Janet B.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Jan 9, 2020

Appeal No. 2019001825 (E.E.O.C. Jan. 9, 2020)

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

Janet B.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 2019001825

Hearing Nos. 550-2015-00013X & 550-2015-00357X

Agency Nos. DOL-14-09-044 & DOL-15-09-009

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq.

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Human Resources Specialist, GS-0201-12, within its Human Resources Office in San Francisco,
California.

On March 4, 2014 (and later amended), Complainant filed an EEO complaint (Agency No. DOL-
14-09-044) alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (Asian), national origin (Chinese), and in reprisal for prior
protected EEO activity when:

1. On January 28, 2014, Complainant received an amended performance rating of “Highly
Effective” for Fiscal Year (FY) 2013;

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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2. On April 8, 2014, Complainant’s request to add Mondays to her telework schedule was
denied; and
3. On April 8, 2014, Complainant’s Human Resources Officer sent an email to the entire
Human Resources division stating that she would not approve additional fixed telework
days under formal agreements, which Complainant believed was directed towards her.

On October 21, 2014 (and later amended), Complainant filed a second EEO complaint (Agency
No. DOL-15-09-009) alleging that the Agency discriminated against her and subjected her to a
hostile work environment on the bases of disability and reprisal when:

1. On August 18, 2014, Complainant’s supervisor reduced her formal telework schedule
from two days per week to one day per week;
2. On October 30, 2014, Complainant’s supervisor suspended her telework privileges
after she reported a hostile incident in which she was involved; and
3. On January 20, 2015, Complainant's former supervisor rated Complainant as
“Effective” on her FY 2014 Performance Appraisal and issued her rating to
Complainant three months late.

After its investigation into the complaints, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before the AJ. Complainant timely
requested hearings. The AJ assigned to the matters consolidated the complaints. The Agency
submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by
summary judgment in favor of the Agency.

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.
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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 discriminated or retaliated against by the Agency
as alleged.

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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

January 9, 2020
Date