[Redacted], Liza B., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 7, 2021

Appeal No. 2021000916 (E.E.O.C. Oct. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liza B.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021000916 Agency No. DOS-0074-20 DECISION On November 19, 2020, 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 October 28, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency subjected Complainant to a hostile work environment based on sex (female and sexual orientation) or in reprisal for protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Principal Commercial Officer at the Agency’s U.S. Consulate in Calgary, Canada. Although her work is located at the U.S. Consulate General in Calgary, her work activities are supervised by Department of Commerce officers in the Foreign Commercial Services (FCS) Office in Ottawa. Complainant’s duties, among other things, require her to supervise Locally Engaged Staff (LES) members. 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. 2021000916 2 Complainant stated that the Consul General met with her on November 8, 2019, and during the conversation, the Consul General mentioned a specific LES member (L1). L1 had a history of conflicts with Complainant. Complainant stated that when she arrived at FCS Calgary in July 2019, she observed conduct and performance issues with L1, which Complainant documented and reported. Complainant asserted that L1 falsely accused Complainant of yelling at her and behaving aggressively. A conflict arose between Complainant and L1, which resulted in L1 taking leave for three months and filing a toxic work environment complaint against Complainant. Complainant stated that during the meeting with the Consul General, the Consul General shared details of her own struggles, including issues with her previous husband and the fact that her parents disowned her when she came out as gay. According to Complainant, the Consul General asked if Complainant was going through something similar. Complainant also reported that the Consul General explained that during her coming out process she had not been a good manager and had benefited from therapy. Complainant added that the Consul General referred to other issues Complainant had experienced with local staff at Complainant’s previous post in Taiwan. When Complainant asked about the source of her information, the Consul General responded that Complainant had a “corridor reputation.” Complainant interpreted this “corridor reputation” statement to mean workplace rumors and/or negative character reports about Complainant. Complainant stated that she was upset to learn that rumors had been circulated about her and started to cry. At that point, the Consul General suggested that Complainant consider therapy. Complainant stated that she felt that the Consul General crossed several professional boundaries and reported the meeting to her supervisors, Human Resources in Ottawa, the Agency’s EEO Office, the Office of Special Counsel, and the Inspector General’s Office. In response, a Human Resources Officer (HRO) met with Complainant about her allegations on November 21, 2019. Complainant testified that, according to HRO, the Consul General had been attempting to establish an open dialogue and mentor Complainant. Complainant insisted that the Consul General was threatening her position. During that conversation, Complainant also requested that she not meet with the Consul General alone. Complainant alleged additional incidents of harassment involving the Consul General after she raised her concerns about the November 8, 2019 meeting. Specifically, Complainant stated that, on January 30, 2020, the Consul General’s wife was present for a conference call. Complainant thought this was odd because the Consul General’s wife was not employed by the Consulate. Complainant’s affidavit also mentioned that the Consul General expressed frustration that a third party was needed to witness a meeting with Complainant. 2021000916 3 On January 8, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), sex (sexual orientation2), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. She received a counseling memorandum dated November 27, 2019; 2. She was subjected to a hostile work environment, characterized by, but not limited to, threats to her assignment to Calgary, questions about her “coming out” story, and discussions of rumors and her “corridor reputation” in the context of her prior EEO activity, as recently as November 8, 2019; and 3. On February 25, 2020, and subsequently, her official duties were changed to remove responsibility for staff supervision; to reduce her portfolio; to require telework four days per week; and to bar her from attending routine meetings, such as staff meetings, housing bard meetings, and Emergency Action Committee meetings. The Agency dismissed claims 1 and 3 for failure to state a claim because Complainant did not file her complaint with the agency that allegedly discriminated against her. Specifically, the investigation revealed that the decisions in claims 1 and 3 were made by Complainant’s first and second-level supervisors who were employees of the Department of Commerce. The Agency determined that since the claims did not involve Agency employees, Complainant raised her claims with the wrong entity, and the proper agency to respond to her claims was the Department of Commerce. 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. CONTENTIONS ON APPEAL On appeal, Complainant maintains that she was subjected to discriminatory and retaliatory harassment. Complainant reiterates her assertion that management officials failed to support her in the issues that she raised against L1. Complainant contends that the Agency continues to subject her to harassing conduct and provides a June 2020 evaluation in support. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021000916 4 The Agency requests that the Commission find that Complainant has not established that the Agency discriminated against her on the basis of sex, sexual orientation, and in reprisal for protected EEO activity, or subjected her to a hostile work environment. Specifically, the Agency argues that Complainant failed to establish a prima face case of a hostile work environment because Complainant cannot show a nexus between her alleged harassment and a protected basis. The Agency asserts that the Consul General denied asking Complainant about her personal life, sexual orientation, marital status, or counseling history. The Agency concludes that even taking Complainant’s description of the November 8, 2019, meeting as true, her testimony failed to demonstrate discriminatory animus between the statements or conduct. As for retaliatory animus, the Agency notes that Complainant relies on the Consul General’s mentioning of Complainant’s “corridor reputation” and that the comment was not sufficient to establish a connection to Complainant’s prior EEO activity. Complainant offered no evidence to dispute the Consul General’s statement that she did not know about Complainant’s prior EEO activity until Complainant raised it during the meeting, and that, even then, she had no knowledge of the specific claims or the nature of the EEO allegations at issue. The Agency maintains that the Consul General’s reference to Complainant’s reputation at the November 8th meeting was a reference to non-EEO related conflicts with coworkers at Complainant’s previous posting. The Agency further states that the alleged harassment was not sufficiently severe or pervasive to affect a term or condition of Complainant’s employment and did not subsequently disadvantage Complainant by an adverse employment action or adverse treatment. Finally, the Agency reiterates its position that Complainant failed to establish a basis for imputing liability to the Agency because as soon as Complainant reported allegations of discrimination and retaliation, the Agency took prompt action to investigate and address the situation. Finally, the Agency argues that Complainant’s statements on appeal related to the evaluation are untimely and do not warrant consideration. 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 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”). 2021000916 5 ANALYSIS AND FINDINGS Procedural Dismissals As an initial matter, Complainant does not contest the dismissal of claims 1 and 3. Therefore, this decision will not address those claims. Therefore, the only claim before the Commission is claim 2. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Here, Complainant alleged that the Consul General subjected her to harassment and management officials failed to act. We agree with the Agency that the incidents Complainant cites in support of her harassment claim, taken together, are not sufficiently severe or pervasive to be unlawful. The Commission has held that, in general, unless the conduct complained of is severe, a single incident will not be regarded as discriminatory treatment. Further, Complainant has not presented any evidence showing that the conduct was based on her protected classes. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at 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. Harris, 510 U.S. at 17, 23; Enforcement Guidance on Harris v. Forklift Systems, Inc. (Enforcement Guidance on Harris), EEOC Notice No. 915.002 (Mar. 8, 1994) at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Here the record establishes that the issues between Complainant and management officials related to Complainant’s supervision of L1. 2021000916 6 For example, regarding the alleged threat to her assignment in Calgary, Complainant reported that the Consul General “stated that she wanted me to be in Calgary, but if I could not move past the accusations [L1] made that she feared both [L1] and I would not be working here.” Moreover, the record shows that management officials attempted to engage with Complainant on multiple occasions to move forward with resolving conflict with L1. The record is devoid of evidence establishing that the alleged threat to Complainant’s assignment was based on sex, sexual orientation, or reprisal. Thus, Complainant's allegations, even if true, are insufficient to support a claim of discriminatory harassment. We further note that, except for the alleged discussion of Complainant’s “coming out” story, the actions neither involved nor were based on Complainant’s sex or sexual orientation. As for the Consul General’s discussion of rumors and Complainant’s “corridor reputation,” the record indicates that the concerns as expressed during the meeting reflected the Consul General’s observations, reports of multiple individuals that previously worked with Complainant, and the toxic work environment complaint against Complainant. Regarding Complainant's retaliation claim, we find the November 8, 2019 interaction, even if established as alleged, is not the type of action that could dissuade a reasonable employee from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). See also, EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016); Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). We recognize that some of the statements allegedly made by the Consul General were inappropriate or insensitive. However, even if these allegations were true, we find they are insufficiently severe or pervasive to have altered the conditions of Complainant's employment. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We conclude that the alleged events do not rise to the level of conduct that is sufficiently severe or pervasive to constitute an unlawful hostile work environment or otherwise is motivated by discriminatory or retaliatory animus. Accordingly, Complainant has failed to establish that she was subjected to a hostile work environment as alleged. CONCLUSION 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. 2021000916 7 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. 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). 2021000916 8 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 October 7, 2021 Date