Hattie K.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120172089 (E.E.O.C. Dec. 19, 2018)

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

Hattie K.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120172089

Agency No. RD201600787

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 26, 2017, 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 events giving rise to this complaint, Complainant worked as a Secretary, GS-8 with
the Agency’s Rural Business Cooperative Services in Washington, DC.

On July 25, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), and age (49) when:

1. After she returned from her detail beginning in 2016 and continuing, management
disbursed her work to others and intentionally failed to provide her with enough
work to do so they could justify getting “rid” of 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.
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2. Despite her outstanding performance ratings and work ethic, management created
a hostile work environment by its failure to provide her with upward mobility via
job promotions/selections;

3. On an unspecified date, management denied her the opportunity to telework;

4. On an unspecified date, management denied her compensatory work time;

5. On an unspecified date, management informed her that they would not provide her
with a mobile work phone because her work was no longer essential; and

6. On June 8, 2016, management advised Complainant that she was being reassigned
to a lower graded Administrative Assistant position in the Business and Industry
Division;

In a decision dated September 9, 2016, the Agency accepted claims (1) through (5) for
investigation, but dismissed claim (6) because it was a proposal to take action, which warranted
dismissal under 29 C.F.R. § 1614.107(a)(5).2

A review of the record reveals that Complainant went on an extended detail assignment to another
department within the Agency. Complainant contends that when she returned in January 2015, the
Agency had distributed all of her work to other employees, including a new Senior Administrative
Assistant (SAA) and a contractor (C1). Complainant claimed that management did not return these
duties to her and only had her shred documents. Complainant argued that management was trying
to push her out because her supervisors asked her to extend her detail.

Complainant’s supervisor (S1) explained that while Complainant was on detail, all functions she
previously performed were distributed to other administrative officials within the office. Both S1
and S2 said that this was standard practice in order to keep the office functioning. S1 explained
that the Agency hired SAA during Complainant’s detail to fill a long-standing vacancy for the
position. According to S1, the official duties of an SAA were to handle travel duties, and S2
agreed that travel duties should be with the SAA. Therefore, when Complainant returned from her
detail at the end of 2015, SAA remained responsible for travel duties. S1 denied that C1 assumed
any of Complainant’s duties.

S2 added that other than travel duties, the only other primary duty that Complainant did not
perform upon her return from detail was correspondence duties. At the time of her return, the
Agency had other employees working on correspondence duties and S2 said Complainant
expressed disinterest in performing correspondence duties. Therefore, S2 did not have
Complainant assume such duties until staffing needs required it.

2 Complainant does not appeal the Agency’s dismissal of claim (6). Therefore, we will not further
address the matter.
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S2 also stated that he asked Complainant what duties she felt that she was no longer doing, but
Complainant did not give him any examples.

S1 further explained that the Agency had a surplus of administrative support in Complainant’s
office, and a deficit of similar support in other offices. S1 said that another department had
administrative needs while Complainant’s office had minimal administrative needs. Complainant
preferred to return to her office than perform another detail.

As to the remainder of her claims, Complainant alleged that she applied for a detail position on the
Agency’s registry and was selected. However, S1 and S2 did not respond back to the managers
responsible for the detail. Complainant provided no further information, but identified two
potential comparators.

S1 acknowledged that Complainant verbally communicated her interest in securing a promotion.
S1 told Complainant that the Agency was bound by the competitive job selection process and
Complainant would need to apply. Complainant did not articulate any assertion or set forth
evidence that she applied for vacant positions. S1 explained that the comparators Complainant
identified were promoted or hired through the competitive hiring process. S2 concurred that he
was not aware that Complainant applied for any positions that would have constituted a promotion.

Complainant contended that she had an email from S1 denying her the use of a mobile work phone,
but did not provide that email for the record. Neither Complainant nor her supervisors could
identify a date when Complainant sought telework, but Complainant believed she was entitled to
telework. S1 explained that Complainant was not eligible for telework because her official duties
required her to answer the office telephones and greet visitors. S1 also denied telling Complainant
she was no longer eligible for a mobile work phone and affirmatively stated that Complainant has
had an Agency-issued mobile phone at all times. S2 corroborated both statements and said that
the office has consistently not permitted telework for administrative personnel because their duties
require their presence in the office.

Complainant stated she might have requested compensatory time verbally or in writing sometime
in 2015 and provided little additional information. Neither S1 or S2 said they were aware that
Complainant sought compensatory time and both stated they did not deny Complainant
compensatory time.

Both S1 and S2 denied subjecting Complainant to a hostile work environment; S2 said the first
time he was aware Complainant believed she was subjected to a hostile work environment was
when he was contacted as a result of the instant complaint.

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). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).
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The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Specifically, the Agency articulated legitimate, non-discriminatory
reasons for its actions, and Complainant was unable to demonstrate that these reasons were pretext
for discriminatory animus. Further, Complainant did not demonstrate she was subjected to a
sufficiently severe or pervasive hostile work environment.

CONTENTIONS ON APPEAL

In her brief on appeal, Complainant raises several issues with the processing of her complaint.
Notably, Complainant argues that the Agency improperly stated that she refused to mediate her
complaint and that the Agency misidentified her complaint as against the Forest Service in the
Partial Acceptance letter. Complainant also challenges the content of her affidavit, which was
taken by telephone by the EEO Investigator. Complainant contends, for the first time, that she
should have been given a reasonable accommodation during the investigation because she is a
“visual learner.” Complainant also argues the Agency tricked her into failing to request a hearing
or a final decision. Specifically, after Complainant received the Report of Investigation,
Complainant wanted to attempt mediation. According to Complainant, when she contacted the
Agency to request mediation, she “was asked to do nothing regarding case until [she] heard from
ADR.”

Turning to the merits of her case, Complainant alleges that she applied to “[t]he COS vacancy
announcement in RHS” and applied, but was not selected; the Agency did not select anyone for
the position. Complainant then discusses “a demoting reassignment position” with little further
detail. Complainant also alleges she was retaliated against when her performance rating was
downgraded. Accordingly, Complainant requests that the Commission reverse the final decision.

ANALYSIS AND FINDINGS

As an initial matter, we address the various procedural arguments Complainant makes on appeal.
We first reject Complainant’s arguments regarding mediation and the Agency’s reference to the
Forest Service as harmless error. Evidence in the Report of Investigation demonstrate that neither
party disputes that mediation took place. Further, the Agency’s reference to the Forest Service did
not impact the Agency’s processing of the instant complaint. The Agency interviewed employees
who had relevant information regarding Complainant’s allegations and utilized the correct case
caption in its final decision.

As to Complainant’s allegations that the Agency did not properly take down her affidavit, the
Commission notes that Complainant’s affidavit in the record is not signed. However, Complainant
does not indicate what aspect of her affidavit is incorrect. Further, as detailed below, Complainant
did not request a hearing before an AJ. Had Complainant requested a hearing, she could have
afforded herself the discovery tools permitted by 29 C.F.R. § 1614.109(d) and proceeded to correct
her affidavit or gather further information.

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We also find unpersuasive Complainant’s argument that the Agency tricked her into foregoing a
hearing. Complainant does not state whether she would have requested a hearing. Moreover,
Complainant requests, on appeal, that the EEOC make the final decision on her case. Accordingly,
the Commission finds no persuasive evidence that Complainant’s complaint was improperly
processed. As a result, we will review her appeal on the merits.

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”).

Disparate Treatment – all claims

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 he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. 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, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In this case, the Agency has explained that it filled a long-standing vacancy in Complainant’s
office while Complainant was on detail. Therefore, when Complainant returned to the office, some
duties she had been performing were now performed by the new hire as part of that employee’s
official duties. Management officials explained that Complainant needed to engage in the
competitive process in order to secure a promotion, and the Agency had no evidence Complainant
did so. Due to the nature of Complainant’s duties (i.e. answering telephones and greeting visitors
to the office), management explained that Complainant’s position was not eligible for telework.
Furthermore, S1 denied that he refused Complainant’s compensatory time request. Finally,
management officials denied that they refused Complainant a mobile work phone.

Complainant provided no evidence during the investigation to rebut the Agency’s articulated
reasons. As to S1’s denial that he refused a request from Complainant for compensatory time,
Complainant was unable to point to any specific request or event that would have required
compensatory time. As a result, the Commission finds that Complainant was not subjected to
discrimination as alleged.
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Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of her protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant asserted that based on her protected classes, management officials subjected
her to a hostile work environment. Among the incidents, Complainant alleged that the Agency
created a hostile work environment by failing to provide her with upward job mobility. As we
have noted, Complainant does not dispute the Agency’s explanation that Complainant needed to
apply for a promotion via the competitive hiring process. The Commission finds that Complainant
has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile
work environment as to all claims. Moreover, even assuming that the alleged conduct was
sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show
that the Agency's actions were based on discriminatory animus as discussed above. Accordingly,
we find Complainant was not subjected to a discriminatory hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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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. 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 (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

December 19, 2018
Date