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