0120120417
03-26-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120120417
Hearing No. 570-2010-00357X
Agency No. DIA-00008-2008
DECISION
On October 25, 2011, Complainant filed an appeal from the Agency's October 3, 2011, final decision concerning her 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant (female) worked as a Defense Liaison Officer in Harare, Zimbabwe. Her first-level supervisor, an Army officer ("Supervisor") (male), was the Defense Attach� in Harare.
On September 15, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when she was subjected to harassment. In support of her claim, Complainant indicated that the following events occurred:
1. In March 2007, the Supervisor had negative conversations about Complainant with Personnel prior to her arrival.
2. In May 2007 and August 2007, the Supervisor threatened Complainant's job security.
3. In September 2007, the Supervisor refused to accurately reflect Complainant's job performance in her mid-term review.
4. In September 2007, the Supervisor failed to support Complainant in her mission.
5. In September 2007, the Supervisor provided misleading and false information to the Embassy Security Clearance Investigator concerning Complainant.
6. Starting on September 21, 2007, during Complainant's weekly counseling sessions, the Supervisor was verbally disrespectful to her.
7. On October 10, 2007, Complainant learned that the Supervisor lied to her about a meeting with the Embassy Administrative Office on her behalf that never occurred; and
8. On February 20, 2008, Complainant resigned in lieu of being terminated.
The Agency accepted the complaint for investigation. The evidence gathered during the investigation shows that Complainant and her family arrived in Zimbabwe in April 2007. Complainant alleges that on the day her employment in Zimbabwe ended she was told by an administrative support staff person in Personnel that someone had a negative conversation with the Supervisor about Complainant before she arrived and he had developed negative perceptions of her before he even met her. The Supervisor responded that he had no opinion of Complainant prior to her arrival in Zimbabwe and made no derogatory comments about her to anyone prior to her arrival.
In May 2007, a few weeks after Complainant arrived in Zimbabwe, there was an incident involving her minor son at the International School concerning an allegation of marijuana possession. She asserts that the Supervisor called her into his office and told her there were rumors spreading though the American community that her son was a drug user and had been expelled from school. He allegedly also told her that the rumors had reached the Ambassador, who was considering having Complainant and her family removed from the country. Complainant replied that the rumors were not true and her son had not been expelled.1 Rather, she had decided to take him out of school and he was being home-schooled. She also had the International School principal call the Ambassador to correct any misinformation about her son. Complainant said that the Supervisor told her that if there were any more problems with her son, she would be fired.
The Supervisor said that the Ambassador called him in about Complainant's son to explain what had happened. He said the Ambassador was disturbed because the Supervisor's predecessor had had to leave the country due to family problems, including drug use by a minor child. According to the Supervisor, the Ambassador wanted to send Complainant's family back to the United States immediately, but the Supervisor convinced him to give her more time to get her family settled. He concedes that he warned her that she needed to get her son under control or her job would be in jeopardy.
Complainant alleged that sometime later, in August 2007, the Supervisor told her that the economic situation in Zimbabwe was worsening and that, if non-essential personnel were evacuated, she would be the first to go. Complainant said he told her that she should start looking for other employment.
Regarding her mid-term performance review, Complainant alleged that the Supervisor only used about three of the 10 to 15 achievements she listed and presented to him in her mid-term review. The review shows that he rated her work as satisfactory, and indicated that if she accomplished certain other tasks, her work would be above satisfactory. Complainant asserts that if he had listed the other achievements she presented to him, he would have had to rate her as above satisfactory.2 Complainant alleged that the Supervisor failed to support her or her work throughout her entire tour in Zimbabwe, including failing to add her to the diplomatic list so she was not invited to events where she could develop contacts to perform her duties, criticizing her report writing style and refusing to publish her reports. In addition, she stated he kept her "out of the loop" by not briefing her on what was going on in the office or keeping her informed of his schedule. The Supervisor said that he believed the mid-year review he gave Complainant was accurate and that he acted as her advocate when he could, including allowing her to work a schedule that ended at 1530 (3:30 p.m.) every day so she could be home when her children returned from school as part of her "positive control" strategy.
Complainant also alleged that the Supervisor told the Embassy Security Clearance Investigator (female) that Complainant's mental state was questionable, that Complainant was in psychological counseling, and that her husband had a violent temper.3 She alleges he also indicated that her personal life was affecting her ability to do her job. Complainant said that her husband was not violent and it was her son who was seeing a counselor, not her. She denied that her work was suffering, indicating that she had never missed a day of work, was never late, and wrote a respectable number of reports. As a result of the Supervisor's negative comments, Complainant stated that there was a formal discussion ("a family advocacy meeting") at the Embassy about whether she had a dysfunctional family who needed to be returned to the United States.
The Supervisor admitted that when asked about Complainant's suitability for a security clearance he said that he did not trust her judgment and did not support granting her a new clearance. He stated that he believed her behavior led to his opinion. However, Complainant states that despite what the Supervisor said, her security clearance was renewed.
Starting in September 2007, the Supervisor instituted weekly counseling sessions with Complainant. Complainant asserted that she was humiliated by these meetings, and that they gave the Supervisor the opportunity to continue his unjustified criticism of her work. She said she believed that in his eyes she was a female consumed with family problems, who did not belong in the workplace.
Complainant stated that in June 2007 she had told the Supervisor that she wanted to lodge a formal complaint against the Regional Security Office Secretary ("JT") (female) because she believed she was the source of the rumors about Complainant's children. The Supervisor said that he would brief the Embassy Administrative Officer (male) concerning her complaint, and afterwards told her that the Embassy Administrative Officer said there was nothing that could be done. Complainant said that on October 10, 2007, she had a conversation with the Embassy Administrative Officer, who said that the Supervisor had never had a discussion with him about JT, although he noted that JT was an "excellent employee."
The Supervisor stated that he was called into the Administrative Officer's office and told that the Embassy had received multiple complaints from a number of people about Complainant's family. The Supervisor said that he told the Administrative Officer that he would continue to work with Complainant to improve the situation and said that he told Complainant very little about the meeting. At this time, the Supervisor started meeting with Complainant on a weekly basis. The Administrative Officer confirmed the Supervisor's recollection of these events.
On February 20, 2008, Complainant said she was called into the Supervisor's office and told that she was terminated for "unsuitability," with the option to resign if she wished, her security clearance was revoked, and she was only allowed in the Embassy with an escort like other non-employees.
The Supervisor said that he did not have the authority to terminate Complainant's employment because he was a military officer and she was a civilian employee. The Human Resources Manager (female) said that Human Resources approved the termination for a number of reasons. First, Complainant occupied a temporary ("NTE") position and there were concerns about her work performance, including her reluctance to travel for her job because of her family issues.4 Also, the Ambassador was concerned that her family was not suitable, including the drug issue concerning her son and her husband's altercation with a local. The Human Resources Manager said that the Supervisor notified Complainant about her termination because there was no one from Human Resources on-site to do it. However, the Human Resources Manager stated that she attended the meeting between Complainant and the Supervisor by telephone, and Complainant was given the option to resign because she had no appeal rights as a temporary employee. The Human Resources Manager said that employees often choose this option so there was no record of a termination in their personnel records. Complainant opted to resign. Following her resignation, she was given about three weeks to leave the country.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, 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 her to sex discrimination as alleged.
The instant appeal followed.
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. (November 9, 1999) (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").
It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct related to her membership in that class; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with her 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that Complainant has not shown that she was subjected to the alleged harassment based on her sex. The Supervisor indicated that early in Complainant's tenure in Zimbabwe, the Ambassador contacted him following his discussion with the International School's principal regarding one of Complainant's children. The Supervisor averred that the Ambassador wanted to immediately return Complainant to the United States, but he intervened asking for more time for Complainant to settle in. The Embassy was later also concerned about an altercation between Complainant's husband and a local. As a result, the Supervisor said that he did warn Complainant that she needed to get her family under control or risk her job.
As for the mid-term review, the Supervisor said he believed that Complainant had made satisfactory progress. The Supervisor denied that he provided "misleading information" and asserted that he tried to assist Complainant to develop. However, he continued to receive multiple complaints from other personnel concerning Complainant. The Supervisor noted that Complainant often became obstinate and insubordinate. The Branch Chief, Complainant's second line supervisor, supported the Supervisor's testimony, and further averred that Complainant refused to go on TDY in violation of her mobility agreement.
The Human Resources Manager echoed the concerns over Complainant's performance and stated that Complainant was required to take TDY assignments, but refused to report to a TDY location when it was part of her job. The Human Resources Manager provided guidance to the Agency about Complainant's performance/conduct. She determined based on the documentation provided to her that Complainant could be terminated. She provided Complainant with the option to resign in lieu of termination. She averred that Complainant opted to resign.
In response, Complainant challenged the Agency's version of the events and asserted that there were no issues with her family. She claimed that the Supervisor provided false and misleading information. As such, she believed that the Agency was responsible for creating a hostile work environment which resulted in her resignation.
Based on the totality of the record, we find that Complainant has not shown that the alleged events occurred because of her sex. The record shows that the events used by management to support its actions have been shown to have occurred, although it appears that the parties interpreted the meaning of those events differently. Complainant seems to base her charge of sex discrimination on her belief that the Supervisor thought she was a woman consumed by family problems who should not be in the workplace. However, beyond her bare assertion there is no evidence of this. We note that this was a foreign post and the actions of an American employee and family were scrutinized differently than in the United States. There is no evidence, however, that gender played a role in this matter. We note, for example, that the Supervisor's predecessor, who was male, was sent back to the United States because of allegations of his minor son's drug use. After careful review of the record, we cannot find that Complainant has proven, by a preponderance of the evidence, that she was subjected to discrimination based on her sex.
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.
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
March 26, 2014
__________________
Date
1 During the investigation, Complainant presented a letter, dated January 14, 2010, from the International School, stating that it had no record of expulsion or disciplinary actions involving her sons.
2 The record indicates that there was a concern expressed about Complainant refusing or being reluctant to travel for work (TDY to Burundi and/or Mauritania) because of her children.
3 Complainant also referenced an incident when her husband reported to the Embassy an incident with a local person where he asserted he was run off the road while riding his motorcycle and someone threatened to "put a bullet in his head."
4 Complainant's second-level supervisor, the Branch Chief for East/South Africa (male), confirmed that Complainant refused to go on TDY to Burundi in violation of her "mobility agreement." He said she submitted a humanitarian waiver request, but he did not approve it. The Branch Chief then asked her to go on TDY to Mauritania, which she initially refused, but later agreed to.
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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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