01a44593
11-30-2005
Jean Dziuba, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Jean Dziuba v. Department of State
01A44593
November 30, 2005
.
Jean Dziuba,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A44593
Agency Nos. 01-21; 02-02
Hearing No. 100-A2-7956X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Facilities Manager, FP-4, for
Overseas Building Operations, Office of Operations and Maintenance,
Facilities, Maintenance Support (OBO/OM/FAC/MS), filed two formal EEO
complaints on March 15, 2001, and on October 16, 2001.<1> In the March
15, 2001 complaint (Agency Case No. 01-21), complainant alleged that
the agency discriminated against her on the basis of sex (female) when:
(1) complainant's supervisor dealt with her unfairly and improperly
concerning a dispute over work assignment (installation of Embassy
water wells) and her summer 2000 Employee Evaluation Report; and
(2) she was involuntarily curtailed from the American Embassy in
Nicosia, Cyprus.
In the October 16, 2001 complaint (Agency Case No. 02-02), complainant
alleged that the agency discriminated against her on the bases of sex
(female) and in reprisal for prior protected EEO activity when:
(3) in March 2001, complainant was separated from the Foreign Service
as a result of not being tenured by the Specialist Tenuring Board and
was notified by letter from the Director General dated July 17, 2001;
(4) copies of e-mails were submitted to complainant's Official Personnel
Folder(OPF) and used as a substitute for a missing employee evaluation
report (EER) for period of 8/23/2000 through 12/03/2000;
(5) complainant's supervisor cancelled her scheduled temporary duty
(TDY) travel to Port of Spain on July 6, 2001, five (5) days before he
scheduled departure;
the revocation of complainant's diplomatic passport was improperly
disseminated to various personnel;
complainant was not provided a copy of her 8/23/2000 through 12/3/2000
EER until July 2001;
complainant had no �work requirements statement� from 4/16/2001 to
8/31/2001 and was not provided one until April 2002;
complainant's supervisor shared personal information about her with
his assistant, who then disseminated it to others;
since February 28, 2001, complainant has been required to attend
classes that prevented performance of her stated duties at the time,
and prevented her from traveling for official business, and assigned
minimal and menial tasks;
Complainant alleged that the agency discriminated against her in reprisal
for prior EEO activity when:
(11) on December 11, 2001, the Director of Facilities, humiliated her
in front of others by attacking her for utilizing attorneys to resolve
her EEO and personal issues;
on December 3, 2001, complainant learned that her request for training
which would have taken place in August through November 2001, had been
denied for false reasons.
Complainant alleged that the agency discriminated against her based on
sex and in reprisal for prior EEO activity when:
in January 2002, complainant was denied deployment to Kabul Afghanistan
in favor of three different men, in spite of having volunteered
repeatedly for the assignment;
complainant's proposed termination was advertised on the agency's
Intranet;
on an ongoing and continual basis, complainant was subjected to a hostile
and abusive work environment, including upon her deployment to Kabul,
on March 23, 2002, and continuing through her early removal from post;
(16) on April 8, 2002, the facility director threatened her with a bad
employee evaluation, threatened to influence her supervisor to provide a
negative employee evaluation, and attacked her for utilizing attorneys
to resolve her EEO cases and personal issues, and for utilizing the
EEO process;
on April 22, 2002, the Director of Facilities attacked her mental
stability and suggested she needed psychiatric care in the presence of
others.
Investigations were conducted on the above issues, and complainant
requested a hearing before an EEOC Administrative Judge (AJ) for both
complaints, Agency Case Nos. 01-21 and 02-02. The agency filed a Motion
for Summary Judgment on May 7, 2003. Complainant responded in opposition
on May 29, 2003. On February 17, 2004, the Administrative Judge (AJ)
granted summary judgment in favor of the agency on issues 1-4, 6-12,
14, 15 and 17. The only issues preserved for hearing were:
whether complainant was discriminated against based on her sex when
her supervisor cancelled her scheduled TDY travel to Port of Spain on
July 6, 2001, five days before her scheduled departure;
whether complainant was discriminated against based on her sex and in
reprisal for prior protected EEO activity when beginning in January 2002,
complainant was denied deployment to Kabul, Afghanistan, although she
volunteered for the assignment, and
whether the comments on April 8, 2002, by the Director of Facilities,
at a meeting with complainant constituted a per se violation of
complainant's use of the EEO process.
Following a hearing, the AJ issued a decision on May 28, 2004, in support
of the agency on all allegations. Addressing the hearing issues first,
the AJ found that complainant, for claim (a), failed to establish a prima
facie case of sex discrimination because she failed to cite a specific
male comparative who was sent to Port of Spain in her stead. The AJ
found no liability for claim (b) because complainant failed to rebut
the agency's legitimate non-discriminatory reason for choosing to send a
male employee into Kabul to work, and complainant failed to show a causal
link between her protected activity and the adverse action. Lastly,
the AJ found that claim (c) did not constitute a per se violation because
complainant failed to show how the facility director's conduct would have
a chilling effect on the complainant's utilization of the EEO process.
The AJ adopted the reasons stated in her February 17, 2004 summary
judgment decision dismissing claims 1-4, 6-12, 14, 15 and 17. On June
1, 2004, the agency fully implemented the AJ's decision. Complainant
appealed this decision on June 24, 2004.<0> On appeal, complainant
argues that Agency Case Nos. 01-21 and 02-02 were wrongly consolidated
because the issues were not like and related. Complainant also believes
that there are still genuine issues of material fact in dispute, namely
involving complainant's curtailment from the American Embassy in Nicosia,
Cyprus, alleged harassment by management officials creating a hostile
work environment, and concerns over the discovery process. Lastly,
complainant contests the AJ's finding of no discrimination on the three
issues considered at hearing. Complainant argues that she established a
prima facie case of sex discrimination regarding her TDY to Port of Spain;
that the agency's purported reasons for failing to deploy complainant
to Kabul were pretext; and that the facility director's comments were
a per se violation of complainant's use of the EEO process. The agency
requests that we affirm its final order.
ANALYSIS AND FINDINGS
Consolidation of Complaints
Complainant contests the AJ's decision to consolidate Agency Case
Nos. 01-21 and 02-02. The agency in its brief in opposition to
complainant's appeal, argues that the issue of wrongful consolidation
is moot given that the AJ dismissed all the issues from the initial
complaint, Agency Case No. 01-21, on summary judgment. The agency
further argues that even if the issues had not been dismissed,
they are like and related to the issues in the second complaint,
Agency Case No. 02-02. Therefore, consolidation was proper. We find
that the consolidation of complainant's complaints was appropriate.
Although the complainant maintains that the issues raised in Agency Case
No. 01-21 are different than those raised in Agency Case No. 02-02, we are
unpersuaded by this argument. Even if these complaints were unrelated,
their resolution in a single proceeding makes better use of agency and
Commission resources. See EEOC Management Directive 110, Ch. 5 � III(c)
(November 11, 1999).
AJ's Decision without a Hearing
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the agency's decision adopting it, under a de novo
standard of review. 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 EEOC Management Directive for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) ("EEO MD-110"), at 9-16 (providing
that an administrative judge's "decision to issue a decision without
a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis, including on the ultimate issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court's function
is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving
party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by
weighing conflicting evidence, issuing a decision without a hearing is
not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without a hearing only upon a
determination that the record has been adequately developed for summary
disposition.
On appeal, complainant asserts that there remain genuine issues of
material fact in dispute with respect to complainant's curtailment from
the American Embassy in Nicosia, Cyprus, alleged retaliatory harassment
by management officials creating a hostile work environment, and concerns
over the discovery process, specifically the AJ's failure to order a
witness to testify. We find that the AJ's February 17, 2004 decision on
motion for summary judgement with merit and disagree with complainant's
assertions on appeal that there are genuine issues of material fact
in dispute. Specifically, the AJ found that complainant failed to
provide any comparative evidence of a male employee who was treated more
favorably in regard to a work assignment, an employee evaluation report
(EER), or curtailment of a foreign posting. The AJ also concluded that
complainant failed to present any persuasive evidence of discriminatory
motive exhibited by management officials nor any concrete evidence to
support her claims of retaliatory harassment. For example, complainant
alleged that her supervisor made derogatory comments to her, such as
calling her projects �cute� and telling complainant to �act dumb�.
She also stated that the facilities director was verbally abusive and
had a plan to get rid of her. Complainant suggested that the mostly
male-dominated field created a hostile work environment toward women.
The AJ found complainant's assertions unspecific, conclusory, and failing
to rise to the level of harassment. The AJ also found no connection
between complainant's sex or prior EEO activity and the alleged
harassment. Moreover, the incidents alleged were isolated and were not
severe or pervasive enough to constitute harassment. We therefore affirm
the AJ's dismissal of claims 1-4, 6-12, 14, 15 and 17.
Complainant additionally addresses on appeal concerns over the discovery
process, specifically the AJ's failure to compel the facilities director
to participate in the discovery process. Complainant explains that the
director refused to participate in the discovery process and only agreed
to testify at hearing well after the opportunity for discovery closed.
Complainant argues that the director's refusal to participate in discovery
acted as a bar to his testimony at hearing. Even if the director refused
to participate in the discovery process, his refusal would not bar him
from testifying at hearing. Accordingly, we decline to find that the
AJ's actions constituted an abuse of discretion.
AJ's Decision on the Issues Considered at Hearing
Turning to the three remaining claims addressed at hearing, pursuant
to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an
AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We agree with the AJ in finding that complainant failed to establish a
prima facie case of sex discrimination because she did not identify a
specific male employee who was sent to Port of Spain. In complainant's
brief in support of her appeal, she speaks broadly about the record being
replete with examples of men being treated more favorably. However,
she fails to provide specific evidence that supports these assertions.
Thus, we concur with the AJ and decline to draw an inference of sex
discrimination. As for the issue involving the denied deployment to
Kabul, we also agree with the AJ in finding that complainant failed to
rebut the agency's reasons as pretext. The agency deployed two males
to Kabul instead of complainant. The facilities director explained that
he chose to deploy the first male employee because of his 25-year record
with the agency and his strong reputation for getting things done. The
facilities director also explained that the second male employee was sent
to assist the other male employee because of his contacts with officials
in Frankfurt who would be providing supplies to Kabul. Complainant again
makes broad assertions against the agency's legitimate, non-discriminatory
reasons, but she does not point to specific facts in the record that
would show that these reasons were pretext. We also note that employers
have broad discretion to set policies and carry out personnel actions,
so long as such actions are not unlawfully motivated. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Lastly, we turn to the alleged comments made by the facilities director
that discouraged complainant's use of the EEO process. The AJ found
the facilities director's testimony more credible than complainant's
testimony. Specifically, the director objected to complainant having
gone to a superior to complain about him but did not object to her use
of the EEO process. The director also explained that he did not object
to complainant having a attorney but believed that retaining an attorney
would not be useful in gaining tenure, based on his past experience.
We concur with the AJ in finding that complainant's testimony at hearing
was unworthy of belief. Complainant did not provide specific, persuasive
information about the director's comments that would support her assertion
that the director castigated her over the use of the EEO process.
Substantial evidence obligates us to affirm the AJ's credibility finding
in the absence of documents or other objective evidence that would
contradict a witness' testimony. See EEOC Management Directive 110,
Ch. 10 � VI(B)(2) (November 11, 1999).
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's sex. We discern
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 30, 2005
__________________
Date
1 We note that complainant filed three additional complaints on January
4, 2002, February 27, 2002, and April 22, 2002. Those complaints were
consolidated under Agency Case No. 02-02.
0 2 We acknowledged receipt of complainant's June 24, 2004 appeal and
granted complainant's extension to file a brief in support of her appeal
until September 23, 2004, thus her August 5, 2004 brief in support of
appeal is timely.