Enriqueta T., Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Bureau of Public Debt), Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0120142527 (E.E.O.C. Mar. 1, 2016)

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

Enriqueta T.,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Bureau of Public Debt),
Agency.

Appeal No. 0120142527

Hearing No. 532-2014-00021X

Agency No. Treasury-BPD-0141-F

DECISION

Complainant filed an appeal from the Agency’s June 11, 2014, 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. For
the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Assistant (GS-7) at the Agency’s Bureau of Public Debt in Parkersburg, West Virginia. On
February 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her in reprisal for prior protected EEO activity when:

1. she received negative quality assurance case reviews;
2. her manager assigned Complainant more work than her co-workers; and
3. Complainant did not receive an “Exceeds” ratings in the critical job elements of
team Work and Customer Service on her mid-year 2010 evaluation.

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.

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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). Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant's objections, issued a decision without a hearing on May 30, 2014. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The Supreme Court has held that summary judgment is appropriate where a
court determines that, given the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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). For the reasons set forth below, we conclude that this
matter does not present a genuine issue of material fact such as to require a hearing.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).

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Claim #1 (Negative Case Reviews)

The Agency explains that one of the errors identified in the course of a spot review of
Complainant’s work in December 2010 was later determined not be to an error and was
expunged. A second error was noted for December 2010 because Complainant incorrectly
identified the individual whose signature was required on a form. These are legitimate,
nondiscriminatory reasons for the Agency’s actions. Complainant has adduced no evidence that
these reasons are pretext designed to conceal discriminatory animus. Indeed, with respect to the
second error identified by the Agency, Complainant concedes that she made a mistake, although
she seeks to minimize it by characterizing the Agency’s action as “nit-picky.” Report of
Investigation (ROI) at 25. Even accepting this as true, it does not establish that the Agency’s
reasons are false and is insufficient to support an inference of discrimination.

Claim #2 (Assigned More Work Than Co-Workers)

According to the Agency, Complainant’s allegation that she was assigned more cases than her
coworkers is untrue. Work was assigned equally to employees. Any disparity in the types of
cases assigned to employees was the result of differences in training the individual employees
had received. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has adduced no evidence that these reasons are a pretext designed to conceal
discriminatory animus. Complainant’s allegations on this point are based on conjecture. She
cites no personal knowledge or other competent evidence to support them.

Claim #3 (Mid-Year Evaluation Ratings)

The Agency explained that Complainant did not receive an “Exceeds” rating for the period in
question because her performance failed to meet the established criteria for that rating.
According to the Agency an Exceeds on the teamwork element could be earned if the employee
frequently volunteered to help co-workers or supervisors. An Exceeds in the Customer Service
element could be earned if the employee not only met turnaround times, but was always working
ahead satisfying the customers before the due dates. Complainant met neither of these standards.
ROI at 404. These are legitimate, nondiscriminatory reasons for the Agency’s actions.
Complainant has adduced no evidence that these reasons are a pretext designed to conceal
discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm the Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). 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.

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.

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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 1, 2016
Date