0120122707
09-30-2014
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120122707
Agency No. DOSF06310
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 15, 2012, 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. For the following reasons, the Agency's final agency decision (FAD) which found that Complainant failed to show that she was subjected to discrimination and harassment is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Language and Culture Instructor, GG-11 at the Agency's Foreign Service Institute in Arlington, Virginia. On April 14, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of national origin (Chinese) and reprisal for prior protected EEO activity when on January 5, 2010, she was not selected for one of two GG-12 Teaching Specialist positions and she was subjected to a hostile work environment characterized by, but not limited to, humiliating comments and exclusion from meetings.
Following an investigation by the Agency, Complainant requested a FAD. The Agency found that assuming Complainant established a prima facie case of discrimination the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the position because the selectee was found to have all of the qualification needed for the position as compared to Complainant. The evidence showed that the selectee served as team leader and coordinator in the Indonesian Section. He interacted with teachers belonging to various sections of the organization, and he had experience in staff development. Management credibly indicated that the selectee excelled in the areas of teacher training, staff development, and interacting effectively in a multicultural setting. Complainant provided no proof that her qualifications were plainly superior to his. Further, the selecting official explained that as compared to the selectee none of the other applicants were at his level so the second open position was not filled. To show pretext, Complainant maintained that she was at least as qualified if not more qualified than the selectee and contends that she should have been selected for the second position. She maintained that the selecting official used subjective criteria in making the selection. Complainant also argued that the selectee was chosen because he had a degree in English and that was favored. She maintained that her supervisor may have also "hinted" to the selecting official that she had a prior EEO complaint and that she frequently questioned the transparency of the organization. The FAD found that Complainant's pretext claim failed as the selectee's qualifications clearly met all of the criteria for the position while Complainant's did not. Further, the Agency found that English degrees were not favored in that all of the Language instructors were native speaking of their own language and not English. Management also noted that while the selectee did have a degree in English, other employees who were promoted to various positions did not. Finally, management indicated that the selecting official already knew about Complainant's EEO activity because he was named in the complaint so no hinting was needed. Management asserted that Complainant was not selected because the selectee was better qualified for the position. The FAD found that Complainant failed to show that she was subjected to discrimination on any bases.
With respect to Complainant's harassment claim, where she maintained that she was embarrassed at a meeting, she was excluded from professional settings, she was assigned different duties, and she was relocated to a less desirable office which her supervisor selected for her when she was out on leave. The FAD found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was asked to be quiet in a meeting after she repeatedly interrupted the staff meeting with attempts to raise an issue that was not on the agenda. Management maintained that she was told several times to stop disrupting the meeting but she continued to do so until the supervisor's voice was raised. With respect to being excluded from professional settings, the Agency found that Complainant failed to give specifics regarding this allegation and the facts that she did provide ranged as far back as six years. Management acknowledged that she was assigned various duties during the year but it was due to the ongoing needs of the language section. Finally, with regard to her work space, management explained that due to structural changes within the Agency, work locations were moved. Office selection was conducted through a lottery and as Complainant was absent from work her supervisor drew and selected an office for her. Management maintained that the same process was used for other absent staff members. Notwithstanding, the FAD found that even if these incidents were considered collectively, they were work related incidents that were not severe or pervasive enough to establish a hostile work environment. Accordingly, the FAD found that Complainant failed to establish discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the investigator refused to meet with her to go over all of her evidence. She also maintains that the dispute is not over whether one candidate was selected instead of her but that there were two job openings for teaching specialist and therefore she should have also been selected. She contends that management lied about many things in this complaint. Further, she argues that she should have been consulted about the office space, as she was under the impression that she was going to have an office with a window. Finally, she maintains that the fact that her prior EEO activity was hinted about should have received more consideration than it did.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that assuming arguendo that Complainant established a prima facie case of reprisal and national origin discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above.
We find that Complainant failed to show that the Agency's reasons were pretext for discrimination. We find the Agency clearly articulated the reasons why Complainant was not selected for the position. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Complainant may be able to establish pretext with a showing that her qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, however, Complainant has failed to make this showing. Neither she nor the record provides any persuasive evidence that Complainant was so better qualified for the position than the selectee that discrimination could be inferred from her non-selection. The record also does not show that the selecting official considered Complainant's protected bases with regard to the nonselection.
We also find that Complainant failed to establish harassment as the incidents complained of were not severe or pervasive enough to establish a hostile work environment. Further, with respect to Complainant's contentions on appeal, we find that other than her conclusory statements she has not provided any evidence which shows that discriminatory animus was involved in this complaint. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination and/or harassment occurred.
The Agency's FAD which found that Complainant failed to show that she was subjected to discrimination and/or harassment is AFFIRMED.
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
___9/30/14_______________
Date
2
0120122707
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122707