[Redacted], Rhea H., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2021000942 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rhea H.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2021000942 Agency No. 55-2020-00136 DECISION On November 23, 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 27, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Principal Commercial Officer, FS-03, with the Agency’s U.S. and Foreign Commercial Service, International Trade Administration and was assigned to the U.S. Consulate in Calgary, Canada. On March 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in retaliation for prior EEO activity2 under Title VII of the Civil Rights Act of 1964 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 Complainant “raised concerns” that she was allegedly subjected to harassment by the Consul General, a State Department employee. 2021000942 2 1. on November 27, 2019, Deputy Senior Commercial Officer issued her a Counseling Memorandum regarding her conflicts with the Consul General and Locally Employed staff, instructing her to engage both to seek resolution of the conflicts; and 2. on February 24, 2020, Deputy Senior Commercial Officer and Senior Commercial Officer removed her supervisory authority over all employees, reduced her portfolio to covering only two of six Canadian provinces, required her to telework four days per week, and barred her from attending weekly staff meetings, Housing Board meetings, and Emergency Action Committee meetings.3 The investigative record reflects the following pertinent matters relating to the subject claims. Though Complainant is based at the U.S. Consulate in Calgary, her work is supervised by Agency officers from the Foreign Commercial Services Office located in Ottawa, Canada. The Consul General in Calgary, employed by the State Department, is also over Complainant in the reporting structure. Report of Investigation (ROI) at 429. While the Consul General is not in Complainant’s direct reporting line at the Agency, she is head of the mission at Complainant’s post and has authority over all staff. ROI at 403. Overseeing both Complainant’s Agency supervisors and the Counsel General is the Acting Ambassador, located in Ottawa. ROI at 429. Complainant’s duties in Calgary include supervising Locally Engaged Staff (LES) members. Claim 1 - The Counseling Memorandum The Counseling Memorandum at issue documented “two escalating personnel conflicts” and identified two associated concerns. ROI at 53. The first was Complainant’s resistance to guidance regarding a subordinate employee (LES-1). Rather than resetting the relationship, as management had requested, Complainant focused on the removal of LES-1 from her supervision. Id. The second was Complainant’s refusal to engage with LES-1 and the Consul General, one of Complainant’s superiors, after Complainant’s claims of harassment against them were found to be unsubstantiated. Id. The memo also provided an overview of conflicts with LES-1, who had reported a toxic work environment on August 28, 2019, including “troubling exchanges” with Complainant. ROI at 53-54. 3 Complainant also filed a January 7, 2019 complaint, which included these same claims, against the Department of State, which was dismissed for failure to state a claim. Complainant appealed the dismissal to the Commission. See Complainant v. Dep’t of State, EEOC Appeal No. 2021000916 (Oct. 7, 2021). A request for reconsideration is currently pending, and has been assigned Request No. 2022000127. 2021000942 3 It noted that Complainant failed to draft an acceptable re-entry plan for LES-1, who would be returning to work after a leave of absence. Complainant had been tasked with creating a plan that would achieve a “positive tone of engagement”, “highlight modes of communication”, and detail how management could provide support. Instead Complainant’s submission focused on work plan requirements. Id. Further the memo referenced Complainant’s November 8, 2019 email, recounting a conversation with the Consul General where Complainant felt “boundaries were crossed.” In addressing Complainant’s problems with LES, the Consul General mentioned Complainant’s struggles with local staff at a prior post, as well as her own personal problems and experience with therapy. ROI at 54; 302-04; 388-89. Lastly, the memo outlined “Expectations for De-escalation of Conflict”, including: supervising and avoiding relitigating matters with LES-1, meeting one-on-one with the Consul General,4 developing a re-entry plan for LES-1, and the inclusion of management in Complainant’s staff meetings with LES-1. ROI at 54-55. According to Complainant, this Counseling Memorandum was the result of her complaining about the Consul General’s allegedly harassing behavior during their November 8, 2019 meeting. ROI at 121. Senior Commercial Officer (Senior Officer) attested that the Counseling Memorandum was a performance management tool and not a disciplinary memo. ROI at 403. He submitted that it was issued as part of a months long effort to de-escalate Complainant’s conflicts with both LES- 1 and the Consult General. Id. Deputy Senior Commercial Officer (Deputy Officer) affirmed that the memorandum was issued because Complainant was not responding to months of verbal counseling and guidance to move past the conflicts. ROI at 381-82. The Acting Operations Director likewise stated that the Counseling Memorandum was not about discipline or conduct issues, though he was not directly involved in its issuance. ROI at 412. Executive Director, Minister Counselor (Executive Director) attested that, based on his personal experience with Complainant in Washington, D.C., he believed assigning Complainant to the Calgary post was a “stretch assignment” and above her skill level. He did not think she had the interpersonal skills to perform the job duties. ROI at 417. In the summer of 2019, soon after her arrival in Calgary, Executive Director became aware of Complainant’s strained relationship with the staff and Consul General. See id. In a September 4, 2019 email to the Director, Office of Foreign Service Human Capital (Director OFHSC), Executive Director reported: “Encountering issues with our new officer in Calgary.” ROI at 407; see also 389 and 417. Executive Director opined that the personnel decisions had nothing to do with Complainant reporting the Consul General’s alleged harassment. ROI at 417-18. Rather, he believed the issues stemmed from Complainant being “in over her head”. ROI at 417. Executive Director denied that any actions were taken against Complainant at the request of the State Department. Id. 4 This requirement was removed in a second version of the Counseling Memorandum that is also dated November 27, 2019. ROI at 62-64. 2021000942 4 In rebuttal, Complainant asserted that her reports of non-compliance issues in administration, Information Technology (IT), and security were being interpreted as issues with her performance and conduct. ROI at 282. She further claimed her supervisors were retaliating against her for standing up for herself and possibly to cover up their own negligence as to IT issues. ROI at 286. Claim 2 Removal of Supervisory Authority and Reduced Portfolio Deputy Officer affirmed that steps had to be taken to de-escalate the conflict that erupted between mid-November 2019 and late January 2020. ROI at 383. As noted above, on November 27, 2019, Complainant was issued a Counseling Memorandum. Regarding the removal of Complainant’s supervisory authority, Senior Officer averred that, when deciding to remove LES-1 from Complainant’s supervision, they considered legal liability as well as the fact that LES-1 was twice out on stress leave. ROI at 404. The record suggests LES-1’s stress leave was, at least in part, related to the alleged hostile work environment created by Complainant. ROI at 383-84, 442-43. Deputy Officer noted that Complainant herself had suggested splitting up duties so that she did not have to supervise LES-1. ROI at 384; see also 44, 54, 62. As for reducing Complainant’s portfolio, Senior Officer explained that they removed the provinces that were under the Consul General’s oversight, thus avoiding the burden of requiring the presence of a third party during meetings. ROI at 404. Moreover, as a result of the change, Complainant would no longer supervise any LES. Id. Senior Officer described these changes as temporary and subject to reconsideration after Complainant completed the prescribed training and applied its lessons to her work. ROI at 404- 05. Moreover, Senior Officer specifically denied that any action was taken in response to Complainant’s report of alleged harassment by the Consul General. ROI at 405. He dismissed the idea that the changes had anything to do with the Consul General or the State Department. Id. Director OFHSC, who was also involved in the decision to change Complainant’s duties, explained that she approved them based on reassurances that Complainant herself had requested the changes. ROI at 423. Similarly, Chief, Workforce Relations stated that, in December 2019, Complainant told her that she did not want to supervise LES-1. ROI at 426. In rebuttal, Complainant denied asking for her supervisory duties to be removed and her portfolio reduced. ROI at 287. 2021000942 5 Telework On February 24, 2020, Complainant was required to telework four days a week. ROI at 192-95, 224. Previously, she had not engaged in telework. ROI at 124. Deputy Officer and Senior Officer attested that telework was not mandatory but suggested as a method for addressing Complainant’s belief that the entire Consulate environment was toxic. ROI at 384, 405, 419. In rebuttal, Complainant stated she was told telework was non-negotiable. ROI at 287, 294. Barred From Various Meetings As for Complainant’s allegation that she was “barred” from attending weekly staff meetings, Housing Board meetings, and Emergency Action Committee meetings, Senior Officer stated that he did not believe “barred” was the right word. ROI at 405. Rather, he said, the Consul General did not believe Complainant’s presence was needed at these smaller meetings, but she could attend all-hands meetings. Id. Similarly, Deputy Officer attested the Agency was simply relaying information from Consulate Calgary. ROI at 385. Complainant was removed from email lists about the meetings by her leadership in Ottawa. ROI at 220-222. 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. Specifically, it found she did not establish a prima facie case of sex discrimination. Assuming Complainant proved a prima facie case of reprisal discrimination, the Agency determined that management officials provided legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Agency issued the counseling memo in response to Complainant’s performance and conduct issues, stemming back to August 2019. Regarding claim 2, the changes were made in an effort to de-escalate workplace tension and reduce the risk of litigation. The FAD concluded that Complainant had not met her burden of persuasion on pretext. The Agency also found the complained-of actions did not constitute harassment. Thus, the Agency concluded there was no violation of Title VII. CONTENTIONS ON APPEAL Complainant does not provide any new arguments on appeal and merely reiterates arguments contained in her affidavit. For example, she argues that the Counseling Memorandum is retaliation and harassment of the worst kind, as it came after she reported allegedly being harassed by Consul General. She also contends that the reduction of her supervisory duties and portfolio, the issue of telework, and her exclusion from meetings were due to her documenting and reporting problems with LES-1, IT equipment storage, and the Consul General. 2021000942 6 The Agency reiterates that Complainant failed to prove, by a preponderance of the evidence, that its legitimate, nondiscriminatory reasons for its personnel actions were pretext for sex discrimination or retaliation. Thus, contends the Agency, its decision finding no discrimination should be affirmed. 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”). ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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, n.13; 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. Tex. Dep’t of Cmty. 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether a complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 2021000942 7 We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, it issued the Counseling Memorandum, removed Complainant’s supervisory duties, reduced her portfolio, and recommended telework as a way to de-escalate office conflict and manage Complainant’s difficulties with colleagues, including LES-1 and the Consul General. As for being barred from meetings, with fewer provinces to manage, it was no longer necessary for Complainant to attend these meetings. Moreover, the Agency contended that some of these decisions came from the State Department. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant asserted that she was being retaliated against to cover up the negligence of her supervisors. She averred that she never asked for her supervisory duties to be stripped or her portfolio reduced. Furthermore, she was told telework was non-negotiable. Based on the record before us, we find that Complainant has not met her burden of showing that the Counseling Memorandum and the changes to her official duties were instituted because of her protected bases. Complainant is required to show, by a preponderance of the evidence, that the Agency’s proffered reasons were a pretext to mask discriminatory animus. She has not done so, but simply reiterates her unsubstantiated belief that she is being harassed and retaliated against for reporting problems with Consul General and security issues with the IT equipment. Complainant’s unsupported contentions fail to establish a nexus with her protected bases, let alone illustrate that the agency’s proffered reasons are pretextual. To the extent that Complainant believes these problems arose because she reported alleged harassment by the Consul General, the record reflects problems with Complainant’s performance pre-date the November 2019 meeting with Consul General. Moreover, an employer is entitled to make its own business judgments. The reasonableness of the employer’s decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). 2021000942 8 In the end, Complainant has not shown that the issuance of the Counseling Memorandum or the February 24, 2020 changes to her official duties were due to her protected classes rather than attributable to her performance and the business needs of the Agency. 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. 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). 2021000942 9 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. 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 March 7, 2022 Date