0120181567
08-21-2018
Jessenia S.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jessenia S.,1
Complainant,
v.
Michael R. Pompeo,
Secretary,
Department of State,
Agency.
Appeal No. 0120181567
Agency No. DOS-0132-17
DECISION
On April 10, 2018, 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 March 23, 2018, 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 worked as an Immigration and Customs Enforcement Assistant Attach� employed by the Department of Homeland Security and stationed at the at the Agency's U.S. Embassy facility in Madrid, Spain.
Complainant indicated that she lived in Spain with her husband2 and two children. She and her husband were having marital problems and they attended counseling sessions. They reached a "therapeutic impasse" when Complainant indicated that her oldest son was slapped by her husband in the presence of her youngest son and mother-in-law. She stated that her living conditions had become intolerable and asked to return to the United States. The Agency returned Complainant to the United States on November 17, 2017, via a "Medevac" authorization.3
Complainant believed that the Agency was giving her husband (white male) more favorable treatment because it sent her back to the United States on a Medevac authorization rather than a "curtailment" of her assignment in Spain. Due to the Medevac authorization, Complainant asserted that her husband was allowed to stay in Spain and was able to file a "Hague Convention" case in December 2016, accusing Complainant of kidnapping her children. Complainant argued that had her assignment been curtailed, her family including her husband would have returned to the United States. As such, he would not have been able to file his claim of kidnapping. Complainant contacted the Agency's "legal department" who informed her that they did not get involved in "civil matters." Complainant also asserted that she had a difficult time in getting her personal items out of her Embassy-provided housing, including her car. During this time, she asserted that she also tried to get her mother-in-law removed from the list of designated household members. However, she claims that her request was denied. Following her contact with the Agency's legal department regarding obtaining assistance, Complainant believed that the Agency was favoring her husband due to his sex and race.
Therefore, on February 17, 2017, Complainant contacted the EEO Counselor alleging discrimination. The matter was not resolved informally. On May 30, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic),4 sex (female), marital status, and reprisal for prior protected EEO activity when she believed that management did not follow proper policies and procedures during and following her removal from her post in November 2016.
The Agency dismissed Complainant's claim of discrimination based on marital status pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim within the EEOC's jurisdiction. In addition, Complainant asserted that the Agency's EEO Office failed to properly process her complaint. The Agency dismissed that claim as a spin-off complaint pursuant to 29 C.F.R. � 1614.107(a)(8).
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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency's final decision first dismissed the entire matter pursuant to 29 C.F.R. � 1614.107(a)(2), finding that Complainant failed to raise her complaint in a timely manner with the EEO Counselor. However, since the matter had already been investigated, the Agency also determined Complainant's claims of discrimination on the merits. The Agency noted that Complainant's alleged prior EEO activity involved her intent to file an EEO complaint. The Agency held that Complainant failed to establish a prima facie case of discrimination based on her sex, reprisal, and/or national origin. In addition, the Agency found that it provided legitimate, nondiscriminatory reasons for its action which Complainant failed to show were pretext for discrimination based on her national origin, sex, and/or her prior protected activity.
Complainant appealed. Complainant asserted that she did not suspect discrimination until she contacted the legal department in February 2017. Therefore, she argued that her contact with the EEO Counselor was timely made. She received an email responding to her Statement of Interest in which the Agency attorney stated that they did not get involved in "civil matters." She argued that she spoke to the Agency attorney in January 17, 2017, and threated to file an EEO complaint. She had sought help in getting the "Hague Convention case" dismissed but the Agency refused to assist her. She also claimed that she was dutiful in reporting the issues to the Family Advocacy Group. However, she believed over time that the Agency favored her husband, who was not connected to the Agency. In addition, her estranged husband filed a complaint with the Department of Homeland Security's Office of Professional Responsibility which resulted in an internal investigation. As such, she asked that the Commission find in her favor.
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").
The Agency initially dismissed Complainant's basis of marital status. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a) The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Regarding marital status as a basis of discrimination, the Commission has no jurisdiction over claims of marital status discrimination. The Commission only has authority over federal sector complaints of discrimination on the bases of race, color, religion, sex, national origin, age, disability or reprisal. 29 C.F.R. �� 1614.103, 1614.106(a); Lee v. U.S. Postal Serv., EEOC Appeal No. 01965341 (Sept. 4, 1998). Therefore, we find the Agency's dismissal of this basis was appropriate.
The Agency also dismissed Complainant's claim alleging improper processing by the EEO Counselor. Upon our review of the record, we determine that this claim was properly dismissed pursuant to 29 C.F.R. � 1614.107 (a) (8), as it addresses the processing of the instant complaint, and not a previously filed EEO complaint. The Commission notes, however, that the Agency that this matter would be forwarded to the Agency's office responsible for the review of claims of improper complaint processing.
We note that the Agency also did dismissed the complaint as a whole on timeliness grounds. However, the Agency investigated the complaint and also addressed the merits of Complainant's claims of discrimination. Therefore, we need not address the Agency's decision to dismiss the matter and shall only address the Agency's finding that Complainant was not subjected to discrimination.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In claim (1), Complainant alleged that the Agency subjected her to discrimination on the bases of national origin and sex when she was sent back to the United States via a Medevac authorization instead of a curtailment. She also asserted that the Agency failed to follow policies and procedures following her removal from her post. Specifically, in claim (2), Complainant asked for the Agency to withdraw the "household member" application for her mother-in-law. However, Complainant's request was denied. Finally, in claims (3) and (4), Complainant alleged that the Agency failed to provide her with adequate support in transferring her household goods and car back to the United States or provided her with legal assistance in defending herself against her husband's "Hague Convention case."
In response to claims (1) and (3), responsible Agency officials confirmed that Complainant was medically evacuated from her post in November 2016. The Agency's Medical Officer had recommended that Complainant and her children be returned to the United States where additional resources would be available to them following Complainant's allegation of child abuse and marital discord. The medical evacuation was ordered by the Agency's Family Advocacy Committee and it was done after Complainant told the Agency that her son had been physically struck by her husband when he refused to attend a music lesson. The responsible Agency Official stated that the decision to return Complainant to the United States based on a Medevac authorization was based on decisions and information provided by Complainant and in connection with the Regional Psychologist and the Agency's Family Advocacy Committee so that Complainant could leave Spain with her children. He denied that she had requested a curtailment instead.
Complainant alleged that the Agency failed to properly assist her in transferring her household effects and car back to the United States claiming that the U.S. Embassy staff allowed her husband to remove items and her car. Complainant also informed the Agency Official that her husband had taken her purse, including the passport of one or both of her sons. The record shows that despite this, Complainant was able to return to the United States with her sons. Management witnesses indicated they tried to assist Complainant, but her husband initially refused to vacate the Embassy residence. However, after several weeks, he left the premises and Agency representatives were able to pack up Complainant's effects and ship them to Complainant. The Agency denied knowledge regarding the husband's taking of her car in Madrid, totaling the vehicle, and collecting insurance money behind Complainant's back. The Agency argued that they followed established procedures. However, it was the husband who created the delay in recovering Complainant's items.
In response to claim (2), Complainant then asserted that the Agency failed to withdraw her application to designate her mother-in-law as a household member in her house in Spain. Complainant believed that the Chief of Mission can revoke such designation at any time. However, Complainant provided no support for her belief that the Agency failure to comply with her request was in any way connected to her sex, national origin, and/or alleged protected activity.
Finally, as to claim (4), Complainant asserted that the Agency failed to support her in the legal action filed by her husband alleging kidnapping. She believed that because she was following Agency guidance with counseling and the Medevac authorization, the Agency should have provided her with legal support in the subsequent legal action filed by her estranged husband. The record included a letter from Complainant's attorney requesting the Agency's assistance. The letter provided a list of material facts regarding the events surrounding Complainant's return to the United States and an action filed by the husband which Complainant referred to as the Hague Convention case. We note that the letter is not clear or specific as to the role or assistance that was being requested. In response to the letter, the Agency stated that it would not provide views to the court. Again, we find that Complainant has not shown that the alleged actions were connected to her national origin, sex, and/or prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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 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. 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.
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
August 21, 2018
__________________
Date
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 There is no indication in the record of whether or not Complainant's husband was an employee of the Agency or employed by any Federal Agency stationed at the Embassy.
3 It appears from the record that a Medevac authorization was an approval by the Agency's Medical Director for Complainant to return to the United States due to medical reasons. The authorization approved, among other things, her travel expenses.
4 Although Complainant also alleged discrimination on the basis of race (Hispanic), the Commission notes that it considers the term "Hispanic" to be a national origin rather than a racial group.
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