[Redacted], Maren K., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

May 16, 2022

Appeal No. 2021001015 (E.E.O.C. May. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maren K.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021001015 Agency No. DS-0454-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 29, 2020, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed under a Personal Service Contract (PSC) as a Justice Sector Advisor at the Agency’s U.S. Embassy facility in Tegucigalpa, Honduras. On July 24, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (Caucasian), sex (female), color (white), age (DOB 1965), and in reprisal for opposing discriminatory policies/practices when: 1. On May 28, 2019, Complainant received a written admonishment; 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. 2021001015 2 2. On June 27, 2019, Complainant’s personal services contract with the Agency to work for the Bureau of International Narcotics and Law Enforcement (INL) as a Justice Sector Advisor in Tegucigalpa, Honduras, was terminated; and 3. Complainant was subjected to a hostile work environment, characterized by but not limited to negative comments about her personality, exclusion, and intimidation. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 discrimination as alleged. Complainant filed the instant appeal. 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. (Aug. 5, 2015) (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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. 2021001015 3 At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order to establish a claim of harassment, a 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 his 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show she was subjected to a discriminatory hostile work environment. 2021001015 4 Regarding claim 1, the May 29, 2019, letter of admonishment states that on two separate occasions, Complainant was unprofessional and verbally abusive toward locally employed staff (LES). The first incident involved conversations with staff from the Information Systems Center (ISC) and was related to recovery of an internet router from Complainant’s apartment. The second incident involved conversations with staff from the Consular section when Complainant allegedly expressed frustration regarding delays in her Consular processing. The letter asserts that several witnesses reported that Complainant’s tone and manner were inappropriate and unprofessional. Complainant acknowledges that there was a misunderstanding with the Consular staff and admits to losing her patience with the ISC staff due to their poor job performance but denies that she was verbally abusive to anyone. She asserts that the letter of admonishment was excessive because a conversation about the interactions would have been sufficient to ensure that she did not do anything in the future that could be construed as verbal abuse. Complainant asserts that soon after she arrived at her post, management criticized her personality and behavior regularly. Regarding claim 2, the Agency asserts that shortly after Complainant arrived at her post, the President cut off all foreign assistance to Central America, which led to an inability to continue previously funding programs and future programs. Complainant’s second line supervisor (S2) stated that independent of the organization’s dissatisfaction with Complainant’s performance, the local INL team decided that the prison effort she was hired to oversee was no longer supportable and that the program and its management would have to be cancelled. S2 contends that management underwent a rigorous internal prioritization process in close consultation with INL in Washington and ultimately decided that none of the Justice Sector programs that were in the earlier stages of development - as Complainant’s program was - would be funded. Complainant asserts the Agency’s articulated reason for her termination is false because in her experience in a similar role as INL Deputy Director in Liberia, she always had the ability to move funds as needed. She further asserts that local Foreign Service Officers (FSO) did not understand the options available to them to reallocate funds that did not require approval from Washington, D.C. She further noted that her local staff was retained and repurposed to new projects. Notably, Complainant has provided no evidence other than her own perception that management’s reason for terminating her was false. Regarding claim 3, Complainant alleges that she was subject to various instances of harassment including a statement from her Director that she was not the first choice for the position and that the top choice male candidate had declined. She asserts she was excluded from providing input during staff meetings. Complainant denies reporting any such incidents to management. We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions in the complaint. Complainant asserts that her race and color were factors in the Agency’s actions because management was friendly toward Hispanic staff and cold towards her. 2021001015 5 She believed her national origin was a factor because she was perceived as a “White American” and therefore stereotyped as a “know it all white lady lawyer” who did not understand Hispanics. Complainant does not assert that these views were verbally expressed to her by other employees. Complainant further asserts that her sex was a factor because management was deferential towards male advisors and she was criticized for expressing her opinions shortly after her arrival and was told she needs to learn the country before saying anything. She alleges the Agency’s actions were retaliatory because she stated openly to her male coworkers that she felt discriminated against as a woman. She also alleges the Agency retaliated against her because she reportedly investigated and reported a coworker for illegal activity. Lastly, Complainant asserts that her age was a factor because her 25 years of experience was threatening to the younger officers. Complainant has failed to provide any evidence other than her own general assertions that the Agency was motivated by discrimination or retaliation. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Complainant asserts that Coworker 1 and Coworker 2, both Hispanic males, were retained after the funding cuts that led to her termination. However, the Agency asserts that their roles were far more limited than Complainant’s role, their scope of work was unrelated to Complainant’s scope of work, and they were hired under a different hiring mechanism. To be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Complainant v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001), req. for recon. denied, EEOC Request No. 05A20020 (Jan. 28, 2002) (citations omitted). As Coworkers 1 and 2 are not similarly situated, no inference of discrimination can be drawn from the Agency’s decision to retain them. In sum, Complainant failed to show that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination or retaliation. Thus, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Furthermore, there is no indication in the record that any of the comments at issue in claim 3 were severe or pervasive. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 2021001015 6 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. 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). 2021001015 7 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 May 16, 2022 Date