0120101479
07-12-2012
Patricia Ellis, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Patricia Ellis,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120101479
Agency No. DOS-F018-09
DECISION
Complainant filed an appeal from the Agency's January 20, 2010 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Cultural Affairs Officer at the Agency's U.S. Embassy in Kuwait. On November 17, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), religion (Muslim), and age (over 40) when:
1. From July 2008 through November 2008, Complainant was not allowed to perform the assigned duties as outlined in her position description; and
2. From July 2008 through November 2008 and continuing, Complainant was subjected to a hostile work environment, characterized by, but not limited to, intimidation and insults.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its Decision, the Agency found that regarding claim (1), that Complainant failed to establish that she suffered any harm or injury by the actions described in this claim. The Agency found that Complainant did not identify any programs or duties that she was not allowed to perform, nor did she lose any pay, incur any discipline, or lose any privilege of employment as a result of the loss of control over her position as she perceived. The Agency did note that the Human Resource Officer (HRO) confirmed that Complainant did not have a work requirements statement on file as late as March 2009. Accordingly, the Agency dismissed claim (1), pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
For the sake of argument, the Agency assumed that Complainant had established that she had been harmed from the actions described in claim (1), the Agency found that Complainant failed to identify any similarly situated employees, not in her protected groups, who were treated better than she was. Complainant described that a male employee, E1, who also reported directly to S1, was treated preferentially, but the Agency found that E1 was older than Complainant and was the same religion as Complainant. The Agency noted that Complainant did not specifically describe which duties E1 was permitted to perform that she was not, but also noted that E1 was in a different position (program development) than Complainant and so, E1 was not similarly situated. The Agency considered Complainant's allegation that E2 was more favorably treated. The Agency found that E2 was female, but her position is that of Information Officer. The Agency found that E2 had been in her position for longer than Complainant. Both E2 and Complainant, the Agency noted, report to S1. The Agency found the evidence clear that E1 and E2 are not similarly situated to Complainant as they each perform different job duties and hold different positions. The Agency concluded that while Complainant is of a different race, religion, age, or sex than some of her colleagues, Complainant failed to establish a prima facie case of discrimination on any basis with respect to claim (1).
Regarding Complainant's harassment claim, the Agency found that Complainant did not describe with adequate specificity, how she was verbally abused or harassed by S1, as she claimed. The Agency found that Complainant described a single incident in which S1 implied that Complainant was "dumb and incompetent." However, the Agency found that this remark, even if it occurred as alleged, referred to performance rather than any characteristic of Complainant's race, religion, age, or sex. The Agency found the evidence indicated that S1 was not viewed as a supervisor to be admired or to be held as a model of decorum. However, the Agency found that S1's poor performance as a supervisor and lack of tact in his communications style was not adequate by itself to support a finding of discrimination. The Agency found that Complainant was never charged as "absent without official leave" (AWOL), and was not accused of having a time and attendance problem, but that the Agency's concerns over her whereabouts were justified based on Complainant's habit of completing leave request forms untimely. Moreover, the Agency found that Complainant presented no evidence that Complainant's race, religion, age, or sex played any role in the matters Complainant described as demeaning or abusive. The Agency's Decision concluded that Complainant's harassment claim stemmed instead from Complainant's belief that her work was not valued at the Agency. 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").
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
In the instant case, we find the Agency's Final Decision is supported by the record. Even if Complainant were harmed by the actions described in claim (1), we find that Complainant has failed to show discrimination in claim (1). We find with respect to her claim of harassment, that Complainant describes a wide variety of incidents ranging from having her ideas criticized in staff meetings by S1, to being called by the Agency while on leave because Complainant's leave had not been approved in advance. We note that Complainant was never charged with AWOL, and that S1's communication skills were the subject of more than one counseling session between S1 and his supervisor. We note that S1 admits to removing a purchase order from Complainant's desk and to asking his wife to contact Complainant for status reports regarding the planning and arrangements for an important election-day event in November 2008. We find no dispute that S1 acted as Complainant described, but find no relation between S1's actions and Complainant's race, religion, age, or sex. Additionally, S1 confirms the incident with Complainant wherein the terms "dumb and incompetent" were attributed to Complainant. We concur with the Agency that these incidents appear motivated by S1's regard for Complainant's performance and conduct. Taking into consideration the incidents Complainant describes in her complaint, we find the evidence does not indicate that more likely than not that the incidents were motivated by Complainant's race, religion, age, or sex. Therefore, we find that Complainant failed to show she was subjected to discriminatory harassment.
CONCLUSION
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).
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
July 12, 2012
__________________
Date
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0120101479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101479