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

Equal Employment Opportunity Commission

Jun 8, 2018

0120161934 (E.E.O.C. Jun. 8, 2018)

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

April T.,1
Complainant,

v.

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

Appeal No. 0120161934

Agency No. FNCS201500062

DECISION

On May 17, 2016, 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 14, 2016, 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 Contract Specialist,
GS-1102-12 at the Agency’s Food and Nutrition Service (FNS), Contract Management Division
(CMD), facility in Alexandria, Virginia. She has been in her position since 2005. Her first line
supervisor is the GS-14 Chief of Policy (S1).2 Her second level supervisor is FNS’s GS-15
Director (S2). Both managers stated that they were aware Complainant is female but only S1
stated that he was aware she was approximately age 40.

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.
2 In its decision, the Agency refers to S1 as RMO2 and S2 as RMO1. For clarity purposes, the
Commission will use S1 and S2 in accordance with their ranking.
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On November 29, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female) and age (43) when:

1. On October 29, 2014, and other unspecified dates, she was not provided training
opportunities or her requests for training were denied.

2. On unspecified dates, she was denied the opportunity to be "grandfathered" into the
contract certification requirements.

3. On unspecified dates, she was treated disparately with respect to work assignments
and not assigned work sufficient to exceed her performance standards.

4. On an unspecified date, she learned she was not selected for the position advertised
under Vacancy Announcement Number 12-FNS-048.

5. On several dates and continuing, she was subjected to various acts of harassment,
including but not limited to:

a. On October 1, 2012, May 1, 2013, April 10, 2014 and October 8, 2014, her
supervisor pressured her into considering positions in other departments by sending
her temporary detail assignment announcements and including statements such as
"you should apply, a change would be good for you."
b. On July 17, 2013, she was chastised for not replying to an electronic email;
c. Prior to September 15, 2014, she was not notified that a new credit card log had
been created;
d. On unspecified dates, she received work assignments from her supervisor's
assistant; and
e. On unspecified dates, her supervisor treated newly hired employees preferentially
and referred to them as the "Fab Five."

After 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 but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination.

Specifically, with respect to claim 1, the Agency determined that, although Complainant
established a prima facie case of discrimination, neither Complainant’s sex nor age played a
factor in the Agency’s alleged denial of Complainant’s requests for an opportunity to take
training on October 29, 2014, and other unspecified dates. Although the record reflected that S2
stated that he did not recall receiving a request from Complainant to take CON-360 acquisition
training in November 2014, the Agency noted that both S1 and S2 stated that Complainant failed
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to take the mandatory Level II certification that is a prerequisite to the CON-360 course, which
Complainant did not dispute.

As for claim 2 where Complainant alleged that she was denied the opportunity to be
“grandfathered” into the contract certification requirements, the Agency found that Complainant
had failed to provide sufficient evidence to undermine the reasons presented by the Agency. The
Agency noted that although Complainant said she qualified to be “grandfathered” into the
program, she produced no documentary or corroborating evidence to support her contention.
Further, the Agency observed that S2 stated that, even if Complainant were "grandfathered,"
such status does not waive the required pre-requisite courses for level I and level II certification.
Additionally, S1 stated that all standards and requirements applicable to Complainant are
governed by the Office of Management and Budget, which is beyond FNS management's
authority. S1 also asserted that he personally encouraged Complainant to take the required steps
to complete the levels needed for advancement but she did not complete the required
coursework. In that the Agency produced documentation demonstrating that it provided
Complainant with several opportunities to complete the prerequisites, of which she took no
advantage, the Agency found that Complainant was not subjected to discrimination based on
either her age or sex.

In claim 3, Complainant alleged that she was treated disparately with respect to work
assignments and not assigned work sufficient to exceed her work performance standards. The
Agency noted that although Contract Specialists are encouraged to negotiate cost savings, S1 and
S2 stated that Complainant's performance rating is not tied to saving the government money as
she has alleged. The Agency noted that contrary to Complainant’s allegation that the work
assignments prevented her from achieving a rating higher than “Fully Successful,” the record
showed that S1 had issued Complainant a “Superior Rating” on several occasions. Accordingly,
the Agency found that Complainant was not subjected to discrimination based on her sex or age.

The Agency dropped from its ruling Claim 4 in which Complainant alleged that she was not
selected for a certain position. During the investigation, specifically in her affidavit
supplementing the Report of Investigation, Complainant stated that she did not apply for the job.

The Agency rejected Complainant’s harassment allegations set forth in claim 5. The Agency
found that that Complainant had not established her prima facie burden of harassment based
upon her age and sex because she was unable to show that she was subjected to unwelcome
conduct based on either her sex and/or age. The Agency also found that, even when taken
together, the behavior complained of did not create a work environment "permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
victim's employment and create an abusive working environment." Lastly, the Agency noted
that even though various witnesses stated that senior level employees were treated less favorably
than younger employees, and that they overheard S2 make remarks that showed he preferred
younger employees over older employees, the Agency decided that these “problematic”
statements did not proffer sufficient evidence to show that management's alleged statements
were so severe and pervasive that they interfered with the Complainant's ability to fulfill her
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work obligations. Accordingly, the Agency concluded that the weight of the evidence indicated
that neither discrimination nor harassment had occurred.

ANALYSIS AND FINDINGS

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”).

Complainant and the Agency filed briefs on appeal. Complainant primarily reiterates the
arguments previously advanced, offers new evidence in support of her claim, alleges that the
Agency failed to consider two of her claims, and challenges the Agency’s assessment of the
evidence. In rebuttal, the Agency asserts that it properly considered and analyzed Complainant’s
allegations and should have its decision affirmed.

We find that the Agency properly defined the complaint and that Complainant had not
challenged the Agency’s definition of the accepted at issues at the time of the investigation. We
note that the Agency dismissed five claims; four for untimely EEO Counselor contact and one
for failure to state a claim. These claims alleged that Complainant was subjected to
discrimination and harassment (nonsexual) based on age and sex when:

A. on or prior to December 8, 2010, she learned she was not selected for the positions(s)
advertised under Vacancy Announcement Numbers 10-FNS-551 and 11-FNS-014P;
B. in 2010 and 2011, she received “Fully Successful” ratings on her annual performance
appraisals;
C. on January 21, 2011, her supervisor reassigned her to the Policy Branch to serve as a
Small Business Specialist, but did not give her a modified Position Description until May
2011;
D. in 2011, she was not permitted to train to perform the duties of the Program
Analyst/Contractor Database Administrator position;
E. in April 2012, she was assigned Human Resources-related duties that were outside of her
Position Description; and
F. between June and August 2014, nine contractors were hired under a one-year
performance contract, however, at least seven left the Agency well before the contract
expiration date, requiring that their workloads be reassigned and resulting in a waste of
Agency funds.

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Complainant did not specifically argue on appeal that claims A – E were timely raised, but to the
extent that she is challenging the dismissal of these claims, we conclude that the Agency
properly dismissed Claims A - E as untimely raised with an EEO Counselor pursuant to 29
C.F.R. § 1614.107(a)(2). The challenged actions in Claims A – E arose between 2010 and 2012.
The record shows that Complainant did not contact an EEO Counselor until October 20, 2014,
which was well beyond the 45-day period established by the EEOC regulations. Complainant
also has not specifically challenged the dismissal of Claim F on appeal, but to the extent that she
is challenging the dismissal of Claim F, we find that Claim F was properly dismissed for failure
to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Complainant does not allege that she was
one of the nine contractors hired or even one of the persons to whom the departing contractors’
workloads were reassigned. Thus, we find that Complainant failed to prove that she suffered any
harm.

Next, we note that Complainant now argues on appeal that the Agency failed to consider the
following allegations:

G. The Agency erred by failing to address Complainant's claim that "[n]o veteran (senior)
employee (including myself), has ever been promoted under [S2’s] leadership."
H. The Agency erred by failing to address Complainant's claim that, "I was removed from
awarding contracts and reassigned to the Policy Branch."

We note that Complainant raised Claim G in her formal complaint. However, we find that even
if no senior employee, including Complainant, had ever been promoted under S2, that bare
allegation is insufficient to sustain Complainant’s age or sex discrimination claim. The claim is
too generalized to state a claim or prove discrimination. Indeed, the record is undisputed that
Complainant did not take the required courses or earn the requisite certification to qualify for a
promotion to GS-13. We find that Claim H was among the claims dismissed by the Agency as
untimely raised with an EEO Counselor and thus was considered by the Agency.

With respect to the issues accepted for investigation, a review of the record confirms that the
Agency’s actions were legitimate, nondiscriminatory, and not a pretext for unlawful
discrimination. While the record contains evidence that management wished to hire younger
employees and encouraged the senior employees to serve as mentors to the new and younger
employees, Complainant has failed to show how the advancement of the younger employees
adversely impacted her. Indeed, unlike Complainant, the younger employees satisfied the
prerequisites for the advanced training and subsequent promotions. Further, the new group of
employees who comprised the “Fab Five” included women and a protected age member,
undermining Complainant’s allegation that her sex and age motivated the adverse actions she
allegedly suffered.

Specifically, with respect to Claim 1, Complainant claimed that she was denied training
opportunities because of her sex and age. However, we find no evidence that Complainant was
certified at Level II, a prerequisite, that would have qualified her to take the Level III CON-360
and Advanced Business Solutions for Mission Support course training that she claimed she was
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discriminatorily denied. Complainant stated that after S2 denied her request to take Level III
courses, for which she had not qualified, she did not submit any formal training requests to
management. More importantly, Complainant does not allege that any of the younger employees
who were permitted to take Level III training or obtained GS-13 promotions lacked the requisite
qualifications. Accordingly, we find that the Agency’s denial of Complainant’s training requests
was not discriminatory.

Regarding Claim 2, we find that S2 stated that even if Complainant had been “grandfathered” as
she requested, it would have only granted her more time to complete her training courses. Since
Complainant did not produce any evidence to the contrary, and the record shows that she was
granted opportunities since 2014 to complete her course work but did not avail herself of them,
we find no reason to conclude that her age or sex was a factor. Likewise, we find that
Complainant did not show how her Claim 3 work assignments were because of unlawful
discrimination.

With respect to Claim 4, we find that although Complainant stated in a supplemental affidavit to
the investigation that she did not apply for the position at issue, it is not clear that she withdrew
this claim. However, because we find that Complainant did not allege that she was prevented
from applying for the position or that applying would be futile, the Commission concludes that
there is no basis for finding discrimination in her nonselection.

We find that Complainant’s claims of harassment as set forth in Claim 5 do not collectively rise
to the level of severity or pervasiveness to create a hostile work environment; nor is there any
evidence that the Agency’s actions were because of Complainant’s age or sex. Even if
Complainant had begun to receive job announcements from her supervisor before she had
expressed an interest in a detail, as she contends on appeal, she did not prove that her
supervisor’s actions were designed to humiliate, insult, or embarrass her because she is a woman
or older than 40. Further, accepting Complainant’s allegation that she was improperly chastised
for not responding to an email because she had filed a timely response as true, this incident is no
more than an ordinary workplace tribulation that is insufficient to sustain a hostile work
environment claim. Similarly, if S2’s alleged assistant had given work assignments to
Complainant, which management denied, Complainant has not demonstrated how the assistant’s
actions constituted a violation of Title VII or the ADEA. Likewise, we find no reason to believe
that Complainant’s lack of notice about the new credit card log was discriminatory because
according to witness statements, when the log was created in September 2014, no one was
informed until November due to oversight. Lastly, we find no sex or age animus in
management’s decision to embrace or use the nickname “Fab Five” that the group of new hires,
which included women and one person in the protected age group, imposed on themselves. Nor
do we believe that the Agency’s focus on bringing a new perspective to its operations is in itself
discriminatory. While there were statements indicating that S2 pushed the younger employees to
complete their training levels at the expense of the senior employees who had to assume their
workloads and serve as mentors, we will not second-guess the business judgment of the Agency
since there is no evidence that the senior employees were not afforded training opportunities or
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denied advancement if they were eligible. Accordingly, on this record, we do not find that
Complainant was subjected to discrimination or harassment based on her sex or age.

CONCLUSION

We AFFIRM the Agency’s decision.

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).

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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 8, 2018
Date