Renee P.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jul 26, 2016

0120143182 (E.E.O.C. Jul. 26, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Renee P.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120143182

Agency No. DOS-F-102-13

DECISION

Complainant filed an appeal from the Agency’s August 20, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Our review is de novo. 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 Voucher
Examiner, Level 7, in the Management section of the Financial Management Center (FMC) at
the Agency’s Embassy in Tokyo.

On May 24, 2013, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the basis of her national origin (American citizen/locally
employed staff permanent resident of Japan) when:

1. Complainant was required to complete assignments and tasks outside the scope of
her position description.

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.
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2. Complainant was subjected to a hostile work environment characterized by, but not
limited to, threatening and inappropriate comments.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant claimed that the management official who
discriminated against her was her third-line Supervisor, the Financial Management Officer
(FMO). The Agency stated that Complainant is an American citizen who is a permanent
resident of Japan with a husband of Japanese nationality. Complainant considered herself
associated with the ethnic Japanese LES/FSN (Locally Employed Staff/Foreign Service
National) employees working at the embassy.

With respect to claim (1), Complainant claimed that the FMO repeatedly assigned her duties
outside of her position description. According to Complainant, some of these tasks were
secretarial duties which she performed because there was no secretarial or administrative
support position in the FMC. Complainant stated that she also was assigned duties that were
often of a personal nature for the FMO’s benefit. For example, on one occasion, she took the
FMO’s urine sample to the Tokyo Medical Center. Complainant stated that the FMO wanted
her or the second-line Supervisor to do this for him. Complainant asserted that she offered to
perform the task since it would have been insulting to the second-line Supervisor.
Nevertheless, Complainant stated that it was shocking and humiliating.

In another situation, Complainant claimed that the FMO instructed her to make a veterinarian
appointment for his dog and obtain the information and paperwork necessary for his dog to
return to the United States. According to Complainant, she protested the assignment due to its
personal nature, but the FMO told her to do it anyway. Complainant stated that she complied
with the instructions and she noted that the relevant veterinary office had English-speaking
veterinarians, an English-speaking staff and English information on its webpage. Additional
tasks that Complainant considered objectionable included being requested to make dental
appointments, bring food from the cafeteria, get the trash emptied from the FMO’s office and
arrange for renewal of personal insurance on the FMO’s vehicle.

The Agency noted that Complainant stated that the FMO treated others in the unit similarly.
Complainant asserted that the FMO required many of the LES/FSNs to perform tasks, often of
a personal nature, outside of their position description. Complainant maintained that she did
not observe the FMO treat direct-hire American employees in the same manner. According to
Complainant, the FMO regarded the LES/FSN staff as servants who were there to serve him.
Complainant claimed that she informed the Human Resources Officer of the situation but was
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told that the FMO had the power to get rid of her job position. Complainant stated that she
was advised to “suck it up” and “ride it out” for the duration of the FMO’s term in Tokyo.

The Agency stated that the FMO asserted that although his predecessor had decided to rotate
Complainant into a full-time voucher examiner position, he decided not to proceed with this
plan because: (1) the office workload did not justify the change; (2) any excess voucher
workload could be cheaply sent to a Global Post Support Unit in Bangkok; (3) he wanted to set
an example by maintaining a lean staff; and (4) Complainant had been very critical of the
Supervisory Voucher Examiner, so he was concerned about how well she would work in his
section. According to the FMO, he received no training in Japanese before arriving in Tokyo,
and therefore he needed Japanese staff at the embassy to call for appointments. The FMO
claimed that even when English-speaking lines were available, it was difficult to communicate
with non-native speakers over the telephone. The FMO maintained that translation was one of
the duties of LES employees who spoke Japanese. Further, the FMO asserted that duties of a
personal nature are frequently performed at an embassy by LES employees in the Management
Section. The FMO maintained that he observed LES employees translating for American staff
during his time at eight embassies. The FMO noted that all of the other LES employees in the
office were Japanese.

The FMO acknowledged that Complainant delivered his urine specimen to the medical clinic.
According to the FMO, he had a disabling urinary tract infection which prevented him from
personally making the delivery. As to the veterinarian appointment, the FMO asserted that he
needed the appointment to secure papers for his dog because he received transfer orders to the
United States. Other than the urine specimen incident, the FMO stated that the only other
times he asked Complainant to leave the embassy compound to perform a task for him were
two occasions where she accompanied him to the bank.

The other tasks that the FMO acknowledged Complainant performed for him included making
medical and dental appointments for him and his wife, bringing him meals and snacks from the
cafeteria when his sprained ankles prevented him from doing it himself, calling the non-
English speaking janitorial staff to pick up the trash in his office, calling the testing center for
his son’s college test preparation classes, completing reimbursement forms for his son’s school
expenses, arranging for insurance and maintenance of his car, assisting with the organization
and submission of his medical receipts which were in Japanese and making arrangements for
the return of his lost government-issued cell phone from a police station. Additionally, the
FMO stated that he instructed Complainant to complete leave slips for him and perform other
secretarial duties. The FMO asserted that these assignments were part of her official duties as
her job description included office management and secretarial duties.

The Agency noted that Complainant’s first-line Supervisor stated that the FMO, like other
officers at the embassy, asked for assistance on errands and favors primarily due to the
language barrier. The Supervisor stated that Complainant is the only American in the unit as
the majority of the staff is Japanese. According to the Supervisor, Complainant had a unique
role in the Management Section since she performed both voucher processing and secretarial
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duties. A Financial Management Analyst (LES) explained that the FMO assigned Complainant
secretarial work because there was no longer a secretary to the FMO; her work station was
located outside the FMO’s office; Complainant is a friendly person who reaches out to assist
people; Complainant is the only female English native speaker in the FMC; and the FMO is a
very high maintenance individual. According to the Financial Management Analyst, he has
been asked by the FMO to perform work outside of his normal duties. An American Financial
Analyst (LES) stated that he has been asked by the FMO to purchase food and beverages, and
retrieve and deliver personal items.

The Agency noted that Complainant’s position description dated June 17, 2010, stated that she
reported directly to the Supervisory Voucher Examiner and she performed duties in accordance
with specific instructions from the supervisor, Financial Specialist, or FMO. The Agency
stated that the position description indicates that ninety percent of her job involved voucher-
related duties and ten percent of her job involved serving as a back-up cashier.

With respect to claim (2), Complainant claimed that the FMO subjected her to a hostile work
environment. Specifically, Complainant asserted that her job security was threatened when the
FMO stated there are too many Voucher Examiners; that a Voucher Examiner in Japan is
much more costly than a Voucher Examiner in Bangkok; and that the voucher work could
easily be shifted to Bangkok. Complainant stated that the FMO also remarked that the job
grade/classification for the vouchers should be lower. Complainant further noted that when
additional work was assigned to the voucher section, the FMO would tell them to donate their
time because he would not pay for overtime.

The FMO denied telling Voucher Examiners that their grade level was too high or that they
should donate their time and not claim overtime. The FMO acknowledged stating that some of
the voucher workload could be shifted to post support units such as the one in Bangkok.
According to the FMO, the embassy’s budget was slowly shrinking and therefore moving
vouchering offshore would save money. The FMO stated that an employee’s refusal to
perform personal tasks is not grounds for discharge. The FMO further stated when
instructions are not followed, if the tasks at issue were not covered by the position description,
he would work with Human Resources to change the description rather than initiate
disciplinary action. Several Voucher Examiners stated that they were never asked by the FMO
to donate time.

The Agency determined as to claim (1) that Complainant failed to establish a prima facie case
of national origin discrimination. The Agency asserted that none of the individual instructions
at issue were adverse employment actions. The Agency maintained that Complainant did not
establish that she suffered harm or loss with respect to a term, condition, or privilege of her
employment. The Agency further determined that Complainant did not identify any similarly
situated employees who were treated more favorably than her. The Agency stated that there
were no similarly situated employees since Complainant had a unique hybrid position in the
office as a Voucher Examiner/Secretary/Office Manager. The Agency pointed out that
employees of different national origins filled in for Complainant during her extended leave and
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were asked to perform similar duties of a secretarial and/or personal nature. The Agency
further stated that various other employees of different national origins who held other LES
positions were asked by the FMO to perform tasks of a personal nature.

Assuming arguendo that Complainant had set forth a prima facie case of national origin
discrimination, the Agency determined that it articulated legitimate, nondiscriminatory reasons
for the actions at issue. The Agency explained that the FMO required Complainant to continue
performing the receptionist/office manager function because the workload did not justify the
change and Complainant did not work well with the Supervisory Voucher Examiner. The
Agency noted that the FMO asked Complainant to perform tasks of a more personal nature
because she spoke Japanese in contrast to both himself and his wife. The FMO asserted that
translation of Japanese was part of the duties of LES employees who spoke Japanese. The
FMO further stated that he requested Complainant to perform certain tasks of a personal nature
when he was ill or injured and also because he was clumsy with machines.

The Agency noted that Complainant argued that the FMO treated LES/FSN employees as
though they were his servants. However, the Agency rejected Complainant’s attempt to
establish pretext. The Agency stated that the FMO relied more heavily on Complainant
because she was the sole employee in the work unit who worked in the capacity of a
receptionist/secretary. The Agency noted that the FMO asked various LES/FSN employees
for assistance on tasks that could be performed more easily by a local employee who spoke the
native language and was more familiar with local surroundings. The Agency determined that
the FMO would not have treated Complainant differently if she had a different national origin
and that Complainant’s spousal association was not related to the FMO’s conduct.

In terms of claim (2), the Agency determined that no discriminatory harassment occurred.
According to the Agency, the FMO’s remarks about too many Voucher Examiners and shifting
work to Bangkok were intended to explain why Complainant did not receive full-time voucher
work and also to motivate the LES staff to work harder or more efficiently. The Agency
rejected Complainant’s contention concerning being asked to donate her time in lieu of being
paid overtime. The Agency noted that a number of witnesses acknowledged that they were
never instructed to donate their time. The Agency noted that the FMO denied the alleged
comment concerning job grade/classification of Voucher Examiners and that even if he made
the comment, it was not indicative of national origin discrimination. The Agency stated that
the FMO asserted that the Voucher Examiners at the Tokyo embassy were employed at a
higher grade than the norm.

With respect to Complainant’s contention that the FMO would yell her name and assign her
tasks often late in the day, the Agency noted that Complainant’s work station was located
outside the FMO’s office. The Agency determined that Complainant did not present evidence
showing that the timing of the FMO’s requests had anything to do with her national origin.
The Agency reasoned that the incidents at issue were not sufficiently severe or pervasive to
constitute a hostile work environment.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that she was never employed as a Secretary in the FMC
Section. Complainant denies that she had a unique hybrid position and maintains that she was
similarly situated to the other Voucher Examiners. Complainant states that she was forced to
sit at a desk outside of the FMO’s office instead of a desk in the voucher section. Complainant
maintains that she worked very well with the Supervisory Voucher Examiner.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

We shall assume arguendo that Complainant established a prima facie case of national origin
discrimination with regard to each claim. The Agency explained as to claim (1) that several
factors dictated the FMO’s assignment of tasks that were allegedly outside the scope of
Complainant’s position description. In particular, the FMO did not speak Japanese and he
relied upon Complainant to assist him in addressing situations that could be resolved more
easily by someone fluent in the native language. Hence the FMO sought Complainant’s
assistance with regard to setting up a veterinarian appointment and dental appointments,
contacting the Japanese speaking janitorial staff, calling his son’s college testing center,
arranging for the insurance and maintenance of his car, accompanying him to the bank and
submitting medical receipts which were in Japanese. The Agency pointed out that the FMO
stated that he needed assistance on delivery of the urine specimen due to his urinary tract
infection and that he requested Complainant bring him food from the cafeteria because he had
two sprained ankles during his tenure at the embassy. The Agency pointed out there was no
administrative or secretarial support position in the FMC and that the workload did not justify
switching Complainant to a full-time Voucher Examiner position. Further, the Agency noted
that Complainant was the only American in the unit who spoke Japanese. We find that the
Agency presented legitimate, nondiscriminatory reasons for the matters at issue.

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Complainant argues that she was treated like a servant. Complainant maintains many of the
aforementioned tasks were of a personal nature and outside her position description.
Complainant further argues that the FMO did not treat direct-hire American employees in the
same manner.

It is clear from the record that the FMO believed a primary function of the staff in the office,
including Complainant, was to facilitate his transition to living in a new country where he was
not fluent in the language. Even with regard to those tasks that were of a personal nature, it
has not been established that Complainant’s national origin was a factor in how she was
treated. Complainant stated at one point the FMO told her that the FSNs at other posts were
happy to do whatever he asked them to do. This suggests the FMO’s perspective on
Complainant was not discriminatory but rather an expectation he had developed that
Complainant, like other LES/FSN staff in his Foreign Service experience, was supposed to
provide support for him in various capacities. We find that Complainant has not established
that she was discriminated against with regard to claim (1).

With regard to claim (2), the Agency denied that the FMO threatened Complainant’s job or
otherwise created a hostile work environment. The Agency argues that the FMO’s remarks
about too many Voucher Examiners and shifting work to Bangkok were intended to explain
why Complainant did not receive full-time voucher work and also to motivate the LES staff to
work harder or more efficiently. The Agency also denied that Complainant was asked by the
FMO to donate time in lieu of working overtime and that the FMO stated that the job
grade/classification for Voucher Examiners should be lower. The Agency addressed the
FMO’s habit of assigning Complainant tasks late in the day as being a reflection of
Complainant’s physical proximity to the FMO’s office and his custom of leaving matters of a
more personal nature until later in the day. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions at issue in claim (2).

Complainant contends that the FMO created a threatening atmosphere by talking about there
being too many Voucher Examiners, sending Voucher Examiner jobs to Bangkok and that the
job grade/classification should be lower for Voucher Examiners. Complainant further claims
that the FMO commented that the staff should donate time rather than be paid overtime. We
find that the remarks allegedly made by the FMO reflected his concerns about budgetary
cutbacks, efficiency and his understanding that Voucher Examiners at some other embassies
were at a lower job grade/classification. We discern no connection between Complainant’s
national origin and the FMO’s motivation for uttering the alleged remarks. We find with
respect to claim (2) that there was not a discriminatory hostile work environment.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

July 26, 2016
Date