[Redacted], Christopher M., 1 Complainant,v.Samantha Power, Administrator, United States for International Development, Agency.

Equal Employment Opportunity Commission

Nov 7, 2022

Appeal No. 2022001664 (E.E.O.C. Nov. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher M.,1 Complainant, v. Samantha Power, Administrator, United States for International Development, Agency. Appeal No. 2022001664 Hearing No. 570-2020-00628X Agency No. OCRD-082-19-F DECISION On February 7, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 28, 2022 final decision concerning his 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. BACKGROUND During the relevant time, Complainant worked as an Office Director, FS-2, for the Agency’s USAID Democracy and Governance Office in Addis Ababa, Ethiopia. On September 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male) and in reprisal for prior EEO activity when: 1. On June 18, 2019, his one-year extension request was denied and on June 27, 2019, his reconsideration request for the one-year extension was also denied; 2. On June 19 and July 9, 2019, Complainant was reprimanded, and it was included in his quarterly conversation performance record; 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. 2022001664 2 3. On July 1 and August 8, 2019, Complainant was not selected as Acting Mission Director; 4. On July 9, 2019, Complainant was accused of making inappropriate comments to the Deputy Office Director; 5. On October 7, 2019, Complainant discovered that the former Deputy Office Director may had undercut his funding decisions when he was told that certain amounts of funding could not be used as he had planned; and 6. On October 15, 2019, Complainant discovered that the former Deputy Office Director may have spoken about him with a new staff member during a flag ceremony. After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and then both parties filed a motion for summary judgment. The AJ subsequently issued a decision by summary judgement in favor of the Agency finding no discrimination or unlawful retaliation was established. The Agency issued its final order adopting the AJ’s judgment finding of no discrimination implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record o by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2022001664 3 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that Complainant started working for the Agency as Office Director for USAID’s Democracy and Governance Office in Addis Ababa, Ethiopia in August 2018. His first-line supervisor was the Deputy Mission Director (“Supervisor 1”) (female). The Mission Director (female) was his second-level supervisor. As the Democracy and Governance Office Director in Ethiopia, Complainant was the first-line supervisor of the Deputy Office Director (female). Complainant and the Deputy Office Director had a difficult working relationship, and Supervisor 1 had a number of discussions with him about these management issues. Complainant offered a number of examples about his difficulties with the Deputy Office Director, that included the following. On September 4, 2018, Complainant asked his subordinates to share their work calendars with him so he could know what meetings they were attending and with whom. The Deputy Office Director declined to share with him the details of her calendar beyond when she was “busy or not busy.” On October 2, 2018, the Deputy Office Director again declined to share her calendar with Complainant. Complainant suggested she email on Fridays a list of the meetings for the following week, but the Deputy Office Director declined, noting that her schedule could change and the list might then become inaccurate. On October 31, 2018, Complainant informed the Deputy Office Director that he would be replacing her as the Agency’s representative on the international donor Governance Technical Working Group. The Deputy Office Director did not want to relinquish the role. 2022001664 4 In December 2018, Complainant went on leave, leaving the Deputy Office Director to fill in for his duties while he was on leave. From April 12, 2019 to May 22, 2019, Complainant was on extended medical leave. The deadline for submission of employee evaluations for the 2018-2019 rating cycle fell within this period. Complainant did not complete his supervisory evaluation of the Deputy Office Director while he was on leave. After the Deputy Office Director’s evaluation remained incomplete for two weeks, the Mission Director assigned the Supervisor 1 to complete her review. However, on April 10, 2019, Supervisor 1 suddenly left the post. Thereafter, the Acting Deputy Mission Director (“Supervisor 2”) (female) notified the Chief Human Capital Officer of the reassignment of raters for those employees under Supervisor 1, including Complainant. This notification indicated that Supervisor 2 would take over as Complainant’s rater and direct supervisor. Complainant remained the Deputy Office Director’s supervisor of record, although Supervisor 2 completed the Deputy Office Director’s evaluation while Complainant was on extended leave. Also, Supervisor 2 completed Complainant’s annual performance evaluation and supervisory Multisource Rating (MSR) review. Regarding claim 1, Complainant alleged that on June 18, 2019, his one-year extension request was denied and on June 27, 2019, his reconsideration request for the one-year extension was also denied. The Mission Director explained that Ethiopia is a two-year post, but employees can ask for an extension for a third and sometimes even fourth year. With respect to Complainant’s one-year extension request, the Mission Director stated that she denied the request. On June 19, 2019, the Mission Director met with Complainant to discuss why his tour extension had been denied. She listed his failure to get documents to the Embassy and effectively hand over responsibilities to his deputy, complaints received from a long-standing partner about the manner in which Complainant was managing his team and the way he was communicating, and his problematic relationship with the Deputy Office Director as her reasons for denying his request. On June 20, 2019, Complainant sent an email to the Mission Director asking her to reconsider his extension request and blaming the Deputy Office Director for failing to provide requested documents to the Ambassador. The Mission Director reaffirmed her denial of the extension. The Mission Director that the lack of communication between Complainant and his deputy contributed to why the assignments “fell through the cracks.” The Director stated that if Complainant had been assertive and was contributing positively, that she would have welcomed his extension because it would have been good to have that continuity. She stated what she was noting, however, was that Complainant was not getting along with key members of his team, he was alienating partners, and he was not able to produce consistently on time and in the manner that the Ambassador wanted. 2022001664 5 The Special Advisor to the USAID Agency Counselor (female) confirmed that she also did not find Complainant to be a very strong manager overall. Specifically, the Special Advisor stated the Mission Director determined that she would be better bringing in someone else who had a stronger set of management and communication skills. She also stated that Complainant was a poor writer and was not a good presenter. Regarding claim 2, Complainant stated on June 19 and July 9, 2019, he was reprimanded, and the matter was included in his quarterly conversation performance record. The Mission Director clarified she had conversations (not a reprimand) where she shared with Complainant that there were at least three different occasions where women had complained about his behavior. The Mission Director said she told him that if these complaints were true, he should refrain from such behavior. Complainant stated that he would be careful and thanked her for the feedback. The evidence indicates there was no formal write-up of the meeting, and it was not added to Complainant’s e-Performance file or quarterly conversation record or other employee rating methods. Regarding claim 3, Complainant alleged in July - August 2019, he was not selected as Acting Mission Director. Complainant alleged the denial of such favorable career enhancing assignments affected his performance evaluation and potential promotion. The Mission Director explained that Complainant was not given the assignment because of the concerns with his management skills shortly before the selections for the acting rotations were made. Specifically, Complainant failed to get documents to the Embassy and effectively hand over responsibilities to his deputy in anticipation of his absence; he had a poor relationship with an implementing partner; and he had a problematic relationship with his Deputy Office Director. Complainant also admitted many other male employees were provided opportunities to serve in acting leadership roles. In sum, in all three claims, the responsible Agency management officials articulated legitimate, non-discriminatory reasons for the disputed actions as detailed above. Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to make discrimination because of his sex or unlawful retaliation. Harassment To prove his discriminatory harassment/hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his sex or engagement in protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2022001664 6 Regarding claim 4, Complainant stated that on July 9, 2019, he was accused of making inappropriate comments to the Deputy Office Director. The record shows that the Mission Director, Supervisor 2 and Complainant met on that date to discuss complaints management had received from three female employees (one being the Deputy Office Director) who said Complainant had made them uncomfortable with remarks of a sexual nature. Supervisor 2 stated the meeting was designed to offer Complainant “a moment of reflection and potential self- awareness.” There was no formal write-up of the meeting. It was not added to Complainant’s e- Performance file. As such, management witnesses stated the meeting was not disciplinary, and Complainant suffered no material consequences as a result of it. Regarding claim 5, Complainant stated that on October 7, 2019, he discovered that the former Deputy Office Director may had undercut his funding decisions when he was told that certain amounts of funding could not be used as he had planned. Even if true, there is simply no evidence that the manner in which funding decisions were made was motivated by any discriminatory or retaliatory animus, and the record supports a determination that this matter had no adverse effect upon Complainant. Regarding claim 6, Complainant asserted that on October 15, 2019, he discovered that the former Deputy Office Director may have spoken about him with a new staff member during a flag ceremony. There is no evidence in the record that this event even took place. Moreover, Complainant’s own assertion reflects merely the possibility that the Deputy Office Director and a named Foreign Service Officer assigned to Ethiopia, may have discussed Complainant. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management’s style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to management's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that Agency management was motivated by discriminatory or retaliatory animus. The evidence of record fully supports the AJ’s conclusion that Complainant’s claim of harassment is precluded based on the findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or unlawful retaliation by the Agency as alleged. 2022001664 7 CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022001664 8 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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 November 7, 2022 Date