Ayana C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

0120182772 (E.E.O.C. Dec. 18, 2019)

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

Ayana C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120182772

Agency No. OCFO201700923

DECISION

On September 10, 2018, 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
August 15, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist GS-2210-11 at the Agency’s National Finance Center (NFC), Information
Technical Services Division (ITSD) facility in New Orleans, Louisiana. Complainant filed an
EEO complaint dated December 28, 2017, alleging that the Agency discriminated against her on
the bases of race (African-American), sex (female), color (brown), and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. Since August 2015, management continues to deny her training and mentoring incident
to the Pathways Program; and

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. On several dates, she was subjected to various acts of harassment, including but not
limited to:
a) On September 6, 2017, her supervisor sent a Skype message to ten members
of the team asking of her whereabouts;
b) On August 22, 2017, her supervisor telephoned her while she was on annual
leave, and screamed at her about the results of a report;
c) On August 21, 2017, her supervisor sent her an email asking if her cell phone
was working;
d) On various unspecified dates, her supervisor scheduled meetings on her
telework days and subsequently cancelled them minutes before they were
scheduled to begin; and
e) On various unspecified dates, her supervisor spoke to her in a condescending,
demeaning manner.

Complainant’s first level supervisor is the Access Management (AM) Branch Chief for the
Agency’s Office of the Chief Financial Officer (OCFO), NFC, ITSD (“Branch Chief”). The
Branch Chief stated that she is aware Complainant is a brown-skinned, African American female,
but was not aware of Complainant's prior EEO activity. Complainant asserts that the Branch Chief
was aware of her protected EEO activity because in October 2016, she and a group of employees
filed a grievance complaining to management that the Branch Chief, who at the time was the
Interim Supervisor of Access Management IT team, was bullying and harassing the employees.
Complainant said that she and the group of employees threatened to file an EEO complaint against
the AM supervisor. Complainant states as a result, management removed the AM supervisor, but
later in 2017, she was promoted to AM Branch Chief by the Agency’s Associate Director.
Complainant averred that her earlier problems with the Branch Chief intensified when she
returned.

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). 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). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. Specifically, the Agency found that Complainant failed
to establish a prima facie case of discrimination based on race, color or sex because she failed to
present any evidence that any Pathways participant outside of her protected classes was provided
with the training she was denied and that even if she had she did not establish that management’s
articulated reasons for her delayed training was pretextual. The Agency also found that
Complainant did not establish a prima facie case of reprisal because the union grievance did not
constitute protected EEO activity under Title VII,2 and that Complainant did not establish a prima

2 Although it does not change the outcome of this case, we note that the Agency erred in deciding
Complainant did not make out a prima facie case of retaliation because her grievance was not
based upon a protected class. The Agency does not dispute Complainant’s contention that when
the group filed their grievance against the Branch Chief that they also threatened to file an EEO
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facie case of harassment since she could not prove that her protected traits influenced the Branch
Chief’s actions since others outside her protected classes complained about similar treatment. The
Agency also found that the alleged actions were neither severe nor pervasive or sufficient to alter
Complainant’s work environment. Complainant, who has non-legal representation, filed this
appeal but no brief.

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”).

Upon careful review of the record, we find that the Agency did not engage in unlawful
discrimination, harassment or retaliation against Complainant.

With respect to issue 1, Complainant alleged that since August 2015, management continued to
deny her training and mentoring incident to the Pathways Program. The record reveals that
Complainant had been hired under the Pathways Program in August 2015 as an entry-level IT
Specialist GS-7/9/11. Complainant stated that the Pathways Program is a recruiting tool where
program employees receive benchmark training, performance assessments, and mentoring. She
said that the supervisors are responsible for ensuring that the Pathway participants receive proper
training and mentoring. The Branch Chief added that Pathway employees are trained with the goal
of developing career employees.

Complainant averred that when she was hired, the Branch Chief was the Interim Supervisor of the
IT team and she did not follow up when Complainant requested training, a mentor, or performance
progress assessments. Complainant argued that these deficiencies affected her performance
ratings (“Minimally Successful”) and kept her in the same position for two years. Complainant
said that even after her supervisor was promoted to Branch Chief in January 2017, she continued
to deny Complainant a formal training plan and a mentor. Complainant stated that she had to self-
train until an unidentified coworker, who also was in the Pathways Program, told her about
AgLearn online training. Complainant notes that she did not complain about the lack of training
and mentorship until she filed an informal EEO complaint in August 2017.

complaint. The Commission has long held that the threat of an EEO complaint is protected
activity. Alston v. United States Postal Service, EEOC Appeal No. 01970341 (Sept. 8, 1998)
(citing Westfall v. United States Postal Service, EEOC Appeal No. 01922687 (July 9, 1993)).
Therefore, since the grievance contained a threat to file an EEO complaint, Complainant satisfied
the protected conduct element of the prima facie case.
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She said, thereafter, the Branch Chief placed her under a formal training plan, assigned her a
mentor, and promoted her to a GS-11. Complainant stated that she believes her race, color and
sex were factors because others outside her protected classes were treated more favorably and not
stifled like her. She also averred that she believe she was subjected to reprisal because she was in
the group that complained about the Branch Chief when she was just the Interim Supervisor.

In rebuttal, the Branch Chief asserted that she did not supervise Complainant until January 2017,
and that she did not know Complainant had previously requested training pursuant to the Pathways
Program. She said after her promotion, she had her subordinates complete surveys regarding their
needs and paired Complainant with a mentor for training, coaching, and shadowing. After
Complainant’s mentor died, the Branch Chief said that she assigned her a new trainer with whom
she scheduled meetings to discuss Complainant’s training needs and progress. She claimed that
she even held meetings with Complainant to determine if she had any challenges, issues or
concerns and requested employee daily reports, but Complainant always said everything was fine.
The Branch Chief maintained that since January 2017, she provided Complainant with a formal
training plan, which included participating in the AgLearn and Interskill online training programs,
that led to her GS-11 promotion in August 2017. She also averred that she did not know about
Complainant’s engagement in EEO activity prior to the August 2017 complaint and that
Complainant had never voiced a complaint to her about harassment, her work conditions, or
retaliation nor did she identify any needs in her daily reports.

Although the record reflects that Complainant did not submit a rebuttal to the Branch Chief’s
statements, she identified two witnesses who confirmed that the Branch Chief did not offer training
or a mentor to Complainant after she was hired in 2015. One witness, an African-American male
IT Specialist (CW1), stated that the Branch Chief instead assigned Complainant busy work
unrelated to the job until Complainant filed her EEO complaint in August 2017. The other witness,
an African American female IT Specialist, concurred with CW1 and added that three months after
Complainant was hired, the Branch Chief became Complainant’s supervisor and for the next two
to three years, she did not provide Complainant with any mentoring or training as required by the
Pathway Program. However, CW1 stated that he believed the Branch Chief’s harassing actions
targeted Complainant because she was the new hire on the IT team and CW2 stated that the Branch
Chief’s denial of training and a mentor was a form of harassment and bullying commensurate with
the Branch Chief’s management style. CW1 added that even though the Branch Chief is a highly
skilled technician, she lacks people skills despite that management has sent her to numerous People
Skills training. Therefore, although both CW1 and CW2 asserted a belief that the Branch Chief’s
actions were motivated by Complainant’s protected traits and activity, neither they nor
Complainant proffered any corroborative evidence beyond their unsubstantiated opinions and
instead offered other nondiscriminatory and nonretaliatory reasons for her actions. Therefore, we
find that even if the Branch Chief denied Complainant the professional development associated
with the Pathways Program as Complainant contends, Complainant’s failure to connect this
deficiency with her race, color, sex or prior EEO activity eviscerates her Title VII claim.

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As for Issue 2(a-e), Complainant alleged that she was subjected to harassment and retaliation when
the Branch Chief sent a Skype message to ten members of the team asking of her whereabouts;
telephoned her while she was on annual leave, and screamed at her about the results of a report;
sent her an email asking if her cell phone was working; scheduled meetings on her telework days
and subsequently cancelled them minutes before they were scheduled to begin; and spoke to her
in a condescending, demeaning manner. Assuming the actions occurred as alleged by
Complainant, Complainant has not established these actions were based on her protected traits or
conduct. The record reveals that Complainant’s coworkers recounted that they experienced similar
incidents by the Branch Chief and the 2016 grievance demonstrates that Complainant was not the
singular target of such actions or this harsh managerial style by the Branch Chief. Upon review,
we find that Complainant has failed to establish that Title VII was violated.
CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination, harassment or
reprisal against Complainant.

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.
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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.
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 18, 2019
Date