01A53391
09-26-2006
Adriana Hatfield, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Adriana Hatfield,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A53391
Agency No. F-047-04
DECISION
JURISDICTION
On April 15, 2005, complainant filed an appeal from the agency's March 21,
2005 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Special Consular Assistant (Assistant) in the agency's American
Service Section in Tijuana, Mexico. On April 28, 2004, complainant
contacted an EEO Counselor and filed a formal EEO complaint dated May
21, 2004, alleging that she was subjected to a hostile work environment
based upon her sex (female) when:
1. Complainant's supervisor failed to give her work assignments;
2. Complainant's supervisor denied her job training;
3. Complainant's supervisor made comments that stated his displeasure
that her position had been filled by a female; and
4. Complainant's supervisor avoided interacting with her and caused her
to feel so uncomfortable that she submitted her resignation.
In an investigative affidavit, complainant maintained that during her
first week in the Tijuana office,1 her supervisor (S) did not leave
her any work to perform or provide her with any guidance while he was
out of the office. Complainant further stated that when her supervisor
returned to the office, she asked him if there was any work for her to do,
but S told her that he would get back with her. Complainant also stated
that S assigned her to do filing, although her job duties included much
more complex duties than filing. Complainant alleged that she has only
witnessed one other Assistant do filing. Complainant stated that child
custody cases, two visits to penitentiaries, and filing were the only
"real assignments" she was given until she met with S on March 29, 2004,
three months after she began working at the Tijuana office. Complainant
maintained that she found it "strange" that she had so little to do,
especially since the other three Special Consular Assistants always
complained that they were overwhelmed with work. Including complainant,
four of the five Assistants under S's supervision were female.
Complainant also maintained that she asked for training on several
occasions because she needed guidance on how to draft cables and conduct
interviews, but S responded by pointing to a pile of paperwork on his desk
and stating that he did not have time to assist complainant. Complainant
stated that although S spoke to her about the work her co-workers
performed, he did not instruct her to work with them individually to learn
their specialties. Complainant also stated that she received training on
the Mexican legal system, vehicle recovery, death cases, detainee lists,
calling jails, and database entry, although some of this guidance was
not provided by S. Complainant further alleged that during a meeting
with S, he stated that the only reason complainant got her position
was because an official at the U.S. Embassy in Mexico City wanted
her to have the job and now the agency is "stuck" with complainant.
Complainant also alleged that S stated that he had someone else in
mind for her position and that he wanted a single male with no family
responsibilities "who could just go and [S] wouldn't feel guilty about
his little girl waiting at home to do homework." Complainant stated that
S also said that since complainant was not a Foreign Service National,
he knew she would be leaving in a year or two and that it was a "waste of
time" to train complainant. Complainant stated that she then reminded
S that the agency knew that she was a dependent when she was hired and
would only be in the Tijuana office as long as her husband was assigned
to the Tijuana post. Complainant stated that she also told him that
although she was scheduled to leave the office in August 2005, she could
contribute a great deal during the time she was in the Tijuana office.
Complainant also alleged that a day after the meeting, S stopped talking
to her, cursed, muttered to himself, and paced back and forth outside
her cubicle. Complainant further stated that S assigned her extremely
high profile murder cases that she was not certain she could handle, but
failed to give her any guidance. Complainant stated that because she did
want to be around S any longer and felt he was testing her with difficult
cases, she tendered her resignation five weeks after the meeting with S.
Complainant stated that her second-line supervisor (S2) refused to accept
her resignation and talked her into rescinding it. Complainant was
transferred to another supervisor's section shortly thereafter.
In response, S stated that in late 2003 and early 2004, he was originally
scheduled to be out of work for a short time to recuperate from surgery,
but his recovery took approximately one month. He stated that he
asked S2 to provide complainant with assignments and a Special Consular
Assistant to help complainant with her workload while he was on leave.
S stated that because complainant worked very quickly, there may have been
times when she did not have anything to do. S stated that he directed
complainant to let him know if she did not have enough work to do, and
when complainant requested work, he provided her with an assignment.
S further stated that he instructed complainant to perform filing duties
because it is important for all Consular Assistants to know where cases
are filed.
S maintained that when he returned to office following surgery, he
explained the variety of issues handled by the office. S further stated
that he instructed co-workers to provide complainant with training on
vehicle recovery, database entry, long-term prisoners, prisoner transfers,
prisoner interviews, and responding to the death of U.S. citizens abroad.
S also stated that he personally provided complainant with training
pertaining to how the legal system works in Mexico.
S denied stating that training complainant was a waste of time but
maintained that complainant did state that she would not be with the
section very long. S maintained that he did not say that he wanted a
single male to have complainant's job, but instead told complainant
that it would be helpful if employees did not have "attachments"
that prevent them from taking overnight trips at a moment's notice.
S further explained that before complainant was hired, he had recommended
that an employee from the Visa Section be hired for the Special Consular
Assistant position, but complainant was hired after she was recommended
by the Minister Counselor of Consular Affairs at the U.S. Embassy in
Mexico City, Mexico. S denied that he made any comments indicating
that he did not want her to have the position or that training her was
a waste of time.
S also maintained that he assigned complainant high profile cases because
he was very impressed with her work on a child custody case and wanted to
see if she could apply those abilities to death cases. He stated that
he provided complainant with instructions on how to handle the cases.
S denied that he muttered or cursed in complainant's presence, but he
stated that it is possible that he sometimes paced in the office.
A female Special Counselor Services Assistant (C1) also supervised by S
stated that in January 2004, S asked her to pass work along to complainant
while he was out of the office. C1 stated that she gave some of her work
to complainant and instructed complainant on how to perform that work.
C1 also stated that the agency did not provide training to her office,
and the standard procedure is for new employees to be briefed by S about
their job duties. C1 stated that complainant received on-the-job training
from co-workers, and if she was not as busy as other employees, that
would have been typical for new employees because it takes "some time"
for new employees to acquire a full workload. C1 further maintained
that S never indicated to her that he was displeased that complainant
had been hired by the agency and never exhibited any bias against female
employees. C1 also stated that she never witnessed S mutter, curse,
or otherwise subject complainant to harassment.
Another female Special Counselor Services Assistant (C2) stated that
when complainant was hired, S instructed Assistants to "take turns
showing her the ropes" and train her about the different specialties.
C2 maintained that she did not receive any formal training when she was
hired, only hands-on training. C2 stated that usually new employees do
not have a great deal of work because they cannot handle a large workload
until they are training in the specialties and have been "shown the ropes
by co-workers." C2 maintained that she has never observed S exhibiting
any bias against female employees or subject complainant to harassment.
S2 stated that before S took leave in December 2003, he discussed the
tasks complainant would perform with S. S2 stated that it was his
observation that complainant was always very busy typing cables, on the
telephone, or traveling, and complainant never mentioned to him that
she did not have enough assignments. S2 also stated that Assistants
are trained on-the-job, and it appeared that complainant received the
same type of training as other Assistants received. S2 stated that it
was true that complainant was hired because the Minister Counselor of
Consular Affairs recommended her for the position. S2 maintained that
S never expressed he had a preference for having a male in complainant's
position, although he once indicated that he wanted an employee from the
Visa Section to have the position before complainant was hired. S2 stated
that S seemed to be "completely blindsided" by complainant's allegations
and never demonstrated any hostility toward complainant in his presence.
S2 maintained that although every employee that has worked for S has
complained that S is overbearing, no other employee before complainant
had ever expressed a concern he had any sex-based bias.
The Consul General stated that during a May 2004 meeting, complainant
expressed her dissatisfaction with S, but did not mention that the
concerns were related to EEO matters. The Consul stated that complainant
told him that since she was hired because she is the spouse of a current
employee, she felt the agency saw her as merely a temporary employee
and assigned her more routine work than local permanent employees.
Consul stated that since S was Mexican and complainant was the wife
of a senior officer, he feared there was a possibility of a "conflict"
in treating her as a "Mexican subordinate." Consul further maintained
that no other employee had previously complained about S to him but
transferring complainant to an American supervisor was warranted because
S2 reported that S was sometimes a "heavy-handed" supervisor.
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 pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to sex-based harassment as alleged.
Neither party submitted a statement on appeal.
STANDARD OF REVIEW
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 EEOC Management
Directive 110, 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").
ANALYSIS AND FINDINGS
Harassment of an employee that would not have occurred but for the
employee's race, color, sex, national origin, age, disability or religion
is unlawful if it is sufficiently patterned or pervasive. Garretson
v. Dep't of Veterans Affairs, EEOC Appeal No. 01945351 (April 4,
1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The
Commission's Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999) identifies two types of such harassment: (1) harassment that
results in a tangible employment action; and (2) harassment that creates
a hostile work environment. Based on the facts of this case, we will
analyze complainant's claims as an allegation that alleged harassed
created a hostile work environment.2
Additionally, we note that an employer may be subject to vicarious
liability for harassment when it is "created by a supervisor with
immediate (or successively higher) authority over the employee."
See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); see also
Vicarious Liability Guidance, at 4. When harassment does not result
in a tangible employment action being taken against the employee, the
agency may raise an affirmative defense to avoid liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or to avoid harm
otherwise. See Vicarious Liability Guidance, at 12.
In this case, complainant contends that for several months after she
began working with the agency, her supervisor failed to provide her with
an adequate amount of work assignments. However, S, co-workers and
management maintained that S made arrangements to provide complainant
with assignments during his absence and asked co-workers to assist
complainant during her first months of employment with the agency.
S acknowledged that there may have been times when complainant may not
have had much work to do, but co-workers attested that this was normal for
new employees. Regarding complainant's claim that she was denied adequate
training, agency officials and co-workers stated that new employees did
not receive formal training, and complainant received the same type of
hands-on training that all other Assistants received as new employees.
Complainant acknowledges that she received training on the Mexican legal
system, vehicle recovery, death cases, detainee lists, calling jails,
and database entry.
With respect to complainant's claim that S made comments that revealed
his displeasure that her position had been filled by a female, S responded
that although he previously recommended another employee who happened to
be male to have complainant's position, this preference was not related
to sex. S vehemently denied ever stating that he was displeased that
a female had been placed in complainant's position. Co-workers and
management maintained that they never witnessed S express any sentiment
that he was displeased that complainant had been hired for the Assistant
position. In response to complainant's claim that S avoided interacting
with her and intimidated her, co-workers and management again maintained
that they never saw S treat complainant any differently than other
employees or witnessed the harassing conduct claimed by complainant.
After carefully reviewing these investigative statements, we determine
that the preponderance of evidence does not support complainant's version
of the facts and claim that she was subjected to harassment. Instead,
the affidavit testimony of complainant's female co-workers and agency
management uniformly indicates that complainant was not treated less
favorably or harassed because of her sex. There is simply insufficient
evidence to support complainant's assertions that S harbored any
sex-based animus towards complainant.3 We also find that the agency
provided legitimate, non-discriminatory reasons for its actions, as
detailed above, that were not persuasively rebutted by complainant as
pretext for discriminatory motive. Therefore, we conclude that the
agency properly found that complainant failed to demonstrate that she
was subjected to sex-based harassment. See Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000); Applewhite v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01994939 (April 6,
2000). Accordingly, the Commission AFFIRMS the agency's final decision.
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
_ September 26, 2006____________
Date
1 The record reveals that complainant began work at the U.S. Consulate
in Tijuana on December 29, 2003.
2 We note that although complainant presented her resignation to
a management official, it was not accepted nor effectuated in this
case. Therefore, there was no tangible employment action.
3 We note that there is some indication that S was disappointed that a
particular employee he recommended for complainant's position did not
receive the position, but the evidence does not support the conclusion
that this disappointment was sex-based.
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01A53391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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