Melba G.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0120140514 (E.E.O.C. Jun. 3, 2016)

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

Melba G.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120140514

Hearing No. 570-2011-00971X

Agency No. DOS-F-113-10

DECISION

On October 15, 2013, Complainant filed an appeal from the Agency’s final order concerning
her equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Assistant, GS-7, in the Bureau of Overseas Operations at the Agency’s work facility in
Arlington, Virginia.

Complainant filed an EEO complaint dated June 11, 2010, wherein she claimed that the
Agency discriminated against her on the bases of race (African-American) and reprisal when:

1. Complainant was denied the opportunity to earn overtime and compensatory time.

2. Complainant was continuously placed on leave restriction.

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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3. Management reduced Complainant’s duties and responsibilities and tasked her with
assignments outside of her area of expertise.

4. Complainant was suspended for one day on June 30, 2010.

5. The Agency created a hostile work environment characterized by aggressive and
intimidating behavior.

These claims were accepted for investigation. Additional claims that were not accepted for
investigation were that Complainant was denied union representation; Complainant received a
negative mid-year performance review; and Complainant was denied a QSI award nomination
on May 28, 2010. The Agency dismissed the claims concerning the denial of union
representation and the denial of a QSI award nomination pursuant to 29 C.F.R. §
1614.107(a)(4) on the grounds that Complainant raised these matters in a negotiated grievance
procedure that permits allegations of discrimination. The Agency dismissed the claim
concerning the negative mid-year performance review on the grounds that the mid-year
performance review did not constitute an adverse action since it was not placed in
Complainant’s official personnel folder.

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). Complainant timely requested a hearing.
When Complainant did not object, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on September 4, 2013.

With regard to the basis of reprisal, the AJ found as to all of the claims at issue that
Complainant failed to establish a prima facie case. The AJ noted that Complainant admitted
that she has not previously engaged in EEO activity, and that her reprisal claim in based on her
union activity. The AJ stated that union activity cannot form the basis of a reprisal claim
unless Complainant demonstrates that she asserted discrimination claims on behalf of herself or
others, which she did not.

With respect to claim (1), the AJ noted that Complainant claimed that her Supervisor and the
Chief denied her the opportunity to earn overtime and compensatory time. The AJ stated that
the Chief sent Complainant an e-mail dated May 13, 2010, warning her not to work overtime
and compensatory time during that period. Complainant asserted that her team lead assigned
her seven extensive projects but she was unable to work overtime and instead had to work
during her lunch hour.

The AJ observed that the Supervisor explained that he was aware of Complainant’s
assignments and that her workload did not require overtime hours. The AJ stated that the
Chief asserted she sent the relevant e-mail because Complainant violated overtime rules when
the overtime she claimed had not been authorized and approved in advance. In terms of the
suspension at issue in claim (4), the AJ observed that the Supervisor stated that he noticed

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Complainant worked after 7 p.m. after being warned not to work past her regular hours. The
Supervisor stated that he learned that Complainant received overtime pay for the time at issue.
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that Complainant proffered no evidence sufficient to create a genuine issue of
fact that the Agency’s reasons were untrue or that its actions were motivated by her race.

With respect to claim (2), the AJ stated that Complainant asserted that she had been unfairly
targeted for leave restriction beginning with a warning issued in December 2007. Complainant
claimed that her placement on leave restriction became effective January 6, 2009, and has
continued at least until the time of the complaint. The Supervisor asserted that Complainant
had been admonished about her pattern of reporting to work after core hours and her excessive
use of unscheduled leave. The AJ noted that the Supervisor stated that in May 2010, he
notified Complainant that although she had made some improvement, she continued to overuse
unscheduled leave and had been excessively tardy in the past year. The Supervisor informed
Complainant that her attendance has a negative impact on the office and other employees.
According to the Supervisor, Complainant’s attendance improved and he removed her from
leave restriction in January 2011. The AJ found that the Agency articulated legitimate,
nondiscriminatory reasons for Complainant’s placement on leave restriction. The AJ stated
that Complainant failed to produce evidence that the Agency’s explanation was not credible and
that her placement on leave restriction was based on her race.

As for claim (3), the AJ noted that Complainant claimed that her duties and responsibilities
were reduced and that she was assigned tasks not commensurate with her grade level.
Complainant contended that the Personal Services Contractors program had been her
responsibility but the program was assigned to contract employees in April 2009. The AJ
observed that the Supervisor asserted that the Human Resources Division Director decided to
effect an organizational change to the Personal Services Contractor program and assigned it to
the Special Projects Branch. The Supervisor maintained that he sought to prepare Complainant
for more advanced work by assigning her additional duties in the human resources area. The
Supervisor and the Chief asserted that all of Complainant’s duties were within the purview of
duties performed by a Human Resources Assistant. The AJ found that Complainant did not
establish that the Agency’s explanation was pretext. The AJ noted that when Complainant was
asked how her race was a factor, she responded that she was being set up for failure.

Further, the AJ found that Complainant was denied the opportunity to travel on recruitment
trips to universities and colleges to promote employment at the Agency because the Chief
stated that she decided that employees who had adverse warnings or notifications in their
personnel files would not be eligible for recruitment trips and career fairs. Complainant was
precluded from participating based on the warnings, notices of leave restrictions and
reprimands for poor attendance in her file. The AJ found that Complainant did not establish
that this explanation was not credible or that it was pretextual.

With regard to Complainant’s hostile work environment claim, the AJ rejected this claim
noting that Complainant did not respond to the EEO Investigator’s inquiry as to why she

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believed race was a factor in this allegation. The AJ pointed out that Complainant did not
specify particular incidents of harassment but instead asserted she is not comfortable reporting
to work due to the uncertainty of what she will confront each day and that she has been
blacklisted and labeled a troublemaker, and not treated fairly.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Thereafter, Complainant
filed the instant appeal.

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.

Disparate Treatment/Reprisal

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 he 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. 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).

Initially, we observe no indication that Complainant is contesting the Agency’s dismissal of
three claims from her complaint on procedural grounds. Therefore, we will not further
address these claims.

With regard to Complainant’s claim of reprisal, we observe that Complainant acknowledged
that she has not engaged in EEO activity prior to the instant complaint, and that her reprisal
claim is based on her union activity. The Commission has held that union activity does not
qualify as protected EEO activity where there is no evidence that the union activity involved an
EEO matter. See Complainant v. United States Postal Service, EEOC Appeal No. 01A33897
(January 7, 2005). Here, there is no indication that Complainant’s prior union activity

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involved an allegation of discrimination. Accordingly, we find that Complainant failed to
establish a prima facie case of reprisal with regard to each of the claims at issue.

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination
with regard to each claim. As for claim (1), the Agency explained that Complainant was
denied the opportunity to earn overtime and compensatory time based on the Supervisor’s
awareness of Complainant’s assignments and that her workload did not require overtime hours.
The Chief asserted that she sent an e-mail warning Complainant not to work overtime and
compensatory time during the relevant period because Complainant violated overtime rules
when the overtime she claimed had not been authorized and approved in advance. We find
that the Agency articulated legitimate, nondiscriminatory reasons for its action.

Complainant attempts to establish pretext by contending there were numerous dates when there
were opportunities to work overtime and compensatory time. Complainant states that during
the relevant period she was assigned seven extensive projects and she needed to work through
several lunch breaks. We observe that the Chief asserted that the Agency requires that
regularly scheduled overtime work must be approved in advance. The Chief maintained that
Complainant has been approved and compensated for overtime on several occasions.
According to the Supervisor, there have been no occasions when work was available for
Complainant to perform during overtime or to earn compensatory time, but she was denied the
opportunity. We find that Complainant has not established that the Agency’s explanation for
its actions was pretext intended to mask discriminatory motivation.

With respect to claim (2), the Chief stated that Complainant was issued a leave restriction on
December 12, 2007, due to excessive tardiness and constant use of unscheduled leave. On
January 6, 2009, the Supervisory Human Resources Specialist again placed Complainant on
leave restriction based on her excessive tardiness and consistent leave requests without
obtaining prior approval. According to the Supervisor, he extended the leave restriction on
May 14, 2010, for the same reasons. The Supervisor stated that Complainant’s attendance had
a negative impact on the office and other employees. We find that the Agency presented a
legitimate, nondiscriminatory explanation for Complainant’s placements on leave restriction.

Complainant has not refuted the Agency’s assertion about her excessive tardiness and leave
requests without obtaining prior approval. We find that Complainant has not established that
the Agency’s explanation for her placements on leave restriction was pretext intended to hide
discriminatory motivation.

As for claim (3), the Supervisor asserted that the Human Resources Division Director decided
to effect an organizational change to the Personal Services Contractor program and assigned it
to the Special Projects Branch. The Chief explained that the Personal Services Contractor
program was transferred from Complainant to third party contractors to allow Complainant to
concentrate on the duties of her position and to ensure that she performed the duties included
on her position description. The Supervisor asserted that Complainant was not issued any
assignments that are not included in her position description. With regard to Complainant

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being denied the opportunity to travel on college recruitment trips, the Chief stated that
employees who have adverse warnings or notifications in their personnel files are not eligible
for recruitment trips and career fairs. We find that the Agency articulated legitimate,
nondiscriminatory reasons for the actions at issue in claim (3).

Complainant seeks to establish pretext by pointing out that the Personal Services Contractor
program was the focus of her work and that she had no knowledge of functions outside the
program. Complainant maintains that she was being set up to fail and that she was being
tasked with assignments outside of her area of expertise. With regard to the recruitment trips,
Complainant contends that she was denied an opportunity to broaden her skills. It is clear that
Complainant believes she was rendered less productive by the transfer of the Personal Services
Contractor program. However, Complainant has not demonstrated that the transfer and
consequent change in duties were attributable to her race rather than the reasons articulated by
the Agency. We further find that Complainant has not refuted the Agency’s stated reasons for
not allowing her to participate on the college recruitment visits.

With respect to claim (4) concerning Complainant’s suspension on June 30, 2010, the
Supervisor asserted that Complainant had been issued a letter of reprimand on May 11, 2010,
for failure to follow instructions. The Supervisor noted that the letter of reprimand directed
Complainant not to work overtime without authorization from him, but she worked overtime
on May 12, 2010. Complainant challenges the suspension on her belief that it was harsh in
light of the pressure she was under to complete several projects with deadlines. We find that
given the warning Complainant had been given not to work overtime without authorization,
and her subsequent disregard for such warning, it is clear that Complainant has not established
that the imposition of the suspension was attributable to her race.

With regard to Complainant’s claim of harassment, we take note as the AJ did of the fact that
Complainant did not respond to the EEO Investigator when she was asked why she believed
her race was a factor in her claim of a hostile work environment. Complainant instead relied
upon her claim of reprisal for her union activity as the basis for the alleged harassment. As
previously stated, Complainant’s claim of reprisal based on her union activity is not viable.
Complainant has not presented evidence of race being a factor in the alleged harassment. We
find that Complainant was not subjected to a discriminatory hostile work environment.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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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.
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.

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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

June 3, 2016
Date