Sylvia B.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jan 13, 2016

0120140251 (E.E.O.C. Jan. 13, 2016)

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

Sylvia B.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120140251

Hearing No. 570-2012-00231

Agency No. DOS-F-008-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 2, 2013 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Officer at the Agency’s Office of International Conferences (IO/C) in Washington, D.C.
Complainant has worked at the Agency for 48 years in various capacities. Complainant was
on a temporary detail assignment and assigned to the Asian Pacific Economic Conference
(APEC) Planning Team from March 29, 2010 to June 7, 2010. While there, Complainant
alleges that her supervisor (S1) subjected her to derogatory comments and excluded her from
meetings and discussions. Complainant believes that S1 failed to acknowledge her work, left
her hanging on assignments, and treated her like an incompetent employee. Complainant
claims that on April 22, 2010, while making preparations for the APEC project, she was

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.
0120140251

2
stripped of her duties and assignments. Subsequently, on June 7, 2010, Complainant was
informed that she was being transferred to the Bureau of Human Resources Shared Services.
Complainant alleges that she was told that she was being removed from the team because she
was not a team player and had a bad attitude.

Complainant claims that she did not receive a full performance evaluation for the 2010 rating
cycle. Complainant alleges that she received an incomplete evaluation after sitting in her office
for three months without receiving any work assignments. Complainant claims that she
received a partial evaluation for the October - December 2010 period, but she contended that it
did not accurately reflect the work she completed in the Office of Shared Services, a unit under
the umbrella of the Bureau of Human Resources.

Complainant claims that she was afraid to take a lot of her accrued annual leave during her
time in the Bureau of Human Resources. Complainant alleges that she worked under
uncomfortable circumstances and she wanted to be in the office so that nothing was done
behind her back. Complainant states that the Agency’s policy is that annual leave is to be used
within the calendar year it is earned; however, if extenuating circumstances arise, an employee
may submit a request to have the balance of unused leave restored for use in the following
year. Complainant claims that she submitted a request to the Deputy Human Resources
Officer (DHRO) to restore her forfeited annual leave on January 25, 2011. DHRO denied her
request on March 16, 2011.

On October 26, 2010 (and amended on April 19, 2011), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of age (67) and in reprisal for prior protected EEO activity when:

1. She did not receive a performance evaluation for the 2010 rating cycle;

2. Management took away her job title, assignments, and duties, preventing her
from completing her work;

3. She was removed from the Asian Pacific Economic Conference (APEC)
Planning Team in June 2010;

4. She was subjected to a hostile work environment characterized by, but not
limited to, inappropriate and derogatory comments and exclusion from meetings
and discussions; and

5. Her request for reinstatement of annual leave was denied.2

2 The Agency dismissed three additional claims. Complainant raised no challenges to the
Agency's dismissal before the AJ or on appeal; therefore, the Commission will not address
those claims in this decision.

0120140251

3
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 timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on July 10, 2013.

In her decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), the Director of the Office of International
Conferences and the Chief of Staff of APEC asserted that Complainant worked in IO/C for 71
days from March 9, 2010 to June 7, 2010, and this was not long enough to warrant a full
performance evaluation. The Deputy Director of Human Resources Shared Services stated that
he completed an evaluation for the time Complainant worked under his supervision.
According to him, Complainant signed a completed evaluation on November 2, 2010. The
Deputy Human Resources Officer (DHRO) confirmed that an evaluation was prepared and a
meeting was scheduled for Complainant to discuss any additions she wished to document.
Complainant refused to meet with her and, consequently, a Memorandum for the Record was
included in her official personnel file.

With respect to claim (2), Complainant contended that on April 22, 2010, while making
preparations for the APEC project, she was stripped of her job title, duties and assignments.
According to Complainant, her duties consisted of arranging schedules, logistics, gifts, events
and site surveys, as well as some hiring responsibilities related to the APEC. Complainant
claimed that the Chief of Staff did not speak to her or review her work for the conference.
The Chief of Staff asserted that Complainant misunderstood her role in relation to the APEC
operation and that she was confused about her non-supervisory capacity on the team. The
Director of IO/C explained that Complainant thought she should head the APEC team, but she
was given a position description that called for her to give a supporting role.

Regarding claim (3), Complainant claimed that she met with the Administrative Assistant on
June 7, 2010, and he informed her that she was being removed from the APEC team due to
her difficult nature, her refusal to be a team player, and her pursuit of her own agenda.
Complainant maintained that management did not provide any written documentation regarding
her dismissal and that she was summarily told to report to the Deputy Assistant Secretary. The
AJ found that Agency officials removed Complainant from the APEC project because her
personality traits presented difficulties and created conflict within the office dynamic. For
example, one official asserted that Complainant was unwilling to accept certain assigned duties
while working on the APEC project.

As to claims (5) and (6), Complainant alleged that she was subjected to a hostile work
environment which included derogatory and inappropriate comments and being excluded from
meetings. Complainant specifically pointed to “verbal assaults” by S1 and his disregard for
reports she prepared for his review. Complainant contended that she felt “angst;” however,
she admitted that the alleged conduct did not negatively impact her job performance or working
conditions. Thus, the AJ concluded that the alleged conduct was not sufficiently severe or
0120140251

4
pervasive to establish a hostile work environment. Further, the AJ determined that
Complainant failed to show that S1’s alleged conduct was directed at her based on her
protected classes. Complainant further claimed that the alleged hostile environment led her to
accrue annual leave to prevent any suspect conduct from occurring in her absence. As a result,
Complainant sought to reinstate unused leave that she forfeited under Agency personnel
regulations. DHRO affirmed that Complainant failed to produce the proper paperwork to
reinstate her leave.

The AJ concluded that Complainant failed to establish that the Agency’s reasons for its actions
were pretext for unlawful discrimination or reprisal. As a result, the AJ found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment
as alleged. The Agency subsequently issued a final order fully implementing the AJ’s
decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ failed to understand the vindictive and continued
discrimination she suffered by management. Complainant argues that the evidence showed that
she was victimized and that the Deputy Assistant Secretary manipulated people to cover up her
actions. Complainant alleges that the discrimination inflicted on her was based on a personal
vendetta by an individual who did not like her. Accordingly, Complainant requests that the
Commission reverse the final order.

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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (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). 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).
0120140251

5
Therefore, to prove her harassment claim, Complainant must establish that she was subjected
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 prove that the conduct was taken because of a protected basis (in this case, age or
prior protected EEO activity). Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
management continuously subjected her to a hostile work environment as evidenced by
multiple incidents. The Commission concurs with the AJ's determination that, even when
viewing all of the alleged incidents and evidence in the light most favorable to Complainant,
the record does not show that the Agency subjected Complainant to a discriminatory or
retaliatory hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to
create a hostile work environment, Complainant failed to show that the Agency's actions were
based on discriminatory or retaliatory animus. The record reflects that the alleged incidents
were more likely the result of routine supervision, personality conflicts, and general workplace
disputes and tribulations. For example, as to claim (1), the record reveals that Complainant
was issued a performance evaluation that she signed on November 2, 2010. ROI, at 757, 761-
67. IO/C officials noted that Complainant did not receive an evaluation while working for the
IO/C APEC team because she only worked there for 71 days. Id. at 570, 655.

With respect to claims (2) and (3), the Chief of Staff maintained that Complainant’s duties
were never taken away from her; rather, Complainant came to APEC with the belief that she
should be running the operation. Id. at 658. The Chief of Staff stated that she repeatedly
attempted to inform Complainant that her role was one of support. Id. While on the APEC
team, the Chief of Staff affirmed that Complainant expressed a great deal of anger against her
and others because she was not running the APEC operation. Id. at 664. Further,
Complainant turned in work products that were poorly researched and written and often treated
the Chief of Staff with contempt by constantly challenging her instructions and directions. Id.
Nearly every staff member complained about Complainant’s increasingly vocal opinions, her
“know it all” attitude, and propensity to critique their work which disrupted the office’s morale
and productivity. Id. As a result, on June 7, 2010, Agency officials decided to end
Complainant’s assignment to IO/C and transferred her to the Bureau of Human Resources. Id.
at 577.

As to claim (4), Agency officials denied that Complainant was subjected to derogatory
comments, verbal abuse, and inappropriately excluded from meetings. S1 described a difficult
work relationship with Complainant due to her unhappiness with her position and duties. ROI,
at 896-97. S1 stated that he informed Complainant that he wanted her to work on APEC, but
that he was in charge. Id. at 897. S1 maintained that he asked Complainant questions and
commented on problems that he could see, and Complainant became upset and unhappy to
0120140251

6
have to justify her ideas. Id. at 902. S1 affirmed that it was difficult to talk to Complainant
because any disagreement or suggestion was taken as a personal rebuke. Id. S1 asserted that
dealing with Complainant took an increasing amount of his and the Bureau’s time, and the
situation became increasing untenable. Id. at 897. As a result, Agency officials decided to
transfer Complainant to Human Resources. Id. at 898.

Regarding claim (5), DHRO stated that Complainant did not request that her leave be
reinstated until the season had expired, and she had not requested leave that was denied. ROI,
at 800. Further, DHRO affirmed that Complainant was asked to provide information in
support of her request and failed to do so. Id. Therefore, based on Complainant’s failure to
follow the Agency’s regulations for restoration of forfeited leave, her request was denied. Id.
at 803.

Finally, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency's reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds no
basis to disturb the AJ's summary judgment decision finding that Complainant was not
subjected to discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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
0120140251

7
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.

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

January 13, 2016
Date