[Redacted], Remona P., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2021002652 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Remona P.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021002652 Agency No. DOS-0112-10 DECISION On April 2, 2021, 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 March 4, 2021, 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. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Financial Management Specialist, GS 11 at the Agency’s Bureau of the Comptroller and Global Financial Services, Washington Liaison Office (WLO) in Washington, D.C. On February 13, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (41) when: 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. 2021002652 2 1. On January 13, 2020, she was denied the opportunity to telework and have an alternate work schedule at the same time; 2. She was subjected to a hostile work environment characterized by, but not limited to, denial of training opportunities, denial of equipment to perform telework, and lack of support with addressing the workload in her section, as recently as January 6, 2020; 3. On June 12, 2020, she was informed her Weather and Safety Leave status was cancelled and she was required to go into work.2 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that, even assuming arguendo Complainant established a prima facie case with regard to the discrete incidents of claims 1 and 3, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not submit any evidence to support her assertion of a discriminatory culture. The decision further found that Complainant did not establish that she was subjected to a hostile work environment because there was no nexus between the alleged incidents and any protected basis and because the incidents were neither severe nor pervasive enough to constitute a hostile work environment. The decision therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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”). Contrary to Complainant’s argument on appeal, we find that the Agency’s decision accurately recounted the relevant material facts. We also reject Complainant’s contention that the Agency’s investigation was unfair and incomplete. Complainant has not identified any specific information relevant and material to her claim that was not properly investigated. Upon our 2 The Agency also dismissed a claim alleging that information about her medical condition was improperly disclosed, violating her privacy rights because allegations of violations of privacy are not within the purview of the EEO process. See Report of Investigation (ROI) at 21-23. As an initial matter, we note that the Agency’s dismissal of Complainant’s allegation of a privacy violation was proper. See Bucci v. Dep’t of Education, EEOC Request No. 05890289 (April 12, 1989) (alleged violation of the Privacy Act is outside the purview of the EEO process). 2021002652 3 review of the record, we do not find any evidence that the investigation of the complaint was either biased or incomplete and conclude the Agency’s investigation is sufficient to allow the Commission to address the merits of the instant complaint. See Jones v. Social Sec’y Admin., EEOC Appeal No. 0120100221 (March 18, 2010). We further find that the Agency’s decision correctly identified the legal standards to prove that Complainant was subjected to disparate treatment on the basis of her race, sex, or age and that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We conclude that Complainant has not established that the Agency’s reasons were a pretext for discrimination. Complainant’s supervisor, the Domestic Liaison Center Chief (DLCC), explained that at the time, in January 2020, Agency policy did not permit employees to telework and work an alternate work schedule at the same time. See Report of Investigation (ROI) at 119. He further stated that he called Complainant and three other coworkers into the office on June 15, 2020 in order to set plans going forward with regard to telework. See ROI at 128. One of Complainant’s coworkers recalled that the DLCC admitted he “might have jumped the gun in bringing [them] back” so he dismissed them. See ROI at 175. While it is clear that Complainant disagrees with the Agency’s policies related to telework and returning to the office, mere disagreement with an Agency’s actions is not sufficient to establish pretext.3 See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). There is no evidence in the record to support Complainant’s assertions of discriminatory animus on the part of any management official. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). In addition, we find that the Agency’s decision correctly found that Complainant failed to establish that she was subjected to a hostile work environment. The evidence in the record does not support Complainant’s assertion that “[t]here is a negative culture toward[s] African American females in the WLO office.” See ROI at 74. Moreover, while Complainant asserts, and another coworker corroborated, that the DLCC once commented that upper management wanted Complainant to “leave or become disgruntle[d],” there is no evidence in the record that management’s motivations, even if true, were due to any of Complainant’s protected classes.4 3 To the extent Complainant argues that employees in the Charleston office were treated more favorably and permitted to telework and work an alternate work schedule, we note that work location is not a protected basis under the EEO laws. 4 Complainant herself speculated that she believed the comment was due to a “rumor” that management wanted to close the WLO. See ROI at 69. While Complainant may disagree with management’s wish to close the office, there is no indication that such a motivation was due to any discriminatory animus. On the contrary, the Managing Director explained that management was considering closing the office because the change in Agency travel systems and processes regarding the use of cash made in-person services much less relevant, resulting in a dramatic reduction in foot traffic. See ROI at 146-47. 2021002652 4 See ROI at 70; 184. While it is understandable that such a comment, if made, would cause Complainant stress, we note that harassment, as the term is used in Title VII cases, refers to more than being subjected to stress. See Morata v. U.S. Postal Serv., EEOC Appeal No. 01912775 (Oct. 4, 1991). Moreover, it is not within our jurisdiction to guarantee fairness in every employment decision; we are only empowered to ensure that an employment decision is not premised upon unlawful discriminatory animus. See Parker v. Dep’t of the Army, EEOC Appeal No. 019344496 (June 3, 1994). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that she was subjected to discrimination as alleged. 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. 2021002652 5 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). 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 2021002652 6 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 August 02, 2022 Date