Via The Digest of Equal Employment Opportunity Law | Volume 1, Fiscal Year 2019
“Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment sex and reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).”
Sex Discrimination & Reprisal Found.
Complainant, a Senior Fellow, filed an EEO complaint alleging that she was discriminated against based on sex (pregnancy), and reprisal, when her supervisor (S1) made disparaging remarks about her pregnancy; subjected her to increased scrutiny and reporting requirements related to her telework; required her to apply leave retroactively to dates and times when S1 knew she worked; terminated her alternate work schedule (AWS); and did not extend her fellowship. The Commission found that Complainant established a prima facie case of sex and reprisal discrimination, and then demonstrated that the Agency’s reasons were pretext for discrimination. Regarding Complainant’s telework reports, the record showed that she submitted extensive narratives, and clearly met the reporting requirements. Additionally, emails between Complainant and S1 showed that he knew she was working more than eight hours a day, but still asked her to take leave, and did not approve all her work hours. S1 stated that he denied Complainant an AWS due to a lack of coverage. However, the record showed that Complainant was meeting her work requirements, and that she was responsive and accountable while using workplace flexibilities. The Commission found that the Agency did not articulate a legitimate, nondiscriminatory reason for not renewing her fellowship because S1’s assertion that Complainant had performance problems was not supported by any documentation. Further, Complainant had shown pretext because management’s responses were inconsistent. Accordingly, the Commission concluded that the preponderance of the evidence supported Complainant’s claim that she was subjected to sex and reprisal discrimination. The Agency was ordered, among other things, to provide Complainant with a fellowship, or similar position, with an opportunity to extend on a yearly basis (similar to other fellows); conduct a supplemental investigation to determine compensatory damages; and provide training to the responsible management officials. Reita M. v. Agency for Int’l Dev., EEOC Appeal No. 0120161608 (July 17, 2018).
When you hear that lists sent to DCM Committees have been adjusted by gender for those appointees who are insisting on a man (!) as their Deputy Chief of Mission (DCM) or Deputy Assistant Secretary (DAS). And you’re still waiting for anyone at DGHR to inform everyone that no committee will entertain any list that promotes, assists, or enables sex discrimination in violation of Title VII.
Posted: 12:35 am ET
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DECISION | Complainant filed a timely appeal with this Commission from the Agency’s decision dated January 21, 2014, dismissing her complaint of unlawful 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. Upon review, the Commission finds that Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
At the time of events giving rise to this complaint, Complainant worked as a Foreign Services Officer at the U. S. Embassy in Baghdad, Iraq.
On December 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when she received an email from an official outside her chain of command requesting that she arrange his transportation to a happy hour.
Information in the record shows that the email stated “[Complainant], since you are such an expert could you put in a request for a vehicle.” Both Complainant and the involved official had been invited by the Australian Embassy to go to the event, and the official’s office and Complainant’s office had worked together in the past. The official said that Complainant had offered to arrange transportation to a meeting in the past. When the official learned that Complainant was upset by his email, he apologized.
Analysis and Findings
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant’s allegations, involving a one-time isolated email, are insufficient to state a claim of a hostile work environment.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.
The text of the entire decision is available to read here.
Via Burn Bag:
“A director of a regional diplomatic courier office has openly expressed he does not want to hire “women of childbearing age”. He achieves this by carefully examining candidates’ resumes when hiring to fill an EFM position. BBag, can you stop this stupidity, considering it’s from an FS-1?”
EFM – eligible family member
FS01 – the highest rank in the regular Foreign Service, last step before the Senior Foreign Service; equivalent to a full Colonel in the military
Why this is more than just stupid? SCOTUS:
The Supreme Court decides International Union, UAW v. Johnson Controls and addresses the issue of fetal hazards. In this case, the employer barred women of childbearing age from certain jobs due to potential harm that could occur to a fetus. The Court rules that the employer’s restriction against fertile women performing “dangerous jobs” constitutes sex discrimination under Title VII. The Court further rules that the employer’s fetal protection policy could be justified only if being able to bear children was a bona fide occupational qualification (BFOQ) for the job. The fact that the job posed risk to fertile women does not justify barring all fertile women from the position.
The Supreme Court in Phillips v. Martin Marietta Corp. holds that Title VII’s prohibition against sex discrimination means that employers cannot discriminate on the basis of sex plus other factors such as having school age children. In practical terms, EEOC’s policy forbids employers from using one hiring policy for women with small children and a different policy for males with children of a similar age.
In Gibson v. West, the Supreme Court endorses EEOC’s position that it has the legal authority to require that federal agencies pay compensatory damages when EEOC has ruled during the administrative process that the federal agency has unlawfully discriminated in violation of Title VII.