[Redacted], Tynisha H., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020004089 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tynisha H.,1 Complainant, v. Samantha Power, Administrator, Agency for International Development, Agency. Appeal No. 2020004089 Hearing No. 570-2019-00671X Agency No. OCRD-002-18-F DECISION On July 7, 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 May 14, 2020, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Development Program Specialist, Foreign Service National (FSN)-13, at the Agency’s Lebanon Office in Beirut, Lebanon.2 Complainant joined the Agency in 1993, as a local hire (i.e., hired in Lebanon). See Report of Investigation (ROI) at 000105. She held both U.S. and Lebanese citizenship. Id. Beginning in 2014, Complainant attained her position as an FSN-13, Development Program Specialist. Id. at 000103. 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 Lebanon Office maintained operations at the U.S. Embassy in Beirut, Lebanon. 2020004089 2 Complainant was directly supervised by a Supervisory Program Officer, who, in turn, reported to the Agency’s Mission Director. Id. at 000104-5. As a FSN, Complainant was considered by the Agency to be a contractor. See Agency’s Appellate Brief at 2. On October 2, 2016, the Agency’s Office of Inspector General (OIG) received a complaint alleging that Complainant had engaged in an improper hiring process to promote a fellow FSN to the position of Development Outreach and Communication Specialist. ROI at 000251. In response to the complaint, OIG initiated an investigation into Complainant’s conduct during the hiring process. OIG interviewed Complainant on November 9, 2016. Id. at 000262-63. During the interview, Complainant admitted that she made a mistake with regard to the examination used in the hiring process, which resulted in an unfair advantage to one applicant. Id. The following year, while the OIG investigation was ongoing, the Mission Director and Supervisory Program Officer met with Complainant on September 20, 2017, to inform her that she would need to relocate to a new office because the incoming Local Development Office Director (Office Director) needed office space where he could meet privately with his staff. ROI at 000245-47. Complainant objected to the move because her new office was smaller than her current office. She also objected to having an American hire receive a larger office than a local hire. Id. at 000009. Though the Mission Director explained to Complainant that the move was necessary due to lack of office space suitable for a GS-15 equivalent Office Director, Complainant felt that the reassignment devalued her worth and made her feel less than an “American-hired employee.” Id. at 000145 and 000245. Complainant emphasized that during the meeting, the Mission Director told her that she was being reassigned because her large office was worthy of an American officer, whereas Complainant was only a local hire. Id. at 000145. The Mission Director, however, vehemently disputed Complainant’s recollection. Id. OIG subsequently issued a report on September 25, 2017, finding that Complainant had engaged in prohibited personnel practices. ROI at 000252. Following the OIG report, the Supervisory Program Officer advised the Mission Director to remove Complainant. Id. at 000126-127. After consulting with numerous individuals in Human Resources and the Deputy Chief of Mission, the Mission Director made the decision to allow Complainant to resign so that Complainant would remain eligible for severance. Id. On October 12, 2017, Complainant met with the Supervisory Regional Executive Officer and several State Department officials to effectuate the Mission Director’s decision.3 ROI at 000161. During the meeting, the Supervisory Regional Executive Officer presented Complainant a letter informing her that the Agency intended to remove her for cause. Id. at 000154. The Supervisory Regional Executive Officer also offered Complainant the opportunity to resign in lieu of removal, so that Complainant could receive severance. Id. at 000157. 3 The Supervisory Regional Executive Officer administered Complainant’s contract with the Agency. ROI at 000156. 2020004089 3 Though Complainant felt that she had not been given adequate notice to resign and believed that the removal was unwarranted, she nevertheless submitted her resignation that same day, which the Supervisory Regional Executive Officer accepted. Id. at 000048. Notably, the Mission Director did not attend the meeting. Id. at 000129. On December 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Lebanese) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1) on October 12, 2017, the Agency allegedly coerced and forced her to resign from her position; and 2) she was reassigned to a smaller office. 4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On September 10, 2019, the AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing. In issuing the Notice of Proposed Summary Judgment, the AJ reframed the complaint to include both the removal issue that the Agency had previously accepted, as well as Complainant’s allegation that the Mission Director reassigned her to a smaller office. Having reviewed the record, the AJ tentatively determined that the probative evidence failed to show that the Agency’s articulated reasons for reassigning Complainant to a smaller office and seeking her resignation were pretext for discrimination. In accordance with Commission regulations, the AJ afforded the parties the opportunity to respond to the notice. Complainant timely responded to the AJ’s notice. See Complainant’s Response to Notice of Proposed Summary Judgment. Though Complainant objected to the AJ’s notice on the grounds that she had made an unintentional mistake and was never permitted an opportunity to defend herself against the accusation, the AJ ultimately issued a decision without a hearing in favor of the Agency on May 14, 2020. The Agency then issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 4 We note that the Agency’s Letter of Acceptance dated February 27, 2018, only addresses Complainant’s removal claim and makes no mention of her claim of harassment when she was reassigned to a smaller office. Report of Investigation (ROI) at 91. However, during the EEO investigation, the EEO Office noticed that the accepted claim did not include Complainant’s reassignment claim and consequently expanded the scope of the investigation to include that allegation. Id. at 3, fn. 1. 2020004089 4 CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of her appeal. The Agency opposes Complainant’s appeal and requests that the Commission affirm its final order. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2020004089 5 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. In reviewing the AJ’s decision to grant the Agency’s motion, we must draw all justifiable inferences in Complainant’s favor. As discussed below, we find that AJ correctly determined that there were no genuine issues of material fact or credibility to merit a hearing. Disparate Treatment For Complainant to prevail in a claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. 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). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Here, even if we draw all justifiable inferences in Complainant’s favor, we still conclude that the undisputed facts fully support the AJ’s determination that the responsible management officials had legitimate, nondiscriminatory reasons for their actions. With regard to claim 1, concerning Complainant’s forced resignation, the Mission Director maintained that she made the decision to remove Complainant after being advised to do so by the Supervisory Program Officer following the issuance of the adverse OIG report, which concluded that Complainant had engaged in prohibited personnel practices. ROI at 126-27. The Supervisory Regional Executive Officer acknowledged that she met with Complainant to seek Complainant’s resignation, as she was the Contracting Officer who oversaw Complainant’s contract. Id. at 154. The Supervisory Regional Executive Officer confirmed that the Mission Director was the individual who made the decision to remove Complainant. Id. For claim 2, concerning Complainant’s reassignment to a smaller office, the Mission Director maintained that she reassigned Complainant in order to accommodate the needs of the incoming Office Director who was more senior in grade than Complainant and had more supervisory responsibilities. ROI at 11. The Mission Director vehemently denied that Complainant’s status as a local hire had any role in the decision-making process. Id. 2020004089 6 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 for claim 1, Complainant asserted that she made an unintentional mistake and was not given a fair chance to defend herself. ROI at 000111. Complainant further maintained that the Agency should have, in accordance with Agency policy, provided her with four months of notice prior to forcing her resignation. Id. at 000113. In support of her claim of disparate treatment, Complainant asserted that the Agency treated two colleagues more favorably than her, as they were not questioned or penalized for unspecified mistakes that they made. Id. at 000113. With regard to claim 2, Complainant asserted that the Mission Director told her that she was being reassigned because she was lower graded than the incoming Office Director. ROI at 000114. Complainant viewed that comment to be disrespectful, as she felt that it characterized her as a “lower graded human being.” Id. Complainant also alleged that the Mission Director commented that her large office was worthy of an American officer. Id. at 000063. A male Lebanese staff member on Complainant’s team confirmed Complainant’s recollection and recalled that he overheard the Mission Director state that Complainant was being reassigned because “this office [was] worthy of an American officer.” Id. at 000208. He emphasized that “management made the Lebanese staff members feel like they were lower than the American non-local hire employees.” Id. at 000209. A female Lebanese staff member also added that she too believed that the Mission Director reassigned Complainant to make way for an American hire. Id. at 000229. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are simply unpersuaded by Complainant’s arguments of pretext. While we are mindful of Complainant’s contention that she was denied a fair opportunity to defend herself and to show that the mistake was unintentional, the fact remains that Complainant admitted that her actions benefitted a candidate for employment in violation of federal civil service regulations. 2020004089 7 We also acknowledge that Complainant presented two comparators who were allegedly treated more favorably than her in that they were not questioned or penalized for their hiring practices; however, we find that these individuals were not similarly situated to Complainant, as there is no evidence that they engaged in prohibited personnel practices like Complainant. To the extent that Complainant argued that the Agency failed to give her four months of notice prior to removing her, our review of the record fails to establish that the Agency was obliged to give her four months of notice. Given Complainant’s unequivocal admission that she made a mistake, we are disinclined to second guess the Agency’s decision to seek Complainant’s resignation in lieu of removal. As for Complainant’s reassignment to a smaller office, even if we assume arguendo that the Mission Director reassigned Complainant because she was lower graded that the incoming Office Director, we still find no evidence of discrimination. We are mindful that Complainant and her witnesses subjectively believe that the Mission Director reassigned Complainant because of her status as a local hire (i.e., based on her national origin); however, we find their subjective beliefs to be purely speculative and unsupported by the record. In so finding, we note that the Mission Director expressly denied saying that Complainant’s large office was worthy of an American officer. We also find no persuasive evidence that the Mission Director, in referring to Complainant’s lower grade level, intended to disparage Complainant’s national origin or status as a local hire. Based on the totality of the record, we find that Complainant cannot prevail on her complaint. 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 order. 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. 2020004089 8 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. 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. 2020004089 9 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 November 15, 2021 Date