EEOC Case: Complaint Over Arranging Transportation to a Happy Hour in Baghdad

Posted: 12:35 am ET
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Via eeoc.gov

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.

BACKGROUND

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.

 

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Chien v. Kerry: DS Agent Files Suit For Race/Sex Discrimination, Hostile Work Environment, and Retaliation

Posted: 2:41 am ET
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According to court filings, Josephine Chien is currently assigned as an Assistant Regional Security Officer (ARSO) overseas. In early August, she filed a lawsuit against the U.S Department of State alleging race and sex discrimination under Title VII, hostile work environment & harassment, and retaliation.  The court filing says that Ms. Chien has been an employee of the U.S. Department of State since 1999. Since the case talks about her being denied tenure in 2012  and eventually obtaining tenure in 2013, we suspect that 1999 is an incorrect year.

Excerpts below from the court filing:

Josephine Chien by and through her undersigned counsel bring this action for race discrimination under Section 1981 and Title VII; a hostile work environment under Title VII and retaliation under Section 1981 and Title VII against the Defendant John F. Kerry, Secretary of State, for the U.S Department of State. Chien has been an employee of the State Department since 1999. She is an Asian female of Taiwanese-American descent. In 2011, during her assignment in Libya, her supervisors assigned tasks to her in a discriminatory manner, whereby certain tasks were given to males as opposed to females. This again occurred in 2012 during her tour in Pakistan. In late 2012 and mid 2013, when after again complaining about discriminatory behavior, she was again retaliated against when she was not selected for foreign assignments.

March 2010-January 2011 deployment in Los Angeles

In March 2010, she was employed at the Los Angeles (L.A) satellite office in West L.A. Her supervisor was Michael Lodi. Lodi would frequently communicate with her disparagingly shouting and screaming at her. Chien found this demoralizing as Lodi would not communicate in this manner with other non-Asian members of the staff or male members of the staff. Her colleague and special agent Bret Newton (Caucasian male) told her that he was aware of the prejudice from Lodi and encouraged her to file a complaint against Lodi. Her colleague and special agent John Ming Chen, also observed Lodi’s demeaning treatment of Chien and that Lodi was unprofessional towards Chien.

Lodi also refused all training requests and overseas assignments to Chien. Chien had asked Lodi for hardship assignments to Yemen, Iraq and Afghanistan, only to be told that because she was the duty agent, she could not be assigned overseas.

Consequently sometime in November 2010, Chien approached assistant special agent in charge Whitney Savageau seeking a transfer to the L.A Field Office1. Around December 1, 2010, Chien also had a meeting with Savageau whereby she stated her concerns about Lodi, in that he was treating her differently and discriminating against her. Chien also informed Savageau that Lodi had denied her training and assignments. Chien told Savageau to keep the matter private and also told her specifically to not inform Lodi of her discussions with her (Savageau). Savageau told Chien to discuss her concerns with Chief Jeff Lefter. Chien did so on the same day or on December 1, 2010. She again reiterated her conversations with Savageau with Lefter

Barely 24 hours later or on December 2, 2010, Lodi had a meeting with Chien. Lodi informed Chien that Savageau had a conversation with him about her complaint. Lodi told Chien that “it was not a smart move as I am still writing your evaluation.” He then proceeded to engage in a monologue whereby Lodi informed Chien that she “should know how the system works” and that her transfer sought to the L.A. Field office would “poison the office.”

Upon the conclusion of the conversation, Chien immediately contacted Lefter by email. She again asked for a transfer, and told Lefter that she felt that Lodi had threatened her by saying that “I am still writing your evaluation.” Lefter contacted Chien by telephone and told her that he will speak with Savageau about Lodi.

Chien then contacted the “Human Resources Career Development and Assignments” and sought advise and transfer. She was finally transferred in January 2011.

In the interim, and true to form, post December 2, 2010, or sometime on June 3, 20112, Lodi gave Chien a negative performance evaluation, accusing her of lacking in communication and interpersonal skills. There were no facts to corroborate these allegations. This negative evaluation prevented Chien from being granted tenure within the Agency.

The tenure board in turn, denied her tenure in 2012, citing to Lodi’s comments regarding her lack of interpersonal and communication skills.

In March 2013, Chien challenged/appealed this evaluation by Lodi. Her challenge was successful and in July 2013, Lodi’s 2011 evaluation of Chien was overturned. She was granted tenure soon after. (Note: we’re trying to locate the FSGB case).

Libya Assignment March – May 2011

Around May 2011, Chien was now assigned to the U.S Embassy in Libya. She was part of the protective detail to the Special Envoy to Libya, Chris Stevens. She was employed at the Tactical Operations Center (TOC) answering telephones, monitoring traffic and issuing equipment to other TOC agents on the ground.

Upon her arrival, Chien was told that all agents initially served at TOC, and after a few weeks, they would be sent to the field. All the other TOC agents in Libya were male.

After two (2) weeks of her arrival in March 2011, she asked her shift leader if she could be sent to the field, as part of the security detail for a motorcade. She was told by her supervisor, that she would remain as a TOC agent, and that there were no plans to rotate her.

Consequently sometime in March/April 2011, Chien asks the Agent in Charge, Scott Moretti that she be assigned to a field position. Moretti says, “We don’t do rotations.” Barely an hour later, Agent Joel Ortez asked Moretti, if he can be rotated from a limousine driver to another position, because Ortez had been a limousine driver for weeks and needed a new rotation/assignment. Moretti’s immediate reply to Ortez was, “Sure Buddy!”

Soonafter, Chein also learned from Mr. Khamprasong Bounkong, that when management had learned a female agent was being assigned to Libya, one of the bosses said, “Why would they send a female from headquarters to a Muslim country?”

Chien was deeply displeased by the Agency’s discriminatory assignments of tasks to male agents, as she had undergone similar firearms training, emergency and critical thinking training. She felt that the only reason she was being denied rotation to the field, was because she was a female. This was made all the more concerning to her, when as part of her single “protective detail” she was awarded a “Group Meritorious Award” for a bombing occurring on June 1, 2011.
[…]
Finally on or about August 12, 2013, after bidding on 18 overseas NOW positions and being denied for all of them, her supervisor Mr. Ollie Ellison informed Chien that he was informed by Mr. Kearns, Chien was being denied for foreign assignments because “it has to do with something out of L.A.”

February 2012-March 2013: Pakistan Assignment

As the ARSO and under the direction of Krajicek she oversaw the Surveillance Detection Program3, the Local Guard Force (LGF) Residential Program, the Residential Security Program (RSP), the Logistics / Procurement Program, and the Information / Cyber Security Program.

Chien alleges that the removal of her programs was motivated by racial or sexual animus, as the programs of other Caucasian males were not removed by either Krajicke or Thiede.

Upon her return from Pakistan to the United States, or sometime in March/April 2013, Chien learned from her colleagues George Terterian & Alexa Landreville, that the security investigators had asked them if Chien had ever complained about work place harassment, a hostile work environment, discrimination or retaliation. Chien believes that this extra scrutiny during her January 2013 clearance interview was a result of her prior EEO activities and therefore in retaliation to her protected activities.

Under Count II, the complaint says that “Defendant created a hostile work environment and/or harassed Plaintiff because of her race and sex; the offending conduct was unwelcome, was based on race and/or sex and was sufficiently severe or pervasive when it altered the conditions of her employment and created an abusive work environment and was imputable to her employer the U.S. Department of State.”

Under Count III, the complaint alleged that “As a result of her protected activity and opposition to practices made unlawful under Title VII, Plaintiff was subjected to multiple adverse employment actions, up to and including a negative performance evaluation, denial of tenure, over-scrutinization of her security clearance and/or denial of foreign assignments.”

Ms. Chien demands a jury trial and requests that the Court award economic damages.

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Related posts:

 

Burn Bag: Ding! Ding! Ding! This Is Your ‘More Than Just Stupid’ Warning!

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?”

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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.

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