Chasity H.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

0120181820 (E.E.O.C. Aug. 29, 2019)

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

Chasity H.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120181820

Agency No. FSIS-2017-00072

DECISION

On May 14, 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
April 11, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Program Analyst,
GS-13, at the Agency’s Office of Policy and Program Development (OPPD) in Washington, D.C.

On October 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), color (Black), disability (visual impairment),
age (61), and in reprisal for prior protected EEO activity when:

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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1. On October 17, 2016, management issued her a rating of “Meets Standards” on her
2016 Annual Performance Review, and required her to submit an Accomplishment
Report; and

2. On several dates, Complainant was subjected to various acts of harassment,
including but not limited to:
a. on unspecified dates between 2009 and 2013, management failed to provide
Complainant with current copies of Microsoft Publisher;
b. on unspecified dates during 2014, management failed to recognize her efforts
in developing the Civil Rights Anniversary program or her completed volunteer
work at the State Fair;
c. on unspecified dates during 2015, management denied her request for a rolling
computer bag and telework2; and
d. on unspecified dates between 2009 and October 17, 2016, management failed
to include her in staff assignments, communications, and meetings.

With respect to Claim (1), Complainant claimed that the Accomplishment Reports were voluntary,
but contended that her supervisors required her to submit an Accomplishment Report.
Complainant submitted her Accomplishment Report and stated that her supervisors rated her as
“Meets Standards.” However, the supervisors rated three other employees as “Exceeds” even
though they never submitted an Accomplishment Report. According to Complainant, these
employees were white.

Complainant’s first-line supervisor (S1) and second-line supervisor (S2) both averred that
Accomplishment Reports were encouraged, but not mandatory, and that all three employees named
by Complainant as comparators did submit Accomplishment Reports. S1 added that Complainant
received a “Meets Standards” rating because she failed to complete a project on time. The
expectation was that the project would be completed in June 2016, but it was not actually
completed until Fall 2016.

The record contains a copy of Complainant’s performance appraisal for the Fiscal Year ending in
September 2016. Regarding the “Alignments, Standards, and Measures” element, Complainant
promptly analyzed materials, but could have obtained an “Exceeds” rating if she analyzed “more
carefully the underlying problems associated with a given document package.” Complainant was
rated as “Exceeds” in “Communications.” Complainant was rated “Fully Successful” in
“Fostering Customer Service, Collaboration, and Partnerships” because she needed to improve
collaboration with colleagues, better anticipate the needs of her workgroup, and ensure that her
major projects were completed in a timely manner and meet high quality standards. Complainant
was “Fully Successful” in Research and Analytical Thinking because she did not anticipate
differences of opinions or views and did not reach out to subject matter experts or conduct enough
research when necessary. As a result, her summary rating was “Fully Successful.”

2 In her formal complaint and affidavit, Complainant refers to the rolling bag as “telework
equipment” or a “telework tool.” Complainant does not allege that she was denied telework.
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Complainant alleged she was subjected to a hostile work environment in Claim (2). Complainant
claimed that she served as publisher of the OPPD FOCUS EEO newsletter for five years and that
she requested permission to order software designed for newsletters. Complainant claimed that
she was told that the request would be taken under consideration. Complainant stated that she later
discovered that S2 purchased Microsoft Publisher for a recently-hired white male employee
(CW1). Since CW1 received two copies, Complainant installed a copy on her computer.

S1 did not recall that Complainant asked for the software. After CW1 received the software, she
raised concerns to S2. S2 acknowledged receiving an email from Complainant saying that she was
not happy she did not receive Microsoft Publisher. S2 further said that she did not recall ever
receiving a request from Complainant for Microsoft Publisher.

Complainant stated she was the chairperson for the creation of the standards that employees had
to meet to compete for a paid trip to Washington, D.C. to participate in the Civil Rights Act
Commemoration Ceremony. Complainant argued that she was subjected to harassment because
her work was not recognized. Complainant added that upper management told her she did receive
a bonus. However, S1 claimed the bonus was in recognition of work Complainant did for
completing State program work and contributing to the EEO newsletter.

S1 averred that the Agency recommended Complainant for an “On the Spot” award. The record
contains a copy of the award stating that it was issued for significant contributions to the Fiftieth
Anniversary commemoration of the Civil Rights Act. S2 added that Complainant received a time-
off award as well.

Complainant further alleged that S1 and other white employees routinely discussed African-
Americans using the EEO process to get ahead. Additionally, another employee that Complainant
did not identify said that “Black people put all of their money in their bellies and are genetically
intellectually inferior.” S1 denied being part of this kind of conversation.

As to the rolling suitcase, Complainant contended that the Agency should have given her the
rolling suitcase without question because the suitcases were part of the Agency’s standard ordering
of supplies. Instead, Complainant’s supervisors required her to provide medical documentation.
Complainant noted that S1 approved her request for a rolling suitcase, but S2 denied the purchase
because of budgetary constraints. Complainant alleged she was told the Agency would no longer
approve rolling suitcases as standard supplies because they had approved too many requests. After
submitting medical documentation, the Agency gave Complainant a rolling suitcase. Complainant
argued that she was discriminated against because the Agency simultaneously gave another
employee rolling computer bag without incident or scrutiny and that S2 believed Complainant was
a lesser person due to her race, disability, and age.

S1 conceded that employees without disabilities used to receive rolling suitcases, but by the time
Complainant requested a bag, the Agency’s policy had changed.
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The Agency needed medical documentation to support Complainant’s request. Because she had a
disability and an approved reasonable accommodation, the Agency was able to approve the
request.

Complainant alleged that S1 left her off email correspondence several times and when
Complainant brought the issue to his attention, he apologized for the oversight. When S2 similarly
omitted Complainant from emails, S2 said that she forgot when using her Blackberry.

S1 said that he tried to include Complainant in his communications. However, in some cases, S1
was communicating with his superiors and peers, and wanted to resolve issues with them before
involving Complainant. S2 added that she routinely sends messages directly to the first-line
supervisors concerning work assignments and asks that the supervisor ensure that her concerns are
addressed. S2 finds that communicating with the supervisors is an effective way to ensure tasks
are completed.

A coworker (CW2) submitted an affidavit for the record in which she stated that Complainant’s
complaints were not about harassment, but rather about not receiving credit for assignments she
completed. CW2 never witnessed behavior from S1 that was derogatory or demeaning toward
African-Americans or individuals with disabilities. Complainant’s former supervisor also
submitted an affidavit in which she avers that Complainant’s complaints related to the quality of
her work.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its decision, the Agency determined that Complainant established a prima facie case of
discrimination on the bases of disability, age, race, and color, but not of reprisal. Further, the
Agency determined that S1 and S2 had articulated legitimate, nondiscriminatory reasons for its
actions of which Complainant failed to rebut as pretextual. Moreover, the Agency concluded that
Complainant failed to put forth sufficient evidence to show that she was subjected to unwelcome
verbal or physical conduct or sufficiently severe or pervasive enough to establish a hostile work
environment. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates the arguments she set forth in her affidavits and maintains she
was subjected to unlawful harassment and discrimination. Complainant contends that S1 rated
only white employees as “Outstanding” and made disparaging comments about African-
Americans. Complainant claims that even though she received a copy of Microsoft Publisher, she
has shown that she is required to order supplies under a different process than other employees.
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Complainant contends that the investigative report was voluminous and duplicative with no logic
behind it. Finally, Complainant also argues that the investigative process was a “mockery” and
says that she filed her case in October 2016, “and it went dormant until a year later when she called
for the status.” Accordingly, Complainant requests that the Commission reverse the final decision.

In response, the Agency explains the issues regarding processing of the instant complaint. The
Agency notes that Complainant made initial contact with its EEO office in October 2016 and was
immediately interviewed by the EEO Counselor. At the end of the informal counseling stage, the
EEO Counselor issued Complainant a notice of right to file a formal complaint. The United States
Postal Service attempted to deliver the notice; however, ultimately, it was returned to the Agency
after Complainant failed to respond to its delivery attempt notices. At that point, the EEO
Counselor called Complainant and left a message. Complainant did not contact the Agency until
several months later. The Agency decided to forego dismissal for failure to prosecute and issued
Complainant a second notice of right to file a formal complaint. The United States Postal Service
encountered similar problems the second time around and the EEO Counselor again called
Complainant. Complainant subsequently filed her EEO complaint on October 26, 2017. The
Agency then addresses the merits of Complainant’s appeal and maintains that Complainant failed
to show that management’s legitimate, nondiscriminatory reasons were false or unworthy of belief.
Further, the Agency contends that the emails Complainant points to as evidence of her hostile work
environment claim are nothing more than routine work-related matters that do not rise to the level
of actionable harassment.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant's dissatisfaction regarding the
processing and investigation of her complaint. Despite Complainant’s arguments that her
complaint went “dormant,” the Agency provided evidence that it undertook numerous, good faith
efforts to deliver the notice of right to file a formal complaint to Complainant. The Agency
attempted to deliver the notice of right to file a formal complaint to her address of record on
December 16, 2016, but it was returned as unable to forward/return to sender after Complainant
ignored delivery attempt notices. The EEO Counselor called Complainant in February 2017, but
Complainant did not follow up or return the call until October 2017. The EEO Counselor mailed
Complainant a second notice of right to file, but Complainant again did not pick up the package
containing the notice until the EEO Counselor called and reminded Complainant. Complainant
subsequently received the notice and filed her EEO complaint. Thus, the Commission finds that
any delays that occurred in this case were not attributable to Agency contumacious conduct or bad
faith, but rather Complainant’s failure to act.

Finally, the Commission is unpersuaded by Complainant’s arguments regarding the “voluminous”
investigative record. The report of investigation includes approximately 500 pages of documents
and includes a Description of Exhibits clearly listing the documents (including witness affidavits
identified as “Affidavits of” named individuals) ensuring that the information can be located
readily and efficiently.
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Accordingly, despite the above referenced arguments, the Commission determines that the
investigation was properly conducted and that the report of investigation was adequately
organized.

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 – Claim (1)

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 802 n.13. 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).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, we find that the Agency has articulated legitimate, nondiscriminatory reasons
for its actions. As explained above, the Agency provided Complainant’s performance appraisal,
which contained several reasons for her ultimate rating. S1 further explained that Complainant
received the “Meets Standards” rating because she did not complete a significant project on time.
The project was to issue a Directive and Compliance Guidelines to be used by the Agency’s Office
of Investigation in connection with its state inspection programs. The expectation was that the
directives would be issued in June 2016, but they were not published until Fall 2016.
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S2 affirmed that she reviewed and approved the performance appraisal rating because Complainant
failed to timely complete some important assignments and the quality of her submitted assignments
did not exceed expectations. S2 added that S1 noted that Complainant needed to improve her
ability to work collaboratively with colleagues across program and staff lines. Further, S1 and S2
both denied that Complainant was required to submit an Accomplishment Report; rather, all
employees were encouraged to submit one.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

We note that Complainant chose to request a final decision from the Agency; therefore, we do not
have the benefit of an Administrative Judge's credibility determinations after a hearing. As a result,
the Commission can only evaluate the facts based on the weight of the evidence presented. At all
times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the
evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the
basis of discriminatory or retaliatory animus. The record does not support this finding.
Accordingly, we find Complainant has not sufficiently demonstrated that she was subjected to
discrimination or reprisal.

Hostile Work Environment – Claim (2)

To establish a claim of harassment, 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 his
statutorily protected class; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In short, 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.

The Commission finds that, based on the totality of the circumstances, Complainant has not
established that she was subjected to a discriminatory or retaliatory hostile work environment.
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. The record reflects that the alleged
incidents were more likely the result of routine supervision, personality conflicts, and general
workplace disputes and tribulations.
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For example, as to Claim 2(a), neither management official could recall receiving a request from
Complainant for Microsoft Publisher. Complainant admits she did not request Microsoft
Publisher; however, she subsequently received a copy from a co-worker. In Claim 2(b), the
Agency showed Complainant was, in fact, recognized. Complainant was nominated for and
received a Spot Award and a Time-Off Award for her work on the Civil Rights Act
commemoration and her contributions to the newsletter.

Regarding Claim 2(c), management explained that Complainant requested a rolling computer bag
around March 2016. At the time, management had stopped the practice of approving rolling bags
for employees who did not have medical documentation supporting the request due to budgetary
constraints. Initially, there was some confusion as to whether Complainant needed to submit a
new reasonable accommodation request for the bag. Complainant reminded management that she
had reasonable accommodation documentation on file, and management promptly approved the
request for the rolling bag.

As to Claim 2(d), S1 affirmed that he tried to include Complainant in his communications
whenever he felt that it was appropriate but that in some cases he preferred to resolve issues with
his superiors and peers before including Complainant in his messages. Likewise, S2 added that as
Complainant’s second-line supervisor, she often sent messages directly to Complainant’s first-line
supervisor and asked the first-line supervisor to make sure that her concerns and comments were
communicated to Complainant. S2 maintained that she does not recall excluding Complainant
from meetings that involved her assignments. Further, S1 denied making any disparaging
comments about African-Americans or being a part of any conversation with anyone who made
any such comments. Complainant presented no corroborating evidence that these comments were
uttered.

Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment. Moreover, to the extent Complainant claims that he was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not proffered any
evidence from which a reasonable fact finder could conclude that the Agency's explanation for its
actions was pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination, reprisal or a hostile work
environment as alleged.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant is alleging that the Agency denied and unreasonably
delayed granting her reasonable accommodation regarding the rolling computer bag, the
Commission notes that an agency is required to make reasonable accommodation to the known
physical and mental limitations of a qualified individual with a disability unless the Agency can
show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to
establish she was unlawfully denied a reasonable accommodation, Complainant must show that:
(1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3)
the Agency failed to provide a reasonable accommodation.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (October 17, 2002).

Here, assuming, without finding, that Complainant is a qualified individual with a disability, the
record shows that Complainant requested a rolling computer bag around March 2016. The Agency
had just discontinued its practice of providing rolling bags to all employees who requested them
and instead required employees to provide medical documentation justifying the request.
Complainant was informed of this policy change and reminded management officials that she had
reasonable accommodation documentation on file. Based on her documentation already on file,
management promptly approved the request and she received the rolling bag in in late-April 2016.
Accordingly, we find that Complainant has not shown that the Agency failed to provide her with
a reasonable accommodation or otherwise violated the Rehabilitation Act.

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.

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

August 29, 2019
Date