Kacy C.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jan 13, 2017

0120142914 (E.E.O.C. Jan. 13, 2017)

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

Kacy C.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120142914
Hearing No. 570-2012-00435X
Agency No. DOSF10511

DECISION

On August 13, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 3, 2014, 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 GG-11 Language
and Culture Instructor in the Chinese Section at the Foreign Service Institute (FSI) located in
Arlington, Virginia. On July 14, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against her in reprisal for prior protected EEO activity when: (1) on
March 30, 2011, she was issued a Letter of Warning (LOW); (2) from May 2010 to the
present, she was subjected to a hostile work environment characterized by, but not limited to
demeaning comments, false accusations, and excessive oversight on her work; (3) she was not
appointed as a Coordinator in the Chinese language section; (4) she was removed from her
duties as a member of the Testing Team and in the K&D Teaching Group; and (5) she was not
selected for a GG12 Language Training Specialist at the Foreign Service Institute.

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.
0120142914

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s November 20, 2012, motion for a
decision without a hearing and issued a decision on June 26, 2014. 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.

UNDISPUTED FACTS

The AJ noted the following undisputed facts in her decision. In April 2010, Complainant filed
a formal EEO complaint. Complainant’s second-line supervisor (S2) was aware of
Complainant's prior EEO activity in November 2009 when he was contacted by an EEO
counselor. Complainant’s first-line supervisor (S1) was aware of Complainant's verbal
opposition to discrimination since May of 2009. One of the Chinese Section supervisors
(CSS1) became aware of Complainant's EEO activity in October 2010.

Complainant served as Schedule Coordinator for the Chinese Section from 1997 to 2002. The
K&D Program is a language training program whereas the testing team is a team of certified
testers and examiners performing tests at the request of the section. Complainant taught in the
K&D program and then she was briefly reassigned to perform testing. Complainant was a
certified tester but not a certified examiner.

On March 9, 2011, CSS1 (the Language Training Supervisor for the K&D program) held a
staff meeting and instructed employees not to pressure the Schedule Coordinator (SC) about
changes but to report to him any problems with the schedule. On March 30, 2011, S1 issued
Complainant a LOW regarding an incident involving SC.

On August 22, 2011, the Agency posted the position of Training Specialist, GG-12, Vacancy
Announcement, FSI-2011-0124 as a two-year temporary assignment with a specialization in
one of the Asian languages. The Post Language Program Coordinator (PLPC) served as a
member of the interview panel for the position. He was not aware of Complainant's protected
EEO activity. The Language Training Supervisor (LTS) also a member of the interview panel
was aware of Complainant's EEO activity concerning a previous non-selection decision in
2010. CSS1 was on the interview panel but did not numerically rate the applicants. The
position was filled September 29, 2011. The interview panel recommended the selectee (SE)
as their top candidate.

ANALYSIS AND FINDINGS

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 C.F.R. Part
0120142914

3
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 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). 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.

Letter of Warning

The AJ notes in her decision that S1 articulated a legitimate, non-retaliatory explanation for the
issuance of the LOW. Specifically, S1 states that she issued Complainant a LOW because
Complainant violated a directive given to employees in a meeting on March 9, 2011. The
undisputed record shows that the teaching staff was instructed not to pressure the assignment
scheduler with special requests or complaints but to take any problems to the supervisors.
Despite this instruction, it is undisputed that Complainant met with the new scheduler, SC, to
express her dissatisfaction with the schedule.

Complainant acknowledges she discussed the schedule with SC, but claims she did not make
any complaints or act unprofessionally. She also argues that the failure of S1 to consult with
her prior to issuing the LOW was a violation of her “due process” rights.

We agree with the AJ that Complainant’s arguments are insufficient to establish pretext. The
tone Complainant used with SC during their conversation is irrelevant. Having a discussion
about scheduling with SC, friendly or otherwise, was in direct violation of the supervisor’s
instructions. In addition, we note that the undisputed record shows no deviation from Agency
policy in the issuance of the LOW and the record is devoid of retaliatory animus on the part of
the responsible management official.

Accordingly, we agree with the AJ that Complainant failed to present sufficient evidence to
establish pretext or retaliatory animus on the part of S1 when issuing the LOW.

Coordinator Position

Complainant claims she was not appointed to be the Schedule Coordinator of the Chinese
Section because her supervisors knew of her prior EEO activity. She contends this occurred in
August 2011 (the year after she filed her EEO complaint in April 2010). The AJ notes that S1
testified that she had asked Complainant whether she was interested in the role of Coordinator
but Complainant indicated that she was not interested. Instead, Complainant expressed a
preference for other developmental assignments. Because Complainant did not express any
interest in the Coordinator position, S1 offered the opportunity to another employee.

0120142914

4
We agree with the AJ’s decision which finds the record devoid of evidence of pretext or
retaliatory animus on the part of S1.2

Work Assignments

Complainant contends that she was removed from the K&D teaching group and taken off an
assignment as a tester in retaliation for engaging in protected EEO activity. She argues that
these actions are evidence that she was given less favorable assignments for retaliatory reasons.

CSS1 explained that assignments are given and rotated among employees depending on the
needs of the program. The undisputed record shows that the K&D teaching group is the
portion of the Chinese program aimed at advanced beginners and students of varying Chinese
proficiency. CSS1 stated that when enrollment in that program decreased toward the end of
the summer, Complainant was assigned a larger role in some of the proficiency testing. In
September when new students arrived, Complainant was moved back into a teaching role.

The undisputed record shows that around September 2011 FSI’s School of Language Studies
(SLS) Testing Unit (which is not a part of or controlled by the Chinese Section) began
exclusively providing testers for Chinese language tests. The only Chinese instructors who
continued to be assigned to testing duties were certified examiners. Complainant is a certified
tester, but not a certified examiner. Complainant testified that starting in 2010 all new examiners
were required to take an English language test, but those who were already certified as examiners
were “grandfather[ed]” in and therefore did not have to take the test. The undisputed record also
shows that Complainant started her examiner training in 2010 (after the new requirement went
into effect). The record is devoid of evidence that Complainant was treated differently than any
other new examiner applicant when being required to take the English test.

We agree with the AJ in concluding that the record is devoid of evidence that Complainant was
treated less favorably than any similarly situated employee. We also agree with the AJ that aside
from Complainant’s bare uncorroborated assertions, the record is devoid of evidence of pretext
or that the decisions to remove various assignments from Complainant’s duties were motivated
by retaliatory animus.

Non-selection

With respect to the non-selection claim, the record shows that Complainant was interviewed
for the position along with 16 other applicants. PLPC was a member of a Review Committee
for the EAP Language Training Specialist at FSI, GG-12 in the fall of 2011. The undisputed
record shows that PLPC was not aware of Complainant's EEO activity. He and LTS rated the
applicants on their interviews but neither rated Complainant as among the top candidates.
PLPC averred that he did not rate Complainant's performance higher because she did not

2 The record contains only Complainant’s bare, uncorroborated assertions which do not amount
to a genuine issue of material fact.
0120142914

5
adequately address questions posed during the interview on subjects such as the use of
education technology.

In her appeal, Complainant challenges the AJ’s findings regarding the non-selection on two
grounds: (1) the AJ is “on the side of management” because the AJ did not find the inclusion
of CSS1 on the selection panel to be improper; and (2) there are “significant” differences in
her qualifications as compared to the selectee’s qualifications. We do not find these arguments
persuasive and note that the record is devoid of evidence of bias or impropriety with respect to
the selection process. As the Agency points out, the record is devoid of evidence that: (a)
Complainant was questioned or evaluated differently than other candidates; (b) the numerical
scoring Complainant received (i.e., second-to-last place and mid-group) from the two
interview panelists who gave numerical scores was not wholly merit-based; (c) CSS1 told the
other panel members about Complainant’s EEO activity; (d) CSS1 influenced the other panel
members’ evaluations of Complainant; (e) CSS1 and S2 (who confirmed the panel’s selection)
communicated about Complainant’s candidacy; or (f) S2 deviated from standard procedure by
considering only the two candidates whom the interview panelists advanced to him for final
selection. We also agree that Complainant failed to establish that her qualifications were
“demonstrably superior” to SE.

Accordingly, we agree with the AJ in concluding that Complainant failed to demonstrate a
genuine issue of fact that her qualifications were demonstrably superior and that the Agency's
explanation was a pretext for retaliation.

Hostile Work Environment

Complainant claims her supervisors subjected her to a hostile work environment which
consisted of demeaning comments, excessive oversight of her work, and false accusations. She
also claims her supervisor's issuance of a LOW was part of the hostile work environment. The
AJ notes that a review of her affidavit statement reveals no specific examples of demeaning
statements or the supposed excessive oversight of her work. Complainant avers that her
workload was unusually heavy and that she received a higher number of emails in English to
which she was required to respond in English. S1 explained that emails in English were sent
to all instructors to improve their communication with their non-Chinese speaking colleagues.

Viewing the evidence in the light most favorable to Complainant, we agree with the AJ’s
conclusion that she failed to produce evidence sufficient to create an inference of hostile work
environment based on reprisal for her EEO activity. Rather, as the AJ concludes, the incidents
described were no more than typical workplace disputes and disagreements with supervisors
about her assignments.

When viewing the record, we conclude that aside from Complainant’s bare uncorroborated,
often times vague assertions, the record is devoid of evidence of pretext or that any of the
responsible management officials were motivated by retaliatory animus.

0120142914

6
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s decision which adopts the AJ’s
finding that Complainant failed to present sufficient evidence of retaliation with respect to all
of her claims.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
0120142914

7
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. 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

January 13, 2017
Date