Shellie T.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

0120182689 (E.E.O.C. Dec. 17, 2019)

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

Shellie T.,1
Complainant,

v.

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

Appeal No. 0120182689

Hearing No. 570-2017-00370X

Agency No. DOS-0068-16

DECISION

On July 24, 2018, Complainant prematurely 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 July 26, 2018 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

Complainant served as the Information Program Officer (IPO), FS-02 at the United States
Diplomatic Mission in Nairobi, Kenya from August 2014 through July 2016. On March 24, 2016,
Complainant filed an EEO complaint in which she alleged that the Agency discriminated against
her on the bases of race (African-American), sex (female) and reprisal (prior EEO activity) when:

1. Since September 2015, Complainant’s requests for leadership and volunteer
opportunities have repeatedly been denied;

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’s 2015 Employee Evaluation Report (EER), as prepared by the
Information Management Officer (IMO), her immediate supervisor (S1), did not
accurately reflect her performance;

3. Complainant’s repeated requests to extend her tour as IPO were denied by S1; and

4. Throughout her two-year tenure, Complainant had been subjected to a hostile work
environment as evidenced by S1 undermining her authority, highlighting her
performance errors, diminishing her accomplishments, isolating her, and making false
accusations against her.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested
a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s
June 1, 2018 motion and issued a summary judgment decision on June 20, 2018. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected her to discrimination or reprisal as alleged.

S1 was the director of the Office of Information Resource Management (IRM). The IRM consisted
of two branches: the Information Programs Center (IPC), headed by Complainant as IPO, and the
Information Systems Center (ISC), headed by the Information Systems Officer (ISO), a white
male. IR 126-127.

Incident (1):

Complainant claimed that she had taken the initiative in helping to prepare information technology
support for VIP visits by the Secretary of State in May 2015 and the President in July 2015, and a
conference on Global Entrepreneurship, but that S1 had nominated the ISO for a performance
award in connection with those activities, but not her. She also alleged that she volunteered to
serve as the Federal Women’s Program Coordinator and had interviewed for that position but never
received a response. She also stated that she was not given opportunities to advance her career to
the extent that the ISO was given such opportunities. IR 50-51. According to S1, the visit by the
Secretary of State did not require a great deal of advance work and neither Complainant nor the
ISO was nominated for an award in connection with that event. IR 131. As to the Global
Entrepreneurship summit and the visit by the President, S1 stressed that these events required
several months of advance preparation, significant planning, and collaboration with dozens of
stakeholders. S1 also averred that the work for those visits fell within the purview of the ISC, and
that for taking the lead in these undertakings, he nominated the ISO for an award. IR 132, 160.
He also affirmed that Complainant had been selected to head the Federal Women’s Program in
November 2015 and that she had acted as IMO on numerous occasions while he was out of the
office. IR 132-35.

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Incident (2):

Complainant affirmed that the EER she was given for the period between April 16, 2015 and April
15, 2016 did not accurately reflect her performance. When asked by the EEO investigator whether
there were any factual errors in her EER, she replied that she had many years of experience in
management and leadership but that the EER was geared more toward her interpersonal skills. IR
52. She also averred that she did not appeal her EER to the reviewing official. IR 53. S1
responded that he framed his statement of her accomplishments around her input. IR 136-38. The
record includes both EERs that Complainant had received over the course of her tour with the
Mission. The first EER covered the period between August 29, 2014 and April 15, 2015, while
the second covered the period from April 16, 2015 through April 15, 2016. In both documents,
S1’s evaluation statement described Complainant’s accomplishments in generally positive terms,
despite the fact that S1 had expressed concerns about whether she was sufficiently managing the
IPC. IR 146. S1 described how Complainant was a people-oriented manager who gave her
employees the latitude they needed to accomplish their tasks, how she improved the morale of the
IPC, and how she was able to skillfully utilize her employees to complete critical projects despite
being short-staffed. S1 also pointed out those areas where he believed Complainant’s performance
could improve, including better communication with and responsiveness to management and using
her managerial prerogative to intervene when work was not going as planned. IR 166-67, 174-82.

Incident (3):

Complainant claimed that her original planned departure date from her IPO posting was set for
August 2016, that she requested a one-year extension of her tour, and that S1 denied her request
without providing an explanation. IR 53-54. S1 admitted that he recommended that
Complainant’s tour not be extended beyond August 2016, and that he did so based on what he
characterized as a variety of performance-related issues. IR 138-39. In his written
recommendation dated March 26, 2015, S1 stated:

[Complainant] requested a one-year extension on 1 December 2014. If granted,
this extension would change her TED from 8/2016 to 8/2017. Due to the fact
[Complainant] was still quite new in addition to questionable performance, we
agreed we would revisit her extension request in March 2015, giving her the
opportunity to bring her performance up to a fully successful level.

Since that time, I have had several verbal and written counseling sessions with
[Complainant.] Unfortunately, her performance has improved little. Her portfolio
covering some of the most critical services, including ClassNet, mobile computing,
Diplomatic Pouch, active Management of the office, and mentoring of several more
junior staff, is suffering and there is a negative impact on the services IRM provides
to the Mission as a result. I cannot confidently recommend that her tour be extended
by one year.

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IR 186. In a March 4, 2015 email to his supervisor, the Management Officer, and his contact in
the Office of Human Resources, S1 stated that Complainant was not managing IPC and vital tasks
were not getting done. The email included a list of Complainant’s performance deficiencies as
observed by S1 as well as counseling sessions that had taken place between September 2014 and
May 2015. Most of these deficiencies involved tasks that had been assigned to IPC that had either
been completed late or not at all, as well as failure to follow directions. For example, on December
15, 2014, S1 told Complainant to counsel an employee who was not following a directive he had
been given. Complainant failed to do so, with the result that this employee continued to ignore
directives until S1 had to counsel the employee himself. On February 4, 2015, S1 had to have a
verbal counseling session on her lack of responsiveness to inquiries from senior management
regarding her lax management style and her failure to intervene when tasks were not being
completed. Additionally, on March 2, 2015, S1 was called at home because one of the major
computer systems was down and no one in IPC, which was responsible for the maintenance of this
system, could be reached. The list as well as S1’s affidavit included numerous other examples.
IR 146-49, 154

Incident (4):

Complainant cited a number of occurrences that took place during her tenure which she
characterized as constituting a hostile work environment:

a. On an unspecified date in October 2014, S1 interfered with Complainant’s management of
the IPC by assigning her subordinates work without first consulting her. IR 55.

b. On an unspecified date in 2014, S1 made an issue of the fact that Complainant had not
inputted work requirement statements into the ePerformance system and insisted that she
make those changes, notwithstanding how time-consuming the process would be. IR 55.

c. On an unspecified date in July 2015, S1 moved one of Complainant’s newer employees to
another section without first discussing the matter with Complainant first. IR 55-56.

d. On an unspecified date in January 2015, S1 announced that IPC would be taking on the
additional responsibility of managing all information-technology supplies without first
discussing the matter with Complainant, IR 56.

e. On an unspecified date in February or March 2015, S1 had directed Complainant to install
a temporary duty (TDY) desk into the IPC’s office space, notwithstanding that space in
question had already been reconfigured and had included a TDY area. IR 56.

f. On an unspecified date in August 2015, S1 emailed Complainant about her failure to
provide a summary of notes that she had taken while attending a workshop while not
acknowledging that the office was short-staffed. IR 56.

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g. At a staff meeting on an unspecified date in April 2016, S1 said to Complainant in a
condescending manner that “he should take it from you,’ in the context of discussion
concerning the responsibilities of the IPC within the larger organization. Complainant
characterized S1’s statement as a threat to take away some of her responsibilities. IR 56.

h. In addition to these specific incidents, Complainant stated that management had
continuously failed to respond to her inquiries about the Federal Women’s Program
Coordinator position and about the denial of her request to extend her tour. IR 56.

S1 responded that Complainant had objected to her staff being asked to do the rewiring work on
the telephone system, which was within the purview of the IPC. IR 127. S1 reiterated that
Complainant was not managing her work force as effectively as she could. He acknowledged that
Complainant’s management style was to give her staff as much leeway as possible but was critical
of Complainant’s failure to step in and take corrective measures when projects had stalled or were
otherwise not being implemented. IR 139-40. S1 also averred that there were numerous instances
over Complainant’s two-year tenure in which Complainant was noncooperative bordering on
insubordinate, even for the smallest requests. IR 141.

When asked whether he had ordered the IPC to take over the management of all information
technology supplies, S1 denied that this was the case. He stated that the storage area where the
supplies were kept was already under the control of the IPC, and that he had taken this action in
an effort to stop the disappearance of toners and other supplies. IR 141. When asked about the
need for a TDY desk, S1 stated that an additional TDY desk was needed in IPC because a roving
employee was coming in to temporarily cover a vacant position and there were not enough work
stations due to chronic staff shortages. S1 averred that Complainant became very emotional over
the issue, insisting that there was enough desk space to accommodate the rover. IR 141-142. As
to his alleged criticism of Complainant for not providing him with the workshop notes, he
responded that Complainant’s allegation was entirely false, that Complainant somehow secured
the Human Resource Office’s approval to attend the workshop while he was on leave and had done
so without checking with him first. He acknowledged that Complainant did provide him with the
notes on November 12, 2015. IR 142. As to Complainant’s claim that S1 threatened to take away
some of her job responsibilities, S1 averred that this was a “total fabrication.” IR 143. As to
reassignment of Complainant’s subordinate, S1 affirmed that the position had never been formally
filled, that the individual was needed because that particular job function required an American
with a security clearance, and that the position was located in the ISC, not the IPC. IR 127-30.

ANALYSIS AND FINDINGS

Standard of Review

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure.
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The U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but
rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences must
be drawn in the non-moving party’s favor. Id. at 255. 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.

Disparate Treatment – Incidents (1) through (3):

To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of
material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be
to 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.
Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case,
however, since S1 had articulated legitimate and nondiscriminatory reasons for his actions in each
of the first three incidents. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-
17 (1983).

As to incident (1), in S1’s assessment, the Global Entrepreneurial Conference and the visit by the
President required months of advance planning and preparation by the ISC, while Complainant's
involvement in the visit by the Secretary of State was not nearly as extensive. In addition,
Complainant was nominated for a group award and had eventually been selected to head the
Federal Women’s program. Regarding incident (2), S1’s evaluation statements in Complainant’s
EERs for 2014-15 and 2015-16 described Complainant’s performance in generally positive terms.
S1 praised Complainant’s motivational skills while at the same time cautioning her that she needed
to manage more actively. Nevertheless, S1 had misgivings about Complainant’s performance
despite what he wrote in Complainant’s two EERs. It was those ongoing performance issues,
particularly her inability or refusal to take a more active managerial role when her staff’s
productivity slowed, that led S1 not to recommend that Complainant’s tour be extended.

To move forward with a hearing, Complainant must raise a genuine issue of material fact as to
whether the explanation put forth by S1 were pretexts for discrimination. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (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). Questions of
pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the Agency's proffered legitimate reasons for its actions that a reasonable fact
finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC
Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211
(May 30, 2008).
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Indicators of pretext include 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).

When asked by the EEO investigator why she believed that her race, sex, and prior EEO activity
were factors in S1’s treatment of her in connection with these incidents, Complainant responded
that she was overlooked even when she volunteered for undertakings that were not related to
information technology. She also stated that at the time, she and S1 were both vying for promotion
to FS-01, and that S1 was preventing her from taking on additional assignments in order to
decrease her chances of being promoted. Complainant also stated that while she never filed an
EEO complaint, she had served as a collateral duty EEO Counselor, although she did not say
whether she did so at the Mission or before her tour at the Mission started. IR 51-55. Beyond her
own assertions, Complainant has provided neither affidavits, declarations, or unsworn statements
from witnesses other than herself nor documents which contradict or undercut the explanations
provided by S1, which establish the existence of at least one of the indicators of pretext listed
above, or which cause us to question S1’s veracity as a witness. Even if Complainant’s contentions
regarding S1 competing with her for promotion were true, all that could result from such showing
was that S1 wanted to be promoted to FS-01, just as she did. Complainant has not shown that S1’s
desire to be promoted was in any way tied to animus on his part based on her race, sex, or EEO
activity.

Based on the record before us and construing the evidence in the light most favorable to
Complainant, we agree with the AJ that Complainant has not presented evidence sufficient to raise
a genuine issue of material fact as to whether S1 was motivated by unlawful considerations of her
race, sex, or previous service as an EEO Counselor in connection with incidents (1), (2), and (3).
At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discrimination or reprisal. Complainant failed to carry this burden. As a result, the
Commission agrees with the AJ that Complainant has not established that she was subjected to
discrimination or reprisal as alleged.

Hostile Work Environment – Incident (4):

To merit a hearing on her claim of discriminatory or retaliatory harassment, Complainant must
raise a genuine issue of material fact as to whether: (1) she belongs to a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on her statutorily protected class;
(4) the harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that his/her harassment claim
survives summary judgment, Complainant must present enough evidence to raise a genuine issue
of material fact as to whether S1 subjected her to conduct that was either so severe or so pervasive
that a “reasonable person” in Complainant's position would have found the conduct to be hostile
or abusive. Complainant must also raise a genuine issue of material fact as to whether the conduct
of the management officials named in her complaint conduct was motivated by unlawful
considerations of her race, sex, or prior service as an EEO Counselor. Only if Complainant raises
genuine issues of material fact as to both of those elements, hostility and motive, can the question
of Agency liability for discriminatory or retaliatory harassment be brought before an AJ for a
hearing.

Here, Complainant asserted that based on her race, sex, and service as an EEO counselor, S1
subjected her to a hostile work environment. Complainant identified eight incidents of what she
characterized as discriminatory and retaliatory harassment on the part of S1. Those allegations
included bypassing her in assigning work to her subordinates, adding extra work, moving one of
her employees without her consent, ordering her to install a second TDY desk, and other similar
occurrences. All of those occurrences involved work-related directives and admonishments.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the
totality of the conduct at issue was insufficiently severe or pervasive to raise a genuine issue of
material fact as to the existence of a hostile work environment. Even assuming that the alleged
conduct was sufficiently severe or pervasive to create a hostile work environment, the evidence in
the record raises no genuine issue of material fact as to whether discriminatory or retaliatory
animus played a role in any of S1’s actions. For example, the many verbal and written counselings
that S1 gave to Complainant resulted from Complainant’s refusal to cooperate or outright
insubordination. Complainant as head of the IPC was already responsible for ensuring that
information technology supplies were accounted for. The second TDY desk was needed in order
to provide a rover with workspace while on temporary assignment to the Mission. S1 provided
explanations for most of the incidents in question. The only evidence of animus on the part of S1
that Complainant put forward was her own assertions that she had gotten no support from S1 and
the other management staff, she received no responses to her email inquiries, and that S1 was
preventing her from taking on assignments that would showcase her management and leadership
skills. IR 57-58.

The Commission therefore concludes, based upon the totality of the circumstances, that
Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to
whether she was subjected to a discriminatory or retaliatory hostile work environment. As a result,
the Commission finds that Complainant was not subjected to a hostile work environment as
alleged.
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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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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“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

December 17, 2019
Date