[Redacted], Zenia M., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Feb 10, 2022

Appeal No. 2021000493 (E.E.O.C. Feb. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenia M.,1 Complainant, v. Samantha Power, Administrator, Agency for International Development, Agency. Appeal No. 2021000493 Hearing No. 570-2019-01618X Agency No. OCRD-013-19-F DECISION On October 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 21, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 worked as a Foreign Service Officer at the Agency’s USAID/Mozambique in Africa. On May 15, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African American), sex (female/pregnancy2), and in reprisal for prior protected EEO activity 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 record reflects that Complainant gave birth in February 2019. 2021000493 2 1. On April 1, 2019, Complainant’s position with USAID/Mozambique was curtailed; and 2. In May 2019, her detail request was denied. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On August 4, 2020. the AJ issued a Notice of Proposed Summary Judgment. Both parties responded to the Notice. The AJ subsequently issued a decision by summary judgment finding no discrimination was established. The Agency issued its final order adopting the AJ’s finding of no discrimination. 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. 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. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2021000493 3 The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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). 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, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Since 2000, Complainant was employed as a Foreign Service Officer (FSO). She served as the Supervisory Contracts Officer (SCO) at USAID Mission Mozambique from approximately July 2017 until April 2019. The record shows that Mozambique, USAID assignments are usually for four years and that Complainant had served for about two years at the time her position was curtailed. The Deputy Mission Director (Caucasian, female) (“S1”) was Complainant’s first line supervisor (“S1”) and the Mission Director (Caucasian, female) (“S2”) was Complainant’s second line supervisor. S2 said she counseled Complainant on multiple occasions concerning various performance concerns as the SCO at USAID/Mozambique. For example, in early 2018, Complainant led a procurement process for the largest contract at the Mission, and significant deficiencies in that process persisted even after she was notified of them by the Agency’s Contract Review Board. S2 stated that the final decision to curtail Complainant’s position at Mozambique Mission was due to the ongoing concerns about her job performance. The Deputy Director of the Office of Acquisitions and Assistance (Latino/Mexican, male) in Washington, D.C. and oversees USAID’s foreign operations, supporting contracting officers overseas. The Deputy Director stated that in August 2018, a USAID Contract Officer at USAID/Mozambique, who directly reported to Complainant, notified him that she was resigning due to the challenges working with Complainant. After consulting with S1 and S2, the Deputy Director traveled to USAID/Mozambique in the fall of 2018 to provide an objective opinion of how Complainant’s office was working. 2021000493 4 Based on the Deputy Director’s personal observations and the feedback which he received, he found that Complainant was in a Mission that was too large for her to manage at this point in her career. The Deputy Director found that as a warranted Contracting Officer, she was a risk to herself and to the Mission. He shared his conclusion in his report that this assignment was not in Complainant’s best interest with the Human Capital and Talent Management (“HCTM”) as that entity had the authority to make decisions regarding a Foreign Service Officer’s assignment. The Director of the Foreign Center and Acting Senior Deputy Assistant Administrator (Hispanic/white, male) (“Director”) stated that after a review of the Deputy Director and S2 notes, he concurred with their decision shortening Complainant’s tour and reassigning her to Washington D.C. “was in the best interest of the employee’s career development and US government’s ability to complete its work in Mozambique.” He clarified that a curtailment is not a disciplinary action, but rather an assignment action that involves the length of a Foreign Service tour. As a result of the curtailment, Complainant was reassigned to Office of Acquisitions and Assistance in Washington. Furthermore, the Director reported that there were multiple curtailments in Mission Mozambique in the year Complainant was curtailed. In May 2019, prior to the start of her new assignment in the Office of Acquisitions and Assistance, Complainant requested a detail to the Bureau for Policy, Planning and Learning. Her detail request was denied by the Director. Specifically, he stated his deputy felt that it was important for Complainant to remain in her current position to address the performance issues that led to the curtailment and address deficiencies in her skill set. The Director explained, “USAID invested tens of thousands, if not hundreds of thousands, of dollars in training [Complainant] to be a contracting officer,” and detailing her to a policy position would not enable her to address her deficiencies as a contracting officer. Here, the evidence of record fully supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the curtailment of her position and the denial of the detail were a pretext designed to mask a discriminatory or retaliatory motivation. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination. 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 2021000493 5 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). 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. 2021000493 6 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 February 10, 2022 Date