Steven A.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181873 (E.E.O.C. Sep. 24, 2019)

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

Steven A.,1
Complainant,

v.

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

Appeal No. 0120181873

Agency No. DOS-0187-17

DECISION

On May 18, 2018, 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
April 20, 2018, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are whether Complainant established that the Agency discriminated against
him and subjected him to a hostile work environment when he was disadvantaged by the Fair Share
waiver program; denied the opportunity to bid on a position; and management ignored his requests
for information.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Management Specialist, FS-03, at the Embassy in Geneva, Switzerland.

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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Complainant testified that he experiences symptoms from several conditions including an
autoimmune disorder, Sjogren’s Syndrome, rheumatoid arthritis, ankylosing spondylitis,
depression, anxiety, and migraine tension headaches. Report of Investigation (ROI), at 151.
Complainant stated that his symptoms include acute dry eyes, dry mouth, muscle and joint pain,
chronic fatigue, respiratory issues, and insomnia. Id. Complainant has a “Class 2: Post Specific”
medical clearance.

As a Foreign Service employee, Complainant is expected to be available for his “fair share” of
hardship assignments. ROI, at 75-84, 215-224, 432-441, 560-569, 620-629, 709-718, 799-808.
Pursuant to the Agency’s Fair Share policy, a Foreign Service employee is a “Fair Share bidder”
if during the eight years prior to his upcoming transfer eligibility date, he has not served for at least
20 months with a combined differential of 15 percent or greater; or at least 10 months at a post
with a one-year standard tour of duty. Id. During the summer 2017 bidding cycle, Complainant
was a Fair Share bidder.

Agency policy states that a limited medical clearance does not exempt an employee from Fair
Share bidding requirements. Employees with Class 2 medical clearances, like Complainant, are
expected to make a good-faith effort to comply with the Fair Share bidding requirement by
identifying and seeking the Office of Medical Services’ (MED) approval for at least three and up
to fifteen 15%-and-above hardship post core bids. Waivers may be warranted when the employee
or his eligible family member cannot receive a medical clearance for any of the overseas posts at
which there are available positions for which the employee is qualified during the bid cycle. Where
a physical or mental health condition, extraordinary stress, or similar circumstances are presented
as the justification for a Fair Share waiver, MED or an outside professional must confirm the basis
for the request. A Fair Share waiver will exempt the employee from the Fair Share bidding
requirements only during the assignments cycle for which it is issued, and employees revert to Fair
Share bidder status in his/her next transfer cycle unless another waiver is granted at that time. ROI,
at 75-84, 215-224, 432-441, 560-569, 620-629, 709-718, 799-808.

Complainant testified that he began the medical approval process in January 2016, submitting 10
posts at a time for MED approval. ROI, at 156. Complainant stated that after about one month,
he noticed that MED approved posts this cycle that had been denied in the past. Complainant
averred that he pointed out that the assignments went against his rheumatologist’s
recommendations to avoid places with poor air quality and without proper medical services. Id.
An email exchange, dated June 6, 2016, indicates that MED Clearances determined that
Complainant’s conditions matched Class 1 certification, given Complainant’s stable condition and
the fact that he had not taken rheumatologic medications in at least 12 months. Complainant was
advised to contact the Medical Review Panel after objecting to the approved posts. Id.

On July 15, 2016, the Medical Review Panel denied Complainant’s request to reconsider the
approved posts and determined that he should remain with Class 2, Post Specific clearance. ROI,
at 22. Complainant was advised that he could request a reasonable accommodation through his
Career Development Officer (CDO). Id.
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Emails exchanged in July 2016 show that after receiving the MED appeal determination from the
Medical Review Panel, Complainant emailed multiple posts stating that he was considering
bidding. Complainant disclosed his conditions and inquired about the local climate and treatment
options. The responses generally indicated that the local climate conditions and/or treatment
options would not be conducive to Complainant’s impairments. In August 2016, Complainant
emailed the Director General requesting that the MED decision be overturned based on the
responses from the posts. MED maintained that Complainant’s medical conditions could be
adequately monitored and managed by an Agency direct hire medical provider, upholding the
decision that Complainant could be assigned on a post-specific basis, to posts submitted to MED
for post approvals. ROI, at 946, 948. Complainant requested a waiver for the Fair Share program
on August 1, 2016, which was granted on September 6, 2016. ROI, at 23-25. In his waiver request,
Complainant asserted that he was considering his request a reasonable accommodation request.

On November 3, 2016, the Regional IT Manager informed Complainant that he had three FS-03
positions (Vladivostok ISO, Moscow ISO, Moscow ISSO) and three FS-04 positions (Baku ISO,
Bucharest IMS, Sarajevo ISO) remaining. ROI, at 906. Complainant replied that Bucharest
sounded good to him and that he would reach out to the Information Management Officer (IMO)
and MED. Id. Complainant questioned whether he would need to wait until February for a
conditional offer or “handshake” and the Regional IT Manager informed him that as a Fair Share,
he would need to wait until February. Id. at 905. Complainant noted that he had a Fair Share
waiver and the Regional IT Manager responded that if Complainant “stretch[ed],” or accepted a
position not at-grade, he would need to wait until February. Id.

On November 4, 2016, Complainant emailed the IMO at Bucharest expressing interest in an IMS
position. ROI, at 89-90. The Bucharest IMO informed Complainant that there was interest in
having Complainant on the team. Id. at 90. However, he noted that the down-stretch rules might
apply since the position would be a down-stretch for Complainant. Id.

On November 10, 2016, Complainant’s CDO informed Complainant that he was cleared for
Bucharest. ROI, at 916. On November 14, 2016, CDO explained that Complainant had to be at
grade for a position to be offered a handshake. CDO added that handshakes on stretch positions
would begin on February 27, 2017, but advised Complainant to begin lobbying earlier. CDO
concluded that the only way for Complainant to receive a handshake outside of stretch season
would be for Complainant to bid on a differential post. If Complainant failed to find a job overseas,
he would need to return to Washington D.C.

On November 22, 2016, Complainant emailed his CDO requesting a reasonable accommodation
that would allow him to bid on FP-02 and FP-04 positions prior to open season beginning on
February 27, 2017. ROI, at 1193-1194.

On December 5, 2016, Complainant inquired about when a Bucharest Information Program
Officer (IPO) position would be posted and whether he was still in the running for consideration.
ROI, at 95. The Bucharest IMO explained that the outcome was uncertain because there were
other bidders that he was unaware of that were being vetted by the Bureau. Id. at 94.
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On December 12, 2016, Complainant again questioned when the Bucharest IPO position would be
posted and expressed his interest in the position. ROI, at 93. The Regional IT Manager stated that
other bidders were interested in the position and it was possible that a handshake would go out to
another bidder prior to Fair Share season. Id. at 954. On December 14, 2016, the Regional IT
Manager informed Complainant that the Bucharest IPO position would be offered to another
candidate, but they were willing to offer Complainant the IMS slot. Id. at 91, 445.

On January 24, 2017, an Assignments Officer sent an email stating that Complainant was identified
as the leading candidate for the FP-04 Bucharest IMS position. ROI, at 1458. The email stated
that Complainant could be offered a handshake instead of waiting until stretch season because the
position was designated as hard to fill. Id. On January 25, 2017, Complainant was offered a
handshake, which he accepted on the following day. ROI, at 1459-1460.

On March 24, 2017, Complainant emailed the Regional IT Manager complaining of unfair
practices. ROI, at 102. Specifically, Complainant stated that the FS-03 IPO position at Bucharest
did not appear on the bidding portal until after stretch season. Id. The Regional IT Manager
responded by stating that there were a host of factors that went into the assignment process and
that the Bucharest position that was available for bidding purposes during Complainant’s
eligibility period was the IMS position. Id. The Regional IT Manager added that the FS-03 IPO
position at Bucharest became available suddenly and unexpectedly. Id. He noted that because
Complainant had already been assigned, he was not eligible for the position. Id.

On May 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability and in reprisal for prior protected EEO activity arising under
Title VII when:

1. The “Fair Share” waiver process disadvantages employees with disabilities in their
ability to obtain assignments;

2. Complainant was denied the opportunity to bid on the FP-03 position in Bucharest,
which was assigned to someone else on March 29, 2017; and

3. Complainant was subjected to a hostile work environment characterized by, but not
limited to, Department officials ignoring his requests for information.

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). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

In the final agency decision (FAD), the Agency assumed, for the sake of argument, that
Complainant established that he is a person with a disability.
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The Agency found that Complainant failed to show that he was not provided a reasonable
accommodation that would enable him to perform the essential functions of his position. As such,
it found that Complainant’s claim of failure to accommodate failed. With respect to reprisal, the
Agency found no nexus between Complainant’s prior EEO activity and the conduct at issue, stating
that the temporal proximity was too far removed in time, as Complainant’s prior activity occurred
in November 2014 and the incidents at issue arose in June 2016.

The FAD went on to find that assuming Complainant established a prima facie case of
discrimination based on reprisal, management articulated legitimate, nondiscriminatory
explanations for their actions. Specifically, regarding claim (1), Agency procedures required
Complainant to submit his posts to MED for approval or disapproval due to his medical clearance
classification. Once that process concluded, Complainant could request a waiver from the Fair
Share program in accordance with the policy. As for claim (2), a management official testified
that Complainant was offered and accepted the FP-04 assignment in Bucharest in January 2017
and as such, he was ineligible to bid on subsequent assignments. Moreover, as a summer bidder,
Complainant was not eligible to bid for the FP-03 position that subsequently became vacant.

As for pretext, the Agency noted that the Regional IT Manager was unaware that Complainant had
complained to Human Resources prior to Complainant’s acceptance of the FS-04 position in
Bucharest. Additionally, the Agency determined that the evidence failed to show that
management’s conduct was motivated by discriminatory animus or retaliation and Complainant
presented insufficient evidence to establish that management’s conduct was based on
discrimination or opposition activity.

Finally, the Agency stated that Complainant’s description of the conduct at issue failed to reveal
that there was any unwelcome physical conduct, or inappropriate, harsh, denigrating or hostile
verbal conduct associated with the incidents. Moreover, the conduct was not sufficiently severe
or pervasive to be actionable under a hostile work environment theory, and the incidents cited as
occurring between July 2016 and January 2017 did not establish a pattern of repeated conduct
because they were isolated and sporadic in nature. Accordingly, the FAD concluded that
Complainant did not establish that he was subjected to a hostile or offensive work environment,
unlawful discrimination, or severe and/or pervasive conduct.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he remained disabled although his physicians believed that
he might be in remission. Complainant reiterates that he contacted numerous posts and the
responses were unanimous in that they would be unable to support him because of environmental
factors and unsuitable medical services. Complainant asserts that the Investigator’s Report failed
to include statements from his CDO or his replacement, and the statement from the CDO in the
evidence was provided by someone that he did not know and to whom he had never spoken.
Complainant alleges that the Medical Director exhibited negligence by indicating that
Complainant’s health conditions could be treated with over-the-counter medication and Embassy
personnel.
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Complainant claims that despite the assertions of Agency officials, the down stretch position
impacted his promotion potential. Complainant alleges that the Regional IT Manager provided
contradictory statements for not placing Complainant in the FS-03 position. Complainant stresses
that Class 2 candidates should receive an exception to the Fair Share program and that the Agency
refused to accommodate his access to competitive assignments by using the Fair Share program.

The Agency asserts that Complainant failed to establish the prima facie elements of a disparate
impact claim. Specifically, the Agency argues that Complainant did not provide any statistical
information to show potential disparities that the Fair Share program creates. The Agency notes
that Complainant was not considered an eligible bidder, as Complainant was only allowed to bid
on summer cycle positions. Therefore, the Agency argues, Complainant’s bidder status prevented
him from getting the FP-03 position rather than his disability. As for Complainant’s hostile work
environment claim, the Agency reasserts that the conduct at issue was not sufficient to demonstrate
unwelcome verbal or physical conduct.

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 (EEO MD-
110), 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”).

Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodations
to the known physical and mental limitations of an otherwise qualified individual with a disability
unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R.
§ 1630.9. The Commission will assume without deciding that Complainant is a qualified
individual with a disability.

In his formal complaint, Complainant argued that the Fair Share committee did not have a
procedure for handling reasonable accommodations. ROI, at 2-3. Prior to granting Complainant’s
waiver request, the Disability and Reasonable Accommodations (DRAD) Division Chief indicated
that there was no basis for excluding Complainant from the bidding process as a reasonable
accommodation. ROI, at 963, 966, 1012, 1168. Nevertheless, the record indicates that
Complainant submitted a reasonable accommodation request in August 2016 and his request was
granted in the form of a Fair Share waiver in September 2016. ROI, at 424, 921. Additionally,
Complainant was granted reasonable accommodation in the form of a consistent schedule and non-
assignment to temporary duty travel prior to the relevant period, which was continued. Id. at 1168,
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1259. We find that the Agency did not discriminate against Complainant based on his disability
because it did not fail to provide him with a reasonable accommodation.

Disparate Impact

Complainant alleged that the Agency’s policy of requiring disabled individuals to obtain waivers
to the Fair Share program disparately impacted disabled employees. In order to establish a prima
face case of disparate impact, a complainant must: (1) identify the specific practice or policy being
challenged; (2) show a statistically significant disparity; and (3) show that the disparity is linked
to the challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994
(1988). The burden is on the complainant to show that the facially neutral standard in question
affects individuals in the protected group “in a significantly discriminatory pattern.” Dothard v.
Rawlinson, 433 U.S. 321, 329 (1977).

The only evidence Complainant has presented to support his disparate impact claim are his
assertions that employees with a disability are unable to adequately participate in the bidding
process. Upon review of the record, the Commission finds that Complainant has failed to establish
a prima facie case of disparate impact because he has failed to provide sufficient statistical support
demonstrating a statistical disparity linked to the Agency’s policy.

Disparate Treatment

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
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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his disability and in reprisal for protected EEO activity, we find that the management officials
articulated legitimate, nondiscriminatory reasons for their actions. Regarding the FP-03 position
in Bucharest, the Regional IT Manager affirmed that he worked with Complainant to obtain an
overseas position and the only available position in Bucharest in November 2016 was the FS-04
IMS position. ROI, at 1449-1450.
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Agency officials testified that the DRAD Division Chief reached out to an IT contact in the
European Affairs Bureau to ask whether a DRAD client could bid on the FP-03 position in
Bucharest and she was told that the Bureau had already identified a preferred candidate. ROI, at
1168. However, there was a second position that the DRAD client could bid on. Id. Complainant
bid on the second position and was selected. Id. The Regional IT Manager stated that
Complainant was not an eligible bidder for the FS-03 position based on his status as a summer
bidder and the fact that Complainant had already paneled. Id. The Regional IT Manager stressed
that the FS-03 position became unofficially vacant on February 28, 2017, and officially vacant on
March 9, 2017. Id. at 1452.

The reasons proffered by management are sufficiently detailed to articulate legitimate,
nondiscriminatory reasons for the disputed actions. Complainant failed to prove, by a
preponderance of the evidence, that these proffered reasons were pretext designed to mask the true
discriminatory reasons for the actions.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant’s employment. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment
a complainant must show that: (1) he belongs to 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 statutorily protected class; (4) the harassment had the purpose or
effect of unreasonably interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for imputing liability to the
employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).

In this case, we do not find that Complainant has shown that he was subjected to a hostile work
environment based on his disability or in reprisal for his protected EEO activity. We find that the
complained of conduct did not have the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive work environment. Moreover,
we do not find that all the incidents, taken together, rise to the level of severe or pervasive
harassment. Accordingly, we find that the Agency did not subject Complainant to a hostile work
environment based on disability or in reprisal for his protected EEO activity.

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 decision finding that Complainant was
not discriminated against, nor harassed, as alleged.

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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).
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.
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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

September 24, 2019
Date