Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0120123299 (E.E.O.C. Feb. 25, 2015)

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

,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120123299

Hearing No. 570-2011-00978X

Agency No. DOS-F-094-10

DECISION
On August 13, 2012, Complainant filed an appeal from the Agency’s August 9, 2012 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Management Specialist at the United States Embassy in Islamabad,
Pakistan. On June 10, 2010, Complainant filed an EEO complaint in which she alleged the
Deputy Mission Chief, in his capacity as her acting first-line supervisor (AS1) during the
Ambassador’s absence from the Embassy, subjected her to a hostile environment because of
her race (African-American) between November 2009 and April 2010.

Complainant alleged that on November 27 and November 28, 2009, and again on January 20,
2010, AS1 interrupted her conversation with her colleagues regarding Embassy business, that
he was rude to her during these conversations, and that on these and other, unspecified dates,
AS1 would come out of his office every time someone came to discuss Mission business with
her. IR 15, 19. AS1 denies that he spoke rudely to Complainant or any other member of the
Embassy staff. AS1 averred that, out of personal animus for him, Complainant would
routinely use her management position in order to obstruct, impede, and interfere with his
ability to carry out his responsibilities as the Ambassador’s second-in-command. He testified
that part of his responsibilities included providing guidance to officers who presented
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Complainant with memoranda to pass on to the Ambassador, and that Complainant would often
not provide correct guidance to those officers. AS1 would take it upon himself to provide the
necessary guidance. IR 73.

Next, Complainant alleged that on December 22, 2009, AS1 had called off an event that was
scheduled to take place at the Ambassador’s residence without letting her know. Complainant
admitted, however, that the event did go on as scheduled, but that she and the other Embassy
staffers assigned to the event had lost about two hours trying to get the Ambassador’s schedule
back on track. IR 16. AS1 responded that, while he did not have any specific recollection of
the occurrence, he emphasized that any cancellation of an event would not have occurred
except in coordination with and at the direction of the Ambassador herself. IR 73.

Third, Complainant alleged that on January 29, 2010, she became aware that she had not been
invited to an awards ceremony, despite having received a meritorious step increase in October
2009. IR 21. AS1 responded that meritorious step increases are personnel actions that are
functionally equivalent to promotions, rather than awards, that there are no certificates or
plaques issued to recipients of meritorious step increases, and that neither the Ambassador nor
he played any role in identifying award recipients. IR 74.

Fourth, Complainant alleged that on March 24, 2010, AS1 required her to submit a written
request for approval in advance of one hour of overtime. She averred that she never had
submitted such requests in the past, and AS1 had not made the same request of two white staff
members. IR 25-26, 34-35. AS1 responded that he did not believe that Complainant needed
to work overtime in order to complete the assigned task, but he approved her request because
he did not have a strong enough basis to deny it. He also noted that he only supervised one of
the comparatives who Complainant identified and that this individual was one of five
employees under his supervision who routinely worked overtime. IR 44-45, 75-76, 85-86.

Fifth, Complainant alleged that on an unspecified date in March 2010, and continuing
thereafter, AS1 directed assignments away from Complainant. She averred that her workload
started to diminish while a number of tasks that she had routinely performed were given to one
of the Ambassador’s aides. IR 14. AS1 replied that he took measures in response to what he
perceived as Complainant’s willful attempts to obstruct, impede, and interfere with his duties
as the Deputy Mission Chief. As an example, he cited a number of instances in which
Complainant refused to coordinate meeting times with his Office Manager, and had scheduled
meetings that he needed to attend at times when she knew that he would not be available. IR
73.

Finally, Complainant alleged that on or about April 16, 2010, AS1 misplaced documents
belonging to her. She averred that on April 14 and April 15, a staffer came looking for two
documents that were supposed to have been submitted to one of the Ambassador’s senior aides,
and that on April 16, he approached her again in the cafeteria, inquiring as to the whereabouts
of the two documents. She replied to him that she had neither seen nor logged the documents
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in question. IR 29. However, she did not state that AS1 was responsible for misplacing the
documents.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s March 19, 2012, motion for
summary judgment and issued a decision on August 24, 2012. 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.

ANALYSIS AND FINDINGS
To warrant a hearing on her claim of discriminatory harassment, Complainant would have to
present enough evidence to raise a genuine issue of material fact as to whether, because of her
race, she was subjected to conduct so severe or pervasive that a reasonable person in
Complainant’s position would have considered it hostile or abusive. See 29 C.F.R.
§ 1614.109(g); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S.
Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if there is enough
evidence to go forward on both of those elements, hostility and motive, will the question of
Agency liability present itself. Complainant v. Department of Transportation (Federal
Aviation Administration)

, EEOC Appeal No. 0120131581 (July 18, 2014).
It is apparent from the evidentiary record in this case that there was a great deal of personal
friction between Complainant and AS1. Complainant admitted that the relationship was bad
from the outset, and that it may have been made worse in March 2010, after she reported
problems regarding lost memoranda and cables to a visiting audit team from the Agency’s
Office of Inspector General. IR 14. She has not, however, presented any sworn statements
from witnesses other than herself1 or documents tending to establish the existence of
discriminatory statements or past personal treatment, comparative or statistical data showing
outsized racial imbalances, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or any other information from which to infer
the existence of an unlawful motivation on the part of AS1. See Hovey v. Department of
Housing & Urban Development, EEOC Appeal No. 01973965, (Aug. 31, 2000). Moreover,
all of the incidents that Complainant characterizes as evidence of harassment involve nothing
more than routine work assignments, instructions, and admonishments, which, by definition,
are neither severe nor pervasive enough to rise to the level of abuse on par with a racial slur or
otherwise engender a hostile work environment. See

1Complainant did not even provide an affidavit. The information about her allegations was taken from her formal
complaint. According to tracking information provided by the investigator, Complainant received the affidavit
request on October 30, 2010. The investigator followed up with an email to her official Agency mailbox.
Complainant never responded to the investigator’s request. IR 6, 51-52, 54, 70-71. On appeal, Complainant did
not provide an explanation of why she did not submit an affidavit.
Eckenrode v. United States Postal
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Service, EEOC Appeal No. 0120113930 (November 6, 2012); Quinones v. Department of
Homeland Security

, EEOC Appeal No. 01A53109 (March 31, 2006). We therefore agree with
the AJ that the evidence fails to demonstrate the existence of a hostile work environment or
that AS1 took any action against Complainant based on unlawful consideration of her race.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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, you must name as the defendant in the complaint the person who is the official Agency
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 25, 2015