Alline B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120172269 (E.E.O.C. Oct. 31, 2018)

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

Alline B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120172269

Agency No. DOS035816

DECISION

On June 19, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 25, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former Foreign Service
Officer, who had retired from the Agency effective July 31, 2013. In 2016, she sought
reappointment to a permanent position with the Foreign Service, which was denied on July 21,
2016.

On July 27, 2016, Complainant contacted an EEO Counselor. On September 28, 2016,
Complainant filed an EEO complaint alleging that, on July 21, 2016, the Agency denied her
request for reinstatement to the Foreign Service because of her sex (female), disability
(anxiety/stress) and/or reprisal for prior protected EEO oppositional activity under Title VII.2

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.

2 Both the EEO Counselor Report and the Notice of Right to File a Formal Complaint recognized
that Complainant also raised discrimination on the basis of age as a claim, although her formal
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Evidence developed during the investigation of her complaint revealed that Complainant was
initially hired as a Diplomatic Security Special Agent in 1985 and operated successfully in a
series of security assignments. In 1998, she achieved the rank of FS-02, which is the second-
highest rank for a Foreign Service Officer.

In October 2007, Complainant was diagnosed with a stress-related disability by her doctor, who
recommended limiting her work duties. Complainant sought a reasonable accommodation in the
form of changes to her work duties. The then-Director of Courier Service (male) initially denied
a request to modify her work schedule. In November 2007, she contacted Agency Human
Resources, as well as Medical Services, officials to challenge the Director’s refusal of her
accommodation request. As a result, reasonable accommodations were approved for
Complainant with which the Director agreed to comply. Complainant alleged that the Director
“continue[s] to exert back-channel pressure on decision makers” in retaliation for her challenge
to his denial of her accommodation requests.

The record further shows that in March 2009, while assigned to Frankfurt, Complainant reported
to her supervisor and another official several allegations of sexual harassment of multiple women
by the warehouse manager. During that same period, she made clear, in her role as a supervisor,
that she intended to abide by the EEO laws. She stated that she made it clear to her superiors
that, under her management, the EEO policies and practices would be applied equally to all staff
across the board with a zero-tolerance policy enforced against violations. She averred, “[t]his
attitude apparently ruffled some feathers above.”

Effective July 31, 2013, Complainant voluntarily retired from the Agency to care for her aging
parents.

After she retired, the then-Director of the Courier Services offered Complainant temporary
employment under a “WAE” contract, which was a centralized program for reemployed
annuitants. The contract was renewable for up to a total of five years. The Director General of
the Foreign Service and Director of Human Resources approved the renewal of Complainant’s
WAE contract for another year, ending January 10, 2016. Complainant was advised that after
that her WAE contract was not being renewed due to downsizing.3

On November 27, 2015, Complainant applied for reinstatement to the Foreign Service,
submitting laudatory references from former supervisors and colleagues attesting to her
suitability for reappointment.

complaint did not allege age discrimination and the Agency did not investigate the basis of age
discrimination.

3 The non-renewal of her WAE contract was not raised as an issue in her EEO complaint.
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The request was considered by a Reappointment Panel, which reviewed Complainant’s
application and accompanying documents, as well as her recent performance appraisals and the
results of a “360 degree” review involving information gathered from five former supervisors,
peers and/or subordinates.4 By letter dated March 9, 2016, the Panel denied her request for
reappointment. The denial letter explained:

The Panel was deeply concerned by your failure to follow supervisory guidance
on several occasions and at more than one post of assignment. The Panel also
noted a pattern of performance concerns in the area of managerial skills, raining
questions about your potential to assume broader responsibilities. These serious
concerns were not mitigated by letters of reference or laudatory comments from
supervisors with regard to your work performance.

Complainant sought reconsideration by the Director General (male) of the Foreign Service, and
provided additional material to rebut the concerns raised in the original denial, including
performance appraisals and awards and citations. By letter dated July 21, 2016, the Director
General denied her requested for reconsideration.

The Chief of Staff (female) for the Director General stated that, as part of her responsibilities,
she reviewed Complainant’s request for reconsideration of the denial of her reappointment,
including the accompanying documents, as well as staff recommendations. While the Chief of
Staff was aware of Complainant’s sex, she said she knew nothing about her medical condition or
prior EEO activity. The Chief of Staff stated that Human Resources recommended not
reappointing Complainant citing concerns with past performance.

A memorandum to the Director General, dated July 20, 2016, from the Human Resources Office
Director (male) indicated that he worked with the original Reappointment Panel and that the
recommendation not to reappoint Complainant was based on a review of her previous EERs, as
well as the 360 degree information collected from five former supervisors, peers and/or
subordinates of Complainant. He said that the Panel considered that all five previous EERs noted
“Managerial Skills” as the area for improvement; that for one entire tour she refused to gain
access to the classified system to address the classified portion of her portfolio despite having
been asked to do so by her supervisor; and that one supervisory response to the 360 indicated
that “she never once [in three years] answered her duty phone when there was a crisis that
needed attending to.” He said that the Panel concluded that Complainant demonstrated a lack of
leadership and management skills in certain areas, as well as a lack of interpersonal skills in the
areas of workplace perceptiveness and adaptability.

Complainant acknowledged that she did not know if the Director General was aware of her sex,
age, disability or her prior protected EEO activity.

4 Complainant specifically consented to the 360-degree review in her application for
reappointment.
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She added that she thought he “made his decision hastily, possibly in error, or perhaps for some
other inappropriate reason. Most likely, he did not have access to the complete record.”

The record provided by Complainant includes the statement of her former supervisor. He stated
that he served as either her Rating or Reviewing Officer on numerous occasions over the years
and “always found her performance to be of the highest quality.” He stated that all of the
positions were supervisory positions, allowed her to demonstrate exception managerial skills,
honed over the course of her outstanding career.” He strongly recommended that she be
permitted to return as a member of the Foreign Service, to allow the Diplomatic Courier Service
and the Department of State to benefit from her years of experience. He said that every
evaluation (either as Rating or Reviewing Officer) authored by him only spoke of her
performance in the highest regard. There is no evidence this former supervisor was a participant
in Complainant’s 360 review.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission 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 Agency Decision

The Agency found that Complainant did not prove that management’s explanation was a pretext
for discrimination based on her sex, claimed disability, or protected activity. The Agency
reasoned that the responsible management officials had engaged in a careful and thorough
review of the new material Complainant provided, all of her performance reviews, and all of the
comments that were received as part of the standard reappointments process. As a result, the
Agency stated that the Director General found no basis to change the decision of the Panel. The
Agency concluded that the record contained no evidence, other than Complainant’s bare
assertions, to prove discrimination.

The instant appeal from Complainant followed.

ANALYSIS AND FINDINGS

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

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Section 717(a) of Title VII and Section 633(a) of the ADEA requires federal agencies to make all
of their personnel actions free of race, sex and age discrimination. See 29 U.S.C. 633(a) (all
personnel actions in federal employment “shall be made free from any discrimination based on
age.” In addition, EEOC’s federal sector laws ban retaliation. The Commission has determined
that based on its plain meaning, “free from any” must be construed as being broader than the
“because of” language applicable in the private-sector. See Geraldine G. v. United States Postal
Service (Headquarters), EEOC Appeal 0720140039 (June 3, 2016) (citing Fuller v. Gates,
Secretary of Defense, 2010 WL 774965 (E.D. Texas. March 1, 2010) (distinguishing the private
sector “but-for” standard from the federal sector “make free” requirement). It is not necessary to
prove that age was the sole determining factor in a federal sector case.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail,
she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of
Community 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

In this case, we will assume for purposes of our analysis that Complainant is a qualified
individual with a disability. However, Complainant has failed to present evidence beyond her
bare assertions that any of the decision-makers, either in the original panel, or those involved in
her request for reconsideration, were aware of her medical condition or her prior protected
activity, including her 2007 challenge to a denial of reasonable accommodation or the 2009
support of staff members claiming sexual harassment. We note that this protected activity
occurred many years before the denial of her request for reappointment and the intervention of
other positive employment experiences, both before her retirement and as a reemployed
annuitant. There is simply no causal relationship established between her protected activity
and/or disability and the reappointment decision.

With regard to her sex and age claims, we note Complainant, in her EEO affidavit, identified a
comparator she alleged was treated more favorably – a younger former employee, who had
resigned in 2011, and was later accepted for reinstatement. However, this individual was also
female and the record contains no other evidence to establish an inference of sex discrimination
in the decision-making process at issue.

Complainant was 59 at the time her reappointment was denied, and the comparator she identifies
was much younger. Complainant argues that her approximate age was obvious from her resume,
based on her 28-year career and her graduation from college 32 years prior.
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Assuming Complainant established a prima facie case of age discrimination, the Agency
successfully rebutted that inference with its articulation of legitimate, non-discriminatory reasons
for the decision not to reappointment her. In sum, both the original panel, Human Resources
officials and those involved in Complainant’s request for reconsideration, stated that her 360
review revealed certain work performance weaknesses and deficiencies that did not support her
claim for reappointment, and that the favorable materials she produced did not adequately
mitigate the negatives.

The ultimate burden returns to Complainant to prove, by a preponderance of the evidence, that
the proffered reasons for the disputed decision were a pretext designed to mask the true role
discrimination played. After careful review of the evidence of record, we conclude Complainant
has failed to meet this burden of proof. There is no evidence that the younger comparator had
similar negative information provided during the review of her application for reappointment,
indicating she was treated more favorably. We recognize that Complainant asserted that
throughout her 28-year career as a Foreign Service, she had never received any counseling or
documentation of performance failures or a failure to follow supervisor guidance. However, the
performance appraisals (“EERs”) submitted by Complainant in support of her request each
indicated that Complainant’s “Area for Improvement” was in “Managerial Skills.” While the
Panel recognized that Complainant submitted material lauding her work performance and long
career in the Foreign Service, it decided that this did not outweigh the negative information also
provided. Whether or not the Panel correctly or even fairly weighed all the opposing information
is not the issue here. Rather, we must decide whether or not discrimination based on age, sex,
disability and/or retaliatory animus played a role in the decision making. The evidence of record
simply does not prove that was the case.

On appeal, Complainant has argued that the Agency’s investigation of her claims was
inadequate. However, Complainant did not choose to have a hearing where there would have
been further discovery, witnesses could have been deposed, and credibility findings made. As
such, we are limited by the record before us and do not have the benefit of an Administrative
Judge’s credibility determinations after a hearing.

Based on our analysis, we find that Complainant did not establish, by a preponderance of the
evidence, that she was the victim of unlawful discrimination and/or retaliation.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding for the reasons stated herein.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

October 31, 2018
Date