[Redacted], Gilda M., 1 Complainant,v.Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Oct 26, 2021

Appeal No. 2020003578 (E.E.O.C. Oct. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilda M.,1 Complainant, v. Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2020003578 Hearing No. 420-2019-00430X Agency No. FDICEO-18-036 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April 28, 2020 final order concerning an 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 Financial Institution Specialist (FIS), CG-0570-09, at the Agency’s Jackson Field Office in Jackson, Mississippi. On November 1, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), disability (deep vein thrombosis), and in reprisal for prior protected EEO activity as evidenced by the following incidents: a. In April 2017, the Field Supervisor (FS), Jackson Field Office, delayed Complainant’s promotion to CG-09; 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. 2020003578 2 b. In May 2017, FS threatened Complainant’s position if she went to a medical appointment and did not report to an on-site bank assignment; c. In October 2017, FS threatened to report Complainant as Absent Without Leave (AWOL) if she attended her nephew’s funeral and memorial service and verbally informed her that she would consider her AWOL if she did not come to work; d. On July 6 and 18, 2018, FS required that Complainant disclose her specific medical justification to her for one day of sick leave and in response to her July 19, 2018 question regarding the need for medical justification for sick leave requests, FS informed her that she had the right as her supervisor to require any documentation for any purpose to validate time and attendance; e. On July 20, 2018, FS placed Complainant in Prepayment Audit Status and issued an alert to the Division of Finance to place her under watch, which resulted in 10 audits at one time for her travel during 2017 - 2018; f. On July 31, 2018, FS restricted Complainant and staff from contacting or speaking with specialists in DOF or the Division of Administration (DOA) without speaking to her first; g. On August 3, 2018, FS responded to her request for an explanation of the policy that required medical justification for one day of sick leave, by stating that if unusual patterns are indicated the request can be made, and requesting the medical justification from her by noon the next day or the leave would be denied; h. On September 5, 2018, FS mandated that employees continue working at a local restaurant due to gas odors in the Jackson Field Office, the Complainant’s supervisor indicated that she was not professional, and her rating would decrease because she avoided discussing Personal Identifiable Information (PII) and sensitive data in a public-occupied restaurant; i. In October 2018, FS indicated that Complainant would not take the technical evaluation exam until August 2019, and due to her commissioning time frame, that date would make it unlikely that she would be allowed to retake the exam, if needed, the three times FISs are allowed; j. Throughout 2018, FS scheduled her less time to receive on-the-job training, less telework, less prep time for assignments, issued overlapping assignments with unreasonable response times, blamed her for not managing time, and delayed scheduling appropriate assignments, on-the-job training, and an Individual Development Plan in order to jeopardize successful completion of her commissioning track; k. On October 26, 2018, Complainant was notified by the Deputy Regional Director, Dallas Deposit and Consumer Protection, that her request for a hardship transfer to the Atlanta Field Office was denied; and l. The Acting Supervisory Examiner provided an inaccurate Developmental Feedback Form (DFF) rating for Complainant in her first Acting Examiner-in- Charge assignment. 2020003578 3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter granted the Agency’s motion and issued a summary judgment decision finding that Complainant failed to show that she was subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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. 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2020003578 4 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003578 5 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 October 26, 2021 Date