@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).

###

Related posts:

EEOC Reverses @StateDept’s Dismissal of Ongoing Harassment Complaint

 

 

EEOC Appeal No. 2020004444:
Opal V. v. Dep’t of State, EEOC Appeal No. 2020004444 (Oct. 8, 2020)(Complainant’s complaint was more properly characterized as one of ongoing harassment by her supervisor and several subordinates.  Complainant alleged a series of events which created a hostile work environment over several months, including one incident involving a meeting with her supervisor that occurred within the 45 days prior to her email contact with the EEO Counselor.  The EEO Counselor’s report specifically referenced Complainant’s allegation of a hostile work environment based on her sex.  Therefore, Complainant stated a viable claim.  The Agency’s assertion that Complainant failed to show a nexus between her sex and the alleged harassment went to the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).
Excerpt:

At the time of events giving rise to this complaint, Complainant worked as an Information Programs Supervisor, FS-03, at an Agency facility in Brussels, Belgium.

On May 31, 2020, Complainant filed a formal EEO complaint. The Agency, in its dismissal decision, characterized the complaint as alleging that Complainant was subjected to discrimination on the basis of sex (female) when:

1. On February 25, 2020, Complainant was verbally counseled.


2. Complainant was subjected to an ongoing hostile work environment characterized by management communicating directly with Complainant’s subordinate employees without her, and management’s failure to admonish subordinates about using the term “mothering” and management’s own use, and condoning, of the use of terms and actions that Complainant found sexist and offensive.

On July 5, 2020, the Agency issued a final decision dismissing the complaint for failure to state a claim and for untimely EEO contact, reasoning that Complainant initiated EEO contact on April 28, 2020. The Agency stated that, “even if Complainant did not have actual knowledge [of the timeframes for initiating EEO counseling], she had constructive knowledge because she completed a No Fear training on March 3, 2009,” and the Agency had notices posted on the Agency’s website regarding the EEO process. The Agency dismissed the second allegation, reasoning that it did not rise to the level of an adverse action. The Agency found that referring to Complainant as “mothering” and “tasking her subordinate employees, without including her is not sufficiently severe or pervasive to rise to the level of a hostile work environment.”
[…]
On appeal, Complainant argues that when the Agency dismissed her complaint for failure to state a claim “the essence of the complaint is being ignored, that she was subjected to sex-based harassment by two employees over a six-month period, which was condoned by management.” The EEO Counselor’s Report stated that Complainant claimed that “because of sex, she was subjected to a hostile work environment characterized by, but not limited to, her supervisory position being treated as irrelevant” and that she was in a work environment that continually subjected her to “offensive gender-based comments or treatment”. Complainant also stated that management condoned the subordinate employees’ sexist attitudes. The EEO Counselor’s Report also stated that Complainant claimed that her male supervisor “has a practice of tasking her with all of the section’s trivial errands and personnel issues, while reserving the allocation of desirable, high profile projects for him to assign.”

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Significantly, Complainant claims that her male supervisor, on an ongoing basis, undermined her own authority with her subordinates andcondoned what she believed to be sexist comments and attitudes directed against her because of her sex. We conclude that Complainant has made sufficient allegations to state a viable claim of discriminatory harassment which requires further investigation and processing. While the Agency claims that Complainant has failed to establish a nexus between her sex and the alleged harassment, this is addressing the merits of the claim without a proper investigation and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No.
05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).


For the reasons stated above, we find that Complainant’s complaint was improperly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. We caution the Agency that, on remand, it should avoid fragmenting Complainant’s overall hostile work environment claim in a piecemeal manner.

###

 

Congress Seeks Info on @StateDept Senior Executives Who Are Subjects of Multiple Complaints

Posted: 12:47 am ET

 

Last week, we blogged about Senators seeking a review/analysis of @StateDept and @USAID sexual harassment and assault data. We have issues with the current harassment data, and sexual assault data in particularly is hard to come by. We want to know how many sexual harassment settlements were made, and how much. We also want to know how many sexual assaults reports have been made, how many cases were refused prosecution by the Department of Justice, and what happens to these cases/victims and their careers. We realized that we can scream our head off in this blog, but only Congress can force the State Department to make this data public (anonymized with no personally identifiable information). That time may be slow in coming, but it is coming.

Rep. Elijah E. Cummings, the Ranking Member of the House Committee on Oversight and Government Reform, on January 22 sent a letter to Secretary Tillerson requesting information about members of the Department’s Senior Executive Service (SES) who have been the subjects of multiple complaints, including Equal Employment Opportunity (EEO) complaints. We don’t know what are the specific complaints in this case but EEOC discrimination complaint types include AgeDisabilityEqual Pay/CompensationGenetic InformationHarassmentNational OriginPregnancyRace/ColorReligionRetaliationSex, and Sexual Harassment.

Representative Cummings notes in his letter that “Several career employees at the State Department, including one of my constituents, have written to me raising serious allegations that the Department has repeatedly failed to eliminate the hostile work environment created by a member of the SES, [NAME REDACTED].” Mr. Cummings letter says that the employees indicated to him that numerous complaints have been filed against this individual “that resulted in settlements, but the Department has taken little action to hold this executive accountable or protect employees from abusive management practices.”

We understand that there are multiple individuals involved in the complaints shared with the House Oversight Committee but we don’t know the exact numbers, and whether or not this specific inquiry involves one specific SES member or more. It is telling that the trend on the complaints has moved to the Hill, and no longer localized within the agency. Is this an indicator that the current reporting system is not responsive to the needs of those affected? Or are we just living in a different era?  We do not want to see a trial by media, especially in the hands of politicians, but victims with no real recourse for redress may decide that talking to the Hill or the press is the only action left for them, no matter the personal consequences.

Also worth noting that Mr. Cumming’s request is specific to the Senior Executive Service, the senior ranks of the Civil Service, and does not include the senior ranks of the Foreign Service.

Mr. Cummings letter is asking the State Department to respond to the following requests:

1. an itemized list, with personally identifiable information removed, enumerating  each informal and formal complaint filed against [NAME REDACTED] at any time during his career, including but not limited to EEO complaints, citing:

  • (a) the date on which each complaint was filed;
  • (b) the base(s) of the complaint;
  • (c) the dates on which the complaint advanced through the informal and formal complaint steps;
  • (d) whether there was any finding arising from the complaint that discriminatory or retaliatory action had occurred;
  • (e) whether the complaint resulted in a settlement; and
  • (f) the terms of any settlement (including any monetary amounts included in the settlement); and

2. The number of Senior Executives against whom more than one informal or formal complaint has been filed with the Department of State at any time during the past five years.

3. All Department policies governing how evaluations of Senior Executives’ performance account for their work creating equality of opportunity for all employees.

See HOGR Cummings January 22, 2018 letter to Tillerson

#