Dollie T.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120182760 (E.E.O.C. Apr. 26, 2019)

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

Dollie T.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120182760

Hearing No. 570-2016-01355X

Agency No. DOS000816

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated July 24, 2018, finding no discrimination with
regard to her 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,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Support Services
Specialist, GS-13, at the Agency’s Executive Office for the Bureau of Economic and Cultural
Affairs and Bureau of International Information Programs ("ECA-IIP/EX") in Washington, D.C.
In September 2015, Complainant’s first-line supervisor was the Chief, Support Services Division
(“Supervisor”). The ECA-IIP/EX Support Services Division is responsible for providing
administrative and operational support to a variety of offices and bureaus, ranging from
providing office supplies to managing multimillion-dollar renovation and construction projects.
Supervisor had five employees, including Complainant, working for him in the end of 2015 and
beginning of 2016 in ECA-IIP/EX Support Services Division.

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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On September 2, 2015, Complainant was overseeing a construction project for the IIP Bureau
involving furniture removal and installation of electrical hardware. The Principal Deputy
Assistant Secretary (“PDAS”) for the IIP Bureau and the IIP Coordinator were the Support
Services Division’s clients for this construction project.

On that day, Complainant received noise complaints from some employees in the area due to the
ongoing construction. These employees threatened to go to the Head of IIP if the noise did not
stop. Recalling advice she had received from the lessor of the building regarding noise tolerance,
Complainant made the determination to halt the project for the day and dismissed the
construction crew. Complainant did not get authorization from Supervisor or any IIP project
leads for approval to stop the project and dismiss the crew. As a result, the project was delayed
and incurred additional expenses exceeding $6,700.

On September 29, 2015, Supervisor issued a Letter of Warning to Complainant for making an
unauthorized decision resulting in negative fiduciary consequences for the ECA-IIP/EX Office.
The Letter of Warning stated that PDAS for the IIP Bureau had lodged a complaint against her
for making a unilateral decision which resulted in additional project costs for the IIP Bureau.
Supervisor explained that the issue was not the stopping of the construction, but rather
Complainant’s failure to inform and get the client’s (IIP) concurrence to stop the construction,
since the delay would result in additional costs.

Thereafter, in August 2016, Complainant learned that a Caucasian employee (“Comparator”),
who had worked on a similar construction project, received a Superior Honor Award for his/her
service. Comparator was not in Supervisor’s or Complainant’s chain of command or a part of the
ECA-IIP/EX Support Services Division. No ECA-IIP/EX employees received Superior Honor
Awards in 2015. Complainant’s second-line supervisor, Deputy Director of ECA-IIP/EX,
explained this was because clients expressed concerns about the service they were receiving
from the ECA-IIP/EX Office around that time.

On January 19, 2016, Complainant filed an EEO complaint and upon completion of the
investigation of the complaint, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The Agency filed a Motion to Dismiss to which Complainant filed a response in
opposition and Motion to Amend Complainant’s Complaint. On January 19, 2018, the AJ
assigned to the case issued an Order Denying Motion to Dismiss and Granting Motion to Amend.
The Order stated the new issues for adjudication were as follows:

Whether Complainant was subjected to discrimination and a hostile work
environment based on her race (African-American) and in reprisal for her EEO
activity when she was issued a Letter of Warning on September 29, 2015 and was
subsequently denied an award.

On May 7, 2018, the Agency filed a Motion for Summary Judgment (MSJ). Complainant filed a
response in opposition to MSJ on May 23, 2018, and the Agency filed a reply on the following
day.
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Over Complainant's objections, the AJ granted the Agency’s motion for a decision without a
hearing (MSJ) and issued a decision on June 14, 2018. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

Complainant appeals and argues the AJ erred in granting the Agency’s MSJ. The Agency
requests that the Commission affirm the AJ’s Order granting the Agency’s MSJ and the
Agency’s Final Order fully implementing the AJ’s Order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing 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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists. In the instant case, the AJ adopted and
incorporated the Agency’s MSJ including the material facts not in dispute into her decision. The
AJ found Complainant failed to establish any evidence of unlawful discrimination.

Disparate Treatment

In order 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). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

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Here, assuming arguendo Complainant established a prima facie case of discrimination, the
Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual. Specifically, IIP incurred
additional expenses as a direct result of Complainant’s dismissal of the construction crew on
September 2, 2015. The record establishes that Complainant did not consult with the client,
PDAS or IIP Coordinator, prior to making this decision. Complainant alleged the IIP
Coordinator discriminated against her based on race by issuing the Letter of Warning and
denying her a subsequent award. However, the record shows Supervisor, not IIP Coordinator,
issued the Letter of Warning. IIP Coordinator is not in Complainant’s chain of command.
Additionally, Supervisor noted the group award for Complainant’s unit was rescinded based on
poor performance as reported by their clients. Moreover, Complainant has failed to establish that
similarly situated employees outside of her protected class were treated differently from her.
Complainant’s alleges that a Caucasian coworker outside of her supervisors’ chain of command,
on a different team, with different job duties received an award which she did not. We do not
find this comparator is similarly-situated and therefore, Complainant failed to establish the
Agency’s actions were a pretext for discrimination. We find that Complainant failed to establish
that the disciplinary action taken was based on discriminatory animus.

Harassment

To establish a claim of hostile work environment, Complainant must show that: (1) she belongs
to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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 on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 at 6 (March 8, 1994).

In this case, we find for reasons discussed earlier in this decision that Complainant has failed to
provide any evidence that these incidents, if they occurred as Complainant alleged, were
motivated by discrimination. Therefore, we find that Complainant failed to show she was
subjected to a discriminatory hostile work environment.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the statement of undisputed
facts in the MSJ. The AJ found, and we agree, that there is no evidence that the Agency’s
articulated reasons were untrue or otherwise indicative of pretext.
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Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were
motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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,
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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

April 26, 2019
Date