Sueann C.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0120161789 (E.E.O.C. Sep. 28, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sueann C.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120161789

Hearing No. 570-2015-00368X

Agency Nos. GSA-14-CO-Z-0061; GSA-14-CP-Z-0094; GSA-14-CO-Z-0117;
GSA-14-CO-Z-0090

DECISION

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 18, 2016, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 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 Analyst,
GS-0343-13, at the Agency’s facility in Washington, D.C. On August 14, 2014, Complainant
filed an EEO complaint, which was subsequently amended, alleging that the Agency

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.
0120161789

2
discriminated against her on the bases of her race (Asian), national origin (Filipino), disability,
and in reprisal for prior protected EEO activity when2:

1. On or about October 2, 2014, management did not select her for the position of
Supervisory Program Analyst, GS-0343-14, advertised under vacancy
announcement number 1400306CJMP;
2. On or about April 6, 2014, Complainant’s supervisor (S1) was temporarily
promoted without competition;
3. On July 15, 2014, management denied her request for a reasonable
accommodation;
4. After July 15, 2014, management subjected her to reprisal for requesting a
reasonable accommodation; and
5. Beginning in October 2014, management delayed her application for disability
retirement and charged her as being absent without leave (AWOL) despite her
having been approved to participate in the voluntary leave transfer program and
having available donated leave.

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 requested a hearing and the
AJ held a hearing on March 22-23, 2016. The AJ issued a decision on April 7, 2016, finding no
discrimination.3 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. On
appeal, Complainant’s attorney reiterates his contention that Complainant was subjected to
unlawful discrimination. He also argues, at length, that a new hearing is required due to the
conduct of the AJ at hearing, and his contention that the AJ’s conduct deprived Complainant of
due process.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.

2 The record shows that, prior to the hearing, the parties agreed that the claims identified in the
instant decision are the only claims at issue and that any other claims raised in Complainant’s
formal complaint, or subsequent amendments, are waived.
3 In her decision, the AJ also appeared (in the body of the decision) to have awarded sanctions
against the Agency for record-completion failures, however the AJ did not include any such
award in any order. Furthermore, neither party has raised in any fashion the issue of sanctions on
appeal. Accordingly, the issue of sanctions will not be addressed in the instant decision.
0120161789

3
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

We find that substantial evidence supports the AJ’s findings of no discrimination for the entire
complaint.

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima
facie case of race, national origin, disability, and reprisal discrimination, the Agency has
articulated legitimate, nondiscriminatory reasons for its actions. Namely, with respect to claim
(1), Complainant failed to show that her qualifications for the position at issue were superior to
those of the selectee. As to claim (2), the record shows that S1 was selected for the temporary
promotion because she had the budget and audit skills required for the position.

With respect to claim (5), the record shows that Complainant never submitted any leave requests
in connection with the voluntary leave transfer program. Furthermore, Complainant did not
submit the medical information required for management to approve her requests for leave
without pay. Therefore, management placed her in AWOL status during the relevant period.
Additionally, the AJ found that S1 credibly testified regarding the length of time it took her to
process Complainant’s disability retirement application. We concur with the AJ’s finding that
Complainant failed to show that the Agency’s articulated reasons for its actions were a pretext
for unlawful disability or reprisal discrimination.

Next, as to claims (3) and (4), under the Commission’s regulations, an agency is required to
make reasonable accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. §1630.9.
0120161789

4
In the instant case, we concur with the AJ’s finding that the Agency did not violate the
Rehabilitation Act when it requested additional medical documentation to support Complainant’s
reasonable accommodation request. Further, we concur with the AJ’s finding that Complainant
failed to show that the Agency retaliated against her in any fashion for requesting reasonable
accommodation.

Finally, with respect to Complainant’s attorney’s arguments on appeal regarding the conduct of
the AJ during the hearing, after a thorough review of the record and the hearing transcript, we
find that while some of the AJ’s comments and/or conduct were arguably not ideal, we do not
find that Complainant was denied a fair and impartial hearing.

CONCLUSION

The Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
0120161789

5
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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 28, 2018
Date