[Redacted], Odilia M., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Oct 19, 2022

Appeal No. 2022002925 (E.E.O.C. Oct. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odilia M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2022002925 Hearing Nos. 570-2020-00433X, 570-2020-01335X Agency Nos. 55-2019-00213, 55-2020-00301 DECISION On May 4, 2022, 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 April 4, 2022, final order concerning her equal employment opportunity (EEO) complaints 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. At the time of events giving rise to these complaints, Complainant worked for the Agency as a GS-1801-13 International Trade Compliance Analyst in Office VI, Enforcement and Compliance, International Trade Administration in Washington, D.C. On May 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (born January 1963), and reprisal for prior protected EEO activity when: 1. The Program Manager (PM) issued her annual evaluation for FY 2018 with an overall rating that was “less that satisfactory”; 2. The PM issued Complainant a Letter of Reprimand on February 1, 2019; 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. 2022002925 2 3. The Agency proposed to suspend Complainant for seven days on March 19, 2019; 4. The Agency issued her a FY 2019 mid-year evaluation that contained numerous statements concerning her performance that were erroneous or baseless; and 5. On June 7, 2019, she was issued a five-day suspension, effective June 10 through 15, 2019. 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. On January 23, 2020, Complainant filed a second EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (born January 1963), and reprisal for prior protected EEO activity when: 6. The PM issued her annual evaluation for FY 2019 on October 30, 2019, in which he gave her an overall rating of 2 out of 5, which is a “less than satisfactory” rating, based on instances that had not been discussed with her, had not actually occurred, and/or were improperly included in the performance evaluation based on Human Resources policies. Additionally, the PM also modified the evaluation to include additional materials after her review and signature of the evaluation; 7. The PM presented Complainant with a proposal to remove her from her position on November 1, 2019, citing instances that did not support such an action; and 8. Complainant was forced to resign from her position, effective December 6, 2019. The Agency processed claim (8) as a mixed case claim appealable to the Merit Systems Protection Board (MSPB). 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 EEOC AJ on the non-mixed claims. Complainant timely requested a hearing on claims (6) and (7). The Agency issued a final decision on claim (8) with appeal rights to the MSPB.2 Pursuant to the parties’ request, the AJ assigned to the case jointly processed Complainant’s EEO 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 Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2 On appeal, Complainant notes that she did not appeal the Agency’s final decision on claim (8) to the MSPB. The Agency properly processed this claim as a mixed case complaint and issued a final decision provided Complainant with appeal rights to the MSPB. See 5 C.F.R. § 1201.3(a)(1). The Commission does not have jurisdiction to address Complainant’s appeal of claim (8) because the Agency provided Complainant with appeal rights to the MSPB for that allegation. See 29 C.F.R. § 1614.302(d). 2022002925 3 On appeal, Complainant contends that the AJ erred in issuing a decision prior to resolving a discovery dispute and before the record was adequately developed. Administrative Judges have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused their discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). 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). The AJ’s decision stated that Complainant’s motion to compel was rejected as procedurally deficient because she failed to follow the requirements in the Case Management Order. The AJ further noted that, although Complainant did not follow the procedural requirements, the AJ held a conference call with the parties about the discovery dispute. At that time, the Agency supplemented its discovery responses, Complainant did not renew her motion to compel, and the discovery dispute was considered to have been resolved. Upon review, we see no evidence of an abuse of discretion by the AJ. Moreover, we carefully reviewed the record and find that it is adequately developed for summary judgment. 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. (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 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 animus. Here, however, Complainant has failed to establish such a dispute. For example, although Complainant contends that there is a genuine issue of material fact regarding whether she received a copy of a FY 2017 mid-year performance evaluation before December 2017, her FY 2017 performance is not at issue in either of the complaints on appeal. 2022002925 4 Complainant’s speculation that the PM was motivated by her sex, age, and prior protected EEO activity is insufficient to create a genuine issue of material fact for hearing or to establish that she was subjected to discrimination and/or reprisal. 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 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 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). 2022002925 5 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. 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 19, 2022 Date