Wanda S.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

May 6, 2016

0120150573 (E.E.O.C. May. 6, 2016)

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

Wanda S.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120150573

Agency No. DOS-0141-13

DECISION

The Commission accepts Complainant’s appeal from the October 23, 2014 final Agency
decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of 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 FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
Officer at the Agency’s Bureau of African Affairs (AF) in Washington, D.C. In December
2012, Complainant and other officers received an email from a co-worker (CW1) inviting them
to join a group called the “Young Diplomats Network.” In the email, CW1 stated that the
group had the objective “to allow officers to broaden their engagements with foreign diplomats
on a more informal basis.” The Network was not officially recognized by or affiliated with the
Agency or Agency management. Complainant responded to CW1 and volunteered to
participate as a coordinator within the African Bureau. Complainant alleges that CW1
accepted her offer and suggested that her participation in the group could be career-enhancing.
Complainant began participating with the group and its organizing efforts with CW1 and
another co-worker (CW2), including the establishment of a private email account and an online
(Google) group forum.
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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In March 2013, Complainant began feeling “pushed out” of the group. Complainant claims
that CW2 informed her that the group would not be seeking official Agency recognition of its
activities. Complainant alleges that CW1 and CW2 did not consult with her before making this
decision. Complainant claims that she reached out to the Agency’s Ethics Attorney seeking an
“official blessing” for the group to continue its organizing efforts. Complainant states that she
was advised that the use of Agency resources was not appropriate for a non-Agency recognized
informal networking group, and that the group should only use their personal email accounts
and off-duty time. Complainant shared the attorney’s advice with CW1 and CW2, but did not
receive a response and claims that she was effectively removed from the group thereafter.
Complainant contends that another co-worker was subsequently identified as the AF
Coordinator, she was not specifically invited to social events, and that CW1 and CW2 ignored
her emails. On April 29, 2013, Complainant claims that her message to the Google group was
rejected.

On August 12, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of age (51) when:

1. On April 29, 2013, Complainant was removed from the Young Diplomats Network
e-mail group; and

2. Complainant was removed from the position as AF Coordinator for the Young
Diplomats' Network.

The Agency initially dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim, nothing that the Network was an informal social group and not
sponsored by the Agency. Complainant appealed and, in Complainant v. Dep’t of State,
EEOC Appeal No. 0120140314 (Mar. 7, 2014), the Commission reversed the dismissal and
remanded the matter for further processing. At the conclusion of the investigation of the
remanded complaint, Complainant was provided 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. Complainant requested a FAD. In accordance with
Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that officials articulated legitimate, nondiscriminatory
reasons for their actions. Specifically, CW1 affirmed that she established the Young
Diplomats Network as a means for American and foreign diplomats to interact in an informal,
voluntary social setting. The intent of the group was to widen communication and interaction
between American and foreign diplomats, and the group never had any formal relationship
with the Agency. CW1 noted that the group was made up of volunteers from different
bureaus, and she did not know the ages of those who participated. In addition, CW1 disputed
Complainant’s claim that she was “removed” as AF Coordinator, explaining that there was
never such a position. CW1 stated that Complainant volunteered to contact African Affairs
Bureau desk officers to inform them about the Network, but she never did. CW1 asserted that
when Complainant failed to follow through, others assisted with the outreach. CW2

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corroborated CW1’s statements adding that there were no “official” members, there was no
procedure to formally “accept” a person into or “remove” a person from the Network, and the
Network was informal and voluntary. CW2 confirmed that there was no official position
called AF Coordinator, and that Complainant did not follow through after volunteering to
contact African Affairs personnel. CW2 noted that the last thing he recalled hearing from
Complainant was that she no longer wanted to be involved in the group.

The Agency concluded that Complainant failed to show that the officials’ reasons for their
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

In her lengthy appeal, Complainant contends that the Agency provided no reasons for
excluding her from communications with the Young Diplomats Network. Complainant claims
that the Agency discriminated against her based on her age and evaded the issue by claiming
that the Network was an unofficial organization. Further, Complainant challenges her
colleagues’ statements that she stopped performing the AF Coordinator duties; instead, she
states that she only ceased using Agency resources to reach out to AF desk officers to obtain
their foreign diplomat contacts at the advice of the Office of the Legal Adviser. Complainant
further argues that she has produced evidence that she sent numerous communications to the
Network leaders, but received no response. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

In general, disparate treatment claims, such as the matter before the Commission, are
examined under a tripartite analysis whereby Complainant 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973);
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000) (applying the analytical framework described in McDonnell
Douglas to an ADEA disparate treatment claim). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were a pretext for discrimination. Id. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

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Assuming arguendo that Complainant established a prima facie case of age discrimination,
record evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons
for its actions. The Commission notes at the outset that there is neither a dispute nor any
evidence that any management officials were involved with the Young Diplomats Network or
played any role in Complainant’s involvement with the group. Additionally, the Commission
notes that Complainant referred to herself as the “unofficial Africa Bureau Coordinator” for
the group on numerous occasions, and her colleagues emphasized that there was no such
official position. ROI, at 366, 454. Furthermore, Complainant’s colleagues confirmed that
the group was a voluntary, informal group with no acceptance or rejection process. ROI, at
437, 453.

Moreover, the evidence reveals that the group had no official recognition from or affiliation
with the Agency. In fact, on March 26, 2013, Complainant was advised by the Office of the
Legal Adviser that the group should ensure that Agency resources were not used in furtherance
of the group as the group was not an officially authorized Agency initiative. ROI, at 318.
Around this same time, Complainant and the group’s founders engaged in disputes about the
direction of the group and Complainant’s outreach to others at the AF Bureau. CW2 asked
Complainant to hold off on further outreach and Complainant refused. Id. at 305-07.
Complainant believed that she was being pushed out of the group and continued to use Agency
resources to complain about the group. Id. at 330. Eventually, the Agency’s Career
Development Officer advised Complainant to not allow personality conflicts concerning the
voluntary, unofficial group interfere with her official work duties. Id. at 331. Complainant
ignored her advice and continued to confront the group’s members. While the record shows
that one email to the Google group was rejected, leading Complainant to believe that she had
been removed from the group, there is no evidence that Complainant was ever prevented from
participating in the group’s voluntary social activities.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
the record evidence reveals that Complainant and her colleagues were involved in interpersonal
conflicts regarding the direction of and Complainant’s role with an unofficial, voluntary social
group unaffiliated with the Agency. The Commission has consistently recognized that the
discrimination statutes are not a civility code and forbid only behavior so “objectively
offensive” that the behavior alters the conditions of employment.

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 discriminatory
animus was a factor in its actions. Complainant failed to carry this burden. As a result, the

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Commission finds that Complainant has not established that she was subjected to discrimination
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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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).

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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

May 6, 2016
Date