Zoila G., Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120140608 (E.E.O.C. Feb. 25, 2016)

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

Zoila G.,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120140608

Agency No. DOS-F-035-13

DECISION

Complainant filed an appeal from the Agency’s November 12, 2013, final decision 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 decision
finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
General Services Officer (GSO), FS-02, at the United States Embassy in Manila, Philippines.
During the relevant time, Complainant’s first level supervisor (S1) was the Supervisory GSO
(S/GSO), FS-02.

On November 23, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Asian/Pacific Islander), national origin (Filipina),
sex (female), and color (brown) when:

1. Complainant was denied the opportunity to take a temporary duty assignment
(TDY) to Baguio, Philippines;
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 denied the opportunity to serve as Acting Senior General
Service Officer; and
3. Complainant was subjected to a hostile work environment characterized by, but
not limited to, inappropriate comments, demeaning tone, and non-responsiveness
to suggestions and ideas.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant claims that the Agency’s Human Resources Director had a conflict of
interest since her spouse was the GSO who was allowed to serve as Acting Senior General
Service Officer under issue (2). Complainant also states that the description of her position in
the Work Requirements section indicates that she was to serve as the only Acting Senior General
Service Officer.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Upon review of the record we find that the record is adequately developed. Additionally, we
note that Complainant does not challenge the definition of the issues in her complaint on appeal.

With regard to issue (1), S1 states that his supervisor, the Management Counselor, sent him an
electronic mail message shortly before Complainant’s scheduled trip and asked if S1 knew about
the trip. S1 indicates that he was unaware Complainant had planned the trip and stated she had
not gotten approval from him. S1 explains that members of his staff who want to take TDY trips
were to provide him with justification for the trip in advance, and he would then review current
funding to determine whether to approve the travel. S1 states upon learning of Complainant’s
trip, he looked into the reason Complainant cited for the TDY and concluded it was not
necessary for Complainant and her staff to go to Baguio. S1 states this was the type of situation
Complainant could have easily taken care of over the telephone; alternatively, he felt that one of
the local staff members could have handled the task.

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The record contains an electronic mail message from the Director of Human Resources to the
EEO investigator explaining that any official travel has to be approved by proper authorities,
including the employee’s supervisor. The Director of Human Resources states that no employee
may unilaterally schedule a TDY trip. The Director of Human Resources states that travel must
be approved by the employee’s supervisor as well as the Financial Management Officer at post.

In the present case, the Agency articulated a legitimate, nondiscriminatory reason for canceling
Complainant’s trip. Even assuming that the project was something that warranted Complainant’s
attention, she has not shown that management’s explanation was untrue or that management’s
actions were a pretext for discrimination.

With regard to issue (2), Complainant contends she was denied the opportunity to serve as
Acting Senior General Service Officer. Complainant acknowledges that she served in that role
on numerous occasions between October 2011 and May 2012, and that she functioned as Acting
Senior General Service Officer continuously from June through July 2012.

S1 states that he did not believe there were set procedures for appointing someone to serve as
Acting Senior General Service Officer, but he contacted the Human Resources Officer and the
Management Counselor to confirm this. S1 notes that both of those individuals advised him it
was permissible to rotate that responsibility. As a result, S1 states that on one occasion he
appointed Person A, a GSO, FS-03, to serve as Acting Senior General Service Officer in his
absence on October 11 - 12. In his affidavit, S1 stated that seniority was a primary consideration
in determining who would serve as Acting Senior General Service Officer; however, he stated
that Person A was qualified and deserved the opportunity to serve in that position. S1 states that
Complainant’s opportunity to serve as Acting Senior General Service Officer was not
terminated; rather he intended to rotate the position in his absence. S1 noted that the front office
rotates the Acting Deputy Chief of Mission (DCM) duties among employees, which is what he
planned to do when he needed an Acting Senior General Service Officer.

The Management Counselor explains that Complainant was not denied the opportunity to serve
as Acting Senior General Service Officer; rather she was one of the employees that would rotate
to that assignment as needed. The Management Counselor states that when S1 asked him to
approve the rotation system as a means to give others mentoring and training experiences, he
authorized it because he felt it was a reasonable plan. The Management Counselor notes the
rotation practice mirrored what other parts of the Embassy did. The Management Counselor
states that after Complainant filed an appeal, management decided to assign the Acting Senior
General Service Officer duties exclusively to Complainant.

In addition, the Director of Human Resources states that each Embassy decides how to best
distribute acting responsibilities. The Director states it can be done either by designating the
most senior member or by rotating acting duties among the most senior few members of the
staff. The Director of Human Resources explains that at the Embassy in Manila, both methods
are used.

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The Agency notes that while the description of Complainant’s position in the Work
Requirements section indicates she is to serve as Acting Senior General Services Officer, there is
nothing in that document that mandates she must do so to the exclusion of others. Management
argues that such an interpretation would preclude management from efficiently conducting their
operations.

The Agency has set forth a legitimate, nondiscriminatory reason for its actions, that management
decided the acting duties were to be rotated in order to afford training and experience to another
qualified employee. Upon review, we find Complainant has failed to show that the Agency’s
actions for proposing a rotational system for assigning the Acting Senior General Service Officer
duties was based on discriminatory animus. Even if there was a “conflict of interest” as
Complainant alleges in the assignment of acting duties, there is no indication that the purported
conflict was motivated by discrimination.

With regard to issue (3), Complainant asserts she has been subjected to a hostile work
environment as described in issues (1) and (2). Complainant also alleges that S1 used a
demeaning tone (mostly in writing) and was nonresponsive to her suggestions. Specifically,
Complainant describes her interactions with S1 regarding a Crisis Management exercise, which
she assumed she would be attending due to her prior involvement in the matter. Complainant
states when she informed S1 that she planned to attend and that she would be taking local staff to
the event, S1 expressed his discontent that she had not coordinated with him. Complainant states
that S1 denied her request to go and her request to bring the staff she considered appropriate.
Complainant also states she prepared a briefing book and presented it to S1 upon his arrival;
however, S1 never said anything about the book. In addition, Complainant states that on
November 5, 2012, she was absent and S1’s assistant called a meeting to discuss “one stop
customer service center.” Complainant states she developed considerable expertise in this issue
during her previous assignment, and would have expected to be consulted as to her insights and
possible suggestions. Complainant states she wrote an electronic mail message to the
Management Counselor asking why this initiative was being taken without her knowledge, and
he responded that she would be consulted on her return. Complainant states she was never
consulted.

The Commission has already discussed issues (1) and (2) and found the Agency presented
legitimate, nondiscriminatory reasons which Complainant failed to show were a pretext for
discrimination. With regard to the briefing book, S1 states that he did read the documents
Complainant prepared when he arrived, but he states that he guesses because he did not bring it
up to her that she assumed it was unappreciated. With regard to the Crisis Management exercise,
S1 states that Complainant sent him an electronic mail message to suggest several LES (Locally
Employed Staffers) to join in the exercise. S1 states he responded by informing her that he
spoke with the Management Counselor and he stated the space was limited and S1 should only
take two LES with him. S1 states Complainant did not respond to that electronic mail message,
but instead received a separate electronic mail message from the Regional Security Officer
(RSO) and she asked him if more LES could attend. S1 states that the RSO responded that it
should be fine. S1 stated this contradicted what the Management Counselor told him. S1 states

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that when Complainant forwarded him the message, he got upset and did not like her going
around him and then told Complainant he would appreciate her checking with him before taking
action on such issues. In addition, S1 states he never raised his voice or used a demeaning tone.
Upon review, we find Complainant failed to show that she was subjected to a hostile work
environment based on any of her protected categories.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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 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

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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

February 25, 2016
Date