[Redacted], Frida L., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020001235 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frida L.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2020001235 Hearing No. 550201900400X Agency No. 20160003R09 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 9, 2019 Final Order concerning an 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., and Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an EEO Specialist (probationary) at the Agency’s Office of Civil Rights, Region IX facility in San Francisco, California. On December 3, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to a hostile work environment/harassment and discriminated against her on the bases of physical disability (Deep Vein Thrombosis/“DVT” and multiple related conditions impacting mobility) and reprisal for prior protected EEO activity when: 1. Beginning in December 2013, her supervisor (“S1”), did not respond to her requests to discuss the classification of her new GS-7 position, 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. 2020001235 2 2. In February 2014, S1 gave her instructions on how to properly report an anticipated tardy arrival to work; 3. On May 20, 2014, S1 informed her that she had not read the self-evaluation Complainant submitted for her mid-year performance appraisal, 4. In July 2014, S1 informed her that she did not believe Complainant's duties justified a 40-hour work week, 5. On July 8 and 9, 2014, S1 reminded Complaint of deadlines for existing assignments 6. On July 9, 2014, S1 counseled her regarding the poor qualify of her work and then called her into her office every 20 minutes to monitor her progress, 7. In July 2014, S1 delayed the approval of Complainant’s travel voucher for about one month, 8. In August 2014 and December 2014, S1 ignored her requests to apply for a skills marketplace project and to join Toastmasters, 9. On October 15, 2014, S1 told her that she appeared unhappy in her probationary position and may not be "the best fit for the office," 10. On December 1, 2014, S1 cautioned her about requesting leave which she had not yet accrued, and, 11. On September 6, 2015, she was terminated from her probationary position. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. After the parties engaged in discovery, the Agency submitted a motion for a decision without a hearing. Over Complainant’s objections, the AJ granted the motion and issued a decision by summary judgment in favor of the Agency on September 11, 2019. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). 2020001235 3 A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. The Commission has long held that probationary employees, such as Complainant, are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Complainant v. Dep’t of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015) (citations omitted). On appeal, Complainant neither directly addresses the Agency’s legitimate nondiscriminatory reasons for declining to convert her to a fulltime employee, namely concerns about her performance and her ability to succeed at higher grade levels, nor does she offer anything other than conclusory statements as evidence of discriminatory animus. Complainant also focuses on an alleged denial of a reasonable accommodation, even though reasonable accommodation of a flexible start time appears to have been honored by the Agency throughout the relevant time frame and there is no evidence that Complainant’s late arrivals were a factor in the decision not to convert. Even construing any inferences raised by the undisputed facts in favor of Complainant, such as ignoring the AJ’s reasoning under the “same actor presumption,” which Complainant discusses on appeal, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. 2020001235 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020001235 5 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 March 24, 2021 Date