[Redacted], Twanna C., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2021004859 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Twanna C.,1 Complainant, v. Samantha Power, Administrator, Agency for International Development, Agency. Appeal No. 2021004859 Hearing Nos. 570-2020-00280X 570-2020-01065X 570-2020-01594X Agency Nos. OCRD-004-19-F OCRD-007-20-F OCRD-037-20-F 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 August 6, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Education Development Officer at the U.S. Embassy in Abuja, Nigeria. 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. 2021004859 2 OCRD-004-19-F On December 6, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and non-sexual harassment on the bases of race (African American) and sex (female), and in reprisal for prior protected EEO activity, when: 1. on May 2, 2019, the Agency provided Complainant with an unjustified tenure evaluation, stating that she did not meet the standards necessary to be recommended for tenure; 2. on April 18, 2019, Complainant was informed that she would have to pay for her plane ticket, after she was previously told that she would not have to pay; and 3. on April 2, 2019, Complainant received a letter of admonishment that contained false claims, and inaccurate and unfair statements. Complainant also alleged discrimination and non-sexual harassment based on her race and sex when: 4. starting in August 2018, Complainant’s Supervisor minimized her job duties; 5. starting in August 2018, Complainant’s Supervisor asked coworkers to provide negative information about Complainant; 6. starting in August 2018, Complainant’s Supervisor informed Complainant that she would oppose Complainant’s tenure; 7. starting in August 2018, Complainant’s Supervisor continued to falsely document alleged performance concerns; and 8. starting in August 2018, Complainant’s Supervisor denied Complainant’s request for Rest and Recuperation leave or other leave. OCRD-007-20-F On November 18, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination based on her race, and in reprisal for prior protected EEO activity, when: 9. on October 9, 2019, Complainant was notified that her employment was terminated with an effective date of November 8, 2019. OCRD-037-20-F On April 16, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination based on her race, and in reprisal for prior protected EEO activity, when: 10. on February 20, 2020, Complainant learned that the Agency placed derogatory information on her credit report on December 29, 2019, regarding a charge for a plane ticket that she offered to pay. 2021004859 3 At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation (ROIs) and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings and subsequently filed an unopposed motion to join her cases. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a joint decision without a hearing on July 21, 2021. As an initial matter, the AJ included a footnote stating that Complainant had not filed an appeal with the Merit Systems Protection Board (MSPB), and that the parties agreed that Complainant does not have MSPB appeal rights. As such, jurisdiction over Complainant’s removal claim was properly before the AJ. The AJ assumed a prima facie case of discrimination and found that the Agency articulated legitimate, nondiscriminatory reasons for the actions. For claim 1, the Agency provided Complainant’s tenure evaluation based on feedback from her supervisors and coworkers, with comments that Complainant had a tendency to avoid taking responsibility for her actions. Complainant’s appointment was subsequently terminated because career candidate appointments need to achieve tenure status within a certain timeframe or be terminated from foreign service (claim 9). The Agency’s Tenure Board recommended a denial of tenure after a thorough review of Complainant’s performance evaluation file. Separately, the Program Operations and Management Board highlighted concerns with Complainant’s performance and gave her a “C” rating for not meeting standards. For claims 2 and 10, Complainant reported that her brother was dying and requested emergency visitation travel authorization. The Agency booked Complainant’s travel and she signed a repayment agreement if the relevant regulation did not cover her travel. When the Agency learned that the individual was not legally Complainant’s brother, it informed Complainant that her travel was not covered by Agency policy. Complainant received a bill for repayment, and when she did not pay the bill, it was referred to entities outside the Agency for further action. Regarding claim 3, a letter of admonishment was issued when Complainant did not attend a meeting with her Supervisor, who believed that Complainant was being insubordinate because she stated that she had no intention of attending the meeting. The AJ noted that Complainant provided shifting explanations, such as having a prior agreement to reschedule and an incorrect calendar input. The AJ found that the record did not establish that Complainant’s position included the “minimized duties” (claim 4), and that Complainant’s proposed site visit to Florida was denied due to a lack of compelling reason for an in-person visit and budget constraints. For claim 5, the record did not contain evidence that coworkers were asked for “negative” information about Complainant. Rather, the request was neutral in tone, and requests for feedback on an employee’s performance was standard procedure. 2021004859 4 For claim 6, the AJ found that Complainant failed to demonstrate that the Supervisor opposed Complainant’s tenure. While the Supervisor provided feedback, it was undisputed that she did not make the recommendation regarding tenure, which was made by the Tenure Board. Regarding concerns with Complainant’s performance (claim 7), the Agency provided legitimate, nondiscriminatory reasons. For example, the Supervisor had issues with Complainant’s gender analysis. Complainant also failed to explain why she did not provide the Contracting Officer’s Representative with appropriate lead time to enable Complainant to complete a project in a timely manner. Instead, Complainant submitted an untimely poorly written product with numerous errors, which forced the Supervisor to seek an extension and find another employee to complete the assignment. Regarding claim 8, Agency policy requires at least seven days’ notice for Rest and Recuperation leave, and Complainant’s requests to postpone her dates were submitted less than seven days in advance. Complainant’s later dates were approved, and she stated that this was “no longer an issue.” The AJ then found that Complainant did not prove her harassment claim because she failed to show that the Agency’s actions were motivated by her race or sex. In addition, Complainant did not establish a causal connection between the actions and her EEO complaints. The AJ concluded that Complainant did not set forth sufficient evidence to warrant a hearing on her claims and granted the Agency’s motion for summary judgment. 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. The instant appeal followed, and Complainant submitted two briefs in support of her appeal.2 The Agency opposed Complainant’s appeal. 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 2 The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Complainant filed a response brief to the Agency’s opposition on November 2, 2021, which was beyond her deadline of October 2, 2021. As such, we will only consider the arguments in Complainant’s timely brief. 2021004859 5 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and she 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 has failed to establish such a dispute. On appeal, Complainant challenges the AJ’s finding that she did not have MSPB rights on her removal claim, and she asserts that the AJ did not have jurisdiction. The Agency responds that Complainant was hired under the Foreign Service Act of 1980, and that pursuant to 5 C.F.R. § 752.401(d)(6), foreign service members are specifically excluded from regulations that confer appeal rights to the MSPB. The Agency also provided a copy of Complainant’s SF-50 showing that her excepted service appointment was in accordance with the Foreign Service Act.3 We find that the AJ and Agency are correct on this matter, and that Complainant does not have MSPB appeal rights. Further, we note that Complainant did not dispute the AJ’s statement that “the parties agreed” that she did not have MSPB appeal rights. As such, the AJ properly had jurisdiction over claim 9. Complainant asserts that there was clear evidence that she was treated differently than an Attorney (White, female) regarding tenure and performance evaluations. However, we find that this Attorney is not a similarly situated comparator. To be considered “similarly situated,” all relevant aspects of the comparative employee’s work situation must be identical, or nearly identical, to that of Complainant, including, but not limited to reporting to the same supervisor, performing the same job function, and working the same schedule. See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006); Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). Here, Complainant’s comparator held a different job function from her position as a Foreign Service Education Development Officer. Complainant also avers that the only other person with a PhD in a leadership position in a technical office at the Nigerian mission was a White male, and he was “very supported and praised.” However, Complainant provided no evidence to support her assertion. Further, Complainant’s arguments related to any comparators are not material because the AJ assumed that Complainant established a prima facie case of race and sex discrimination. 3 As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant did not raise her arguments regarding her MSPB appeal rights prior to her appeal. As such, we exercise our discretion to consider the Agency’s newly provided evidence in response to her contention. 2021004859 6 Complainant argues that the AJ’s analysis and conclusion regarding her alleged performance deficiencies is contradicted by factual evidence. For example, Complainant asserts that her performance review for October 18, 2015, through September 9, 2016, was excellent, and that the Tenure Board takes into account five-years’ worth of data, which in Complainant’s case was “very positive” prior to October 2018. Complainant avers that the information submitted to the Tenure Board omitted information about her accomplishments, which shows pretext for discrimination. However, we find that there is no evidence that the Tenure Board failed to consider all the relevant information when making their decision. The Chair of the Tenure Board only provided examples to explain why they did not recommend Complainant’s tenure, such as Complainant’s lack of effective communication, which was characterized as “repetitive and argumentative,” and Complainant’s “reluctance to accept responsibility for [her] actions and failing to carry out properly assigned tasks with a reasonable time.” ROI 2 at 200. Complainant asserts that previous supervisors praised her gender analysis work, and that she received positive feedback from her coworkers. However, the Tenure Board acknowledged Complainant’s technical expertise, but explained that it was only one of four skillsets considered for tenure. Id. We note that a supervisor who praised Complainant’s gender analysis work also emailed a colleague and stated that one of Complainant’s “bullying emails” made her “burst into tears.” Agency’s Motion for Summary Judgment, Exhibit 5. We find that this evidence supports the Tenure Board’s determination that Complainant exhibited issues with her communication skills. The Tenure Board concluded that, overall, Complainant did not demonstrate that she had the potential to perform successfully, up to and including the “FS-01” level, in the Foreign Service skill areas. ROI 2 at 200. We also note that Complainant did not contest the separate “C” rating from the Program Operations and Management Board, which determined that she did not meet the standards of the class. The Program Operations and Management Board considered Complainant’s submission describing her performance in six factors in its decision; for example, Complainant failed to demonstrate that she understood, and had the ability to advance, the Agency’s mission when she described her experience of a VIP visit by highlighting logistical arrangements, rather than highlighting the impact of her actions. The Program Operations and Management Board also noted that Complainant did not correctly input her form regarding the Communication skill because she mostly exceeded her word limit. ROI 2 at 180-2. As such, we are not persuaded by Complainant’s claim that she successfully rebutted the Agency’s “false claims about her poor performance.” The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s action. Notably, the Chair of the Tenure Board averred that he did not know Complainant and was not aware of her race or prior EEO activity. ROI 2 at 184-5. 2021004859 7 Complainant further asserts that the termination of her tenure conflicted with the Agency’s policy for due process for Foreign Service Officers who are career candidates hired in the Competitive Service, but we note that Complainant was not in the Competitive Service but in the Excepted Service. As such, the policies cited by Complainant would not apply to her appointment. Complainant argues that the AJ’s determination on her retaliation claim is not supported by the evidence, and that the AJ analyzed the issues as discrimination but not in the context of a hostile work environment. However, we find that the AJ properly analyzed Complainant’s retaliation claim, including her allegation of a retaliatory hostile work environment, when finding that Complainant did not establish a causal connection between her protected EEO activity and the complained of actions. AJ Decision at 17. For example, Complainant alleges that the letter of admonishment was in retaliation for her EEO activity, and that the Senior Deputy Assistant Administrator from Human Resources “demonstrated clear bias against her,” but Complainant provided no evidence of any bias, let alone “clear bias.” Regarding the emergency visitation travel ticket, Complainant concedes that her parents never formally adopted her brother, but she argues that Agency policy states that the decisions are done on a case-by-case basis with the final decision up to the Mission Director. While Complainant asserts that the Mission Director approved the funding, she cites to no supporting evidence. In addition, even crediting that the Mission Director initially gave his approval, the Senior Executive Officer in charge of managing travel later realized that Complainant described her brother as “an individual who was raised in [her] family as if he were [her] brother,” which did not meet the regulations defining a brother. When the Senior Executive Officer asked Complainant to clarify the relationship, Complainant accused her of harassment. ROI 1 at 363-4. The Controller also attempted to meet with Complainant to obtain further information about this emergency travel, but Complainant declined any meeting. As such, the Controller sent the bill for collection based on the existing information. ROI 1 at 429-30. We also find that Complainant only offers bare assertions that this was in retaliation for her EEO activity. For her removal, Complainant asserts that the Senior Deputy Assistant Administrator from Human Resources “lied” in his sworn statement because he stated that he never met Complainant, but she has evidence that they met on October 7, 2019. However, we note that the affidavit in which he stated that he had not met Complainant was signed in August 2019, and that in a subsequent affidavit, he confirmed that he met Complainant once. ROI 1 at 445, ROI 2 at 170. As such, Complainant’s contention that the Senior Deputy Assistant Administrator from Human Resources lied is incorrect. Complainant avers that there is “some inconsistency” in the evidence, and that the ROI contains edited documents and she provided original copies with her appeal. However, as previously noted in footnote 3, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. 2021004859 8 Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Further, Complainant did not raise these issues with the AJ, despite filing an opposition to the Agency’s motion for summary judgment. Accordingly, the Commission declines to consider this new evidence on appeal. Complainant also includes arguments regarding a failure to complete the off-boarding procedures, but the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should she wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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 2021004859 9 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). 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. 2021004859 10 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 December 6, 2022 Date