Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

May 1, 2014

0120123123 (E.E.O.C. May. 1, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120123123

Hearing No. 570-2011-00448X

Agency No. DOS-F-014-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 2, 2012 final order 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary in the
Agency’s Bureau of Administration, Office of Operations, Real Property Management Section
in Washington, DC. In early 2009, Complainant had cardiac surgery and underwent a
rehabilitation program, which was expected to last three months. Complainant submitted
paperwork to telework to accommodate her recovery from surgery. Initially, Agency officials
determined that the paperwork was insufficient, and Complainant subsequently submitted
adequate documentation which was accepted on February 18, 2009. An error by the Agency’s
Human Resources Office resulted in Complainant not beginning her three-month telework
accommodation until April 2, 2009. Under the accommodation, Complainant worked eight
hours per day, five days per week, except for when she took leave for her rehabilitation
appointments. Complainant’s post-surgical rehabilitation ended on June 5, 2009; however, she
continued to work under her telework arrangement despite her failure to update her medical
documentation.
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In July 2009, Complainant’s supervisor retired, and the Acting Deputy Director (D1) became
Complainant’s supervisor. In August 2009, D1 began assessing the amount of work
Complainant completed under her telework arrangement and concluded that four hours of
telework per day was an appropriate amount of time for her to accomplish her duties at home.
D1 considered that Complainant could not effectively perform her on-site customer
responsibilities while teleworking and that those duties had been transferred to co-workers
since she was not in the office. D1 informed Complainant about his conclusion by email on
August 17, 2009, and Complainant responded the next day. In her response, Complainant sent
copies to various Agency employees who were not within her chain of command and accused
D1 of “unlawful behavior;” of being “preposterous, evil, clever, and exceedingly
unprofessional as a manager of the Department of State;” and of being a “main player of the
conspiracy” to force her to quit or downgrade her position.

Complainant returned to the office on or about September 9, 2009. On September 14, 2009,
D1 issued Complainant a letter of warning concerning her inappropriate use of the Agency’s
email system for her August 18, 2009 email. That same day, a new Director (D2) entered on
duty, and D1 ceased supervising Complainant. Soon thereafter, D2 transferred responsibility
for compiling the office’s Weekly Activity Report from Complainant to a co-worker.
Complainant complained about the change, and he reassigned the task back to Complainant.

In April 2010, D2 issued Complainant a performance evaluation for the July to December 2009
rating period. Complainant received an overall rating of “Fully Successful.” D2 cited
Complainant’s overall work commitments and work products as the reason for her rating,
noting that her work was not thorough and that she made grammar, formatting, and content
mistakes. Complainant believed that she deserved an “Outstanding” rating. Complainant sent
an email to several management officials complaining about the rating.

On April 5, 2010, the Executive Director (D3) issued Complainant a letter of reprimand for
unprofessional behavior and inappropriate use of the Agency’s email system. The letter of
reprimand referenced four instances in which Complainant acted inappropriately and
unprofessionally, and questioned management decisions in broadly disseminated emails.

On April 22, 2010, Complainant prominently posted a document of biblical quotations
referencing “enemies” outside her cubicle in public view. D2 received a complaint from
another employee and considered the quotations inflammatory and provocative. D2 removed
the document, placed it in Complainant’s inbox, and counseled Complainant to not display the
document outside of her workstation.

On November 13, 2009 (and amended numerous times), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American), disability, age (58), and in reprisal for
prior protected EEO activity when:

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1. Her telework reasonable accommodation request was improperly delayed in
February/March 2009;

2. Her telework hours were reduced in August 2009;

3. Management gave several of her duties to other employees;

4. Management tasked her with duties that violated the Office of Personnel
Management (OPM) regulations;

5. On September 11, 2009, she received a letter of warning or counseling;

6. On November 6, 2009, she was denied a promotion;

7. She received a “negative” performance appraisal for 2009;

8. On April 5, 2010, she was given a letter of reprimand; and

9. She was subjected to excessive workplace scrutiny and unattainable deadlines.

In addition, Complainant alleged that she was discriminated against based on religion (Baptist)
when:

10. Management removed “religious scriptures” from her work area.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing; however, on July 18,
2012, the AJ granted summary judgment in favor of the Agency.

In her decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that the Agency articulated legitimate,
nondiscriminatory reasons for it actions. Specifically, as to the reduction in her telework
hours, when D1 briefly supervised Complainant, he obtained weekly telework reports from
her, assessed her work under her agreement, and concluded that four hours of telework per
day was an appropriate amount of time for her to accomplish her work responsibilities at
home. Additionally, D1 considered that Complainant could not perform her on-site customer
service responsibilities, which had been transferred to others while she was out of the office.
The AJ determined that D1 acted in accordance with the Agency’s telework policy regarding
supervisory review for gauging telework productivity and determining work output.1

1 The AJ dismissed Complainant’s claim that her reasonable accommodation telework request
was improperly delayed pursuant to 29 C.F.R. § 1614.105(a)(1) for untimely EEO counselor
contact. The AJ noted that Complainant clearly developed a reasonable suspicion about the

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With respect to her claim that her duties were assigned to others, D2 stated that he transferred
the Weekly Activity Report duties to another employee because she was a good
writer/editor/generalist who needed more tasks and assignments. Further, when Complainant
objected to the transfer of this assignment, D2 returned the duties to her.

Regarding the September 11, 2009 letter of warning, D1 asserted that he issued it based on
Complainant’s disrespectful and inappropriate email reaction to his reduction of her telework
hours. In the letter, he noted that Complainant’s allegations were unfounded and
inappropriate, disrupted the office, and negatively affected the work environment.

In regard to Complainant’s claim that she was denied a promotion, the Agency explained that
there was no position into which to promote her. The AJ noted that Complainant never
identified a specific position for which she was eligible for promotion. As to her performance
evaluation claim, D2 stated that Complainant’s work was not thorough and she made multiple
grammar, formatting, and content mistakes. D2 offered to amend the appraisal to reflect
Complainant’s report work, but she declined that offer because D2 said that it would not
change the rating.

With respect to the April 5, 2010 letter of reprimand, the AJ found that the undisputed
evidence in the record showed that Complainant disseminated four inappropriate and
unprofessional emails cited in the letter of reprimand. The AJ found that the letter of
reprimand was an appropriate response to Complainant’s inappropriate and unprofessional
misuse of the Agency’s email system.

As to management’s removal of religious materials from her workspace, D2 confirmed that he
received a complaint about the offensive materials referencing “enemies” prominently
displayed in Complainant’s workstation. D2 affirmed that he read the material and found it to
be inflammatory and provocative and removed it before speaking with Complainant later that
day.

The AJ determined that Complainant had not shown that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been discriminated or
retaliated against as alleged.2

alleged discriminatory delay in March or April 2009, long before she contacted an EEO
counselor to amend her complaint to include this claim in January 2010. The AJ further noted
that Complainant did not allege that she was denied reasonable accommodation. Accordingly,
the AJ dismissed this claim as untimely.
Turning to Complainant’s hostile work environment claim, the
AJ found that even when considered collectively and in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment claim. In addition, the AJ concluded that there was no evidence that

2 The AJ dismissed Complainant’s claim that she was required to record leave that violated
OPM’s regulations for failure to state a claim.
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the alleged incidents were based on discriminatory or retaliatory animus. Accordingly, the AJ
found that Complainant had not been subjected to a hostile work environment.

The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL
On appeal, Complainant informs the Commission that she has since retired from government
service. In addition, Complainant contends that her condition was exacerbated by the
Agency’s discrimination. Further, Complainant adds that she has withdrawn a previous EEO
complaint as she is too ill to pursue her claims. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS
AJ's Issuance of Summary Judgment

The Commission must first determine whether it was appropriate for the AJ to have granted
summary judgment. The Commission's regulations allow an AJ to grant summary judgment
when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
her favor, a reasonable fact finder could not find in Complainant's favor, as explained below.
Further, the Commission notes that on appeal, Complainant has not challenged the AJ’s
dismissal of two of her claims; therefore, we will not address those claims in the instant
decision.

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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She 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. 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. 143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine

, 450 U.S. 248, 256 (1981).
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to the reduction in her telework hours, D1 affirmed
that after reviewing Complainant’s weekly reports and assessing the direct customer contact
duties that required her to be in the office, he determined that four hours of telework per day
was the appropriate amount of time for Complainant to complete her work that could be
accomplished at home. ROI, at 477. With regard to reassigning some of her assigned duties,
D2 stated that he assigned the Weekly Activities Report to another employee because that
employee needed more tasks and assignments. Id. at 405. D2 noted that he reassigned the
duties back to Complainant shortly thereafter. Id. D2 noted that he made relatively minor
changes to the duties of several of the administrative staff during his tenure. Id

. at 406.
As to the September 2009 letter of warning, D1 confirmed that he issued it based on a
disrespectful and inappropriate email Complainant sent to several officials in the office. ROI,
at 483-84. D1 stated that the email disrupted the office, negatively impacted the work
environment, and showed a lack of judgment. Id. at 484. Likewise, with regard to the April
2010 letter of reprimand, D3 maintained that she issued it based on Complainant’s similar
unprofessional behavior and inappropriate use of the Agency’s email system. Id

. at 512.
With respect to her claim that she was denied a promotion, D2 stated that there were no
available, appropriate positions to which Complainant could be promoted. ROI, at 409. D2
noted that he had advised Complainant that she needed to demonstrate her ability to work at a
higher level to be considered for promotional opportunities and that he would be happy to
provide her opportunities to do so; however, Complainant made it clear that she did not feel
the need to demonstrate her abilities. Id. As to her evaluation, D2 affirmed that he issued
Complainant a “Fully Successful” rating based on her professional performance, her work
products, and her work commitments during the rating period. Id. at 416. D2 noted that he
could not rate her higher because her work was not thorough, she made multiple grammar and
formatting mistakes, and because of her interpersonal skills. Id. at 415-16.
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Finally, as to her claim that management removed “religious materials” from her workspace,
D2 asserted that he received a complaint about materials prominently displayed outside
Complainant’s workstation entitled “Biblical Scriptures on Enemies.” ROI, at 417. D2 stated
that he read the materials and found it to be inflammatory and provocative. Id. Complainant
was not at her desk when he read it so he removed it and placed it in her inbox. Later that
day, D2 spoke with Complainant and asked that she not display it on the outside of her
workstation because it was inflammatory and had made people uncomfortable. Id

.
Because the Agency proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine

, 450 U.S. at 256.
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were factors in any of the Agency’s actions. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on
the basis of discriminatory and retaliatory animus. Complainant failed to carry this burden.
Accordingly, the Commission finds that Complainant failed to show that she was discriminated
or retaliated against as alleged.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her protected classes, she was continuously subjected
to a hostile work environment. Complainant has cited several incidents where Agency
management took actions that seemed adverse or disruptive to her including, excessive
workplace scrutiny; unattainable deadlines; abuse of authority; an upsetting stare by D1; and
professional disagreements over duties and telework schedule. Construing the evidence in the
light most favorable to Complainant, the Commission finds that Complainant has not shown
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she was subjected to a discriminatory or retaliatory hostile work environment. Even assuming
that the conduct alleged was sufficiently severe or pervasive to create a hostile work
environment, Complainant failed to show that any of the alleged incidents were based on
discriminatory or retaliatory animus. As a result, the Commission finds no basis to disturb the
AJ's decision granting summary judgment in the Agency’s favor. We AFFIRM the Agency’s
final order.

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”
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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

Date
May 1, 2014