Irina T.,1 Complainant,v.Maria Contreras-Sweet, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120143044 (E.E.O.C. Jan. 29, 2016)

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

Irina T.,1
Complainant,

v.

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

Appeal No. 0120143044

Hearing No. 570-2012-00419x

Agency No. 02-11-026

DECISION

Complainant filed an appeal from the Agency’s August 12, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist at the Agency’s Headquarters facility in Washington, D.C. On March
29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African-American) and sex (female) when:

1. On January 28, 2011, Complainant was transferred from her Supervisory
Information Technology Specialist GS-14 position, to an Information
Technology (IT) Specialist GS-14 position.

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.
0120143044

2
2. On February 2, 2011, Complainant was falsely accused of being absent from
work and placed on Absent Without Leave (AWOL) status.

3. On February 9, 2011, and continuing daily, Complainant was aggressively
questioned about her work product and work schedule by management with the
intent to terminate her federal employment and to replace her with a White
female.

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 requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s April 5, 2013
motion for a decision without a hearing. The AJ issued a decision without a hearing on July
23, 2014.

In her Decision, the AJ found that the material facts were undisputed. Specifically, the AJ
found no dispute that in January 2011, 90% of Complainant’s duties were removed and
Complainant was left with only one employee to supervise. As a result of that restructuring,
Complainant was removed from her supervisory position description and placed in the position
of IT Specialist. The AJ further found no dispute that Complainant had been counseled
regarding her untimely arrival at work and that Complainant was charged with AWOL for
January 24, 2011, and January 28, 2011, when she was not observed at work by her immediate
supervisor. The AJ also found that when Complainant’s attendance at work for the identified
days was verified, Complainant was compensated for her hours for those days and the AWOL
status was reversed. The AJ also found no dispute that Complainant objected to being closely
supervised and questioned about her work by her immediate supervisor, who was the same GS
level as Complainant.

The AJ found the undisputed evidence supported the Agency’s legitimate, nondiscriminatory
explanation that among the duties removed from Complainant’s responsibility was the
maintenance and redesign of the Agency’s websites, which was transferred to an outside
vendor. The AJ found that Complainant did not present evidence from which a trier of fact
could conclude that the Agency’s reason was a pretext to mask discrimination.

With respect to Complainant’s claim that on February 2, 2012, she was falsely accused of
being absent without official leave, the AJ found that the undisputed evidence showed that
Complainant had been previously counseled regarding her duty hours. On those specific dates
identified in Complainant’s complaint, the AJ found the undisputed evidence showed that the
Agency employees were impacted by inclement weather. The AJ also found that two
employees were asked about Complainant’s attendance and neither could confirm seeing
Complainant in the office those days. However, Complainant’s attendance was later confirmed
and Complainant was paid for those days and the AWOL status was removed.

0120143044

3
With regard to Complainant’s overall claim of harassment, the AJ found that Complainant did
not present evidence that her race or sex motivated the Agency’s actions. The AJ concluded
that Complainant failed to show that she was subjected to race or sex discrimination. 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.

On appeal, Complainant states that the AJ’s Decision indicates that the AJ did not receive her
response to the Agency’s motion for a decision without a hearing. Complainant states that she
timely submitted her response to the AJ and that it should have been considered.

ANALYSIS AND FINDINGS

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 U.S. 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). A fact is "material" if it has the
potential to affect the outcome of the case.

As a preliminary matter, we find the AJ acknowledged receipt of Complainant’s April 19,
2013 response to the Agency’s motion for a decision without a hearing. We find the AJ’s
Decision rests upon the record evidence, that Complainant’s response to the Agency’s motion
appears in the record on appeal, and that the Commission considers the whole record in
rendering its Decision herein.

We find that the AJ properly issued her Decision without a hearing. We find the material facts
are undisputed. We concur with the AJ that Complainant failed to present evidence that her
race or sex motivated the Agency’s decision to reassign her from a supervisory position to an
IT Specialist position when her supervisory duties were reduced through the reassignment of
identified responsibilities to an outside vendor. We find, as did the AJ, no evidence to link
Complainant’s race or sex to the Agency’s restructuring of Complainant’s duties. We do not
find that Complainant has identified any similarly situated employee, not in Complainant’s
protected groups, who was treated better than Complainant was treated. Accordingly, we find
the AJ properly concluded that a Complainant was not subjected to discrimination with respect
to the change in her job description to a nonsupervisory position.

0120143044

4
We further find that Complainant did not present any evidence that the Agency’s decision to
question Complainant’s whereabouts on two occasions when Complainant’s supervisors were
unsure of her attendance and when discussion with employees did not immediately indicate that
Complainant worked on the dates identified in her complaint. We find no dispute that
Complainant later supplied evidence that she did work on the dates in question and that
Complainant was later paid and her records were corrected to reflect her attendance.

We find the AJ properly found that taking all of the incidents described in her complaint as
having occurred as Complainant alleged, that Complainant did not present evidence that her
race or sex motivated the Agency’s actions. We find the undisputed facts show that at the time
she was considered AWOL, Complainant was under new supervision and a new job
description. Complainant also concedes that she was absent for a scheduled meeting.
Accordingly, the actions described as harassment are reasonable and well within the purview
of Complainant’s supervisors to question Complainant regarding her work schedule (when her
whereabouts were unknown), accomplishments, and reasons for missing a meeting at which
her attendance was expected.

We decline to disturb the AJ’s Decision and concur that Complainant did not present evidence
that she was subjected to race or sex discrimination as alleged in her complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Order finding no discrimination.

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
0120143044

5
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.

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, Director
Office of Federal Operations

January 29, 2016
Date