[Redacted], Casandra N., 1 Complainant,v.Dev Jagadesan, Acting Chief Executive Officer, U.S. International Development Finance Corporation Agency.

Equal Employment Opportunity Commission

Oct 27, 2021

Appeal No. 2020003775 (E.E.O.C. Oct. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Casandra N.,1 Complainant, v. Dev Jagadesan, Acting Chief Executive Officer, U.S. International Development Finance Corporation Agency. Appeal No. 2020003775 Hearing No. 570-2018-00787X Agency No. 17-01-FM DECISION On an unspecified date, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 22, 2020 final action2 concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant was an Investment Officer Contractor with KAA Federal Solutions (KKA) at the Agency’s Development Partnerships Framework Division (DPFD), Overseas Private Investment Corporation (OPIC), in Washington D.C.3 On June 24, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her because of her race (Russian) and sex (female) when: 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 Agency’s final order is missing from the record. However, on appeal, the Agency’s brief indicates it fully adopted the decision of the EEOC Administrative Judge. 3 The Agency is now the “U.S. International Development Finance Corporation.” 2020003775 2 1. On multiple occasions, her supervisor (S1) discussed Complainant’s dual-income household and suggested that because she has a husband and she is female, she did not need OPIC employment; 2. S1 shared with Complainant his intention to pay a less qualified male candidate more than he would pay Complainant a female employee; 3. Complainant was provided less favorable terms and conditions of employment than male employees, such as alternate work schedules and telework agreements; 4. Complainant’s supervisors generally belittled her, put her down, underrated her work and underappreciated her work because she is female; and 5. On January 19, 2017, OPIC terminated Complainant from her position of Investment Officer. 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. Complainant responded to the Motion. On April 22, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. The Agency subsequently adopted the AJ’s decision. The instant appeal followed. 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. 2020003775 3 Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Discriminatory Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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, her race or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant began her employment with the Agency as an unpaid intern. Complainant later became a contractor employee in 2016 under the Agency’s contract with KAA. Agency employees were permitted to work remotely but it was undisputed that Complainant was not a federal employee and for that reason was not allowed to regularly telework. However, S1 permitted Complainant to periodically telework on a number of occasions based on special circumstances. In addition, the evidence does show that other contract employees were permitted to work remotely but it was undisputed that they did not hold the same position as Complainant and they performed different job responsibilities. As such, they were not similarly situated comparators to support Complainant’s allegations of disparate treatement. S1 (Venezuela, male) denied making comments about Complainant’s dual-income household and suggested that she has income regardless of her Agency employment. He also asserted that he did not negotiate Complainant’s compensation. The record shows that the Managing Principal for KAA negotiated Complainant’s salary. S1, a federal employee, was not involved in salary negotiations for KAA contract employees. Complainant asserted that she was generally belittled, put-down, and had her work underrated and underappreciated. 2020003775 4 S1 stated that to the contrary, he did not do so, and gave as an example an occasion when he asked Complainant and a junior member of the team in a meeting with Citibank. He wanted to give Complainant and the junior member exposure to the CEO and high-ranking members of Citibank. Following the meeting, S1 stated that Complainant informed him that she found the meeting fascinating. The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S1 was motivated by discriminatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Disparate Treatment On January 19, 2017, OPIC terminated Complainant from her position of Investment Officer. Such a claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the termination. S1 explained that Complainant was not performing well in her position. He had several meetings with Complainant in which he placed her on notice that she was not performing at the required level. S1 noted that Complainant made numerous mistakes on scorecards, was not prepared before meetings in which credit issues needed to be analyzed and did not follow up on tasks that were assigned to her to perform. Moreover, S1 stated that he and Complainant traveled to Ukraine for a site visit. 2020003775 5 He noted that Complainant “could not demonstrate to me at pre-trip meeting that she had a grasp of the specific credit issues, basis knowledge of the credits, the credit risks regarding projects and the credit management actions that needed to be taken with respect to projects.” S1 stated he had expected Complainant to summarize the credit issues that they had uncovered. However, she refused to speak and would not summarize the issues effectively. As a result, S1 stated that he determined that Complainant’s performance was not acceptable and informed the Deputy Vice President. Thereafter, the Deputy Vice President conveyed to KAA that the Agency did not have a need for Complainant’s services. The Managing Principal for Government Services, KKA, stated that the Agency notified him that Complainant was performing in a “less than satisfactory” manner. After many attempts to assist Complainant to improve her performance, with no success, the Agency asked that Complainant be removed from her contract position. In her decision, the AJ noted that S1 gave specific examples of Complainant’s poor performance that which led him to lose confidence in her abilities and to request her termination from the contract with the Agency. Complainant failed to prove, by a preponderance of the evidence, that this proffered reason for her termination was a pretext designed to mask discrimination. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her race or sex played any role whatsoever in these matters. CONCLUSION We AFFIRM the decision of the AJ by summary judgment, finding no discrimination was established. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2020003775 6 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003775 7 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 October 27, 2021 Date