Willie P.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

2019000459 (E.E.O.C. Sep. 26, 2019)

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

Willie P.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food and Nutrition Service),
Agency.

Appeal No. 2019000459

Agency No. FNCS-2018-00090

DECISION

On August 28, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 25, 2018 final decision concerning his 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.

BACKGROUND

During the period at issue, Complainant worked as a Grants Management Team Leader at the
Agency’s Northeast Regional Office in Boston, Massachusetts.

On December 19, 2017, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male), age (born 1955), and in reprisal for prior
EEO activity when, on October 19, 2017, management issued his FY 2017 Annual Performance
Evaluation with an overall rating of “Superior.”

After the investigation of the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC

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.
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Administrative Judge. In accordance with Complainant’s request, the Agency issued a final
decision on July 25, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions.

Complainant asserted that the Branch Chief and the Director of the Grants Management and
Support Services Division were responsible for issuing him a “Superior” rating on his FY 2017
performance evaluation.

Complainant claimed that on October 19, 2017, he learned of his rating from the Branch Chief,
also his supervisor, during a meeting. Complainant asserted that his rating supervisor explained
that Complainant’s rating was issued because of the new rating system. However, Complainant
maintained that his duties had not changed in six years. As a remedy, Complainant requested an
apology and an “Outstanding” rating.

The supervisor (female, born 1970) explained that on January 1, 2017, she started working in the
Grants Management Branch.
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She further stated that on January 12, 2017, she met with Complainant to review his new
Performance Work Plan (“PWP”). The supervisor stated at that time, Complainant “had just
gotten the Team Lead position, so I gave him these new performance standards. The ‘Team
Leadership’ element was a new element in the PWP for him. So, I went through the element and
talked about the expectations outlined in the element. After the meeting, I gave him a copy of
his PWP.”

Nine months later, in October 2017, the supervisor gave Complainant a “Superior” rating on his
FY 2017 annual performance evaluation. The supervisor stated that Complainant received
“Exceeds” for the following elements: Missions Results Oriented, Civil Rights, and Building
Coalitions and Special Projects. The supervisor stated, however, she gave Complainant “Meets”
for the Team Leadership element because she determined that there was room for improvement.
As a result, his overall rating was a “Superior.”

Further, the supervisor noted that on October 19, 2017, she met with Complainant to discuss his
evaluation. She stated that she reviewed all performance elements with Complainant and
“towards the end of our meeting, I told him what his rating was. He seemed upset. He asked
why he was not getting the top rating. I said that he could do better in the Team Leadership
element and that we could work on that area. I told him that ‘Superior’ is a pretty good rating
and that I appreciated the work he did. He didn’t seem to agreeing to anything I was saying; he
walked away and didn’t sign the rating sheet.”

The Grants Management and Administrative Services Division Director (“Director”) (male, born
1955), also Complainant’s second level supervisor, stated that he felt that the “Superior” rating
that was given to Complainant for his FY 2017 annual performance evaluation was appropriate.
He stated that he and the supervisor had some discussions about Complainant’s evaluation and
acknowledged that he had previously been informed that there were some concerns regarding
collaboration within the team, and there was an incident that occurred with one of the reviews
Complainant led in Massachusetts, which he had to get involved with in order to deal with a
commissioner. Therefore, he did not dispute the supervisor’s evaluation that as Team Leader
Complainant was doing well but had room for improvement.

As detailed above, Agency management articulated a legitimate, nondiscriminatory reason for its
actions. Beyond bare assertions, Complainant produced no evidence to establish, by a
preponderance of the evidence, that this explanation was pretext designed to mask
discrimination.

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination because the preponderance
of the evidence of record does not establish that discrimination occurred.
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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.
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.

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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 26, 2019
Date