[Redacted], Catheryn P., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Dec 15, 2022

Appeal No. 2021005132 (E.E.O.C. Dec. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Catheryn P.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021005132 Agency No. DOS-0071-21 DECISION On September 21, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 13, 2021, 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. During the relevant time, Complainant was a Contract Technical Writer with Cooper River Enterprise Services, LLC (Contactor) working at the Agency’s Bureau of European and International Affairs, Executive Office, Information Management in Washington, D.C. The record indicated that the Agency was Complainant’s joint employer for EEO regulatory purposes. Report of Investigation (ROI) at 47-8. Project Manager, another Contractor employee assigned to the Agency since June 2019, was Complainant’s first line supervisor. ROI at 336. Information Technology Manager (IT Manager) was an Agency employee and had no direct supervisory relationship with Complainant but was the contracting officer representative for the contract with Contractor and was in a position to opine as to her work. ROI at 308-09, 310-11. 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. 2021005132 2 On February 10, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), age (40), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On December 16, 2020, Complainant was removed from the contract with the Agency and Contractor; and 2. She was allegedly subjected to a hostile work environment characterized by, but not limited, to false accusations and omission.2 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 Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Standard of Review 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 Chap. 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”). Disparate Treatment-Claim 1 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The 2 Complainant alleged retaliation based upon her status as a “Cybersecurity Whistleblower” and that Contractor enforced a fraudulent judgment against her. ROI at 83, 85. However, we note that such allegations of fraud, waste, abuse, and whistleblower retaliation are beyond the scope of the Commission's jurisdiction and should be addressed with the Agency's Inspector General or the Office of Special Counsel, not EEOC. 2021005132 3 burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for their actions. Complainant was removed from the contract, and ultimately terminated, by Contractor, not by the Agency. ROI at 138, 311. Project Manager asserted that, as part of his 90-day review, he determined that Complainant was not a good fit for her role. ROI at 342. He specified that Complainant did not follow “simple and direct instructions” for consolidating program reports, she did not follow “clearly stated procedure change” for communicating daily activity report submission, and feedback provided to Complainant did not resolve the performance issues. ROI at 341. IT Manager also noted that the Deputy Director of the Agency, his supervisor, questioned the quality of Complainant’s work with regard to an Agency newsletter Complainant was tasked to draft. ROI at 311. IT Manager opined that “[t]he newsletter was poorly written, had grammatical errors, and was difficult to read. I informed the Project Manager that the newsletter submitted required a lot of changes.” Having found that the Agency has articulated a legitimate, nondiscriminatory reason for their actions, we now turn to Complainant to prove, by a preponderance of the evidence that the Agency’s articulated nondiscriminatory reason is merely a pretext for discrimination. We find that she has not done so. “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). When asked why she believed her removal was due to her race in her affidavit, she replied, “Because the entire department, is predominantly European.” ROI at 75. When asked why she believed it was due to her sex, her answer was, “Males controlled the hiring decision and the organizational chart.” ROI at 75. We find that the mere fact that people in positions of authority were outside Complainant’s race and sex does not, without more, provide evidence of pretext. The opinion of Complainant in this case is not sufficient, without more, to find that the Agency acted upon discriminatory animus in claim 1. In light of the above, we do not find that Complainant has provided sufficient evidence to prove the Agency discriminated against her. Harassment As to Complainant’s allegations that she was subjected to a hostile work environment as set forth in claim 1, the Commission finds that under the standards set forth in Harris v. Forklift Sys., Inc., 510 U.S. at 17 (1993), Complainant's claims must fail. See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is 2021005132 4 precluded based on our finding that she failed to establish that claim 1 was motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). As to the events outlined in claim 2, Complainant alleged she was subjected to a hostile work environment when her letter of termination stated that she did not complete 90 days. ROI at 129. She stated that this statement was inaccurate, as she was employed longer than 90 days. ROI at 129. Complainant also alleged in claim 2 that the Agency created a hostile work environment when they left her off of the Agency’s organizational chart. ROI at 129. Harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [a complainant's] employment and create a hostile or abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). An “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. While the scope of retaliation claims may be broader than claims of discrete acts of discrimination, the challenged activity must still rise to the level of materiality and be sufficiently serious that it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 68 (2006); see also Flagg v. Soc. Sec. Admin., EEOC Appeal No. 0120073631, (July 7, 2010). Materiality is key because “it is important to separate significant from trivial harms.” Burlington N., 548 U.S. at 68. We find that an alleged error on the termination notice and the omission of her name from the organizational chart, taken together, do not rise to such severity as to satisfy the requirements of harassment as to any protected class. Furthermore, we find that Complainant has produced no evidence, outside of her own inferences and assumptions, that these actions were due to discriminatory or retaliatory animus. Where Complainant has “adduced no evidence that [s]he was harassed because of [her] protected class characteristics,” Complainant’s claims of harassment must fail. Davis v. Dep’t of the Army, EEOC Appeal Nos. 01A22812, 01A24469, 01A30558 (Nov. 14, 2003). It is well-founded that EEOC regulations do not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.” See Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). Moreover, the Supreme Court has held that the legal standards for assessing discrimination claims must ensure that the EEO laws do not become a “‘general civility code’ [and must be sufficiently rigorous to] … filter out complaints attacking ‘the ordinary tribulations of the workplace.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Upon careful review of the Agency’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the Agency’s final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or subjected to harassment by the Agency as alleged. 2021005132 5 CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 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. 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. 2021005132 6 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. 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 December 15, 2022 Date