Complainant,v.Maria Contreras-Sweet, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

May 13, 2015

01-2012-3117-0500 (E.E.O.C. May. 13, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Maria Contreras-Sweet,
Administrator,
Small Business Administration,
Agency.

Appeal No. 0120123117

Agency No. SBA-11-11-001

DECISION
On July 30, 2012, Complainant filed an appeal from the Agency’s June 26, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 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 an Information
Technology Specialist, GS-2210-12, at the Agency’s Office of Disaster Assistance in Buffalo,
New York. On December 22, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of her sex (female), disability, and age (61 at
the relevant time) when:

1. from September 2009, Complainant has been isolated, demeaned, and belittled by
her supervisor (S1) in front of a younger male coworker in an attempt to terminate
her;
2. from September 2009, S1 denied Complainant the use of credit hours;
3. from September through December 2009, management denied Complainant’s
request for light duty, required her to perform assignments after being diagnosed as
legally blind, and called her at home to conduct business while she was on sick
leave and convalescing from cataract surgery;
4. from September 2009, management did not designate her as Team Lead or Project
Manager of any projects despite her having seniority;
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5. from January 2010, management did not give Complainant access to an application
being created by a coworker;
6. on March 23, May 27, and June 22, 2010, management issued Complainant letters
stating that her performance was below expectations; and
7. in August 2010, management required Complainant to give an exact accounting of
her time, berated her about leave slips, and disciplined her for a deadline missed by
a younger, male coworker.

Complainant later amended her complaint to include the basis of reprisal for prior protected
EEO activity. She alleged that the Agency subjected her to unlawful discrimination when:

8. on November 12, 2010, management issued Complainant a letter evaluating her
performance as “fails to meet expectations” in the written and job specific
categories, and “below expectations” in the customer satisfaction category;
9. on November 12, 2010, management issued Complainant a letter proposing to
remove her from her position of Information Technology Specialist for unacceptable
performance;
10. on November 15, 2010, management removed Complainant’s network privileges, as
well as the visual studio from her computer, which impeded her from performing
the duties of her position; and
11. on January 11, 2011, management terminated her from her position.1

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.

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

1 Complainant also alleged that the Agency discriminated against her when: (12) in 2006 ,a
male coworker was designated as manager and given a step increase while Complainant was
not afforded the same opportunity; (13) in July 2009, a male coworker was sent to Washington
D.C. and given access to colleagues and a network application that her office was responsible
for, while Complainant was not afforded the same opportunity; and (14) in September and
October 2009, Complainant was not permitted to work the same amount of overtime as a male
coworker. By letter dated January 25, 2011, the Agency dismissed these additional claims,
pursuant to § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant did not
challenge the dismissal of these claims so we will not further address these claims.
Equal Employment Opportunity Management Directive for 29
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C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “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”).
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc

., 530 U.S. 133 (2000).
Here, assuming arguendo, Complainant established a prima facie case of sex, age, disability,
and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the record shows that after one of Complainant’s co-
workers unexpectedly passed away, management found that there was a lack of documentation
for the programs that Complainant and the co-worker had created. As such, in November
2009, S1 assigned Complainant the task of creating technical support documentation for the
programs being created by their office so that there would be no danger of loss of knowledge
for mission critical systems. In March 2010, S1 contacted the Human Resources Specialist
(HRS) to address Complainant’s performance, which he found was below expectations in all
job elements, and to discuss ways in which he could assist her in improving it. S1 subsequently
issued Complainant a Letter of Expectations, dated March 23, 2010, outlining the deficiencies
in her performance, including unnecessary delays in customer service, missed deadlines,
failure to follow instructions, and poor time management. This letter also included clear
instructions on what Complainant needed to do in order to accomplish the technical support
documentation assignment, and stated that S1 would be available to meet with Complainant
twice every week to assist her in completing her assignment.

With respect to claim (1), we find that the evidence does not support Complainant’s contention
that she was isolated, as the record shows that during the period at issue, S1 scheduled at least
30 meetings with Complainant, and according to Complainant’s second-line supervisor (S2),
S1 “spent an inordinate amount of time with [Complainant] when he was trying to help her”
improve her performance. Further, we find that Complainant has not provided any evidence to
support her contention that she was “demeaned” or “belittled” by S1 at any time during her
employment. As to claim (2), S1 states that Complainant was only denied the use of credit
hours when she did not make her requests in advance, which was the established department
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policy. With respect to claim (4), the record shows that there was only one project which
required the designation of a team lead during the time period at issue and as to claim (5), both
S1 and S2 state that Complainant did not need access to her coworker’s application as that
assignment did not involve Complainant and no employees are given access to applications or
included in programs assigned to co-workers. With respect to claim (7), despite Complainant’s
contention that S1 required her to account for her time, the record shows that S1 specifically
stated in an email response to Complainant that he “did not ask for an exact breakdown of time
on each individual task or a breakdown by day.”

As to claims (6) and (8) - (11), the record clearly shows that Complainant’s performance was
unsatisfactory during the period at issue. Additionally, the evidence reflects that Complainant
was given numerous opportunities to improve her performance, including weekly feedback and
coaching meetings with management, letters of expectation which clearly set out what was
required of her in order to satisfactorily complete assigned tasks, and one-on-one assistance. S1
and HRS stated that Complainant was resistant to feedback during these meetings, often
denying that she needed assistance or stating that she did not understand the assignments S1
was giving her despite his repeated explanations and his providing letters of expectation. This
is supported by S1’s contemporaneous notes of the meetings, as well as his weekly feedback to
Complainant in emails, and the affidavit testimony of HRS who was present for a number of
the meetings at issue. HRS stated that despite being included in the meetings to ensure
Complainant was being treated fairly by management, he found that it was Complainant who
behaved in a hostile manner, and that at one point he had to caution her about her conduct. The
record shows that despite being given numerous opportunities, Complainant’s performance
failed to improve and, therefore, management issued her a notice of removal. The record
reflects that after being issued the notice of removal, Complainant’s network access was
limited to only those programs necessary to perform her job functions, including internet,
training tools, and email. Accordingly, we find that Complainant failed to proffer any evidence
to show that the Agency’s actions were motivated by discriminatory or retaliatory animus or
that the Agency’s articulated reasons for its actions are pretextual.

Next, insofar as Complainant is alleging that the claims addressed above constitute harassment,
the Commission finds that since she failed to refute the legitimate, nondiscriminatory reasons
proffered by the Agency for its actions, she necessarily also failed to establish that such actions
were taken on the basis of her membership in the protected classes. Accordingly, Complainant
failed to establish that she was subjected to a discriminatory hostile work environment. See
Bennett v. Department of the Navy

, EEOC Request No. 05980746 (September 19, 2000).
Finally, to the extent that Complainant is alleging that she was denied reasonable
accommodation with respect to claim (3), under the Commission’s regulations, an Agency is
required to make reasonable accommodation to the known physical and mental limitations of a
qualified individual with a disability unless the Agency can show that accommodation would
cause an undue hardship. See 29 C.F.R, §§ 1630.2 (o) and (p). For purposes of analysis, the
Commission assumes, without so finding, that Complainant is a qualified individual with a
disability.
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The record shows that in August 2010, Complainant submitted medical documentation
requesting light duty and limiting her from lifting more than 30 pounds. We note that although
Complainant’s position did not require any lifting, the Agency granted Complainant’s request
for accommodation. There is no evidence, however, that Complainant ever provided any
medical documentation stating that she was legally blind, or that she informed any management
officials of this condition. The only evidence in the record regarding her vision is testimony
stating that Complainant asked for materials to be provided in a larger font and that the Agency
provided the materials as requested. With respect to being called at home, S2 stated that the
decision was made to contact Complainant during her convalescence because access was lost to
a mission critical system and Complainant was the only employee who had the ability to
restore access. S2 stated that due to the mission critical nature of the problem, she gave S1
permission to contact Complainant at home. We find that Complainant has not shown that the
Agency denied her a reasonable accommodation or subjected her to harassment on the basis of
her disability.

CONCLUSION
Based on the foregoing, we AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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.
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
May 13, 2015