@USAGM: Hostile Work Environment and Sex-Based Discrimination Found

 

Via EEOC Appeal Nos. 2019005498 & 2020003512
Hostile Work Environment and Sex-Based Discrimination Found.
Both Complainants worked as International Broadcasters for the Agency’s International Broadcasting Bureau, Voice of America (VOA).  Complainants filed separate EEO complaints alleging, among other things, that the Agency subjected them to a hostile work environment and discrimination based on sex, including denying them promotions, and modifying their television anchor duties.  At the conclusion of the investigations for both complaints, the Agency issued two separate decisions which both concluded that Complainants failed to prove their claims.  The Commission consolidated the matters on appeal, given that the underlying facts were the same in both complaints.  The Commission determined that Complainants both established a prima facie case of discrimination based on sex because they were replaced by male anchors, and all the recipients of the promotion were males.
The Commission then found that the Agency failed to meet its burden to articulate legitimate, nondiscriminatory reasons for its decisions.  Several responsible management officials failed to provide detailed and supported statements regarding the removal of anchor duties and the denial of promotions.  For example, one of the responsible management officials repeatedly provided vague statements that were often not supported by the record, or provided statements that were refuted and/or contradicted by other management officials.  Moreover, when given several opportunities to clarify his statements by the EEO Investigator, the official failed to substantively respond.
The Commission stated that, even if it determined that the Agency’s explanation was sufficient to meet its burden, Complainants still established, by a preponderance of the evidence, that the Agency’s explanations were pretextual.  The Agency was ordered, among other things, to retroactively promote Complainants with appropriate back pay and benefits, reinstate pertinent television and/or radio duties, investigate Complainants’ claims for compensatory damages, and provide training to the responsible management officials.  Madlyn F. & Lashawn C. v. U.S. Agency for Global Media, EEOC Appeal Nos. 2019005498 & 2020003512 (Feb. 9, 2021).

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US Mission Germany: LE Staff Age Discrimination Cases Fail at the EEOC Over 45-Day Time Limit

Below are two three recent cases at the EEOC where former LE staff at US Mission Germany alleged unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Both complainants were already retired when the complaints were filed at the Commission. In both cases, the EEOC affirmed the State Department’s decision. In the first case, the complainant argues that the Commission should waive the 45-day time limit.  In the second case, the complainant’s case failed for failure to initiate EEO counseling within the 45-day time limit. In the third case, the complainant filed the case 15 years later, “well beyond the 45-day limitation period.”
EEOC Appeal No. 2021001196:
Complainant, a U.S. citizen, was hired by the Agency effective October 17, 2005, as a Secretary, Pay Plan 01, Grade 06 (PP-01-06). She was competitively promoted to Administrative Assistant Move Coordinator), PP-01-09 effective April 1, 2007, was reassigned to Administrative Assistant, PP-01-08 effective April 26, 2009, and retired on December 31, 2018. All these jobs were with the American Embassy Berlin in Berlin Germany, part of U.S. Mission Germany. Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany, including U.S. and non-U.S. citizens.

On August 24, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on age because throughout her employment she was ineligible, due to being hired after her 45th birthday, to participate in the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff.
[…]
The Agency dismissed the EEO complaint because Complainant did not initiate EEO counseling within the 45-day time limit of when she reasonably should have suspected discrimination. It found as follows. Complainant should have reasonably suspected discrimination upon her retirement (December 31, 2018) when she learned that she did not qualify for retirement benefits, and again by February 26, 2020, when post leadership issued cable 20 STATE 21066 denying Complainant and similarly situated LE retirees retirement benefits. The Agency found that Complainant had constructive notice of the 45-day time limit because of numerous posted notices on the Agency’s internet site, its intranet site dedicated to employment information, and on Embassy Berlin’s intranet site. The Agency also dismissed the complaint for failure to state a claim for various reasons.

The instant appeal followed. On appeal, Complainant argues that when she was hired American Embassy Berlin was in the process of building a new embassy. She writes she was not located in one of official Embassy buildings and because her location did not have access to the Agency and Mission Germany intranet websites she did not have the means to learn of the 45 day time limit. Complainant writes that the above occurred when she worked for Overseas Building Operations (OBO) of the Embassy.

[…]
The record reflects Complainant stopped working in OBO when she was promoted on April 1, 2007, and she does not argue she was unaware of the 45-day time limit thereafter. Rather, Complainant argues that the Commission should waive the 45-day time limit because the Agency deliberately hindered those injured from becoming aware of the age discrimination and because of the gravity of its offense. Complainant argues that she only formed a reasonable suspicion of age discrimination after extensive consultation with experts and similarly situated LE Staff and retirees, and hence her EEO contact was timely. She also argues that her complaint states a claim.
[…]
Complainant argues that after she retired on December 31, 2018, she helped establish a Pension Sub-Committee to meet with management to discuss DBP age discrimination (meaning allow those excluded from DBP due to their age to retroactively join DBP), but on February 26, 2019, via cable, management declined to grandfather them into DBP. Based on this information, we  conclude that Complainant had a reasonable suspicion of discrimination years before she initiated EEO counseling on July 21, 2020. Accordingly, the FAD is AFFIRMED
EEOC Appeal No. 2021001243
Complainant, a U.S. citizen, was hired by the Agency starting on February 24, 1997, to a limited term position as a Commercial Representative at the American Consulate General, Office of the Foreign Commercial Service, in Dusseldorf, Germany. The term appointment allowed for the option of subsequent annual extensions. It appears the Agency annually renewed Complainant’s term employment until he retired on October 31, 2017. In July 2009, Complainant was reassigned from Dusseldorf to Munich, Germany, where he remained until his retirement. Throughout his career with the Agency’s U.S. Mission Germany, Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany.
On July 23, 2020, Complainant initiated EEO counseling and later filed a formal equal employment opportunity (EEO) complaint dated August 26, 2020, alleging the Agency discriminated against him based on his age because he was ineligible, due to being hired after his 45th birthday, to participate in Part A of the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff.
[..]
The Agency dismissed Complainant’s EEO complaint because he did not initiate EEO counseling within the 45-day time limit of when he reasonably should have suspected discrimination. The Agency found that, at the latest, Complainant should have reasonably
suspected discrimination when he retired on October 31, 2017, because he did not qualify for retirement benefits at that point. It further found that assuming Complainant did not reasonably suspect discrimination upon his retirement, he should have reasonably suspected discrimination when, on February 26, 2020, via cable (identified as 20 STATE 21066), Agency leadership denied the request by similarly situated former LE Staff, also hired after age 45, for retirement  benefits. The Agency found that Complainant knew or had constructive notice of the 45-day time limit because of posted notices on the Agency’s intranet and internet sites dedicated to employment information. The complaint file contains screen shots of the referenced notices.
[…]

The doctrine of laches is an equitable remedy under which an individual’s failure to pursue diligently his course of action could bar his claim. We find laches applies here. Complainant delayed almost three years after he retired to initiate EEO counseling. While the record may not show exactly when Complainant was notified of the time limit to initiate EEO counseling, we conclude that the record sufficiently supports a finding that he did not act with due diligence in starting his EEO case, justifying the application of the doctrine of laches. Accordingly, the FAD dismissing the complaint for untimely EEO counseling is AFFIRMED.
EEOC Appeal No. 2021001278 :
During the relevant period, Complainant worked as a Computer Management Specialist at the Agency’s US Embassy Berlin in Berlin, Germany.

On July 21, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.

On August 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on age when he was informed that he was not eligible for benefits under Mission Germany’s Retirement Benefit Plan, beginning the date of his employment as a locally employed staff member on October 17, 2015.


In its October 13, 2020 final decision, the Agency dismissed the formal complaint claim for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency determined that Complainant initiated EEO Counselor contact on July 21, 2020, which the Agency found was more than forty-five days after the alleged discriminatory event occurred. In addition, the Agency argued that Complainant knew or should have known that retirement benefits were not part of his employment benefit package.
In support of its assertions, the Agency included a copy of Complainant’s offer letter and employment history that he signed on September 9, 2005, acknowledging receipt of the Foreign Service National (FSN) Handbook that explains retirement benefit eligibility.
[…]
The Agency noted further that the instant complaint raises issues of retirement benefits for Locally Employed Staff (LE) which arise under the Foreign Service Act (FSA). Complainant signed the LCP when he began his employment with Mission Germany and properly grieved the LCP provisions. The Agency found that, as a result, the Commission lacks jurisdiction to decide the allegations Complainant raised in his complaint.

Finally, the Agency found that the subject claim is a collateral attack on the Agency grievance proceeding. The Agency stated that Complainant should have raised his allegations through the Agency grievance proceeding, and not through the EEO complaint process.
[..]

Here, the Agency properly dismissed the formal complaint on the grounds of untimely EEO counselor contact. Complainant was notified in his employment contract in 2005 that he was not eligible for retirement benefits. However, Complainant did not initiate contact with an EEO

Counselor until July 21, 2020, 15 years later and well beyond the 45-day limitation period. We note that in his complaint, Complainant states he did not reasonably suspect discrimination until February 26, 2020, when Agency leadership issued a decision entitled 20 STATE 21066 denying retirement benefits to Complainant and other similarly situated retirees. Even counting from that date, Complainant’s July 21, 2020 initial EEO counselor contact was untimely made.
[..]
The Agency’s final decision dismissing the formal complaint for the reasons stated herein is AFFIRMED.
Not sure what “Agency grievance proceeding” the State Department is referencing here. Is there a grievance system for LE staff overseas, besides getting a hearing from the COM? The Foreign Service Grievance System (FSGB) applies to Foreign Service employees only.
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.
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