Kristie O.,1 Complainant,v.Mark Green, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Nov 8, 2018

0120172360 (E.E.O.C. Nov. 8, 2018)

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

Kristie O.,1
Complainant,

v.

Mark Green,
Administrator,
Agency for International Development,
Agency.

Appeal No. 0120172360

Hearing No. 570-2015-00605X

Agency No. USA-OCRD-011-13-F

DECISION

On June 24, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s May 17, 2017 final order 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.

BACKGROUND

During the period at issue, Complainant worked as an International Trade Specialist at the
Agency’s Office of Microenterprise and Private Enterprise Promotion (MPEP), Bureau for
Economic Growth, Education and Environment in Washington, D.C.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 The record reflects that Complainant retired from Agency employment effective September 9,
2014.
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On September 5, 2013, Complainant filed a formal EEO complaint claiming she was subjected to
harassment/a hostile work environment based on sex (female), age (over 40), and in reprisal for
prior EEO activity when:

1. Beginning on February 18, 2013, her role and responsibilities were downgraded and
she was given no visibility. For example, she did not travel on temporary duty (TDY),
serve on conference panels or represent the office or USAID. Rather, Complainant was
asked to support others in the office and she was not sponsored for any health meetings
or conferences.

2. Beginning in February 2013, the Senior Advisor started bullying Complainant,
disagreed with everything she said; had her provide input last and then stated that there
was no time left.

3. From February 2013 through April 2013, the Office Director excluded Complainant
from staff meetings.

4. On March 29, 2013, she was questioned about her telework and accused of telework
abuse.

5. On May 9, 2013, she received a reprimand from the Senior Advisor for reading and
participating in the President’s Emergency Plan for AIDS Relief (PEPFAR) evaluation
meetings.

6. On May 22, 2013, she received an accusatory email from the Director, Bureau for
Economic Growth, Education and Environment, which contained allegations and
complaints from the Office Director and Senior Advisor.

7. She was instructed to use annual leave when she attended a World Annual Bank
Conference on Development Economics (ABCDE Poverty Reduction meeting) on June
3-4, 2013.

8. On June 9, 2013, she received a letter of reprimand from the Office of the General
Counsel dated May 11, 2013, for attending a TEDMED event on April 16-19, 2013.
Additionally, in March 2013, after notifying the Office Director and Senior Advisor of
an opportunity to attend the TEDMED event, both responded that the TEDMED event
is not related to her job.

9. On June 24-25, 2013, she was excluded from attending the discussion panel for the
annual corporate governance meeting in New York City.

10. On July 2, 2013, she received a message from the Senior Advisor accusing her of being
out of compliance with her 2013 work plan although he was no longer her supervisor.

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11. On July 8-12, 2013, she was excluded from speaking and developing a health panel on
behavioral health and economics during an agency conference.

After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing.3 On April 25, 2017, the AJ issued a decision by summary judgment
in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

During the relevant period, Complainant worked for the Agency as an International Trade
Specialist. On April 15, 2012, Complainant was transferred from the Economic Growth Office to
the Office of Microenterprise and Private Enterprise Promotion (MPEP). Complainant’s duties
consisted of designing and managing projects for private sector development. Complainant also
had responsibility for the health relationship with the Agency and the Bureau for Global Health.

Beginning in January 2013, Complainant’s first level supervisor was the Senior Advisor and her
second level supervisor was the Office Director, MPEP. In July 2013, the Office Director became
her first and second level supervisor.

Regarding allegation 1, Complainant asserted that beginning on February 18, 2013, her role and
responsibilities were downgraded and she was given no visibility. She stated she did not travel on
temporary duty (TDY), serve on conference panels or represent the office or USAID. Rather,
Complainant was asked to support others in the office and she was not sponsored for any health
meetings or conferences.

The Senior Advisor (male, year of birth 1950, no prior protected activity) stated that during the
relevant period, he was Complainant’s supervisor. The supervisor stated that he and other
management officials had several discussions with Complainant regarding the focus of a newly
formed Private Enterprise Division which was comprised of three areas identified as follows: i)
Access to Finance; ii) Small and Medium Enterprise Development; and iii) Private Sector
Engagements. The former supervisor stated that all staff members, including Complainant, were
asked “to direct their activities to those three core areas, with the understanding that these were
broad areas with tentacles which extended into many sectors and disciplines.”

3 During the initial conference, the AJ ruled that claims 1 – 11 were the only issues before her.
The AJ also ruled that Complainant’s allegation that on September 9, 2014, she was issued a
proposed removal, and that the Agency breached a settlement agreement were not included in the
instant case. The AJ also did not include an issue related to Complainant’s 2013 Annual
Evaluation.

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The supervisor noted that Complainant did not travel on TDY after February 18, 2013. The
supervisor stated that he was not aware of any requests made by missions or other Bureaus for
Complainant “to undertake TDY travel either prior to or following February 18, 2013.”
Furthermore, the supervisor stated that he was not aware of any requests for Complainant to
participate in panels or represent the Agency either prior to or following February 18, 2013.

Regarding allegation 2, Complainant alleged that beginning in February 2013, the supervisor
started bullying Complainant, disagreed with everything she said, had her provide input last and
then stated that there was no time left.

The supervisor denied bullying Complainant. The supervisor stated that he treated “all participants
in a respectful manner, while trying to keep the meetings light and encouraging humor. To the
best of my knowledge, there was no schedule for input, but rather participants spoke up when and
as they had something to contribute. Effort was made to keep meetings to one hour reserved as
there is always demand for conference rooms.”

Further, the supervisor stated that there was “no prescribed order at staff meetings, but generally
at the end of the staff meeting we would go around the room and have participants update on what
they are doing.”

Regarding allegation 3, Complainant alleged that from February 2013 through April 2013, the
Office Director excluded Complainant from staff meetings.

The Office Director (male, age not identified in record) stated that during the relevant period, he
was Complainant’s second level supervisor. The Office Director denied Complainant’s allegation
that she was excluded from staff meetings. The Office Director stated that Complainant asked “if
it was possible to call in and was told about office practice for those teleworking. The point was
also made that teleworking needed to be approved through a telework agreement and be consistent
with Agency guidance for teleworking.”

Regarding allegation 4, Complainant asserted that on March 29, 2013, she was questioned about
her telework and accused of telework abuse.

The supervisor denied accusing Complainant of telework abuse. Specifically, the supervisor
explained that Complainant did not have an active telework agreement “but rather had provided
an unsigned agreement dating from August 15, 2011 to May 23, 2012. On several occasions the
Complainant was requested to submit a current Telework Agreement.”

Further, the supervisor stated “as a matter of policy, the Bureau and the MPEP Office [were]
attempting to control Telework, and discussions [we] had with all MPEP Staff about telework. A
protocol was provided to MPEP staff about to telework…the Complainant was reminded as well
all MPEP staff of Telework requirements, and requested to provide summaries at the end of the
day of what was accomplished.
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At one point, I reminded the Complainant that I had not received summaries from her.” The former
supervisor stated that Complainant “disagreed that summaries of work performed during telework
had not been provided.”

Regarding allegation 5, Complainant claimed that on May 9, 2013, she received a reprimand from
the supervisor for reading and participating in the President’s Emergency Plan for AIDS Relief
(PEPFAR) evaluation meetings.

The supervisor explained that Complainant did not receive a reprimand for reading and
participating in the meeting “but rather a direction to cease review of the PEPFAR evaluation”
because he needed Complainant to focus on other MPEP priorities.

Regarding allegation 6, Complainant alleged that on May 22, 2013, she received an accusatory
email from the Director, Bureau for Economic Growth, Education and Environment, which
contained allegations and complaints from the Office Director and supervisor.

The supervisor stated that the Director sent an email to Complainant concerning her telework
agreement. The supervisor stated that he had an opportunity to review the Director’s email and “it
does not refer to any allegations for complaints from [Office Director], but rather noted a request
from [Office Director] that all MPEP staff members submit Telework Agreements.” Specifically,
the supervisor stated that he and the Office Director had discussed with the MPEP staff concerning
the requirement to submit Telework Agreements in line with direction from the E3 front office and
“discussions were subsequently held with the Complainant to remind her to submit her Telework
Agreement.”

Regarding allegation 7, Complainant alleged that she was instructed to use annual leave when she
attended a World Annual Bank Conference on Development Economics (ABCDE Poverty
Reduction meeting) on June 3-4, 2013.

The supervisor denied instructing Complainant to use annual leave during the relevant period.
Specifically, the supervisor stated when Complainant notified him of her intention to attend the
World Annual Bank Conference on Development Economics, he told her that he did not approve
her participation “as I did not understand how it related to the work of the Office. She responded
that in that event she would take annual leave and participate.”

Regarding allegation 8, Complainant asserted that on June 9, 2013, she received a letter of
reprimand from the Office of the General Counsel dated May 11, 2013, for attending a TEDMED
event on April 16-19, 2013. Additionally, in March 2013, after notifying the Office Director and
supervisor of an opportunity to attend the TEDMED event, both responded that the TEDMED
event is not related to her job.

The Assistant General Counsel, Ethics and Administration, also the Designated Agency Ethics
Official (male, age not identified in record) stated that during the relevant period, he did not know
Complainant or her supervisors.
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The Counsel stated that his only involvement regarding Complainant was in his capacity as the
Designated Agency Ethics Official. Specifically, the Counsel stated that he issued Complainant a
Letter of Caution dated May 20, 2013, for failure to adhere to the Standards of Conduct, not a letter
of reprimand.

In the May 20, 2013 Letter of Caution, the Counsel noted that from April 16, 2013 to April 19,
2013, Complainant attended the TEDMED conference on her own time after she was denied
permission to attend the conference in work status. The Counsel specifically noted that
Complainant attended the conference “in [her] personal capacity, not your professional capacity.”
However, he found that she received a scholarship from the conference to attend. He said that,
“The scholarship criteria identify professional merit as the first factor in determining whether an
applicant should receive a scholarship…you have had a professional affiliation with USAID for
34 years, and the scholarship announcement identified you as having an affiliation with USAID.
The FAQs for scholarships state that ‘Public employees are urged to check with their own agency
or department for guidelines.’”

The Counsel explained that the Standards of Conduct state that Executive Branch employees shall
not accept gifts given because of the employee’s official position…in light of the importance the
TEDMED admissions committee placed on professional merit, your 34-year professional
affiliation with USAID, and the reference to USAID in the conference material gives the
impression that you received the scholarship at least in part of your official position. While it is
possible for government employees to accept scholarships for training, the offeror of the
scholarship must be non-profit, and my office must clear the acceptance of the
scholarship...however, TEDMED is not a non-profit, and my office did not clear your acceptance
of the scholarship, nor were we asked.”

The Counsel determined that Complainant’s use of her government position to request a
scholarship to attend a conference and her failure to get approval for the scholarship violated the
Standards of Conduct. The Counsel placed Complainant on notice that the Letter of Caution would
not be placed in her official personnel folder.

The Office Director stated that during the relevant period, he was Complainant’s second level
supervisor. The Office Director stated that Complainant made both verbal and written requests to
attend the TEDMED event, which was a medical conference. The Office Director stated that
Complainant presented the case that it was a course requirement for a course she was taking with
USAID scholarship funds and “therefore was pertinent to work. We explained this was a
misunderstanding of the USAID scholarship fund, which was for staff to do personal development
outside of work hours.”

The Officer Director stated that he sent an email to Complainant “where I laid out the situation
regarding work priorities for the Office and the complaint, as well as work that was more of priority
for the complainant.” Furthermore, the Office Director stated that he was not aware of the Office
of General Counsel communicating with Complainant during the May/June time period regarding
her attendance at TEDMED event in April 2016.
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Regarding allegation 9, Complainant claimed that on June 24-25, 2013, she was excluded from
attending the discussion panel for the annual corporate governance meeting in New York City.

The supervisor stated at that time he was not aware of Complainant’s intended participation in a
discussion panel at the corporate governance event. The supervisor further stated “in consultation
with the Office Director, however, it was determined that ‘corporate governance’ did not align
with the activities of the MPEP Office and that therefore MPEP participation in such event was
unnecessary.” Moreover, the former supervisor stated that Complainant believed that “attendance
was part of her job.

Regarding allegation 10, Complainant asserted that on July 2, 2013, she received a message from
the supervisor accusing her of being out of compliance with her 2013 work plan although he was
no longer her supervisor.

The supervisor acknowledged that on or around July 2, 2013, he sent an email to Complainant
concerning her 2013 work plan. Specifically, the former supervisor stated that the Office Director
“had requested a written update on the status of [Complainant’s] Performance Plan. I wanted to
alert [Complainant] of the importance of providing the update to the Office Director.” The former
supervisor stated that Complainant responded to his email stating that he was no longer her
supervisor and that she was not out of compliance.

Regarding allegation 11, Complainant asserted that on July 8-12, 2013, she was excluded from
speaking and developing a health panel on behavioral health and economics during an agency
conference.

The former supervisor denied that Complainant was excluded from speaking and developing a
health panel on behavioral health and economics during the United States Agency for International
Development, Bureau for Economic Growth, Environment and Education, Office of
Microenterprise and Private Enterprise Promotion (USAID/E3/MPEP) conference.

Further, the supervisor stated that all MPEP staff members, including Complainant, were
encouraged “to develop ideas for presentations and panels. A number of ideas on panels and
presentations were proposed, from which some were chosen for the Training Event. I do not recall
that the [Complainant] fully developed a Health Panel proposal, but do recall noting that all panels
and presentations had to pertain in some manner to the intersection of Private Sector Engagement
and Economic Growth.”

Based on this evidence, the AJ concluded Complainant failed to prove her discrimination and/or
retaliation claims. The Agency subsequently issued its final order fully implementing the AJ’s
decision.

The instant appeal followed.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory or retaliatory animus. Here, however, Complainant failed to establish
such a dispute. Her statement on appeal does not identify, with any clarity, any errors made by the
AJ in ruling by summary judgment. Even construing any inferences raised by the undisputed facts
in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor.

To prove her harassment claim, Complainant must establish that she was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of a protected basis – in this case, sex, age and/or retaliatory animus. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, the AJ found that the evidence of record did not establish
that Complainant was subjected to harassment based on sex, age and prior protected activity. We
concur with the AJ’s analysis that Complainant failed to prove sex, age or retaliatory animus
played any role in the incidents she proffered in support of her ongoing harassment/hostile work
environment claim.

Finally, we note that on appeal, Complainant provides a series of alleged incidents of
discrimination which go beyond the February 2013 - July 2013 incidents identified above. For
example, Complainant asserts that due to a decision by a political appointee regarding performance
based termination, she was forced to retire from Agency employment. The Agency states this
constructive discharge claim was already raised in a negotiated grievance in June 2014. We
conclude, however, these matters were never raised during pre-complaint processing or in the
formal complaint and cannot be addressed here. To the extent Complainant wishes to pursue
further these matters, she is advised to contact an EEO Counselor thereon.
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We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment,
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.

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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

November 8, 2018
Date