Alda F.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 14, 2016

0120152559 (E.E.O.C. Oct. 14, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alda F.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120152559
Agency No. DOS-0265-14

DECISION

The Commission accepts Complainant’s appeal from the July 17, 2015 final Agency decision
(FAD) 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 Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
Officer at the Agency’s Bureau of African Affairs in Washington, D.C. In June 2013,
Complainant assumed the collateral duty of EEO Counselor. On November 6, 2013,
Complainant was assigned her first case. Complainant held counseling sessions with various
management officials in connection with that case and completed an EEO Counselor Report.
An EEO Specialist (EEO-1) subsequently informed the Chief of the Office of Civil Rights’
Intake and Resolution Division (Chief) about some concerning statements in the report by one
of the management officials (M1). The Chief contacted M1 to confirm whether she made the
statements. M1 denied making the statements and reported comments Complainant had made.
M1 stated that Complainant commented that she had received a $250,000 award in her own
complaint against the Agency. The Chief investigated the matter by taking statements from
Complainant, M1, and another witness. Complainant admitted to referencing her own
settlement, but claimed that the amount was $100,000 and was against another agency. The

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.
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Chief concluded that Complainant had lost her neutrality as an EEO Counselor in violation of
the EEO Counselor Handbook. As a result, the Chief informed Complainant that he was
removing her from her EEO Counselor collateral duty.

On August 12, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity when, on June 24, 2014,
Complainant was issued correspondence from the Chief, Office of Civil Rights, Intake and
Resolution Division, removing Complainant from the EEO Counselor Program.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).2

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
reprisal and found that management articulated legitimate, non-retaliatory reasons for its
actions. Specifically, the Chief confirmed that he removed Complainant from the EEO
Counselor Program based on her performance as an EEO Counselor. The Agency noted that
Complainant admitted that she informed M1 of her prior EEO activity and her successful
litigation which resulted in $100,000 by her account and $250,000 by management’s account.
In addition, Complainant attributed statements to M1 which were untrue and appeared to
advocate a position on behalf of the filing individual. Finally, when management asked about
the substance of the complaint at issue, Complainant could not provide the requested
information and appeared to be advocating on behalf of the filing individual.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Chief terminated her as an EEO Counselor in
retaliation for her prior protected EEO activity. Complainant alleges that the Chief jumped to
the erroneous conclusion that she was not neutral because of her statement to a management

2 On appeal, Complainant claims that she did not timely receive the ROI because the Agency
mailed it to her former address. Other than providing a different address in her investigative
affidavit, there is no evidence that Complainant properly notified the Agency of her change of
address. The record reveals that the Agency informed Complainant in the Notice of
Acceptance of Formal Complaint that it was her responsibility to notify the Agency of any
change of address. Complainant acknowledges that she subsequently received the ROI, and the
Commission finds no basis to reverse the FAD.
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official that she had prevailed in a prior EEO case. Complainant argues that the Chief failed to
allow her to explain the context of her statement to M1 and that the reasons for terminating her
from the EEO Counselor Program were pretextual. Finally, Complainant contends that her
performance was adequate and neutral. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. A complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware
of the protected activity; (3) subsequently, she was subjected to adverse treatment by the
Agency; and (4) a nexus exists between the protected activity and the adverse treatment.
Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
reprisal, the Commission finds that Complainant failed to present evidence to rebut the
Agency’s legitimate, non-retaliatory reasons for its actions. In particular, the Chief affirmed
that he decided to remove Complainant from the EEO Counselor Program because he believed
she had lost her neutrality during the counseling process and was acting more as an advocate
than as a neutral. ROI, at 220. The Chief noted that M1 brought to his attention that
Complainant was basically attempting to coerce the responding management official to settle by
citing her own monetary award of $250,000 in her own complaint against the Agency. Id. In
addition, the Chief stated that Complainant’s first version of the Counselor’s Report for the
case at issue included false information and judging statements which were found to be a non-
neutral accounting of her interactions as a counselor. Id.

EEO-1 confirmed that she perceived Complainant’s position as a neutral had been
compromised based on the language in the EEO Counselor’s Report. ROI, at 233. The
Supervisory Administrative Specialist was present during Complainant’s counseling session
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with M1 and corroborated that Complainant advocated for settlement and failed to act as a
neutral counselor during the session. Id. at 238. Based on witness statements and
Complainant’s own admission that she made the statement about her own settlement, the Chief
decided to remove Complainant from her collateral duty as EEO Counselor based upon her
loss of neutrality and the appearance she had migrated into an advocate role. Id. at 220-21.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no evidence that Complainant's prior protected EEO activity was a factor in
any of the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to
carry this burden. As a result, the Commission finds that Complainant has not established that
she was subjected to reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.

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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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
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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

October 14, 2016
Date