Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jul 17, 2015

01-2013-0161-0500 (E.E.O.C. Jul. 17, 2015)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120130161

Hearing No. 440201000166X

Agency No. ARS201000018

DECISION
On October 10, 2012, Complainant filed an appeal from the Agency’s September 12, 2012,
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

. The Commission deems the appeal timely and accepts
it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support
Assistant at the Agency’s National Center for Agriculture Utilization Research in Peoria,
Illinois. On November 6, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of her sex (female) when:

1. On October 1, 2009, management failed to provide her and her previous
supervisor with a written evaluation of her desk audit;
2. On October 1, 2009, management reassigned Complainant from her position as
Germplasm Program Assistant to Program Support Assistant;
3. On October 11, 2009, management did not provide Complainant with training;
4. Beginning on October 1, 2009, management subjected Complainant to a hostile
work environment; and
5. Complainant was disparately impacted by the Agency’s practice or policy of
“refusing to train, suppressing training, discouraging and suppressing
applications for promotion, refusing to promote, and otherwise preventing its
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secretarial staff, who are classified as Program Support Assistants, from
applying for and receiving promotion to technical positions.”

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 timely requested a hearing.
On August 15, 2012, over Complainant’s objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing. 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.

ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. 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 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence,
it is not appropriate for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without a hearing only upon a
determination that the record has been adequately developed for summary disposition. Petty v.
Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. 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,
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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 find that assuming, arguendo, Complainant established a prima facie case of sex
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. With respect to claim (1), Complainant alleges management failed to provide her with
a written evaluation of her desk audit. Specifically, Complainant stated that she had a desk
audit done on her Germplasm Program Assistant position. She alleges she requested a copy of
the audit evaluation report but was given the classification notes instead. The Human
Resources Specialist (HR1) who conducted the desk audit stated an evaluation was not written,
which she told Complainant when Complainant requested a copy. HR1 stated that, according to
Agency regulations, there are certain circumstances when an evaluation is done and that this
situation did not fit those circumstances. Accordingly, we find that Complainant has not shown
that the Agency’s articulated reason for its actions, namely that no written evaluation of the
desk audit existed, was a pretext for unlawful discrimination.

With respect to claim (2), Complainant claims that she was discriminated against when the
Agency reassigned her from her position as Germplasm Program Assistant to Program Support
Assistant. Specifically, Complainant stated that she began in the Germplasm Program Assistant
position three years prior to her reassignment. During that time, her then-supervisor (S1)
allowed her to perform technician duties. In October 2009, Complainant was reassigned as part
of a general reorganization, and Complainant’s second line supervisor (S2) stated many
employees were reassigned as part of this reorganization. He stated Complainant’s position was
abolished as part of the reorganization. S1 stated, however, that Complainant’s position was
not, in fact, abolished but that the Agency instead replaced Complainant with other employees
who had no previous experience in that type of work. We find, however, that the record
shows, and S1 concedes, that the individuals who replaced Complainant were in the Technician
series, while Complainant was not. Accordingly, we find that Complainant has not shown that
the Agency’s articulated reasons for her reassignment were pretextual.

With respect to claim (3), the record shows that although Complainant was not provided with
training after being reassigned to the Program Support Assistant (PSA) position, she concedes
she never requested training. Complainant’s supervisor (S3) stated that while Complainant had
previously been assigned as a PSA, it had been some time since she had performed the duties
and that additional training may be necessary. S3 also states, however, that Complainant never
requested any training. One of Complainant’s co-workers stated that she informed Complainant
of the changes but that Complainant stated she did not think it would be a problem for her.
Accordingly, we find that Complainant has not shown that the Agency’s actions were
motivated by discriminatory animus.

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Next, insofar as Complainant is alleging that the claims addressed above constitute harassment,
the Commission finds that since she failed to refute the legitimate, nondiscriminatory reasons
proffered by the Agency for its actions, she necessarily also failed to establish that such actions
were taken on the basis of her membership in the protected classes. Accordingly, Complainant
failed to establish that she was subjected to a discriminatory hostile work environment. See
Bennett v. Department of the Navy

, EEOC Request No. 05980746 (September 19, 2000).
Finally, with respect to claim (5), to establish a prima facie case of disparate impact, a
complainant must show that an agency practice or policy, while neutral on its face,
disproportionately impacted members of the protected class. This is demonstrated through the
presentation of statistical evidence that establishes a statistical disparity that is linked to the
challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)
(complainant must present "statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion"). Specifically, a complainant must: (1) identify
the specific practice or practices challenged; (2) show statistical disparities; and (3) show that
the disparity is linked to the challenged practice or policy. Id. The burden is on a complainant
to show that "the facially neutral standard in question affects those individuals [within the
protected group] in a significantly discriminatory pattern”. Dothard v. Rawlinson, 433 U.S.
321, 329 (1977); see Gaines v. Dep’t of the Navy

, EEOC Petition No. 03990119 (Aug. 31,
2000).
Complainant claims that the Agency had a policy of “refusing to train, suppressing training,
discouraging and suppressing applications for promotion, refusing to promote, and otherwise
preventing its secretarial staff, who are classified as Program Support Assistants, from
applying for and receiving promotion to technical positions.” Complainant further alleges that
this policy disparately impacts women as there are more women in program support assistant
positions. We find, however, that Complainant has failed to make out a prima facie case of
disparate impact. She challenged no specific Agency practice or policy, nor did she provide
evidence of a statistically significant disparity that could be attributed to such practice or
policy. For all of the claims in the complaint, Complainant failed to show that any male
employees who were similarly situated to her were treated any better than she was treated with
respect to the alleged incidents in the complaint.

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
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.

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RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 17, 2015