Raylene S.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 22, 2016

0120140045 (E.E.O.C. Apr. 22, 2016)

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

Raylene S.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120140045

Agency No. DOSF05612

DECISION

On September 18, 2013, Complainant filed an appeal from the Agency’s August 19, 2013,
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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Language and
Culture Instructor (LCI), GG-11, School of Language Studies (SLS), Foreign Service Institute
(FSI), U.S. Department of State, located in Arlington, Virginia. On March 14, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Asian), national origin (Tajik), sex (female), color (Brown), and age (52) when:
(1) on October 25, 2011, she received a Letter of Termination, effective November 4, 2011,
that led to her constructive discharge from her position as a language instructor; and (2) during
her probationary year of employment she was subjected to a hostile work environment which
included rude comments and false allegations. The Agency dismissed an additional claim of
discrimination that on November 19, 2010, Complainant was denied the opportunity to
participate in the Human Languages Technology Showcase finding that Complainant did not
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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contact an EEO Counselor until November 25, 2011. We agree with the Agency’s dismissal
on the basis of untimely EEO contact. We note that Complainant did not contact an EEO
counselor until November 25, 2011, which is beyond the 45-day limitation period. See 29
C.F.R. § 1614.105(a)(l).

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.

FACTUAL BACKGROUND

Complainant started her position on November 8, 2010. Prior to assuming this position, she
had worked as an independent contractor for FSI for eight years beginning in 2003.
Complainant’s Letter of Termination (LOT) was formally issued by the FSI Office of Human
Resources (HR) and was signed by the HR Chief (HR) (Caucasian, female). In the LOT,
management claimed that Complainant failed to follow instructions, had acted in an
insubordinate manner at times, and that her conduct created an environment that was
detrimental to the Tajiki Section’s ability to function effectively and efficiently. The LOT also
stated Complainant had demonstrated resistance to her supervisor’s authority to assign work
and evaluate her performance as a LCI.

The FSI Supervisory Language Training Specialist, GG-13 (S1) (Caucasian, male, age 46) was
Complainant’s first-line supervisor. S1 explains that upon becoming a full-time direct-hire
employee, Complainant had been given a trial period of one year. According to S1, this trial
period was meant to fully assess Complainant’s ability to perform her duties in an appropriate
and effective manner. The Division Director, SSP, SLS, FSI, (S2) (Complainant’s second-line
supervisor) (Caucasian, female, age 59) and the Associate Dean for Instruction, SLS, FSI, (S3)
(Complainant’s third-line supervisor) (Caucasian, male, age 54) were also involved in the
decision to terminate Complainant.

S1 asserts that Complainant had been repeatedly resistant to demonstrating her ability to
organize and plan a lesson on Tajiki grammar. He also states that after he observed one of her
lessons focused on grammar, she was resistant to his feedback and constructive criticism. In
addition, S1 affirms that Complainant disagreed with his observations and advice and implied
that S1 did not understand how to teach. S1 also asserts that Complainant told him that she did
not intend to utilize any of his suggestions and that she was not comfortable with him
observing her teaching. S1 states that the reasons for the issuance of the letter of termination
to Complainant was her unacceptable conduct, insubordination, failure to follow instructions,
and resistance to his authority to assign work and evaluate her performance.

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S2 states that FSI proposed to terminate Complainant’s appointment as a result of her
unacceptable conduct during her probationary period. Specifically, S2 notes that Complainant
responded inappropriately to oral feedback given by S1 and refused an offer of written
feedback, stating that she did not intend to implement the suggested changes into her teaching.
S2 also notes that Complainant also expressed dissatisfaction with her supervisor’s observation
of her class and demonstrated resistance to her supervisor’s authority to assign work and
evaluate her performance. S2 affirms she concurred with the decision made by S1 and S3 and
claims it became apparent to her that Complainant could not or would not work productively in
the section or with her supervisor.

S3 affirms that he reviewed the documentation pertaining to Complainant’s conduct prior to
recommending termination. He declares that a consensus was reached among Tajiki-program
leadership and his office, and he made a recommendation to terminate Complainant’s
employment. The termination letter references performance and conduct during the trial
period, but especially pertaining to Complainant’s conduct after the start of the new teaching
year (September to November 2011). S3 attests that Complainant’s conduct during this time
suggested that she would not be able to work productively with her supervisor.

Regarding her harassment claim, Complainant asserts that: (1) her reputation was criticized
during a November 15, 2010, meeting with the Director, Curriculum & Staff Development,
GG-15 (DR) and S1; (2) she was not invited to celebrate Christmas with the Russian
department; (3) her class was only observed two times from November 8, 2010 through July
2011; (4) she was not advised of any concerns prior to her termination and had an excellent
mid-year review; (4) S1 never mentioned her nominations for the Cox award; (5) she was
denied training opportunities; (6) her classroom was the only one that had a broken Smart
Board; (7) S1 described her as a “problematic person” to her student; (8) during her first
feedback on September 16, 2011, S1 rudely accused her of being unable to teach grammar,
threatened her, and told her that he was sick of her and her “Tajiki language;” (9) on
September 29, 2011, S1 came in to observe Complainant’s class again, was hostile, and yelled
at her; (10) on October 1, 2011, S1 changed her schedule and threw a copy of a schedule in
her face; (11) she went to S3 and he told her, “You don’t belong to our school;” (12) S1
started keeping track of her tardiness in September, 2011; (13) S1 would not give her a new
classroom; (14) S3 never investigated this case and was not aware of the nature of the incident
that was manipulated by S1; (14) the behavioral issues were a fabrication and a hostile
campaign against her initiated by S1; and (15) when she spoke with the Language Training
Supervisor, GG-13 (GP), he promised he would handle things carefully, but instead he
reported what she said to S1 which resulted in S1 retaliating against her. Complainant alleged
that on September 20, 2011, she informed S2 that she was being subjected to a hostile work
environment.

S1 denies the allegations that he subjected Complainant to a hostile work environment, and
asserts that she had never reported such to him. Moreover, S1 denies making any derogatory
statements regarding any of the protected classifications alleged herein. During the meeting on
September 19, 2011, Complainant notes she had not been comfortable with him as her

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supervisor and, when he asked her what he might do differently to make her more
comfortable, she did not give him any specific information. S1 explains that he cautioned
Complainant on at least one prior instance regarding a potential conduct issue when she came
to work late on September 8, 2011, and did not notify him. Regarding the meeting on
November 15, 2010, S1 attests that DR and he did nothing to degrade Complainant. S1
explains that DR expressed his concern that Complainant had developed a reputation for
focusing less attention on teaching than on other activities. He wanted to emphasize that the
primary duty of a Language and Culture Instructor was to be in the classroom teaching. He
told Complainant that becoming a direct hire was an opportunity to show her commitment to
teaching.

In regards to Complainant’s mid-year report, S1 notes that while the report was not directly
critical of her performance it does not mention her interpersonal skills and even alludes to
difficulties the Complainant had in accommodating changes in the section's staff, which
involved the Complainant’s ability to work with two new instructors.

S1 testifies that Complainant was aware of the internal policies of the Institute, and that this
knowledge only underscored the gravity of her insubordination. He claims she knew that it
was his responsibility to observe her teaching and to give her feedback that would help her
improve her performance. It was also her responsibility to take his suggestions into
consideration. He asserts that during their meeting on September 19, 2011, she refused to
consider his feedback, rejected its validity, and states that she did not want him to observe her
classes again. S1 also states that during his conversation with Complainant prior to her signing
her mid-year review, details of these difficulties were expanded upon verbally. S1 further
states that Complainant and he discussed that she had not performed as well as possible in
working together with other teachers, although she had previously been advised that this was a
requirement of the position. He also specifically requested that Complainant allow him to
observe a class where she taught a specific grammar topic, something that Complainant had
avoided to that date. S1 also met with Complainant individually on June 8, 2011, to discuss
specific projects during the summer when there were to be no students. In addition, he met
with Complainant on other occasions to check on how she was progressing with her work,
namely on November 18, 2010 (group meeting for Tajiki instructors), on March 14, 2011
(individual meeting with the Complainant), on July 15, 2011 (group meeting with the Tajiki
instructors), and on September 9, 2011 (individual meeting with the Complainant). S1
observed Complainant’s classes on January 28, 2011 and on April 26, 2011, and after each of
these instances, he met with the Complainant to discuss her teaching and gave her feedback on
her performance.

Regarding training, S1 agrees that some of Complainant’s requests for specific training
seminars were denied, but noted she was allowed to pursue any training opportunities that were
on designated Staff Development Days (every other Wednesday). In addition, Complainant
was allowed to continue pursuing her certification as a Learning Consultant. This training was
allowed even when it conflicted with the work demands of FSI as a whole.

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Regarding the problem with Complainant’s Smart Board, S1 attests that the Smart Boards in
the classrooms frequently broke down. The Instructional Technology specialists had to wait
for a particular part to be received before Complainant’s Smart Board could be repaired.
Complainant was without a Smart Board for approximately two weeks, and during these
weeks, either S1 or the program coordinator (HB) called regularly to check on the status of
repair.

S1 also affirms that he informed Complainant of the possibility of a schedule change in a
meeting with her on September 9, 2011. He explains the need to change the schedule was
caused primarily by the fact that there was an over-enrollment in the Russian section, and the
room Complainant was using had to be split between two shifts of classes. S1 contends that
during the meeting that occurred on or about October 1, 2011, he entered the classroom to
speak to Complainant and her student, NB, and that no part of the conversation occurred in
public. S1 states that he did not raise his voice or throw any papers.

S2 asserts that Complainant reported to her on September 20, 2011, that she was having
difficulties with her supervisor. S2 testifies she advised Complainant to try to build a working
relationship with her supervisor, and she communicated the seriousness of any consequences
by saying that if Complainant persisted (in arguing with her supervisor) she did not see things
turning out in Complainant’s favor. S2 maintains she followed up with S1 and apprised him of
her meeting with Complainant. She claims she did not specifically ask S1 whether he yelled at
Complainant. S2 asserts that S1 was a very soft spoken man, and it seemed out of character
for him to raise his voice. S2 also advised S1 that NB found his classroom appearances
disruptive. S2 further reports that she conducted a mid-year performance review with S1 on
November 9, 2011, and, in her oral and written feedback to him, she counseled him to build
stronger working relationships with the teachers that he supervised and also with each of the
students whose language training he supervised. She notes in his written feedback that S1 had
enrolled in training on Managing Conflict Productively and Employee Relations Seminar. S2
further asserts that she had no reason to believe that Complainant was subjected to a hostile
work environment.

GP also affirms that he spoke with NB and S1 on October 1, 2011, regarding a schedule
change. However, while Complainant was also invited by S1 to attend the meeting, she
excused herself within the first couple of minutes and did not stay for the meeting. GP did not
recall any discussion about papers being thrown in Complainant’s face. He promised NB to
see what he could to do to find an available classroom where they could meet regularly, and by
the next day he was able to allocate a classroom in the Russian section to accommodate NB’s
request. He declared that after this classroom situation was resolved, NB thanked him for his
help after which they had no further complaints.

GP further states that Complainant came to speak to him on one occasion to advise him that
she was having difficulty with S1 because he was asking her to teach a certain way and she
believed his requested approach was not the right way to teach her own language.
Complainant stated that S1 was dismissive and did not want to hear her suggestions. GP

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asserts that he advised her to find a way to work with him. GP also asserts that, at no time
during that conversation or any other time, did Complainant state that she was experiencing
some type of hostile work environment. Moreover, GP affirmed that he had never witnessed
or heard of S1 being discriminatory, unprofessional, disrespectful, rude, or hostile to anyone.

The record also shows that NB affirms that S1 and Complainant had an antagonistic
relationship. NB explains that on one occasion in October 2011, S1 was adamant on imposing
an inconvenient and nonsensical class schedule on her and that when Complainant refused to
comply with his orders, their conversation became heated. NB further explains that at one
point, S1 threw the proposed schedules onto the table. However, contrary to Complainant’s
testimony, NB does not recall the paper being thrown in Complainant’s face. NB further
declares that, from the beginning of her language studies, S1 indicated to her that there were
problems with Complainant. He informed her that if she had any issues with Complainant, she
should immediately talk to him. NB also states that S1 would often show up prior to class and
ask her about Complainant’s punctuality and attendance.

ANALYSIS AND FINDINGS

First, we find that the Agency properly dismissed the claim regarding the November 19, 2010
denial of Complainant’s request to participate in the Human Languages Technology Showcase.
Complainant did not contact an EEO counselor until November 25, 2011, which is beyond the
45-day limitation period. See 29 C.F.R. § 1614.105(a)(l).

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”).

Upon review of the complaint file, we find sufficient documentary and testimonial evidence2 to
support the Agency’s legitimate, non-discriminatory explanation for its decision to terminate
Complainant’s employment. In addition, we note that S1 denies engaging in any conduct that
can in any way be considered harassing and the record is devoid of evidence to corroborate
Complainant’s allegations of demeaning statements or conduct on the part of S1. In addition,
S1 provides legitimate, non-discriminatory explanations for the issues pertaining to the
classroom schedule, Smart Board malfunction, and lack of training. We note that while NB’s
2 The record contains numerous pages of contemporaneous notes and memoranda provided by
S1 which documents his review of Complainant’s work. In addition, there are numerous
management officials who corroborate S1’s testimony.

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testimony corroborates the fact that Complainant and S1 had a contentious relationship, such
testimony actually supports the Agency’s position that S1 was having legitimate issues with
Complainant. We further note that Complainant has made seemingly contradictory statements
at times. For example, at one point she states that the LOT was a complete surprise to her and
that she never received any negative feedback from S1. While at other times she complains
about how difficult and contentious their relationship had been. Further, Complainant failed to
present sufficient evidence to contradict management’s testimony or documentary evidence.

While the record supports the finding that the relationship between S1 and Complainant was
somewhat contentious, the record is devoid of evidence that such contention was caused by any
discriminatory animus on the part of any management official as opposed to an honest
disagreement in teaching philosophy and personalities. In addition, while Complainant’s act of
insubordination does not appear egregious, it is reasonable to conclude that management
officials were not willing to risk the possibility of future conflicts by keeping her employed
beyond her probationary period.

After review of the record as a whole, we agree with the conclusion that a preponderance of
the record does not support a finding that the alleged harassment was sufficiently severe or
pervasive to affect a term or condition of employment or that management’s conduct was
motivated by discriminatory animus.

CONCLUSION

Accordingly, 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
which finds that Complainant failed to establish discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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

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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 (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

April 22, 2016
Date