0120071093
05-15-2009
Maria E. Padilla, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Maria E. Padilla,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120071093
Hearing No. 570-2006-00284X
Agency No. DOS-F-063-05
DECISION
On December 21, 2006, complainant filed an appeal from the agency's
November 20, 2006 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.
At the time of events giving rise to this complaint, complainant worked
as the Fraud Program Manager in the Fraud Protection Unit at the agency's
Consulate in Juarez, Mexico.
On July 22, 2005, complainant filed a formal EEO complaint wherein she
claimed that she was subjected to a hostile work environment on the bases
of her national origin (Hispanic) and reprisal for prior protected EEO
activity under Title VII when:
1. On December 9, 2004, complainant's Supervisor reprimanded her for
accepting a fraud referral.
2. On February 28, 2005, complainant's Supervisor reprimanded her in front
of her colleague for drafting a memorandum critical of the treatment of
Mexicans and the high refusal rate of nonimmigrant visas.
3. On March 14, 2005, complainant learned that the former Deputy NIV
Chief placed untrue and potentially career damaging entries about her
into the NIV (Non-Immigrant Visa) database and her subsequent request
to supplement the information in the database was denied.
4. Complainant was not included in the formulation of the agenda for a
Spring 2005 Consular Officer meeting.
5. Management forced the Fraud Prevention Unit out of Building D resulting
in complainant's inability to effectively perform her job.
During the course of the investigation, complainant raised the following
additional claim:
6. In a June 14, 2005 meeting with other Consular officials, the
Human Resources Officer made racist comments concerning Mexican Civil
Service employees and Mexican nationals. In reprisal for bringing those
allegations to the attention of the Deputy Consul General, the Human
Resources Officer subjected complainant to acts of intimidation and
threats.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ found that the agency proffered legitimate, nondiscriminatory
reasons for its alleged actions with regard to claims 1 - 5. The AJ
noted that the alleged reprimands were nothing more than verbal
counseling; the use of complainant's name in the NIV database was neither
career damaging, nor a deviation from standard practice; complainant
acknowledged that there were no written agendas and no formal process
involved in the formulation of agendas for the meetings in question;
and the temporary movement of Fraud Unit personnel from Building D did
not affect complainant any differently than similarly situated employees
and was done for the legitimate, nondiscriminatory reason of reducing
some of the conflict and interoffice tension that existed within the
operation. With regard to claim 6, the AJ noted that complainant's
allegations regarding comments made by the Human Resources Officer at
a meeting in June 2005, are not supported by any first-hand evidence
on her part, since she was not at the meeting, nor could she establish
through second-hand statements of those present that the Human Resources
Officer made any references to her during the meeting. The AJ found the
complainant's arguments failed to establish that she was subjected to a
sufficiently severe or pervasive hostile work environment as to qualify
her as a victim of discriminatory disparate treatment or that there was
any discriminatory animus in the agency's actions.
The agency's final action implemented the AJ's decision.
On appeal, complainant notes that the supervisory staff at the Consulate
in Juarez, Mexico is largely non-Hispanic except for herself and the
Immigrant Visa Chief. Complainant states that she was regarded as
Mexican and not American. Complainant notes that she was excluded from
management's discussions, not made part of daily meetings and office
visits held by non-Hispanic managers, and her ideas at the meetings were
rejected and her input undervalued. Complaining criticizes how two Foreign
Service Consular officials prided themselves on how they deprecated
Mexican visa applicants. Complainant maintains that the Deputy Consul
General condoned discriminatory behavior by anti-Hispanic officials.
According to complainant, the Foreign Service officials looked down upon
Civil Service workers, Hispanics and Foreign Service Nationals.
With respect to claim 1, complainant maintains that she was aggrieved
as the fraud referral resulted in a reprimand. Complainant claims that
agency officials were emboldened by the reprimand to make her work
life more difficult or job more difficult to perform. According to
complainant, she received a reprimand even though others who engage in
this common practice had never been reprimanded or disciplined in any
way. With regard to claim 2, complainant maintains that she was shut
off from access to management and the memorandum at issue constituted
her opposition to discrimination against Mexican-American workers,
Mexican workers, and Mexican immigrants. According to complainant, as
a result of her memorandum, she suffered a reprimand, and was forced to
apologize, further blunting her ability to manage her unit and affecting
her productivity. As for claim 3, complainant contends that the nature
of the entry made by an agency official was derogatory to her and that
it connected her to a questionable agency and individual involved in a
corruption scandal. Complainant states this entry is available worldwide
to those who use the NIV database and could easily have been corrected.
According to complainant, there are instances where corrective notes have
been made when there is information justifying the correction. Complainant
maintains that she was discredited in the eyes of her staff and the rest
of the Consulate.
With respect to claim 4, complainant argues that she was intimidated
at staff meetings about giving input or making suggestions as agency
officials would discount her ideas. Complainant states that the Deputy
Chief Counsel would visit non-Hispanic officers, but shunned her and
the other Hispanic officer. Complainant explains that the lack of
communication and lack of input hampered her ability to do her job,
to offer ideas, and to influence what was happening, even in terms of
rotations. With regard to claim 5, complainant states that the removal of
her unit from the NIV Building was undertaken without consulting her and
that this action has affected the function of her unit in terms of the
interruption of work relationships, work procedures, and the disruption
of the flow of information between the units. Complainant contends that
the rationale given for closing the office is untrue as the move was
based on the office space that NIV claimed it needed. This office space
had been used by the Fraud Prevention Unit for "e visas."
As for claim 6, complainant maintains that the Human Resources
Officer threatened her due to her EEO activity in opposition
to discrimination. Complainant argues that there was no need for
corroboration or any discussion of first or second-hand evidence given
that the Human Resources Officer made an admission relating to his
concerns and feelings about the EEO filing. Complainant's states that
the Human Resources Officer directly threatened to take action against
her and another Hispanic employee and hold her fully accountable for
disparaging his reputation by making false accusations and submitting
false EEO complaints. Complainant argues that this was a direct attempt
to quell EEO complaints and to do so by threats and intimidation.
In response, the agency asserts with regard to claim 1 that it is
undisputed that complainant accepted a referral from her husband
who worked in the NIV unit, without the approval of the NIV Chief or
Deputy. The agency notes the policy in effect at the time was that
a referral should not be made from the NIV unit to the Fraud unit
without the approval of an NIV Manager. The agency further notes that
complainant's Supervisor discussed the matter with complainant and did
not issue a written reprimand. The agency maintains the complainant
has not identified anyone outside her protected class who was treated
differently. With regard to claim 2, the agency notes that complainant's
Supervisor explained to complainant that it was not a good idea to
put such critical information in complainant's memorandum, because if
it went beyond the Consulate, it could be misinterpreted by the press
and public. Complainant's Supervisor also told complainant that it was
not appropriate to write memos complaining about a colleague and that
any complaint should be taken up in person with her and/or the other
colleague. The agency notes that complainant was not reprimanded, that
the communication was oral and there was no recording of the incident
in personnel evaluations or other written material. As for claim 3, the
agency states that there is nothing discriminatory or even inappropriate
about the fact that complainant's name was included in an NIV database
entry. The agency notes that whenever a visa applicant uses the name of
an employee, it is documented in the notes. According to the agency,
once an entry is made, there is no mechanism available for a consular
official to delete the entry from the NIV database. The agency maintains
the complainant did not suffer any adverse action and that there is no
basis for a claim that the information at issue is potentially career
damaging. With regard to claim 4, the agency asserts that there is
typically no written agenda for these staff meetings and that there
was no process involved normally with the formation of an agenda for
these meetings. The agency argues the complainant failed to provide
specific evidence that she was treated in a manner that was different
from other similarly situated people with regard to the formulation of
the meeting agenda.
As for claim 5, the agency states that the Fraud Prevention unit
activities are based in Building C and the NIV unit is based in Building
D. According to the agency, some Fraud Prevention unit personnel
made use of an office in Building D. The agency states that the Fraud
unit activities were temporarily moved out of the NIV building because
complainant and the NIV Chief and NIV Deputy were having significant
difficulties communicating in a professional and cordial manner, and
therefore it was best to suspend fraud activities until a personnel
change a few months later. The agency notes that complainant's unit
resumed use of the office in Building D after new personnel took
over the responsibilities of the NIV Chief and Deputy. The agency
maintains complainant was not subjected to a hostile work environment.
The agency asserts that the isolated incidents cited by complainant are
not sufficient to show harassment. The agency argues that even if the
actions at issue were so severe or pervasive as to constitute harassment,
complainant failed to provide evidence to support a finding that she was
harassed due to her national origin. The agency attributes the conflicts
complainant had with the NIV Chief and Deputy to a personality conflict
and existing tension between the operation of two distinct personnel
systems in the context of an agency culture in which the Foreign Service
is predominant.
With regard to claim 6, the agency notes that the Human Resources Officer
is alleged to have made comments equating Civil Service personnel with
Foreign Service Nationals employed by the agency. The agency states that
complainant was not present at the alleged meeting and therefore any
information she has concerning the meeting comes from second-hand sources.
Moreover, the agency asserts the complainant stated she is not aware of
any instance during this meeting in which the Human Resources Officer
referred to her by name or in any other fashion. The agency asserts that
the Human Resources Officer did not take any employment action against
complainant with regard to the concerns that complainant raised. Further,
the agency states that complainant and another employee raised these
concerns in their capacity as union stewards, thus, the evidence is not
sufficient to sustain a claim of reprisal.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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 holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To establish a claim of harassment, complainant must show that: (1) she
is a member of the statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998).
Upon review of the incidents set forth by complainant, we find that they
are not of sufficient severity or pervasiveness to constitute harassment.
It is evident that complainant had disagreements with a few non-Hispanic
agency officials. A couple of the officials cited by complainant are
referenced in the record as having certain less than favorable management
styles and personality attributes. However, these management styles and
personality attributes do not necessarily translate into animus against
complainant due to the alleged bases. Complainant did not show that the
incidents cited in claims 1 - 5 occurred due to animus on any protected
bases. The alleged actions in claims 1 - 2 were oral discussions between
complainant and her supervisor rather than written reprimands. Thus,
complainant was not aggrieved by any discrete incident in claims 1 or 2.
As for the alleged incidents of claims 3 - 5, complainant has not shown
how she suffered personal harm with respect to any of these actions.
Moreover, even if the incidents in claims 1 - 5 stated a hostile work
environment, we find that complainant has not established that the
agency's legitimate, nondiscriminatory reasons for these actions were
pretext intended to mask discriminatory intent.
With regard to claim 6, we find that the remarks by the Human Resources
Officer, even if made as alleged, were not reasonably likely to deter an
individual from utilizing the EEO process. Furthermore, complainant was
not at either of the meetings referenced in this claim and there is no
evidence of an actual chilling of complainant's EEO rights. Therefore,
we find that complainant has not established that she was harmed with
regard to a term, condition or privilege of her employment or that she
was discriminated against in this claim on the bases of either reprisal
or national origin.
The agency's final action finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 15, 2009
__________________
Date
9
0120071093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013