Shari S.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019005599 (E.E.O.C. Dec. 18, 2019)

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

Shari S.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Request No. 2019005599

Appeal No. 0120180066

Hearing No. 570-2014-01223X

Agency No. DOS-F-059-13

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180066 (June 26, 2019). EEOC
regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

During the period at issue, Complainant worked for the Agency as a Foreign Affairs Officer, GS-
13, at the Agency’s Bureau of Oceans and International Environmental and Scientific Affairs in
Washington D.C., subject to a 1-year probationary period. She started in this position on October
23, 2011. As a Foreign Affairs Officer, Complainant was responsible for: developing and
implementing activities to support overarching Bureau and Departmental foreign policy
objectives on a portfolio of funded programs; ensuring the timely execution of the Office of
Science and Technology Cooperation funds including the solicitation, review and awards of

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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grants; providing timely support and planning in the execution of bilateral meetings between
senior Department officials and foreign government representatives; and drafting and editing of
written and visual media for use by Bureau leadership.

Complainant filed a formal EEO complaint claiming the Agency discriminated against her based
on race (African-American) and sex (female) when she was terminated from Agency
employment, effective September 21, 2012, eleven months into her probationary period.

After an investigation into her complaint, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On July 19, 2017, the AJ issued a decision by summary judgment in
favor of the Agency. The Agency thereafter issued the instant final order by implementing the
AJ’s decision. Complainant appealed.

In EEOC Appeal No. 0120180066, the Commission affirmed the Agency’s final order adopting
the AJ’s finding of no discrimination.

In her request for reconsideration, Complainant, through her attorney, argues that EEOC Appeal
No. 0120180066, which affirmed the AJ’s summary judgment decision, involved a clearly
erroneous interpretation of law and fact. Complainant asserts that the prior decisions accepted
the Agency’s contention that her work performance was unsatisfactory despite evidence that
Complainant’s federal work record, prior to the position at issue, supported a determination that
she was a highly qualified federal employee with over 15 years of experience working on high-
level international policy and program management issues. Complainant also maintains that at no
time prior to her termination was she counseled by her supervisor that her performance was
lacking. Complainant particularly points to the actions of her non-supervisory team leader as
setting her up for failure.2 Complainant argues that the lack of evidence supporting the Agency’s
claim of unsatisfactory work performance created “serious credibility issues” and indicated that
there were material facts in dispute that could only be resolved at an evidentiary hearing.
Complainant further asserted that she had named several white males, who were hired around the
same time as she was and were in similar positions, who were treated more favorably.
According to Complainant, these employees, unlike herself, were not routinely excluded from
meetings and assignments pertaining to their work portfolios, and received training opportunities
and recognition for their work which she did not get.

In response, the Agency argues that Complainant’s arguments do “not reveal any error, let alone
clear error. The Administrative Judge’s July 19, 2017 decision was grounded in record evidence
and applied to the law to those facts correctly [emphasis in its original].”

After careful review, we conclude that Complainant’s request for reconsideration essentially
repeats that same arguments presented and considered during her original appeal. We emphasize
that a request for reconsideration is not a second appeal to the Commission.

2 Complainant notes that the Team Leader completed and signed an August 2012 Evaluation of
Probationary Employee form recommending Complainant’s termination.
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See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material
fact or law, or will have a substantial impact on the policies, practices, or operations of the
Agency. Complainant has not done so here.

Both the AJ and the original appellate decision cited to extensive record evidence that
specifically documents the work performance issues that management asserted resulted in
Complainant’s termination. The Report of Investigation contains management statements
attesting to these issues, as well as a letter of counseling and detailed counseling notes discussing
Complainant’s performance deficiencies. The record also contains Complainant’s mid-year
performance review, signed by her, in which the rater described Complainant’s performance
deficiencies. Complainant’s continued denial of this evidence does not support reconsideration of
our prior decision. Complainant spent much of her focus in her request on contesting the
authority of the team leader to have fulfilled many traditionally supervisory tasks. However,
even if it were established that the team leader exceeded his authority, there is no evidence to
support that this occurred based on discriminatory animus. With regard to her named
comparators, there is no evidence that these individuals had similar performance issues. In short,
there is simply no evidence identified by Complainant that she might produce at a hearing which
would indicate that her race or gender played any role in the decision to terminate her during her
probationary period.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120180066 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.
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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

December 18, 2019
Date