U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cortez J.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency. Appeal No. 0120150229 Agency No. DOS-0147-13 DECISION On October 19, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 8, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal, and/or a hostile work environment. ISSUE PRESENTED The issue presented in this case is whether the Agency erred in its final decision (FAD) when it found that Complainant was not subjected to discrimination, reprisal, and/or harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Locally Employed Staff (LES), Registered Nurse at the U.S. Embassy in Baku, Azerbaijan. On October 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Azerbaijani), sex (male), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) On May 24, 2013, he was issued a Letter of Reprimand; (2) His EPR reporting period was extended beyond the one-year calendar cycle, contrary to normal practice; (3) On September 10, 2013, his position was terminated; and (4) He was subjected to a hostile work environment characterized by, but not limited to isolation from co-workers, threats, and demeaning and inappropriate comments. After 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, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming Complainant established a prima facie case of discrimination and reprisal with respect to all his bases, management articulated legitimate, nondiscriminatory reasons for its actions. Regarding issue 1, Complainant was issued a Letter of Reprimand because in early May 2013 management was notified by their contacts at the Anti-Plague Section (APS) of the Azerbaijani Ministry of Health that Complainant had called them, yelled at their employee who had answered the call and when the employee refused to identify himself, Complainant called the Ministry of Health wherein he stated his name and indicated that he was calling from the American Embassy. He then proceeded to complain about the APS. Management indicated that this event damaged their relationship with the Ministry of Health. The Human Resources Officer indicated that she had to apologize and promise that Complainant would be re-trained on telephone etiquette. Regarding issue number 2, the Agency explained that Complainant's reporting period was extended beyond the one-year cycle because he had been placed on a Performance Improvement Plan (PIP) in November 2012, to address several issues, e.g., exceeding the legal scope of his nursing license. Shortly after he was placed on the PIP, Complainant took an extended period of leave beginning on November 29, 2012 and ending January 7, 2013. Because Complainant had been off work for more than eight weeks of the 120-day PIP period, the decision was made to extend the PIP for an additional 60 days. The Human Resources Officer advised that the 60-day extension period began on March 23, 2013 and concluded on May 24, 2013. With respect to issue 3, Complainant's September 10, 2013, termination. Complainant argued that his termination was due to complaints he made about unfair treatment and a hostile work environment. Management explained that Complainant's termination was due to three instances of misconduct. The first incident involved the telephone call that was described in issue 1. The second incident involved Complainant's actions during a visit to a local hospital. According to the record, Complainant was so rude that "a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present" documenting his behavior and it was sent to the Embassy in Baku. The third incident occurred when Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and "stormed out" of the area then, within five minutes, Complainant called their supervisor "demanding" that the four drivers see him to be medically evaluated for their fitness for work. Complainant's supervisor determined that he was "us[ing] [his] position to bully other colleagues when [he was] angry." Complainant's supervisor maintained that Complainant was terminated because, among other reasons, she needed to protect the other employees from his abusive and erratic behavior. The supervisor felt that to allow Complainant to continue working as a caregiver when people were afraid of him was not prudent or reasonable, and that his actions reflected badly on the U.S. Government. Finally, with regard to issue 4, Complainant alleged that he was subjected to a hostile work environment, when: he complained that he found Halloween decorations offensive; an employee from another organization "made a few remarks about his beard," including that it made him look "like one of [the]bad guys;" written "Workplace Conduct Expectations," were issued because of him; his supervisor claimed that in the Azerbaijani culture, girls get married at around 13 years of age and Complainant found this to be a stereotype that he found offensive; and he had a conversation with a coworker where he believed the coworker was insinuating that people living in Azerbaijan were not able to seek their rights. Complainant maintained that he went to outside officials because he could not resolve his problems with management since they were harassing him. He maintained that the alleged harassment affected him because it made him "emotionally less stable, depressed and easier irritated." He also alleged that he experienced medical problems and started taking medication due to the alleged harassment. Management maintained, among other things, that Complainant believed that policies were being applied to him and were personal attacks against him. Management indicated, however, that Complainant was not subjected to harassment. Management explained that after Complainant indicated that he was uncomfortable with the Halloween decorations they were taken down. Further, the comments made about his beard were made from an employee from another agency and there was no evidence that the comment was made in a hostile manner. Management indicated that the "Workplace Conduct Expectations" did not just apply to Complainant. Regarding Complainant's claim that his supervisor commented that Azerbaijani girls as young as 13 years were married, she indicated that she had been invited to give a talk to young women in the villages about nutrition and health. In doing research in advance of her speech, she had asked Complainant what types of situations young girls faced (e.g., HIV, family planning, sexually transmitted diseases), at which time Complainant told her that girls as young as 13 years old were often married. She emphasized Complainant never told her he believed he was being subjected to a hostile work environment. Management indicated that Complainant was not subjected to harassment, as the issues claimed were not severe or pervasive enough to establish a hostile work environment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, and/or harassment as alleged. STANDARD OF REVIEW 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"). CONTENTIONS ON APPEAL On appeal, Complainant, among other things, asks whether Alternative Dispute Resolution (ADR) is still an option. He also requests that the FAD be reversed. ANALYSIS AND FINDINGS Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of religion, sex, and national origin, discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as listed above. We find that Complainant has provided no evidence which suggests that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved in this matter. The record clearly showed that Complainant had a history of inappropriate and inflammatory behavior in the workplace. The Commission has long held that the Agency has broad discretion regarding its hiring and firing practices unless discrimination is shown. Accordingly, we find that discrimination has not been shown in this case. We also find that Complainant did not establish that he had been subjected to unlawful harassment in this case because the purported conduct, assuming it occurred as alleged, was neither severe or pervasive enough to establish a hostile work environment. CONCLUSION Accordingly, the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 _3/23/17_________________ Date 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 0120150229 6 0120150229