Maria E. Padilla, Complainant,v.Hillary Rodham Clinton, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionMay 15, 2009
0120071093 (E.E.O.C. May. 15, 2009)

0120071093

05-15-2009

Maria E. Padilla, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.


Maria E. Padilla,

Complainant,

v.

Hillary Rodham Clinton,

Secretary,

Department of State,

Agency.

Appeal No. 0120071093

Hearing No. 570-2006-00284X

Agency No. DOS-F-063-05

DECISION

On December 21, 2006, complainant filed an appeal from the agency's

November 20, 2006 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. For the following reasons, the Commission AFFIRMS the

agency's final order.

At the time of events giving rise to this complaint, complainant worked

as the Fraud Program Manager in the Fraud Protection Unit at the agency's

Consulate in Juarez, Mexico.

On July 22, 2005, complainant filed a formal EEO complaint wherein she

claimed that she was subjected to a hostile work environment on the bases

of her national origin (Hispanic) and reprisal for prior protected EEO

activity under Title VII when:

1. On December 9, 2004, complainant's Supervisor reprimanded her for

accepting a fraud referral.

2. On February 28, 2005, complainant's Supervisor reprimanded her in front

of her colleague for drafting a memorandum critical of the treatment of

Mexicans and the high refusal rate of nonimmigrant visas.

3. On March 14, 2005, complainant learned that the former Deputy NIV

Chief placed untrue and potentially career damaging entries about her

into the NIV (Non-Immigrant Visa) database and her subsequent request

to supplement the information in the database was denied.

4. Complainant was not included in the formulation of the agenda for a

Spring 2005 Consular Officer meeting.

5. Management forced the Fraud Prevention Unit out of Building D resulting

in complainant's inability to effectively perform her job.

During the course of the investigation, complainant raised the following

additional claim:

6. In a June 14, 2005 meeting with other Consular officials, the

Human Resources Officer made racist comments concerning Mexican Civil

Service employees and Mexican nationals. In reprisal for bringing those

allegations to the attention of the Deputy Consul General, the Human

Resources Officer subjected complainant to acts of intimidation and

threats.

At the conclusion of the investigation, complainant was provided a

copy of the investigative file and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing

finding no discrimination.

The AJ found that the agency proffered legitimate, nondiscriminatory

reasons for its alleged actions with regard to claims 1 - 5. The AJ

noted that the alleged reprimands were nothing more than verbal

counseling; the use of complainant's name in the NIV database was neither

career damaging, nor a deviation from standard practice; complainant

acknowledged that there were no written agendas and no formal process

involved in the formulation of agendas for the meetings in question;

and the temporary movement of Fraud Unit personnel from Building D did

not affect complainant any differently than similarly situated employees

and was done for the legitimate, nondiscriminatory reason of reducing

some of the conflict and interoffice tension that existed within the

operation. With regard to claim 6, the AJ noted that complainant's

allegations regarding comments made by the Human Resources Officer at

a meeting in June 2005, are not supported by any first-hand evidence

on her part, since she was not at the meeting, nor could she establish

through second-hand statements of those present that the Human Resources

Officer made any references to her during the meeting. The AJ found the

complainant's arguments failed to establish that she was subjected to a

sufficiently severe or pervasive hostile work environment as to qualify

her as a victim of discriminatory disparate treatment or that there was

any discriminatory animus in the agency's actions.

The agency's final action implemented the AJ's decision.

On appeal, complainant notes that the supervisory staff at the Consulate

in Juarez, Mexico is largely non-Hispanic except for herself and the

Immigrant Visa Chief. Complainant states that she was regarded as

Mexican and not American. Complainant notes that she was excluded from

management's discussions, not made part of daily meetings and office

visits held by non-Hispanic managers, and her ideas at the meetings were

rejected and her input undervalued. Complaining criticizes how two Foreign

Service Consular officials prided themselves on how they deprecated

Mexican visa applicants. Complainant maintains that the Deputy Consul

General condoned discriminatory behavior by anti-Hispanic officials.

According to complainant, the Foreign Service officials looked down upon

Civil Service workers, Hispanics and Foreign Service Nationals.

With respect to claim 1, complainant maintains that she was aggrieved

as the fraud referral resulted in a reprimand. Complainant claims that

agency officials were emboldened by the reprimand to make her work

life more difficult or job more difficult to perform. According to

complainant, she received a reprimand even though others who engage in

this common practice had never been reprimanded or disciplined in any

way. With regard to claim 2, complainant maintains that she was shut

off from access to management and the memorandum at issue constituted

her opposition to discrimination against Mexican-American workers,

Mexican workers, and Mexican immigrants. According to complainant, as

a result of her memorandum, she suffered a reprimand, and was forced to

apologize, further blunting her ability to manage her unit and affecting

her productivity. As for claim 3, complainant contends that the nature

of the entry made by an agency official was derogatory to her and that

it connected her to a questionable agency and individual involved in a

corruption scandal. Complainant states this entry is available worldwide

to those who use the NIV database and could easily have been corrected.

According to complainant, there are instances where corrective notes have

been made when there is information justifying the correction. Complainant

maintains that she was discredited in the eyes of her staff and the rest

of the Consulate.

With respect to claim 4, complainant argues that she was intimidated

at staff meetings about giving input or making suggestions as agency

officials would discount her ideas. Complainant states that the Deputy

Chief Counsel would visit non-Hispanic officers, but shunned her and

the other Hispanic officer. Complainant explains that the lack of

communication and lack of input hampered her ability to do her job,

to offer ideas, and to influence what was happening, even in terms of

rotations. With regard to claim 5, complainant states that the removal of

her unit from the NIV Building was undertaken without consulting her and

that this action has affected the function of her unit in terms of the

interruption of work relationships, work procedures, and the disruption

of the flow of information between the units. Complainant contends that

the rationale given for closing the office is untrue as the move was

based on the office space that NIV claimed it needed. This office space

had been used by the Fraud Prevention Unit for "e visas."

As for claim 6, complainant maintains that the Human Resources

Officer threatened her due to her EEO activity in opposition

to discrimination. Complainant argues that there was no need for

corroboration or any discussion of first or second-hand evidence given

that the Human Resources Officer made an admission relating to his

concerns and feelings about the EEO filing. Complainant's states that

the Human Resources Officer directly threatened to take action against

her and another Hispanic employee and hold her fully accountable for

disparaging his reputation by making false accusations and submitting

false EEO complaints. Complainant argues that this was a direct attempt

to quell EEO complaints and to do so by threats and intimidation.

In response, the agency asserts with regard to claim 1 that it is

undisputed that complainant accepted a referral from her husband

who worked in the NIV unit, without the approval of the NIV Chief or

Deputy. The agency notes the policy in effect at the time was that

a referral should not be made from the NIV unit to the Fraud unit

without the approval of an NIV Manager. The agency further notes that

complainant's Supervisor discussed the matter with complainant and did

not issue a written reprimand. The agency maintains the complainant

has not identified anyone outside her protected class who was treated

differently. With regard to claim 2, the agency notes that complainant's

Supervisor explained to complainant that it was not a good idea to

put such critical information in complainant's memorandum, because if

it went beyond the Consulate, it could be misinterpreted by the press

and public. Complainant's Supervisor also told complainant that it was

not appropriate to write memos complaining about a colleague and that

any complaint should be taken up in person with her and/or the other

colleague. The agency notes that complainant was not reprimanded, that

the communication was oral and there was no recording of the incident

in personnel evaluations or other written material. As for claim 3, the

agency states that there is nothing discriminatory or even inappropriate

about the fact that complainant's name was included in an NIV database

entry. The agency notes that whenever a visa applicant uses the name of

an employee, it is documented in the notes. According to the agency,

once an entry is made, there is no mechanism available for a consular

official to delete the entry from the NIV database. The agency maintains

the complainant did not suffer any adverse action and that there is no

basis for a claim that the information at issue is potentially career

damaging. With regard to claim 4, the agency asserts that there is

typically no written agenda for these staff meetings and that there

was no process involved normally with the formation of an agenda for

these meetings. The agency argues the complainant failed to provide

specific evidence that she was treated in a manner that was different

from other similarly situated people with regard to the formulation of

the meeting agenda.

As for claim 5, the agency states that the Fraud Prevention unit

activities are based in Building C and the NIV unit is based in Building

D. According to the agency, some Fraud Prevention unit personnel

made use of an office in Building D. The agency states that the Fraud

unit activities were temporarily moved out of the NIV building because

complainant and the NIV Chief and NIV Deputy were having significant

difficulties communicating in a professional and cordial manner, and

therefore it was best to suspend fraud activities until a personnel

change a few months later. The agency notes that complainant's unit

resumed use of the office in Building D after new personnel took

over the responsibilities of the NIV Chief and Deputy. The agency

maintains complainant was not subjected to a hostile work environment.

The agency asserts that the isolated incidents cited by complainant are

not sufficient to show harassment. The agency argues that even if the

actions at issue were so severe or pervasive as to constitute harassment,

complainant failed to provide evidence to support a finding that she was

harassed due to her national origin. The agency attributes the conflicts

complainant had with the NIV Chief and Deputy to a personality conflict

and existing tension between the operation of two distinct personnel

systems in the context of an agency culture in which the Foreign Service

is predominant.

With regard to claim 6, the agency notes that the Human Resources Officer

is alleged to have made comments equating Civil Service personnel with

Foreign Service Nationals employed by the agency. The agency states that

complainant was not present at the alleged meeting and therefore any

information she has concerning the meeting comes from second-hand sources.

Moreover, the agency asserts the complainant stated she is not aware of

any instance during this meeting in which the Human Resources Officer

referred to her by name or in any other fashion. The agency asserts that

the Human Resources Officer did not take any employment action against

complainant with regard to the concerns that complainant raised. Further,

the agency states that complainant and another employee raised these

concerns in their capacity as union stewards, thus, the evidence is not

sufficient to sustain a claim of reprisal.

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. � 1614.109(g). This regulation is patterned after the summary

judgment procedure set forth in Rule 56 of the Federal Rules of Civil

Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. 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.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

To establish a claim of harassment, complainant must show that: (1) she

is a member of the statutorily protected class; (2) she was subjected to

harassment in the form of unwelcome verbal or physical conduct involving

the protected class; (3) the harassment complained of was based on the

statutorily protected class; and (4) the harassment affected a term or

condition of employment and/or had the purpose or effect of unreasonably

interfering with the work environment and/or creating an intimidating,

hostile, or offensive work environment. Humphrey v. United States Postal

Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March

8, 1994). Further, the incidents must have been "sufficiently severe

and pervasive to alter the conditions of complainant's employment and

create an abusive working environment." Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,

Inc., 23 U.S. 75 (1998).

Upon review of the incidents set forth by complainant, we find that they

are not of sufficient severity or pervasiveness to constitute harassment.

It is evident that complainant had disagreements with a few non-Hispanic

agency officials. A couple of the officials cited by complainant are

referenced in the record as having certain less than favorable management

styles and personality attributes. However, these management styles and

personality attributes do not necessarily translate into animus against

complainant due to the alleged bases. Complainant did not show that the

incidents cited in claims 1 - 5 occurred due to animus on any protected

bases. The alleged actions in claims 1 - 2 were oral discussions between

complainant and her supervisor rather than written reprimands. Thus,

complainant was not aggrieved by any discrete incident in claims 1 or 2.

As for the alleged incidents of claims 3 - 5, complainant has not shown

how she suffered personal harm with respect to any of these actions.

Moreover, even if the incidents in claims 1 - 5 stated a hostile work

environment, we find that complainant has not established that the

agency's legitimate, nondiscriminatory reasons for these actions were

pretext intended to mask discriminatory intent.

With regard to claim 6, we find that the remarks by the Human Resources

Officer, even if made as alleged, were not reasonably likely to deter an

individual from utilizing the EEO process. Furthermore, complainant was

not at either of the meetings referenced in this claim and there is no

evidence of an actual chilling of complainant's EEO rights. Therefore,

we find that complainant has not established that she was harmed with

regard to a term, condition or privilege of her employment or that she

was discriminated against in this claim on the bases of either reprisal

or national origin.

The agency's final action finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

May 15, 2009

__________________

Date

9

0120071093

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013