EEOC Appeal 2020001548

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bud D.,1
Complainant,
v.
Michael R. Pompeo,
Secretary,
Department of State,
Agency.
Appeal No. 2020001548
Agency No. DOS-0203-19
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 November 4, 2019 final
decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant had worked as an Intern at the Agency’s US General
Consulate Milan in Milan, Italy. 	He arrived at the Consulate on October 25, 2018, and left the
internship on November 23, 2018. According to Complainant, he left the internship early in
order to take another position at the United Nations.
On January 24, 2019, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on race (African-American), national origin (Ivory Coast -
African), sex (male), color (black), and in reprisal for prior protected EEO activity2 when:
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 Complainant testified that on October 31, 2018, he opposed an alleged racist remark made by
his first level supervisor (“S1”). According to Complainant, the alleged remark occurred during a
conversation between S1 and Complainant concerning people of African descent who were born

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1. 	Complainant 	received 	a 	performance 	evaluation 	that 	was 	inaccurate 	and
damaging; and
2. 	Complainant was subjected to a hostile work environment, characterized by, but
not limited to, insensitive remarks and inappropriate treatment regarding his
contact with a foreign national.
After the investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant requested a final decision.
On November 4, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment – Claim 1
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. 	See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
in Italy. 	According to Complainant, S1 commented that a Black female coworker looked more
like a white woman because she was not curvy like other black women. 	Complainant said he
objected to the comment immediately and told S1 the comment was insensitive and racist. As a
result, Complainant stated that S1 became cold and uncooperative toward him for the duration of
his internship. S1 denied making the alleged comment.

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Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. 	See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Our review of the record indicates that the Agency articulated legitimate, non-discriminatory
reasons for rating Complainant “Does Not Meet Expectations” in every category on his
Performance Evaluation. S1 stated the poor evaluation, for the very brief rating period of about
one month, was the result of poor performance, repeated tardiness to work, and loss of
confidence in Complainant’s judgement.
S1 clarified that while he signed the evaluation, the evaluation report was completed by the
Intern Coordinator with advice from S1 and S1’s supervisor (“S2”). 	S1 also indicated that he
reviewed each score on Complainant’s assessment and that it was determined that Complainant
did not fully meet expectations in any of the categories being reviewed. Additionally, S1 noted
that the evaluation team (S1, S2, and the Intern Coordinator) agreed that they would not
recommend Complainant for a future internship. While S1 indicated that the Consul General
provided no input in Complainant’s evaluation, S1 stated that the Consul General concurred with
the assessment of Complainant.
S1 disputed Complainant’s claim that he was not provided with work expectations. He said that
all the 2018 fall interns, including Complainant, were given one week to acclimate to various
tasks, complete security trainings, and complete check-ins with Consulate Sections. Additionally,
S1 noted that conversations were initiated with Complainant during the first week of October
2018 addressing work expectations and interests. S1 explained that Complainant received a
November 14, 2018 email of Intern Projects that included project deadlines. S1 also noted that
Complainant received guidance on specific projects on November 14, 16, and 21, 2018, and S1
stated that he met with Complainant on several occasions to discuss his continued late returns
from lunch because his tardiness became disruptive to the Agency’s operations.
Regarding 	Complainant’s 	continued 	poor 	work 	performance, 	S1 	explained 	that 	on
Complainant’s second day at work (October 26, 2018), he reported to work much later in the
afternoon 	without 	notifying 	anyone 	of 	his 	whereabouts. 	S1 	also 	indicated 	that 	between
November 5, 2018 and November 16, 2018, Complainant had additional episodes where he
arrived late without notifying a manager. 	S1 also noted that he had invited Complainant to a
November 22, 2018, Thanksgiving Day lunch hosted by the Consul General. S1 explained that
he informed Complainant that the Thanksgiving Day event was only for American staff,
American interns, spouses, and that no outside friends or colleagues were allowed to attend
because it was a special event from the Consul General to the community.

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However, S1 stated that Complainant arrived at the luncheon over one hour late and brought a
guest with him who was an Iranian national who had arrived in Milan a few months previously.
S1 indicated that Complainant’s actions displayed a lack of judgment and the Consul General
requested that S1 inform the Regional Security Officer (“RSO”) of the situation the following
day. 	Subsequently, Complainant was required to complete a Foreign Contact Form because he
failed to disclose his relationship with a foreign national to the RSO.
S2’s testimony corroborated S1’s testimony regarding Complainant’s poor performance and
attendance issues. S2’s testimony also corroborated S1’s testimony that Complainant was given
an orientation and his performance expectations were clearly outlined. S2 noted that he formally
counseled Complainant on November 21, 2018 about his work performance and inquired
whether there were other issues he should be aware of that impeded Complainant’s performance
and Complainant indicated that there were no other issues.
A copy of Complainant’s Performance Evaluation indicates that he was rated “Does Not Meet
Expectations” in every category. 	The evaluation further indicates that Complainant was not
recommended for further internships. 	As justification for these ratings, the evaluation indicates
that Complainant had chronic tardiness, absenteeism, and ongoing performance issues despite
counseling sessions. 	The evaluation further notes that Complainant displayed “extreme lack of
judgement related to events that led to a security incident and referral to the RSO.”
After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons 	for 	the 	disputed 	actions 	were 	a 	pretext 	for 	unlawful 	discrimination 	based 	on
Complainant’s race, national origin, sex, color, and in reprisal for prior protected EEO activity.
Harassment: Claim 2
To establish a claim of discriminatory environment harassment, Complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, Complainant must establish that he was subjected to conduct that was either so
severe or so pervasive that a “reasonable person” in Complainant’s position would have found
the conduct to be hostile or abusive. 	Complainant must also prove that the conduct was taken
because of a protected basis – in this case, his race, national origin, sex, color, and in reprisal for
prior protected EEO activity. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself.

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Complainant identified the RSO and the Consul General as the individuals who subjected him to
discriminatory harassment. Complainant explained that the RSO, at the direction of the Consul
General, approached him in a “dramatic” and “verbally threatening” manner in response to
Complainant completing the contact report after inviting a foreign national to the Thanksgiving
luncheon. Specifically, Complainant indicated that the RSO stated, “Your actions are not those
of a US citizen;” “Are you loyal to the United States?” and “Do you know it’s us against them,
like the Detroit [Lions football] team? Right now, you look like you are one of them.”
Complainant explained that he was “devastated by these horrible questions.”
Complainant acknowledged that he had invited his roommate, an Iranian national who had fled
his country to escape persecution, to the Thanksgiving celebration hosted by the General Consul.
However, Complainant stated that he was unaware of any procedure for inviting friends to
celebrations held at the General Consul’s residence.
Both S1 and the RSO disputed Complainant’s characterization of the RSO’s behavior. The RSO
denied making the statements Complainant alleged and the RSO denied that he threatened
Complainant. However, the RSO acknowledged that he did make the statement referencing the
Detroit Lions. 	The RSO explained that he had previously made this reference to Complainant
and he used it to convey the intent and seriousness of the relevant security regulations. S1 also
denied that the RSO approached Complainant in a threating manner. 	Rather, S1 explained that
the RSO had been notified of a potential security incident that took place at the Consul General’s
resident when Complainant brought with him an Iranian national without completing a foreign
contact form. S1 further explained that it was standard procedure for him to alert the RSO of a
security incident. S1 also clarified that he pulled the RSO aside to explain that: (1) Complainant
had not informed anyone of his intentions to bring a guest to the Thanksgiving Luncheon nor had
Complainant informed anyone of his relationship with his roommate; and (2) Complainant had
ongoing tardiness issues. 	Consequently, S1 disputed Complainant’s assertion that he called the
RSO into his office because he was taken aback by the RSO’s actions toward Complainant.
S1 also acknowledged that he had indicated to Complainant that they had a small office and he
did not have time to “babysit” any staff member. 	S1 further acknowledged that he made this
statement in front of human resources staff. S1 explained that he used this statement to convey
to Complainant the importance of communicating with his managers and that the rules applied to
the entire staff. 	S1 noted that during the first four weeks of the internship, Complainant had
required a disproportionate amount of time to manage compared to the other interns.
Considering these claims, even if true, Complainant has not shown evidence that considerations
of race, national origin, sex/gender identity, color, or retaliatory animus motivated management’s
actions towards Complainant. 	The record indicates that the RSO only indicated that he made
the Detroit Lions comment at issue. However, the RSO explained that he made the comment as
an analogy to better explain the relevant security regulations Complainant violated when he
invited an Iranian to the Consult General’s home without notice and without completing the
foreign contact form. 	Additionally, both the RSO and the S1 denied that RSO threatened
Complainant or approached Complainant in a threating manner.

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Additionally, the record reflects that S1 informed Complainant that S1 did not have the time to
babysit Complainant other any intern. There is no indication that this statement was made due to
Complainant’s protected bases. 	Rather, S1 explained that he made the statement to reiterate a
need for Complainant to be accountable for his work. Additionally, S1, S2, and the RSO all
testified that they did not become aware of Complainant’s harassment allegation until after
Complainant’s internship had ended.
Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any
way by Complainant’s protected groups rather than because of the security issue resulting from
the Thanksgiving incident. 	With respect to the comment alleged to have been made by S1 on
October 31, we note that S1 has denied making the remark and other than Complainant’s
testimony there is no evidence to establish the comment occurred. As such, Complainant’s claim
of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No.
019982923 (Sept. 21, 2000).
After careful review of the record, including Complainant's contentions on appeal, we find that
Complainant failed to demonstrate that the Agency discriminated against him as alleged.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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).

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Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, 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.

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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, 2020
Date