Barbara A. Stefani, Complainant,v.Steven C. Preston, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionSep 27, 2007
0120073095 (E.E.O.C. Sep. 27, 2007)

0120073095

09-27-2007

Barbara A. Stefani, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.


Barbara A. Stefani,

Complainant,

v.

Steven C. Preston,

Administrator,

Small Business Administration,

Agency.

Appeal No. 0120073095

Agency No. 0905039

Hearing No. 550200600132X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's June 5, 2007, final order 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., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

For the reasons that follow, the Commission affirms the agency's

decision.

Complainant filed a formal complaint on August 30, 2005, claiming

discrimination based on age (DOB 5/9/1946) and sex when, in early 2005,

and previously, (a) her career was not advanced, i.e., her job was

not upgraded and/or she was not promoted; and (b) her supervisor (S1)

created a hostile work environment when he made comments regarding the

agency's apparent preference for "younger/scholar employees" in March

2005.1 Following an investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). The agency filed a motion for

summary judgment and complainant opposed; on May 8, 2007, the AJ issued

a decision without a hearing. The agency adopted the AJ's finding that

the agency did not discriminate against complainant as alleged.2

At the time of the events herein, complainant worked as a Control Clerk,

GS-5, in the agency's California Loan Processing Center in Sacramento, CA.

Complainant contended that some of the work she performed was above grade;

however, complainant had not applied for a promotion in several years.

Assuming she was aggrieved, the agency stated that its policy did

not allow for expansion of jobs, including upgrades, due to budgetary

constraints. Complainant noted the selection of a younger female (AL)

as a Loan Officer, GS-11; however, complainant was not eligible for the

position, since she did not have a college degree. With regard to S1's

comment, he explained that he was referring to the agency's reliance on

its Outstanding Scholar Program to fill the position of Loan Specialist,

GS-7, which did not apply limitations based on age or sex.

The AJ found that, notwithstanding the question of whether complainant

stated a claim, the agency articulated legitimate, nondiscriminatory

reasons for its actions in response to which complainant did not

demonstrate pretext.3 The AJ found that complainant failed to prove

that S1's comments constituted illegal harassment.

After a review of the record in its entirety and all statements submitted

on appeal, including those not specifically addressed, it is the decision

of the Equal Employment Opportunity Commission to affirm the agency's

final order, because the Administrative Judge's issuance of a decision

without a hearing was appropriate, and a preponderance of the record

evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 request or opposition must also include

proof of service on the other party.

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 (S0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your

time in which to file a civil action. Both the request and the civil

action must be filed within the time limits as stated in the paragraph

above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_______9/27/07___________

Date

1 The agency dismissed several claims as untimely and for failure to

state a claim. The AJ affirmed the agency's dismissal action, and the

Commission agrees that the claims were properly dismissed.

2 In July 2007, complainant's counsel sought attorney's fees from

the agency. A complainant is entitled to attorney's fees and costs

only if s/he is a prevailing party. See 29 C.F.R. � 1614.501. Here,

complainant has not prevailed on any issue in her complaint.

3 The complainant must show that the agency's action was more likely than

not motivated by discrimination, that is, that the action was influenced

by legally impermissible criteria, i.e., age or sex.

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0120073095

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073095