Kori S.,1 Complainant,v.Jay Clayton, Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Sep 21, 2018

0120160693 (E.E.O.C. Sep. 21, 2018)

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

Kori S.,1
Complainant,

v.

Jay Clayton,
Chair,
Securities and Exchange Commission,
Agency.

Appeal No. 0120160693

Hearing No. 520-2015-00230X

Agency No. SEC-00007-2014

DECISION

On November 10, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 13, 2015, 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 U.S.
Equal Employment Opportunity Commission (EEOC or Commission) AFFIRMS the Agency’s
final order.

ISSUE PRESENTED

The issue presented is whether there are genuine issues of material fact that require a hearing on
Complainant’s claims as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Securities
Compliance Examiner (SCE), SK-11, at the Security Exchange Commission’s (SEC) New York
Regional Office (NYRO), located in New York, New York. During the relevant time-frame,

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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Complainant was serving a one-year probationary period in the NYRO’s Investment
Adviser/Investment Company examination program (IA/IC program). On January 9, 2014,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American), national origin (British/Jamaican), sex (female), and color
(black) when, on or about November 8, 2013, it terminated her probationary employment as a
SCE, SK-11.

After 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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion
for a decision without a hearing on April 30, 2015, to which Complainant filed an objection on
May 15, 2015. The Agency responded on May 27, 2015, to which Complainant further
responded on June 10, 2015. The AJ heard oral arguments on the Agency’s motion on June 29,
2015. The AJ granted the motion for a decision without a hearing, issued the Memorandum
Decision on Summary Judgment on September 11, 2015, and issued a decision on October 8,
2015. 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.

UNDISPUTED FACTS

Complainant began her one-year probationary term on December 3, 2012. The SCE position
required a one-year probationary trial period which included attendance at initial/monthly formal
SEC training and the need to successfully complete observation/review examinations
administered under the Agency’s National Exam Program (NEP).

As a Securities Compliance Examiner, Complainant was responsible for conducting
examinations of SEC-regulated entities. The Agency claims that during her probationary period,
she failed to meet the SEC’s performance expectations on three SEC Examinations (Exam): (1)
Company A (Exam 1); (2) Company B (Exam 2); and (3) Company C (Exam 3). Exam teams
consist of junior examiners, lead examiners, an Exam manager, and an Assistant Regional
Director (ARD). Generally, lead examiners are senior examiners who supervise and mentor the
junior examiners’ work on the day-to-day duties of the Exam. The junior and lead examiner
interact with each other daily. The lead examiners interact with the managers of the Exam who
generally oversee the work on the Exams. The managers update the ARDs on the status of the
Exams. ARDs are less involved with the day-to-day activities than the managers.

On March 28, 2013, Complainant received feedback regarding Exam 1, which was supervised by
a lead examiner (LE1), an Exam manager (M1), and an ARD (ARD1). The feedback included
several work-related areas involving skills and knowledge that needed improvement. On April
26, 2013, an ARD (ARD3) issued Complainant’s mid-year review and Performance Work Plan
which identified areas of work performance requiring improvement. On July 31, 2013,
Complainant received feedback regarding Exam 2 which was supervised by a lead examiner
(LE2), an Exam manager (M2), and an ARD (ARD2).
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With respect to Exam 2, Complainant was advised to take a more active role in interviewing
registrants and notified that her written work product must be in proper compliance with IA/IC
program standards. Complainant’s work on Exam 3 was supervised by two lead examiners
(LE3A and LE3B), an Exam manager (M3), and an ARD (ARD3). Complainant received
feedback that she made errors, was a poor writer, and did not demonstrate a proper
understanding of subject-matter concepts notwithstanding training and/or supplemental
explanations.

On October 7, 2013, ARD3 issued Complainant a memorandum (30-Day Notice) which
referenced previous counseling sessions regarding her work deficiencies under the NEP. This
memorandum also notified Complainant that if her work performance did not improve within the
next 30 days, management would not support converting her to a permanent employment status
with the Agency. On November 8, 2013, ARD3 issued a second memorandum (Notice of
Termination) to Complainant notifying her that her performance did not improve and that she
was being terminated.

AJ DECISION

After hearing oral arguments on the question of whether summary judgment was appropriate, the
AJ concluded that the record failed to contain genuinely disputed material facts and that
summary judgment was appropriate. The AJ further concluded that Complainant failed to
present sufficient evidence to prove discrimination as alleged. Specifically, the AJ found that
Complainant was unable to establish a prima facie case of discrimination since there was no
evidence that a similarly situated individual from outside any identified protected group,
received any different or better treatment from the Exam supervisors identified in the instant
case. Even if Complainant established a prima facie case of discrimination as alleged, the AJ
found insufficient evidence that the Agency’s articulated legitimate, non-discriminatory reason
for her termination (i.e., Complainant’s inability to demonstrate and/or improve her work
performance during the probationary trial period) was a pretext for discriminatory animus on the
part of any responsible management official. The AJ noted that Complainant’s own views and
opinions about the quality of her work performance was not objective evidence to support a
finding that the Exam supervisors considered Complainant’s race, color, national origin, or sex,
when giving performance feedback.

The AJ also referenced an October 15, 2013 anonymous letter to the Agency’s Office of
Inspector General in Washington, D.C. (OIG Letter) which registers various accusations
submitted on behalf of the “IA/IC Exam Program Staff” (Staff) concerning the “questionable
ethics” of an Agency Manager (S2) (African-American, black, male) who was the only person
identified by name. The OIG Letter raised numerous accusations including that: (1) S2 failed to
verify the work history of a “black female applicant” (BFA) who was the friend of a friend of the
Agency’s Associate Director in Atlanta, Georgia; (2) S2 hired eight outside contractors “the
majority, in [sic] not all, are black or Hispanic” without informing the Staff; (3) S2
recommended a “female black Exam Manager” for a Mentoring Program without first informing
the Staff; (4) S2 put “two white males … through the ringer” within a routine promotion process;
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and (5) S2 has been spotted in an area hotel leaving with a young black woman on some
occasions. The OIG Letter essentially asserts that S2 favored Black and other minority
applicants who were not qualified over qualified White applicants. The letter also asserts that S2
favored Blacks in other ways over Whites and that he engaged in unethical behavior.

The AJ noted that Complainant submitted that she is the unnamed “friend of a friend” black
applicant who was hired by S2 as referenced in allegation (1) of the OIG Letter. However, the
AJ concluded that the OIG Letter is not relevant to his decision because: (1) the OIG Letter is
from an anonymous source; (2) the OIG Letter does not identify Complainant by name thereby
requiring speculation as to the knowledge, intent or purpose of an anonymous writer; (3) the OIG
Letter does not make reference to the 30-Day Notice or Complainant’s subsequent Notice of
Termination, and (4) even assuming Complainant is the BFA that is referenced in the OIG
Letter, (at best) it confirms Complainant’s affirmative hiring by the Agency in December 2012
but provides no information about her termination in November 2013. Accordingly, the AJ
concluded that the OIG Letter is not “acceptable evidence which can support a finding that
illegal employment discrimination actually occurred as alleged.”

ANALYSIS AND FINDINGS

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).

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 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 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. 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.
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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 21, 2018
Date