000.
Fourth, Complainant argued that there was evidence of discriminatory stereotyping with respect to his alleged poor treatment of FSNs because one of the selecting officials had a conversation about his "caste" with another employee (E1). The record reflects that E1 testified to the following: he knew the selecting official on both a professional and a personal basis from his previous assignment in Bangkok; when he visited Bangkok, he stopped by the selecting official's office to chitchat; the selecting official told him that Complainant, who was the spouse of his (E1's) supervisor, had applied for a position but that they had to pass on Complainant because of Complainant's treatment of FSNs; he "asked [the selecting official], if he was aware of [Complainant's] background or his caste, and perhaps that may have played a role in how he was being characterized as treating [FSNs];" his impetus behind asking the question was based on his experience, having served overseas for a numbers of years, that people have different cultures and different upbringings, and may have a different approach in their interactions with staff; his conversation with the selecting official about Complainant lasted two to four minutes and then it moved on to other personal items; his conversation with the selecting official occurred after the selection decision had been made; and he was not involved in the selection process. Hr'g Tr., at 936-43.
We find that E1's testimony does not establish that Complainant's non-selections were based on a discriminatory motive. In particular, we note E1's testimony that he (and not the selecting official) mentioned Complainant's caste, that the brief conversation occurred after the selection decision had been made, and that he was not involved in the selection process.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Commission to AFFIRM the Agency's final action because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by substantial evidence in the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__5/1/14________________
Date
1 For purposes of clarity, and taking into consideration his statement of his claims on appeal, we have reframed Complainant's claims. Complainant's Brief, at 2 n.1 & 24 n.4.
2 Complainant stated that the following occurred as a result of the alleged harassment: he curtailed his post in May 2005; the Agency rescinded his onward assignment to Hong Kong because of the cited security violations; and he had to take leave without pay (LWOP).
3 Complainant stated that, as a result of his non-selections, he had to take LWOP from October 2005 to May 2006.
4 The AJ discussed the numerous security incidents in detail and made factual findings with respect to each one. AJ's September 30, 2009 Decision, at 22-50.
5 An FSN is a non-U.S. citizen who is employed at a U.S. mission overseas.
6 The Agency subsequently issued a final order adopting the AJ's finding of no discrimination.
7 The AJ did not address this particular testimony by S1.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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