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

Equal Employment Opportunity Commission

Jul 22, 2015

01-2012-3466-0500 (E.E.O.C. Jul. 22, 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. 0120123466

Agency No. DOS-F-013-12

DECISION
Complainant filed an appeal from the Agency’s July 26, 2012 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. 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 worked as a Secretary at the
Agency’s Office of Domestic Facilities in Washington, D.C. On November 8, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American), color (black), and in reprisal1

for prior EEO activity when:
1. Management has not provided Complainant with work elements.

2. Management has taken steps to reduce Complainant’s duties and responsibilities.

3. On September 23, 2011, management denied Complainant the opportunity to
continue to work a “gliding" schedule.

4. Complainant received a "Fully Successful" rating on her 2011 performance
evaluation.

1 Claims 1, 2, and 3 are based on race and color. Claim 4 is based upon reprisal for prior
EEO activity.
0120123466

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). Complainant elected to receive a final
decision from the Agency and the Agency issued a Final Decision pursuant to 29 C.F.R.
§ 1614.110(b).

In its Decision, the Agency found that Complainant did not show that she was subjected to
discrimination as alleged. The Agency assumed without so finding, that Complainant had
established a prima facie case of discrimination as alleged with respect to the claims of her
complaint. The Agency found that even so, management articulated legitimate,
nondiscriminatory reasons for its actions that Complainant did not show were a pretext to mask
discrimination.

Specifically, with respect to Complainant’s performance standards, the Agency found that
Complainant received work elements in November 2012, and that any delay Complainant
experienced in receipt of the elements occurred because Complainant and her supervisor, S1,
disagreed about several elements. For example, S1 believed that Complainant’s presence in
the office was necessary and he removed an element that required Complainant to be out of the
office two days each week. Additionally, S1 modified the language with respect to
Complainant’s duties involved in the maintenance or contributions to the office calendar. The
Agency found that Complainant did not show that her race or color motivated S1 to delay
issuing work elements to Complainant as alleged.

Regarding Complainant’s duties and assignments, the Agency observed that duties involved in
assisting S1, the office director, were not changed with the arrival of S1. S1, the Agency
found, clarified some of Complainant’s duties, but did not reassign them to anyone else
including a contract employee who shared some administrative duties in the Director’s office.
S1 stated that some of the duties that Complainant believed had been taken away from her were
not her duties to begin with, or were insignificant. The Agency found no evidence that
Complainant’s race or color motivated S1’s actions to clarify Complainant’s duties and
eliminate any confusion between Complainant’s responsibilities and those of the contract
employee.

With respect to Complainant’s schedule, S1 stated that Complainant informed him upon his
arrival that she worked a flexible schedule for S1’s predecessor. S1, the Agency noted, asked
Complainant for a copy of the approved flexible schedule, which Complainant never provided
to S1. S1, the Agency noted, directed Complainant to submit a request for a flexible schedule
as required by the Agency work schedule policies. Complainant, the Agency noted, did not do
so and S1 did not approve Complainant’s request to work a flexible schedule. The Agency
found that Complainant presented no evidence that her race or color motivated S1’s decision
regarding her flexible schedule.

Regarding Complainant’s performance appraisal, the Agency found that S1 explained his
rationale for rating Complainant “fully successful” as he did because Complainant only
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performed beyond expectations in one element. S1, the Agency noted, requested that
Complainant provide information regarding her accomplishments and she did include a
furniture purchase outside of her normal duties. This accomplishment was not enough to raise
Complainant’s overall rating above “fully successful” which is what she received. The
Agency found that Complainant did not show that S1’s reasons for the rating he assigned
Complainant for 2011 was motivated by discrimination.

The Decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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. (November 9, 1999) (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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the evidence supports the Agency’s Final Decision and that
Complainant did not show that more likely than not her race, color, or prior EEO activity
motivated the Agency’s actions.

We note, as did the Agency, that the evidence shows that Complainant and S1 did not initially
agree on the elements of Complainant’s work and that the work elements were established in
November 2012. Similarly, we find no evidence that Complainant had a written, approved
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flexible schedule that she worked while supervised by a former supervisor and we find no
evidence that Complainant submitted her request pursuant to the Agency’s policy for an
alternate work schedule as S1 requested.

We further find that S1, as the Agency noted, requested that Complainant submit her reasons
for her disagreement with S1’s rating of her performance for 2011. We find that Complainant
did not present evidence that more likely than not her prior EEO activity, and not her
performance as S1 observed it, motivated S1’s decision to rate her performance as “fully
successful.”

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

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).
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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

(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
July 22, 2015