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

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2021003022 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zandra N.,1 Complainant, v. Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2021003022 Hearing No. 570-2020-007336X Agency No. FDICEO-19-032 DECISION On April 21, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 31, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant period, Complainant worked as a CG-5 Student Trainee (Economist), for a term not-to-exceed one year, at the Agency’s Division of Insurance and Research in Washington, D.C. On August 28, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on national origin (Pakistani), religion (Muslim), and in reprisal for prior EEO activity (opposition to discrimination) when: 1. From February 2018 through May 2019, Complainant was subjected to harassment which rose to the level of creating a hostile work environment when FDIC security guards unnecessarily followed her, hovered close to her, and scrutinized her; 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. 2021003022 2 2. On January 6, 2019, and again on January 24, 2019, Complainant was notified that her appointment as a Student Trainee (Economist) would not be extended, and would expire on May 17, 2019; 3. On May 10, 2019, Complainant was notified that her selection for the position of Student Intern, Student Trainee (Admin) was rescinded; and 4. On May 13, 2019, Complainant was placed on administrative leave until her employment with the FDIC expired on May 17, 2019, and was threatened when she asked questions about the action. After its investigation, 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 notified the parties of an Intent to Issue a Decision without a Hearing. On March 1, 2021, the Agency submitted its response to the Notice. On March 6, 2021, Complainant sent the AJ an email stating that she was ill. On March 19, 2021, Complainant sent the AJ another email, requesting for a 60-day extension to seek an attorney. In her March 22, 2021 decision, the AJ denied Complainant’s extension request. Specifically, the AJ noted that Complainant filed her hearing request with the Commission on March 4, 2020, and that she had almost a year to hire an attorney. The AJ also noted that Complainant’s response to the Notice was due nearly three weeks before she requested an extension. Regarding the merits, the AJ concluded that summary judgment in favor of the Agency was appropriate “because viewing the evidence in the light most favorable to Complainant, she has failed to present any evidence to establish a prima facie case of discrimination based on national origin, religion or reprisal and has not offered evidence to show that the Agency’s articulated reasons are pretextual.” The instant appeal followed. ANALYSIS AND FINDINGS An AJ may issue a decision without a hearing by summary judgment when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. 2021003022 3 In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. After careful review of the record and the arguments submitted on appeal, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Here, the AJ expressly addressed each of the subject claims in detail, and properly determined that Complainant did not prove by a preponderance of the evidence that she was subjected to disparate treatment national origin, religion or prior protected activity. Specifically, the AJ identified that the security officials in her work site were simply making their appointed rounds and were not subjecting her to undue scrutiny, that the decision not to extend her internship and rescission of an internship were predicated upon articulated issues with her work performance and her disruptive behavior at the worksite relating to interaction with security officials, and that to avoid further disruption, Agency management was willing to simply place her on administrative leave in the closing days of her employment. Complainant simply offered no evidence to establish that these legitimate reasons proffered by Agency officials were a pretext designed to mask discriminatory animus on the basis of her national origin or religion, or retaliatory animus due to her engagement in protected activity. 2021003022 4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s final order adopting the AJ’s finding that Complainant was not subjected to disparate treatment national origin, religion or prior protected activity was proper and is AFFIRMED. 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). 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. 2021003022 5 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 September 2, 2021 Date