0120072938
09-27-2007
_________________, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
_________________,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 0120072938
Agency No. DOSF05706
DECISION
On June 19, 2007, complainant filed an appeal from the agency's May 17,
2007, 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked as
a Visa/Consular Assistant, FSN-08 at the agency's U.S. Embassy facility in
Helsinki, Finland. On April 3, 2006, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of her sex and
age (D.O.B. April 1964) when:
1. on February 21, 2006, she was not selected for a Financial Manager
position at U.S. Embassy Helsinki; and
2. because of her prior EEO activity, she was subjected to a hostile work
environment characterized by intimidation and threats of termination of
her employment.
At the conclusion of the investigation, complainant was provided 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 (FAD) pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that she was subjected to discrimination as alleged.
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); EEOC
Management Directive 110, Chapter 9, � VI.A. Preliminarily, we note that
complainant argues, among other things, on appeal that the investigation
was incomplete and biased. We find, however, contrary to complainant's
assertions, the record contains sufficient evidence to render a decision
and contains no evidence of bias against complainant.
Turning to the merits of the case, we find that assuming arguendo that
complainant established a prima facie case of age or sex discrimination,
complainant failed to establish that she was subjected to discrimination
with regard to claim (1). We find that the agency proffered legitimate,
nondiscriminatory reasons for not selecting complainant; namely that
the selectee had more relevant experience in the finance aspect of the
position and more supervisory experience than complainant. We find that
complainant failed to establish that the agency's articulated reasons were
a pretext for age or sex discrimination. Complainant has not shown that
the disparities in qualifications between her and the selectee are "of
such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the [selectee] over [her] for
the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Although complainant argues on appeal that the selectee
was not as qualified as she was and that the agency officials involved in
the selection were biased against her, we find that complainant failed
to prove by a preponderance of the evidence that this is the case.
Further, even though complainant contends that the selecting official
stated that he was looking for "fresh blood" we note that according to
complainant's own statements, the selecting official was referring to
individuals outside of the agency and was not making a comment based
on age. As such, we find that complainant failed to establish that she
was discriminated against on the basis of her age or sex when she was
not selected for the Financial Manager position.
Further with regard to claim (2), we find that complainant failed
to establish a hostile work environment as she alleges. In order to
establish a claim of harassment based on age or sex complainant must
show membership in a protected group, and severe or pervasive harassing
conduct, such that it alters the conditions of her employment, that would
not have occurred except for her membership in that protected group.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) Henderson
v. City of Dundee, 682 F.2d 897, 903-4 ( 11th Cir. 1982).
We find that complainant failed to show that the incidents in claim (2)
occurred due to her age or prior EEO activity. The record reflects that
the incident at issue involved the inclusion of complainant's husband's
documents in complainant's personnel file. When she requested for
the document be removed, the Management Counselor declined to do so.
According to complainant, the Management Counselor stated "I can fire
anybody. It makes no difference if they are U.S. citizens or not."
Complainant further provided that the Management Counselor "leaned over
his desk, [put] his face very close to mine and started to shout at me."
However, the Management Counselor denied that the conversation occurred
as complainant alleged and provided in his declaration that complainant
was the one who verbally abused him about her husband's financial
information and complainant accused him of attempting to bribe her.
The Management Counselor stated that he firmly told complainant to not to
put words in his mouth and ended the meeting. However, even taking all
the incidents together, we find that complainant failed to establish that
she was subjected to unlawful harassment due to her age or sex. Rather,
according to the record, the disagreement stemmed from the inclusion of
complainant's husband's financial information in her personnel file, not
due to the Management Counselor's alleged animus toward complainant's
age or sex. Further, we note that nothing in the record supports an
inference of discriminatory animus with regard to claim (2).
Therefore, based on a thorough review of the entire record, including
complainant's contentions on appeal, we affirm the agency's FAD finding
that complainant failed to establish that he was subjected to unlawful
discrimination or harassment as she alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___9/27/07_______________
Date
2
0120072938
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072938