[Redacted], Dorothy M., 1 Complainant,v.Isabel Casillas Guzman, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Sep 26, 2022

Appeal No. 2021003688 (E.E.O.C. Sep. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dorothy M.,1 Complainant, v. Isabel Casillas Guzman, Administrator, Small Business Administration, Agency. Appeal No. 2021003688 Hearing No. 410-2021-00008X Agency No. 03-19-011 DECISION On June 14, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Information Technology (IT) Specialist, GS-2210-13, at the Agency’s Office of Disaster Assistance, Field Operations Center-East, in Atlanta, Georgia. On July 12, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian), sex (female), and in reprisal for prior protected EEO activity when: 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. 2021003688 2 1. On March 15, 2019, management redirected Complainant’s duties to her male co- worker.2 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. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. The AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ noted that Complainant had ongoing problems with management officials that she claimed were due to her race and sex. During the period at issue, Complainant had extensive absences and her subordinate, the Senior IT Specialist (ITS), bore the brunt of the short-staffing situation. The Agency began planning for its annual IT conference which was scheduled for March 15, 2019. The planning duties fell to ITS and his supervisors because Complainant was absent most of the time. As a result, Agency management decided to have ITS take the lead in presenting at the IT Conference since he did most of the preparation for the conference while Complainant was out on leave. Regarding the remaining incidents alleged as part of Complainant’s hostile work environment claim, the AJ found that the record evidence consisted of vague subjective descriptions of her ongoing interactions with management with no evidence of discriminatory or retaliatory animus. Complainant presented supporting statements from several co-workers; however, the evidence did not support that management officials acted with discriminatory or retaliatory animus. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant, through counsel, argues the AJ erred when he found there were no genuine issues of material fact and issued a decision by summary judgment in favor of the Agency. 2 The Agency dismissed several additional claims for failure to state a claim and untimely EEO Counselor contact. Complainant alleged, inter alia, discriminatory and retaliatory harassment based on work conditions including, inter alia, management insisted that she miss meetings; denied her request to remove a letter of reprimand; denied her and her staff training; required preapproval of overtime; and questioned her use of credit hours. The EEOC Administrative Judge (AJ) assigned to the matter granted Complainant’s request and reinstated several of the claims as evidence in support of Complainant’s overall hostile work environment claim. 2021003688 3 Additionally, Complainant argues the AJ erred by failing to consider the April 15, 2021 Motion to Amend. Complainant argues the Commission should overturn the AJ’s decision and remand the matter for a hearing. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant contends that the AJ abused his discretion in denying Complainant's request to amend her complaint and the manner in which he adjudicated her complaint. We note that AJs have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S v. Dep't of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). The Commission has reviewed the record and finds no abuse of discretion by the AJ. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJ managed this case. 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). 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Complainant has not presented evidence sufficient showing the Agency was motivated by unlawful discriminatory or retaliatory animus regarding any of the allegations at issue. 2021003688 4 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 subjected to discrimination, reprisal, or a hostile work environment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021003688 5 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). 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 September 26, 2022 Date