EEOC Appeal 2020001288

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosario D.,1
Complainant,
v.
John Barsa,
Acting Administrator,
Agency for International Development,
Agency.
Appeal No. 2020001288
Agency No. OCRD-011-19-F
DECISION
On November 14, 2019, 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
October 16, 2019, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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.
ISSUE PRESENTED
The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to discrimination based on age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a FS-1 Private
Enterprise Officer and Regional Trade Advisor in the Agency’s Regional Economic Growth Office
in Pretoria, South Africa. Complainant was born in March 1954. Complainant retired on March
31, 2019, which was the end of the month in which he turned 65 years old. The mandatory
retirement age for Foreign Service employees is 65.
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 stated that, in 2017, the Acting Mission Director of the South Africa Mission (S1)
and the Director of the Office of Acquisition and Assistance (S2) solicited complaints about
Complainant’s work in South Africa in an attempt to dismiss him. Complainant stated that the
Agency have had too many employees in South Africa at the time and suggested that S1 and S2
wanted Complainant gone for their own job security. Complainant alleged that S2 removed his
Contracting Officer’s Representative (COR) duties for a contract because of the fabricated
complaint and that serving as COR for the contract constituted a large portion of his duties.
According to Complainant, after participating in workplace harassment training in 2018, he
realized that these actions had constituted bullying.
On September 4, 2018, Complainant submitted a Freedom of Information Act (FOIA) request
through the Agency’s FOIA website. A contract FOIA Specialist in the FOIA Office (FO1) stated
that a former contract FOIA Specialist (FO2) contacted Complainant to clarify his FOIA request
and that FO2 closed out the request on September 25, 2018, after she did not receive a response
from Complainant. The record contains a September 7, 2018, email from FO2 to Complainant,
requesting clarification of the records requested, asking for specific search terms or keywords for
the electronic search, and stating that his FOIA request would not be perfected until he provided
the requested information. The record contains a September 10, 2018, response to FO2’s
September 7, 2018, email, but Complainant did not provide the requested electronic search terms
in his response. According to Complainant, he did not hear anything about his request after
responding on September 10, 2018. Complainant stated that in January 2019 he contacted the
FOIA Office for an update and learned that his FOIA request had been closed. Complainant
resubmitted his FOIA request on February 8, 2019. According to FO1, in March 2019, she noticed
that email correspondence from Complainant was going to the FOIA Office’s spam folder. The
record reflects that Complainant used the same personal email address for his September 2018 and
February 2019 requests.
On September 18, 2018, Complainant filed a grievance with the Acting Director of Employee and
Labor Relations (HR1) in the Office of Human Capital and Talent Management (HCTM).
Complainant filed the grievance by emailing it to HR1 using the personal email account that he
used for his FOIA request. In the grievance, Complainant stated that he had been subjected to a
hostile work environment in South Africa. Complainant stated that, after filing the grievance, he
never received a response. Complainant stated that a union representative told him that it would
take approximately three months for the Agency to process his grievance. According to
Complainant, he contacted the union after three months to ask about his grievance, but a union
representative suggested that Complainant wait another month because of delays caused by the
government shutdown. Complainant stated that he emailed HR1 on January 29, 2019, asking for
an update about his grievance. According to Complainant, when HR1 did not respond, a union
representative (U1) contacted a Senior Employee and Labor Relations Specialist (HR2) to ask
about the status of Complainant’s grievance. On March 5, 2019, HR2 sent an email to U1, stating,
“The last thing I see in the system is a withdrawal of his grievance, Did he have another one?”
HR2 averred that in the March 5, 2019, email, she was referring to a grievance Complainant had
withdrawn through his attorney in April 2018.

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On March 6, 2019, Complainant resubmitted his grievance to HCTM. A new Director of Employee
and Labor Relations (HR3) began working for the Agency in February 2019. HR3 stated that
HCTM did not have a record of the grievance in question until U1 forwarded Complainant’s
September 18, 2018, email to HCTM in March 2019.
Complainant alleged that his FOIA request was closed and that his HCTM grievance was ignored
because of his age. According to Complainant, Agency employees knew that he was nearing
mandatory retirement age. Complainant stated that, once he retired, he would not have access to
the resources he would need to defend himself. HR3 stated that HCTM does not consider age when
processing grievances. FO1 stated that the FOIA Office does not request or otherwise have access
to the age of a person making a FOIA request.
On May 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (born in March 1954) when:
1. 	In January 2019, he learned that the FOIA request he submitted on September 4,
2018, had been closed; and
2. 	On March 5, 2019, he learned that the grievance he filed with HCTM had been
withdrawn.
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 (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.
The instant appeal followed. Neither Complainant nor the Agency submitted any contentions 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”).
Complainant alleged that he was subjected to discrimination based on age when his FOIA request
was closed in September 2018 and when the grievance he emailed to HR1 in September 2018 was
not addressed.

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To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally 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). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. 	Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). A mistake made by an agency is not
evidence of pretext unless there is evidence that the mistake was based on a complainant's
protected classes. See Vickey S. v. Dep't of Defense, EEOC Appeal No. 0120112893 (Nov. 17,
2015); Hsieh v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120980 (June 4, 2012); Carroll
v. Dep't of Justice, EEOC Appeal No. 01A20985 (Jan. 21, 2003).
The Agency’s legitimate, nondiscriminatory reason for closing Complainant’s FOIA request was
that the FOIA Office had not received a response from Complainant containing the electronic
search terms needed to perfect his request. Complainant contends that the real reason for closing
out his request was his age, as he was nearing mandatory retirement age. However, Complainant
has not established that the Agency’s legitimate, nondiscriminatory reason is a pretext for age
discrimination. Given the issue with Complainant’s emails being sent to the FOIA Office’s spam
folder, it is not clear whether FO2 received Complainant’s September 10, 2018, email response.
However, even if FO2 received this email, it was unresponsive because it did not provide the
requested search terms. Accordingly, Complainant has not established by preponderant evidence
in the record that the Agency’s proffered reason is pretextual.
The Agency’s legitimate, nondiscriminatory reason for not addressing Complainant’s September
18, 2018, grievance is that HCTM did not have a record of the grievance in question until March
2019. As evidence of pretext, Complainant points to HR2’s March 5, 2019, email stating that
HCTM records showed that Complainant had withdrawn his grievance. However, HR2’s email
referred to a separate grievance that Complainant had withdrawn in April 2018. Complainant also
generally asserts that HCTM ignored his grievance so that he would be forced to retire before
receiving a response, but he has not established that the Agency’s legitimate, nondiscriminatory
reason was pretext designed to mask age-based animus.
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 final decision finding no discrimination.

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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, 2020
Date