EEOC Appeal 2020000838

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ayanna B.,1
Complainant,
v.
Mark Green,
Administrator,
Agency for International Development,
Agency.
Appeal No. 2020000838
Agency No. OCRD-028-18-F
DECISION
On November 12, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 19, 2019, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a FS-1 Deputy
Director in the Agency’s Center for Resilience in Washington, D.C. From September 2016 to
November 	2017, 	Complainant’s 	first-line supervisor 	was 	the Director 	of 	the Center 	for
Resilience (S1). In November 2017, Complainant transferred to Accra, Ghana and became the
Deputy Mission Director of the USAID Regional Mission in West Africa.
Complainant was born in Haiti to a Haitian father and an American mother, and Complainant’s
mother registered her birth as an American born abroad. Complainant identified her national
origin as American, noting that she left Haiti when she was three years old and was raised in an
American household.
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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However, Complainant stated that some Agency colleagues may have assumed that she was
Haitian because she was born in Haiti, because some of her father’s relatives lived in Haiti, and
because she knew some people in Haiti from having worked there for an aid organization and for
the Agency. Complainant had most recently worked in Haiti from October 2010 through October
2015 as the Office Chief for Food Assisted Development and Humanitarian Office in the USAID
Haiti Mission in Port-au-Prince, Haiti.
While Complainant was working for the Center for Resilience, she was in communication with
employees in the Haiti Mission. Complainant was trying to arrange for Haiti government
officials to visit Ethiopia and Kenya to see how Ethiopia and Kenya had improved their
organizational resilience for social programs. According to Complainant, the trip would have
been fully funded by the Center for Resilience, and the outgoing Deputy Director of the Haiti
Mission (H1) had expressed interest in supporting the trip. Complainant stated that the new
Deputy Director (H2) and the Director of the Haiti Mission (H3) pushed back against the need
for the trip and did not see the value of such a trip until Complainant was in the process of
transferring from the Center for Resilience to Ghana and it was too late for Complainant to
complete the arrangements for the trip. Complainant also averred that she had proposed
travelling to Haiti multiple times on temporary duty travel (TDY) because the Center for
Resilience was interested in adding Haiti as a priority resilience country. However, Complainant
stated that she was only invited to come to Haiti for a one-week TDY and that H2 and H3 did not
follow up with her on her post-TDY assessments. Complainant alleged that, when the Agency
Administrator subsequently visited Haiti, the Haiti Mission agreed that Haiti should become a
priority resilience country. H2 and H3 denied pushing back against the proposed trip to Kenya
and Ethiopia or against the proposed TDY. H2 stated that the Haiti Mission supported
Complainant’s TDY to Haiti in June 2017 and noted that resilience did not become a focus for
the Haiti Mission until May 2018, after Complainant had left the Center for Resilience.
According to H3, some of the dates proposed for TDY to Haiti by Complainant did not work
because of the timing.
Complainant alleged that S1 did not rate her performance as positively as he should have
because her efforts for the Haiti government officials to visit Ethiopia and Kenya were stymied
by H2 and H3. The Agency’s performance appraisal period runs from April 1 through March 31.
On 	May 4, 	2018, 	S1 	signed 	an 	Appraisal 	Input 	Form 	(AIF) 	discussing 	Complainant’s
performance April 1, 2017, through November 1, 2017. The AIF was used by Complainant’s
supervisor in Ghana to evaluate her annual performance. According to the record, Complainant
drafted the AIF and sent it to S1 for his signature. S1 stated that he developed the AIF with
Complainant and characterized his evaluation as very positive. S1 denied basing his assessment
on any input from anyone Haiti or on Complainant’s inability to implement any work objectives
in Haiti. 	Complainant stated that, for the period from April 1, 2017, through March 31, 2018,
she received an overall “B” performance rating instead of the highest “A” rating that she
deserved. Complainant averred that she was not eligible for promotion because of the B rating.

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Complainant stated that on May 24, 2018, she was interviewed by the Agency’s Office of the
Inspector General (OIG). According to Complainant, she was accused of giving her relatives
special consideration for aid in Haiti, and she had to provide the names and addresses of her
relatives in Haiti. Complainant alleged that the accusation was false and that the investigation
constituted harassment based on her perceived national origin, Haitian. Complainant averred
that, when she was contacted by the OIG, she realized that the employees in the Haiti Mission
had pushed back against her Center for Resilience initiatives based on rumors and assumptions
made about her because of her perceived national origin. H2 and H3 denied knowledge any
alleged impropriety by Complainant. H2 stated that she was unaware that Complainant was of
Haitian descent or that there had been an OIG investigation regarding Complainant until she was
contacted by an EEO Counselor. An OIG Special Agent (O1) stated that he initiated the OIG
investigation after receiving an anonymous complaint that Complainant had directed Agency aid
money to her relatives in Haiti. O1 stated that Complainant’s national origin was not a factor in
the OIG investigation. According to O1, no one outside of the OIG, including H3, received a
copy of the report of the investigation in question.
On August 21, 2018, Complainant filed an EEO complaint alleging that the Agency subjected to
a hostile work environment based on national origin (perceived to be Haitian) when:
1. 	In or around October 2017, Complainant’s performance appraisal was not as
positive as it should have been and, as a result, Complainant was not promoted;
and
2. 	On May 24, 2018, Complainant was interviewed by the OIG based on false
accusations that she had authorized Agency assistance in Haiti to benefit relatives
living in Haiti.
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.
The instant appeal followed. In support of her appeal, Complainant contends that her reputation
as an experienced international development professional with special knowledge of Haiti was
smeared by the false allegations about diverting Agency aid to relatives in Haiti. According to
Complainant, unfair treatment based on her perceived national origin by the Haiti Mission
affected her performance evaluation and her ability to be promoted.
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

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“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”).
Complainant alleged that she was subjected to a hostile work environment when she received a
“B” performance evaluation rating and when she was questioned during an OIG investigator. To
establish a claim of harassment a complainant must show that: 	(1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
their statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. 	See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). 	Further, the incidents must have been "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment." Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 	The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
We find that Complainant has not established that she was subjected to a hostile work
environment based on national origin, because the preponderance of the evidence does not
establish that some of the alleged harassment occurred and because there is no evident
connection between the alleged harassment and Complainant’s membership in any protected
class.
Regarding 	her 	performance 	evaluation, 	the 	AIF 	signed 	by S1 	evaluation 	Complainant’s
performance while working in the Center for Resilience contains positive language. Although the
AIF 	does 	not 	specifically 	reference 	Complainant’s 	work 	with 	Haiti, 	S1 	complimented
Complainant for shaping the Agency’s approach to building resilience, as exemplified by leading
“in the design of a capacity building initiative to support government exchanges to link up and
learn from each other.” Report of Investigation (ROI) at 244. Moreover, the narrative discussing
Complainant’s accomplishments takes up all of the space allotted on the AIF form. Moreover,
the emails in the record between Complainant and H2 and H3 show that the Haiti Mission was
trying to learn more about Complainant’s proposals while balancing other work and do not
reflect that H2 or H3 were trying to “push back” against Complainant’s initiatives. Accordingly,
the preponderance of the evidence in the record does not establish that this alleged harassment
occurred as alleged by Complainant.

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With respect to the OIG investigation, the preponderance of the evidence in the record does not
establish a connection between the investigation and Complainant’s national origin or perceived
national origin.2 Although Complainant asserted that the investigation was based on her
perceived national origin and was likely related to H2 and H3’s reluctance to work with her
while she worked in the Center for Resilience, the preponderance of the evidence in the record
does not support this conclusion. O1 stated that he opened the OIG investigation based on an
anonymous complaint, H2 and H3 both denied knowledge of any alleged impropriety by
Complainant, and H2 added that she was unaware that Complainant was of Haitian descent.
Accordingly, 	Complainant 	has 	not 	established 	by 	preponderant 	evidence 	that 	the 	OIG
investigation was initiated based on her national origin.
CONCLUSION
We AFFIRM the Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) 	calendar days of 	receipt of 	another 	party’s timely request 	for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
2 We need not address whether there could be circumstances in which an OIG could possibly be
discriminatory, since there is no evidence of discrimination in this claim.

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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
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
June 23, 2020
Date