[Redacted], Harriet M., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022000859 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet M.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2022000859 Hearing No. 520-2018-00170X Agency No. DOS-0035-17 DECISION On December 2, 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 5, 2021 final Agency order 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 an Accountant (Forensic), GS-00510-13, at the Bureau of Diplomatic Security, New York Field Office in Fort Lee, New Jersey. On January 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (Latino) and reprisal for prior protected EEO activity under Title VII when management reduced her work duties; she received a negative performance appraisal; and she was subjected to a hostile work environment characterized by, but not limited to intimidation, exclusion, management not providing adequate assistance and communication, and inappropriate and derogatory comments. 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. 2022000859 2 After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objection, the AJ granted the Agency’s motion for summary judgment, and found no discrimination without a hearing. The AJ found, based on the evidence developed during the investigation, that Complainant did not make out a prima facie inference of disparate treatment or discriminatory harassment based on her race. Specifically, she was not similarly situated to her comparative employee, a contractor who worked for Madison Associates serving Complainant’s team as a Forensic Accountant. The evidence showed that neither Complainant’s first line supervisor, a Supervisory Special Agent (SSA) (white), nor anyone else at the Agency gave the contract Forensic Accountant reviews or performance appraisals. According to the AJ, the only link Complainant articulated between her race and the matters she complained of were the contract Forensic Accountant allegedly occasionally making comments such as referring to Complainant as a “Puerto Rican from the Bronx that grew up on welfare” and “I guess Puerto Ricans can’t take jokes.” Complainant acknowledged no management officials were involved, and she was not aware of any witnesses. The AJ found that even if Complainant made out a prima facie case of discrimination, the Agency gave legitimate, nondiscriminatory reasons for its actions. By reference to the Agency’s motion for summary judgement, the AJ found that Complainant’s duties were not reduced, and she got a rating of not successful on her appraisal because of her poor performance on the Virgo case - her primary assignment during the one-year rating period. Specifically, as instructed in January 2016 and February 2016, she did not prioritize completing work on certain bank accounts, made errors to the point that her customer (an Agency Special Agent in the Philadelphia Resident Office) doubted her ability to follow money through bank accounts, and the customer found Complainant’s balking at doing certain time-consuming tedious but necessary forensic work unacceptable. The AJ found that Complainant did not prove the Agency’s reasons for its actions were pretext to mask discrimination. The Agency issued a final order adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant argues that in taking actions against her, Agency officials were influenced by the contract Forensic Accountant. She disputes she made the errors attributed to her. She questions the ability of the SSA and her Philadelphia customer to assess her work product because they are not forensic accountants. Complainant’s work on the Virgo case supported the Agency’s Financial Analysis and Forfeiture Program. Complainant discusses statements by the Agency Program Manager, who oversaw the Agency’s Financial Analysis and Forfeiture Program, and her boss, a Branch Chief, who were located in Arlington, Virginia. Specifically, they questioned the SSA’s assessment of Complainant’s performance. In reply, the Agency argues that the final Agency order should be affirmed. 2022000859 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Complainant disputes the SSA and Philadelphia customer’s assessment, respectively, of her performance and work product. But there is no genuine issue of material fact that their assessments were based on their view of Complainant’s performance, not her race or reprisal. We agree with the AJ that Complainant’s work duties were not reduced, as alleged. On the Program Manager’s opinion, we agree with the Agency’s argument before the AJ that she was not in Complainant’s chain of command or involved in the assessment of her work performance [in terms of doing an appraisal or relying on her work product to assist in the criminal prosecution, respectively, like the SSA and the Philadelphia customer]. Their interaction with Complainant’s work performance and product was inherently deeper than the Program Manager. All this also applies to the Program Manager’s boss. Complainant has failed to prove, by a preponderance of the evidence, that discriminatory factors played any role in the disputed actions. The final Agency order is AFFIRMED. 2022000859 4 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. 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). 2022000859 5 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 January 31, 2023 Date