[Redacted], Candice B., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jun 15, 2022

Appeal No. 2020004747 (E.E.O.C. Jun. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candice B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2020004747 Hearing No. 570-2021-00085X Agency No. FAS-2019-00228 DECISION On July 29, 2020, 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 July 8, 2020, 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. Beginning in May 2018, Complainant worked as a GS-0341-14 Administrative Officer in the Agency’s U.S. Codex Office, Foreign Agricultural Service, in Washington, D.C. On March 6, 2019, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of race (Black) and national origin (Nigerian) when: 1. On November 12, 2018, management reassigned her back to the Food Safety Inspection Service (FSIS) as a GS-0343-14 Management and Program Analyst; and 2. Beginning on an unspecified date and continuing to the present, management refused to give her a fiscal year (FY) 2018 performance evaluation. 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. 2020004747 2 On April 29, 2020, the Agency provided Complainant with a copy of the report of investigation (ROI) 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) on July 8, 2020. The Agency’s final decision found that management provided a legitimate, nondiscriminatory explanation for reassigning Complainant and for the delay in issuing her FY 2018 performance evaluation. Specifically, at the time of events giving rise to the instant complaint, the U.S. Codex Office in the process of transitioning from the FSIS and reorganizing the Agency’s Trade and Foreign Agriculture Affairs (TFAA) mission area, during which time Complainant did not have a valid position description or performance plan while the positions were reclassified. When the U.S. Codex Office Administrative Officer duties were classified at the GS-12 level, management reassigned Complainant to FSIS to avoid Complainant losing pay because she was a GS-14 employee and there were no available GS-14 positions in TFAA. Concerning Complainant’s performance evaluation, the Acting Deputy Manager for the U.S. Codex Office issued Complainant a Fully Successful FY 2018 performance evaluation on October 31, 2018. According to the Acting Deputy Manager, Human Resources advised her to extend Complainant’s interim performance rating to the end of FY 2018 because her May 2018- September 2018 performance plan was considered invalid because she did not have a position description in place. As evidence of pretext, Complainant contended that the Acting Deputy Manager purposely wrote the duties and responsibilities of the position at a lower level so Complainant would not have opportunity for advancement to GS-15. The Agency noted that the preponderance of the evidence in the record reflected that the U.S. Codex Manager unsuccessfully attempted to upgrade the Administrative Officer position to GS-14 and that there were no available GS-14 positions for Complainant. Complainant argued that other U.S. Codex Office employees received FY 2018 performance appraisals and averred that the failure to provide her with a FY 2018 evaluation prevented her from seeking advancement opportunities. According to Complainant, the Acting Deputy Manager harassed her, and the U.S. Codex Manager was aware of the harassment. Complainant also alleged that the Acting Deputy Manager made derogatory comments about people of color and individuals of African descent. The Acting Deputy Manager denied harassing Complainant or making derogatory comments about people of color or people of different backgrounds. Further, the U.S. Codex Manager stated that she was unaware of any harassment or discriminatory comments. The Agency found that Complainant failed to establish by the preponderance of the evidence in the record that the proffered legitimate, nondiscriminatory reasons were pretext for discrimination based on race and/or national origin. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On July 8, 2020, Complainant filed a request for a hearing. On January 8, 2021, the AJ assigned to the case dismissed Complainant’s hearing request for lack of jurisdiction because the Agency had issued the final decision. 2020004747 3 On July 29, 2020, Complainant filed the instant appeal. On appeal, Complainant contends that the Agency prematurely issued the final decision. According to Complainant, during the investigation, she requested that the Agency send her a hard copy of the ROI by mail. Complainant argues that, because the Agency never sent her a hard copy of the ROI, the Agency erred in issuing a final decision. In response to Complainant’s appeal, the Agency contends that Complainant’s statement in support of appeal was untimely filed and should not be considered, and the Agency also argues that the issuance of the final decision was proper. 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 Chap. 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”). While Complainant’s statement and supporting documentation were filed late, we exercise our discretion to consider them. Complainant contends that the Agency improperly issued its final decision before providing her a hard copy of the ROI in accordance with her request. On April 29, 2020, an Agency contractor sent an email to Complainant’s work email address stating that, because of the Covid-19 pandemic, it was not possible to provide a copy of the ROI in the requested format. Complaint File at 69; Agency Motion to Strike at 5. An electronic copy of the ROI and the notice of the right to request a hearing were attached, and the contractor directed Complainant to contact her assigned EEO Specialist, who was copied on the email, if she required any additional information. Id. A read receipt indicates that Complainant read the email at 3:10 p.m. on April 29, 2020. Complaint File at 70. Upon review, we find that the April 29, 2020, email constituted adequate notice of Complainant’s right to request a hearing and the associated time limit. Although Complainant contends on appeal that the issuance of the final decision was improper because she did not receive a hard copy of the ROI, she does not dispute that she received the email on April 29, 2020. Further, there is no evidence that Complainant contacted the assigned EEO Specialist or another EEO official before June 30, 2020. Complaint File at 71-74. By that time, the time frame to request a hearing had already elapsed. Accordingly, we find that the Agency properly issued the final decision. Upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish by the preponderance of the evidence in the record that the Agency subjected her to discrimination based on race and/or national origin as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2020004747 4 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. 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). 2020004747 5 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 June 15, 2022 Date