[Redacted], Saran R., 1 Complainant,v.Gary Gensler, Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020004132 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Saran R.,1 Complainant, v. Gary Gensler, Chair, Securities and Exchange Commission, Agency. Appeal No. 2020004132 Agency No. 00032-2018 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 3, 2020, final 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 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 decision. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a Financial Management Specialist in the Filing Fees Branch (FFB) of the Office of Financial Management. Her first-line supervisor was S1, the Branch Chief for FFB. Her second- line supervisor was S2, Assistant Director, for Payables, Receivables, Systems & Data Management. Complainant filed a complaint alleging that she was discriminated against and harassed: based on race (Black), sex (female), age (over 40), and in reprisal for engaging in prior EEO activity when: 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. 2020004132 2 (1)a. Beginning on or about July 10, 2018, through November 28, 2018, her work assignments and responsibilities were frequently changed, reduced, and/or were the same duties assigned to contractors; b. On October 31, 2018, her Branch Chief advised her that she was to report directly to him rather than to the team lead; c. Since November 1, 2018, her Branch Chief has micromanaged her work; d. On unspecified dates, she was not promoted or was denied several jobs at higher grade levels; e. On April 25, 2019, her Branch Chief reprimanded her by directing her to take unpaid leave (AWOL/LWOP) for work-related activity; f. Between May 8, 2019 and May 14, 2019, she received emails from her Branch Chief to make her appear incompetent and unable to complete her assignments in a timely manner; g. On June 27, 2019, which was her Alternative Work Schedule day, her Branch Chief sent an email directing that she provide him a copy of an OIT helpdesk ticket to show her problem with logging in or take leave if she could not perform work on that day; h. On unspecified dates, her Branch Chief made belittling comments to her in front of her colleagues to make her appear incompetent; i. On September 3, 2019, during her mid-year review, her Branch Chief told her that creating new work for her would be a “waste of taxpayer money”; j. On September 3, 2019, during her mid-year review, her Branch Chief told her that the office did not have a rotation policy and that she should apply for details or voluntary reassignments for new job opportunities; k. On September 11, 2019, her Branch Chief disregarded her medical need to use ad hoc telework when he suggested that she take leave when she did not report to the office on September 10, 2019; and l. On September 18, 2019, her Branch Chief issued her a progress report citing performance deficiencies without acknowledging technical computer problems that affected her work. Complainant also alleged that she was discriminated against in retaliation for engaging in prior EEO activity when: 2(a). On April 25, 2019, her Branch Chief reprimanded her by directing her to take unpaid leave (AWOL/LWOP) for work-related activity; and 2(b). On July 2, 2019, her Branch Chief changed the file review procedures for the staff, giving contractors staff duties and creating an unattainable goal for staff. 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. Complainant did not respond; therefore, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2020004132 3 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). We find that the complaint was properly defined by the Agency in its final decision. Assuming Complainant established a prima facie case of discrimination on alleged bases, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions, and that Complainant did not establish pretext. We also do not find that she was subjected to a hostile work environment. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Here, we find that the actions in this case did not involve such discriminatory motives. CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2020004132 4 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. 2020004132 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 August 3, 2021 Date