[Redacted], Dominica H., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022000781 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2022000781 Agency No. DOS-0050-21 DECISION On November 24, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a November 19, 2021 final Agency decision (FAD) on 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. BACKGROUND During the period at issue, Complainant was employed by the Agency as a supervisory Public Affairs Officer, FS-02, with the U.S. Embassy in Bujumbura, Burundi. This was a limited non- career appointment of two years with the possibility of extensions. The paperwork finalizing this appointment was completed sometime after August 28, 2020. Prior to this, Complainant was employed by the Agency as a Foreign Affairs Officer, GS-14, in Washington, DC. Complainant arrived in Bujumbura on or about November 18, 2020. After completing her mandatory arrival quarantine, she entered the Embassy for the first time on November 25, 2020. On December 10, 2020, the Embassy decided to involuntarily curtail her tour in Burundi, cabled headquarters requesting approval, which was granted by December 17, 2020. Complainant returned to Washington, D.C. and got the job of non-supervisory Foreign Affairs Officer, GS-14, with Conflict Stabilization Operations. 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. 2022000781 2 Complainant filed an EEO complaint on February 8, 2021, alleging that the Agency discriminated against her based on her race (Black) and reprisal for prior protected EEO activity under Title VII when she was involuntarily curtailed. The Agency accepted the complaint and conducted an investigation into its claims. The investigation showed that on November 28, 2020, Complainant in her private capacity attended a fashion show sponsored by a magazine at a hotel. The Embassy is a high threat post, and this was its preferred hotel because of its security standards and proximity. High level foreign diplomats, host nation officials, and foreign contacts frequent the hotel, and for around the past five months it was the Embassy’s sole quarantine hotel. Complainant attended the fashion show with a person she met at the hotel while they were quarantining. This person was hired by the Embassy less than two weeks after the show as the Office Management Assistant (“Assistant” - Caucasian) to the Chargé d’Affaires, meaning the chief of mission in the absence of a confirmed ambassador. Assistant was hired per her status of Eligible Family Member. Complainant took video of some or all of the fashion show. After the show, Assistant reported Complainant’s behavior there to the front office, which is made up of the Chargé d’Affaires (white, Complainant’s manager), the acting Deputy Chief of Mission (“Deputy Chief” - white, Complainant’s first line supervisor), and the Management Officer, who was the acting Human Resources Officer (“HR Officer” - white). The Chargé d’Affaires was not at the show, and the record strongly suggests that neither were the Deputy Chief and HR Officer. According to a December 10, 2020 email by Deputy Chief summarizing a meeting of Complainant, himself, and the Chargé d’Affaires, the referenced December 11, 2020 cable drafted by HR Officer and signed off by the Chargé d’Affaires, Deputy Chief and others; and Assistant, Embassy management got “multiple reports” of Complainant’s behavior (cable) by “multiple sources” (email meeting summary) who were “several… members of the community and the mission” (Assistant’s affidavit) of Complainant’s behavior at the fashion show. Assistant obtained the video clips Complainant took at the fashion show, which recorded Complainant’s voice, and passed them on to management who was looking into the reports of her behavior there. A small portion of the clips is transcribed. Samples of Complainant’s comments as male models walked by are, “Mandigo, you trying to get me to fuck you” and “Woo! That was fine” (a muscular shirtless model), and “Damn, I just want to squeeze his motherfucking ass. God damn.” Samples of Complainant’s comments as female models walked are “I want an ass like that” and a comment on her “titties”, and “See, an ass like that would make me, I would be married like right now.” She made many other remarks comments about models’ bodies. She also commented as models walked by “I ain’t wearing no fucking shower shoes” and “Burundi, giving me some fashion. I love Africa. I’m not going to do your all’s shoes ‘cause you all wear black.” 2022000781 3 While models were on the runway, Complainant made the comments, over a period of time, of “Sorry, if I bother if I bother you tell me. Some people be like stop [Complainant’s first name] I’ll punch you in your god damn face”; “This is awful, I’m talking loud”; and in quiet conversation, presumably to a person sitting next to her, “You know they told them that a fucking public affairs officer is up in here.” The Chargé d’Affaires is the official who decided to curtail Complainant’s appointment, albeit she consulted with others. In her EEO investigatory statement, she stated her decision was based on Complainant sexually and racially explicit comments at the fashion show, and that her remarks there indicated she was aware her comments were offensive to others, but she continued using offensive language. She further explained that as the Public Affairs Officer, press liaison, and spokesperson for the Embassy, Complainant was a public figure, the local press was present, and all this created the likelihood that her ability to successfully promote Mission objectives was compromised. She stated Complainant’s behavior demonstrated a gross disregard for the professional conduct expected of U.S. diplomats. This statement is consistent with language in the referenced cable. The cable also expressed concern that being able to conduct required quarantines for new Embassy personnel at the hotel could be compromised, and this would likely have a major impact on safety and security. In connection with Complainant’s reprisal claim, the record shows that before and after arriving in Bujumbura, she worked on a draft of the Embassy’s fiscal year 2021 Public Diplomacy Implementation Plan, a strategic planning document. She submitted an executive summary to the Chargé d’Affaires on November 23, 2020, and submitted a completed draft to Deputy Chief on December 1, 2020. Her plan included the idea of programming about the U.S. African-American civil rights movement. On November 13, 2020, Chargé d’Affaires submitted to an official with the Bureau of African Affairs’ Office of Public Diplomacy and Public Affairs (“Bureau official”) a draft of the fiscal year 2021 plan written by another person. This was the original deadline for submitting it. According to Complainant, on the same day Bureau official told her she could get an extension to submit the plan. Prior to departing for Bujumbura, Complainant received the November 13, 2020 draft from a member of her team, which she edited to create her own draft plan. On November 25, 2020, Complainant emailed Deputy Chief that she submitted her executive summary of the plan for approval to ensure she met the deadline to finalize the plan, but instead of reviewing it, the Chargé d’Affaires reviewed last year’s “crap” plan. She wrote that she got an extension from Bureau official to November 30, 2020, to submit it, and the Chargé d’Affaires knew she was working it. Complainant asked why would the Chargé d’Affaires want to move forward “a crappy paper [plan] written by a white women instead of reading a perfectly good paper written by a Black woman.” In her EEO complaint, Complainant alleged unlawful retaliation based on her opposition to race discrimination. Following an EEO investigation, Complainant was notified of her right to request a hearing before an EEOC Administrative Judge (AJ) and requested an immediate FAD without a hearing. 2022000781 4 The Agency then issued a FAD finding no discrimination. In its FAD, the Agency found Complainant established a prima facie (inference) case of unlawful reprisal, and that it was unnecessary to decide if she established a prima facie case of race discrimination, citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The Agency found Complainant was curtailed for the reasons given by the Chargé d’Affaires, and she did not prove this was pretext to mask discrimination. The instant appeal followed. ANALYSIS AND FINDINGS To prevail, 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 (inference) 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 articulated legitimate and nondiscriminatory reasons for its conduct, including that actions did not occur, as alleged. Aikens. To ultimately prevail, Complainant must prove, by a preponderance of the evidence (more likely than not) that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). On appeal, Complainant contends Deputy Chief (one of the people the Chargé d’Affaires consulted in deciding to curtail Complainant) made a micro-insult, which she explains means a rude or insensitive comment directed at a person’s identity or status, which evidences a discriminatory motive. This refers to her contention that on December 1, 2020, she asked Deputy Chief for permission to spread word on the 65th anniversary by Rosa Parks beginning the Montgomery Bus Boycott, and he responded “the people that work here at the Embassy are all elitist. Do you see the little buses they (Burundians) ride in? How can they relate to a woman who can't get a seat on a bus?” We disagree this is evidence that Deputy Chief’s concurrence that Complainant’s tour should be curtailed was tainted by race discrimination, especially in light of her behavior at the fashion show. Complainant contends that she was more harshly that the white Assistant, who she claims engaged in similar misconduct. She said that on November 16, 2020, Assistant made a house call request by telephone complaining she felt sick to the local Foreign Service Medical Provider. Medical Provider responded by explaining the quarantine clearance process. Assistant reacted by saying, “I did fill out your funckin quarantine log and no one explained it to me and “the kit had shit in it that I didn’t need… and I’m not going to fill out anything… so don’t know what you’re going to do to clear me… but I’m not letting any funckin GOB personnel to my home and take their funckin… test.”2 No action was taken against Assistant. 2 The word “funckin” as spelled above is the way it was written in call log submitted by Medical Provider. 2022000781 5 Deputy Chief stated Assistant complained to HR Officer about her medical treatment and, according to HR Officer, Assistant’s repeated calls and requests for assistance indicated a more serious situation, while Medical Provider did not see the case as urgent. Deputy Chief stated, in Burundi, where malaria is endemic with more than 2.5 million cases a year among a population of only 11 million and in the midst of the COVID-19 pandemic, treating medical cases with additional caution would seem warranted - a point reinforced by the Regional Medical Officer, a doctor in a counseling session with Medical Provider. Deputy Chief stated Complainant’s situation was not comparable to Assistant’s. He stated, for example, that Complainant is a diplomat and was the public face of the Embassy, that her behavior occurred in a public forum, and it could negatively impact the perception of Burundians and others on the credibility and objectives of U.S. foreign policy. In contrast, Assistant’s behavior occurred in a telephone call with the Embassy Foreign Service Medical Provider in the context of requesting medical care. We agree. Complainant is not similarly situated to Assistant. Complainant argues that the transcription of her comments on her video clips were taken out of context. We listened to and watched many portions of the clips. We concede that Complainant’s voice when making the remarks had a tone of playfulness and not taking herself seriously. But she made many, many of them over a long duration, and did not stop even though she made remarks at the fashion show indicating she was aware people there were offended by her comments. Complainant has not shown that in this context that Chargé d’Affaires assessing her behavior as very problematic was based on taking her comments out of context. The cable relayed that it was reported that at the hotel after the fashion show Complainant kissed a hotel staff member while they were serving her. On appeal, citing to the cable, Complainant counters that she “gave a ‘cheek-to-cheek’ air kiss based on friendship.” It seems unlikely that given her short time in the country Complainant formed a friendship with the server, nor she does contend this. In any event, Complainant has not shown that management’s assessment that this kiss was a continuation of her inappropriate behavior was based on bias. Complainant argues that the links in the record to the two videos of the fashion show on the magazine sponsor’s Facebook page did not show any misconduct by her. Because much of the audio has been removed purportedly due to a copyright claim from the two videos as they are now posted, we are unable to verify this. Regardless, Complainant’s own video clips sufficiently corroborates management’s explanation that her behavior at the fashion show warranted curtailment, and Complainant has not proven pretext or otherwise proven discrimination. The fashion show occurred three days after Complainant first entered the Embassy, likely adding to the Chargé d’Affaires’ alarm that her behavior there indicated she would not be an effective Public Affairs Officer. 2022000781 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, the FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2022000781 7 Any supporting documentation must be submitted together with the 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 (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 February 15, 2023 Date