[Redacted], Myrna S., 1 Complainant,v.Isabel Casillas Guzman, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2020005212 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myrna S.,1 Complainant, v. Isabel Casillas Guzman, Administrator, Small Business Administration, Agency. Appeal No. 2020005212 Hearing No. 520-2019-00582X Agency No. 01-18-028 DECISION On September 16, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 8, 2020, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Program Support Assistant, 1101, GS-08 at the Agency’s District Office facility in New York, New York. Complainant provided administrative support for the economic development team (EDT), which consisted of about 4 economic development specialists (EDS) and one supervisory economic development specialist (Supervisor 1). Report of Investigation [ROI] at 89. Supervisor 1 was Complainant’s first-line supervisor. Id.; ROI at 317. 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. 2 2020005212 On April 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (Polish), color (White), and age (59) when: 1. On December 21, 2017, Complainant received a Notice of Reprimand; 2. From July 20, 2016 until May 12, 2018, Complainant was prohibited from attending SBA’s outreach activities with the Polish & Slavic community; 3. On January 20, 2017, May 1, 2017, and October 28, 2017, Complainant was prohibited from attending “SCORE” Workshops, round table meetings with Polish Delegation, Trade and Investment Section of the Consulate General of the Republic of Poland New York and visiting the Agency resource partners; 4. From July 20, 2016 until May 12, 2018, Complainant’s arrival and departures were subjected to greater scrutiny than her coworkers; 5. On February 1, 2018, Management threatened to place Complainant on a reasonable accommodation; 6. On an undetermined date, Complainant was isolated from coworkers and unable to join them on field visits and meetings; and 7. On an undetermined date and ongoing, Management refused to speak to Complainant further isolating her. The Agency accepted the complaint for investigation. 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 assigned AJ issued an Acknowledgement Order on November 11, 2019. The Agency filed a motion for summary judgment on May 29, 2020. Complainant opposed the motion on June 22, 2020, and the Agency submitted a reply on July 2, 2020. The AJ asserted that the record of investigation and submissions by the parties showed that there were no genuine issues of material fact in dispute. The AJ granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on July 8, 2020. The AJ noted Complainant’s reliance on the affidavit of a former agency employee (Witness 1) as corroboration for some of her claims. According to the AJ, the inconsistencies, troubling racial exchanges and Witness 1’s financial interest in the case rendered her testimony “incredible.” 3 2020005212 Regarding claim 1, the AJ noted Supervisor 1’s testimony that Supervisor 1 issued Complainant a Notice of Reprimand for 1) failing to attend a staff meeting, and 2) Complainant’s conduct at a one-on-one meeting with Supervisor 1 regarding Complainant’s performance plan. Complainant was late to the meeting, confrontational when she disagreed with some of the standards, and left the meeting abruptly. According to the AJ, when questioned about the basis of the reprimand, Complainant wavered between having little recollection of the events and general denials of the conduct at issue. The AJ found that Complainant provided no evidence giving rise to a reasonable inference that Supervisor 1 was motivated by discrimination in meting out the reprimand. The AJ explained that Supervisor 1’s action represented a typical workplace occurrence - a supervisor taking action in response to observed transgressions of a supervisee. Regarding claims 2, 3, and 6, the AJ noted Supervisor 1’s assertions that the outreach activities at issue simply were beyond the purview of Complainant’s job duties. It was the responsibility of EDS to conduct such outreach. The AJ noted Complainant’s assertion that she was permitted to play some role in outreach events to the Polish and Slavic communities under past supervisors. Under Supervisor 1, however, Complainant was only permitted to attend such events on her own time. Complainant also was involved in the planning of an event during which Complainant either misunderstood or deliberately did not follow Supervisor 1’s instructions regarding arrangements for the outreach. The AJ noted that Supervisor 1 was relying on Complainant’s job description in denying her a larger role in any outreach. The AJ also found that Complainant failed to show why agency representatives would have had a discriminatory motive for excluding her from such events. Regarding claim 4, the AJ noted that first, no discipline or other action was taken against Complainant based on the alleged increased scrutiny. Second, Complainant admitted that the alleged scrutiny had no real impact on her. The AJ found that Complainant’s claim failed because she suffered no adverse action as the terms and conditions of her employment were not adversely affected in anyway. Regarding claim 5, the AJ noted Supervisor 1‘s explanation that she asked Complainant if she needed an accommodation because of a temporary condition that made it difficult for Complainant to type; and that if so, Complainant would need to provide supporting medical documentation. Complainant stated that she did not need an accommodation, she provided no documentation, and no action was taking regarding the matter. The AJ found that nothing in the stated facts constituted an adverse action on the part of the Agency. Neither is there evidence that Supervisor 1 acted out of bias. With respect to claim 7, the AJ found that Complainant generally failed to provide specifics, but offered that Supervisor 1 would not greet her in the office or keep her apprised of upcoming meetings and projects. In that regard, the AJ cited to Commission precedent consistently finding that such “petty slights” and “trivial annoyances” are insufficient to serve as adverse employment actions. 4 2020005212 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. CONTENTIONS ON APPEAL On appeal, Complainant contests the AJ’s decision, asserting that the AJ erred when he granted the Agency’s motion for a decision without a hearing. Among other things, Complainant reiterates her reasons for believing that discrimination had occurred based on her protected classes. Complainant also argues that the AJ ignored “relevant and competent” evidence that raise a genuine issue of material fact regarding Complainant’s claims while adopting several of the Agency’s facts as undisputed notwithstanding sworn testimony disputing those facts. Complainant argues that the AJ erred in dismissing Witness 1’s sworn statement and relying on the Agency’s submission of correspondence without context that, Complainant asserts, rendered Witness1’s testimony “incredible.” Complainant cites, for example, to Witness 1’s testimony that she witnessed Supervisor 1 acquiescing and agreeing with the anti-Polish comments uttered by members of the EDT (e.g. calling Complainant “Eurotrash,” making fun of her Polish accent, commenting that “Poles are stupid” and they are “all alike”). Complainant requests that the Commission overturn the Agency’s Final Order incorporating the AJ’s Decision and Order, make a determination in favor of Complainant on all her claims, and issue any other relief deemed just and proper. On appeal, the Agency expresses agreement with the AJ’s analysis of each of Complainant’s claims. The Agency also asserts that the evidence of record that Complainant relied on in her appeal brief does not support a finding that the AJ’s decision was in error. Among other things, the Agency argues that the AJ properly discounted Witness 1’s affidavit as it is unreliable, uncorroborated, and irrelevant. Notably, the Agency asserts, Witness 1 retired in 2015, before any of the investigated incidents occurred. The Agency argues that Witness 1 therefore lacks any direct knowledge or direct observation of any of the events in question. The Agency states that Complainant’s arguments on appeal are not supported by the evidence of record, misrepresent that evidence, and are wholly unpersuasive. The Agency argues that Complainant’s appeal tried to reframe numerous undisputed facts by presenting inaccurate and misleading arguments to create nonexistent issues. The Agency requests that the AJ’s Decision be affirmed, and Complainant’s appeal be denied and dismissed in full. STANDARD OF REVIEW 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. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed 5 2020005212 de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant did not demonstrate she would have been able to show that the reasons given by the Agency for its alleged discriminatory conduct were not the true reasons for its actions had the AJ not discounted Witness 1’s testimony. Nor does Complainant demonstrate that there is any genuine issue of material fact in dispute. Even construing any inferences raised by any undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, summary judgment was appropriate. 6 2020005212 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, with respect to claim 1, the Agency stated that Supervisor 1 issued a letter of reprimand to Complainant for Complainant’s failure to attend a staff meeting; and for being disrespectful to Supervisor 1 in Complainant’s performance standards discussion meeting. ROI at 86-88, 124- 26. With respect to claims 2, 3, and 6, Supervisor 1 explained that attending the events at issue was outside of Complainant’s job functions as a Program Support Assistant. Agency Summary Judgement Motion [Agency SJ Mot.] Exhibit [Ex.] 2 at 95-6, 122, 146, 148. The record includes Complainant’s position description which supports the Agency’s explanation, limiting Complainant’s contact with entities outside the Agency to specific purposes not including outreach. ROI at 118-120. With respect to claim 4, Supervisor 1 explained that Complainant did not always adhere to Agency-wide leave and attendance policy as Complainant would use unrequested leave and failed to later request such leave unless asked to do so. Agency SJ Mot. Ex. 2 at 113-117. With respect to claim 5, Supervisor 1 had wanted to know if Complainant needed reasonable accommodation to perform an assignment when Complainant had a papilloma on her finger. Complainant did not need any accommodation, and none was provided. Agency SJ Mot. Ex. 10. 7 2020005212 With respect to claim 7, the Agency asserted that Complainant failed to describe her allegation with specificity, only identifying a set of “social niceties” that had no impact on the terms and conditions of her employment. The Agency has articulated legitimate non-discriminatory reasons for its actions. We next turn to Complainant to show pretext. Complainant’s only effort at showing pretext are her uncorroborated allegations that the alleged management actions were motivated by factors related to her protected classes. Complainant however did not dispute that Supervisor 1 issued the discipline in claim 1 because Complainant repeated disrespectful behavior for which she was previously warned. ROI at 98. The record reflects that a black African-American EDS had received similar discipline around that same period. ROI at 241-46. Nor does limiting some of Complainant’s activities to her job description translate to discrimination on the part of Supervisor 1 regarding claims 2, 3, and 6. We have stated that to show pretext, a complainant must show that management displayed some sort of discriminatory animus. See January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015) (stating that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record). We find no such showing here. Therefore, Complainant’s claims fail. Likewise, Complainant does not prevail on claims 4, 5 and 7 because there is no evidence that any adverse action was taken against her nor were any terms and conditions of Complainant’s employment impacted by the alleged management actions with respect to those three claims. Therefore, she is not an aggrieved employee nor is she entitle to her requested remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994); Best v. Dept. of Transportation, EEOC Appeal No. 0120111844 (Jul. 6, 2011) (defining an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.) CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s Final Order adopting it. 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 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 8 2020005212 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. 9 2020005212 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 21, 2022 Date