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

Equal Employment Opportunity Commission

Nov 29, 2018

0120171275 (E.E.O.C. Nov. 29, 2018)

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

Crysta T.,1
Complainant,

v.

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

Appeal No. 0120171275

Agency No. RD-2015-00296

DECISION

On February 27, 2017, 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
February 13, 2017 final agency decision (FAD) 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 MODIFIES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-0343-13 at the Agency’s Centralized Servicing Center (CSC) in St. Louis,
Missouri.

On March 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of race (African-American) when:

1. On December 10, 2014, the Acting Administrator (S1) informed her that her GS-0343-
13, Management and Program Analyst position had been realigned and directed her to
discontinue attending Strategic Planning meetings; 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 unspecified dates, she was denied a Quality Step Increase (QSI).

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). On September 11, 2015, Complainant
requested a FAD. On February 13, 2017, over one year later, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

In its FAD, the Agency reasoned that while Complainant established a prima facie case of race
discrimination, management articulated legitimate, nondiscriminatory reasons for its actions.
With respect to claim (1), S1 stated that the proposed structure for the realignment predated his
tenure as Acting Director, but he noted that he implemented the realignment based on business
needs. Human Resources representatives reported that they advised management officials that the
proposed realignment would support CSC’s mission and the organizational structure. They noted
that they only considered Complainant’s position for realignment because it was the only position
brought to them for review.

The Agency determined that Complainant failed to establish pretext with regard to the realignment
because the realignment was initially proposed by Complainant’s former supervisor and
subsequently reviewed by Human Resources. The Agency noted that each Human Resources
official independently decided that the realignment supported the Agency’s mission and increased
Complainant’s career progression. The Agency explained that while Complainant’s position was
the only position realigned, that was not persuasive evidence of discrimination. Moreover, the
Agency determined that the evidence did not support the conclusion that Complainant’s race
factored into the decision to realign her position or that she was barred from attending strategic
meetings because of her race.

Regarding claim (2), S1 stated that he relied on supervisory recommendations for QSIs and that
he never reviewed Complainant because his tenure spanned parts of two different fiscal years.
Complainant’s supervisor (S2) testified that he did not deny Complainant a QSI. However, he
indicated that QSIs are issued at the prerogative of management and an “outstanding” performance
rating does not ensure a QSI. As for pretext, the Agency noted that at least two other African-
Americans received QSIs during the relevant period and Complainant was approved for a QSI
during a prior rating period. Accordingly, the Agency determined that the weight of the evidence
indicated that discrimination did not occur with respect to the incidents alleged in the complaint.
The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the FAD should be dismissed because the Agency did not
provide the FAD within 60 days of her request. Complainant further argues that she was excluded
from meetings that directly affected her job functions based on her protected class. Complainant
claims that S1 detailed a white male employee to his staff and assigned him duties that included
strategic planning and reorganization, which were previously part of her duties. Complainant
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argues that her position was unlawfully realigned without an official document and the realignment
was not in the best interests of the Agency because her new functions are not related to her job
description.

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”).

The Agency’s Issuance of its FAD

As an initial matter, the Commission will address the Agency’s untimely issuance of its FAD and
Complainant’s request for default judgment in her favor as a sanction. EEOC Regulations provide
that an agency shall issue the final decision within 60 days of receiving notification that a
complainant has requested an immediate decision from the agency, or within 60 days of the end
of the 30-day period for the complainant to request a hearing or an immediate final decision where
the complainant has not requested either a hearing or a decision. 29 C.F.R. §1614.110(b).

Complainant submitted a request for a FAD on September 11, 2015. On February 13, 2017, the
Agency issued a FAD, more than one year after the request. The Agency has provided no
explanation for the late issuance of the final decision. Therefore, the Commission finds that the
Agency did not comply with its obligation to issue a final decision in accordance with the
timeframes set forth at 29 C.F.R. § 1614.110(b). Accordingly, we find that a sanction in this case
is appropriate.

Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the
non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv.,
EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable
remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each
situation by applying the least severe sanction necessary to respond to a party's failure to show
good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans
Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in
“tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature
of the non-compliance, and the justification presented by the non-complying party; 2) the
prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from
the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense,
EEOC Appeal No. 07A50030 (Mar. 1, 2007).

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In the case at hand, we find that the Agency failed to comply with the EEOC’s regulations. We
note that the Agency did not provide any explanation for its extraordinary delay in issuing the
FAD. However, we note that Complainant did not make a showing that she was prejudiced by the
Agency’s delay. Thus, although the Agency failed to issue a timely decision as required by
regulation, the Commission finds that the Agency did not act in a manner to warrant a default
judgment sanction. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req.
for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-
day delay in issuing the FAD did not warrant sanctions, as complainant did not show she was
prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4,
2016)(declining to sanction an agency that issued a FAD after approximately 326 days when
complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC
Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No.
01A55147 (May 12, 2006) (declining to sanction an agency that issued a FAD after approximately
371 days)).

Based on the specific circumstances of this case, we find the most appropriate sanction to address
the Agency’s conduct is to order the Agency to: (1) post a notice at its Office of Adjudication in
Washington, D.C. regarding its failure to comply with the Commission's regulatory timeframes
and orders; and (2) provide training to its EEO personnel who failed to comply with our regulatory
timeframes. Our decision to sanction the Agency in this matter will effectively emphasize to the
Agency the need to comply with Commission regulations and orders in a timely manner.

Disparate Treatment

Turning to the merits of the instant case, the Commission notes that to prevail in a disparate
treatment claim such as this, 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 or she 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); Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. A
review of the record indicates that on January 14, 2015, Complainant was issued a new SF-50
stating that a realignment had occurred with her position. ROI, at 104. The realignment only
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changed the location of Complainant’s position, adding the Office of Special Assistant to her
organization. Id.

Complainant stated that she believed her race was a factor in the decision to realign her position
because she was the only African-American direct report and following the realignment, the
Agency placed an individual on detail to complete strategic planning tasks that she previously
would have completed. ROI, at 43. However, S1 affirmed that Complainant’s position was
formally realigned in January 2015 following discussions with Human Resources. Id. at 54-55,
58. S1 stated that while the structure of the realignment was proposed prior to his tenure, he
implemented the realignment. Id. at 55. S1 stressed that the realignment was based on the business
needs of the Agency. Specifically, S1 explained that prior to the realignment, Complainant was
the only direct report without supervisory responsibility and she did not provide administrative
support. Id. S1 stated that the realignment changed Complainant’s position to report to a
Supervisory Management Analyst, who in turn reported to a Senior Executive. Id. at 55, 57. S1
affirmed that the realignment provided Complainant’s position with day-to-day supervisory
oversight and offered Complainant the potential for career ladder growth. Moreover, S1 stated
that Complainant’s position needed to be aligned in a way that allowed a more appropriate
supervisory structure consistent with the grade and duties of the position. S1 explained that no
other employees were affected by the realignment because Complainant was the only GS-13 non-
supervisory staffer reporting directly to a Senior Executive. Id. at 58.

As for Complainant’s attendance at Strategic Planning meetings, S1 denied that he directed
Complainant to discontinue attending the meetings. ROI, at 59. S1 affirmed that Complainant’s
supervisor determined which meetings Complainant needed to participate in and that Complainant
did not attend his weekly direct report staff meeting because she no longer reported directly to
him. Id.

With respect to claim (2), Complainant contended that her race was a factor when she did not
receive QSIs because she was told that the other direct reports, whom were Caucasian, received
QSIs. ROI, at 44. Complainant avers that, despite her “outstanding” ratings, she was the only
direct report that did not receive a QSI since 2009. Id. at 43. The record indicates that in 2014,
12 QSI awards were issued at the CSC, including two awards to African-American employees,
two awards to Hispanic employees, and eight awards to Caucasian employees. Id. at 106. Each
of the QSI recipients were below Complainant’s grade level and the records do not indicate that
direct reports received a QSI as Complainant alleged. Id.

S1 affirmed that he did not deny Complainant a QSI and reiterated that not all staff members with
an “outstanding” rating receive a QSI. ROI, at 61. Similarly, a review of the Agency’s regulations
indicates that QSIs are not required or automatically granted for an “outstanding” performance
rating and management reserves the discretion to grant a QSI. Id. at 116. S1 stressed that his
tenure as Complainant’s supervisor spanned parts of two fiscal years and he never rated
Complainant’s performance. He stated that he operated as a reviewing official rather than a rating
official and Complainant was not nominated for a QSI by her rating official. Id. S2, Complainant’s
rating official, testified that while he did not deny Complainant a QSI; rather, he had the ability to
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issue Complainant a QSI during his tenure. Id. at 72. However, he stressed that the awards are
the prerogative of management. Id. S2 added that most of the awards during that award cycle
were for cash and time-off, and Complainant would have received such an award at the same level
as everyone else at that award level. Id.

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. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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 animus. Complainant failed to carry this burden. 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. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination as alleged.

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 finding of no discrimination based on
race. The Agency’s final decision, however, is MODIFIED in accordance with this decision and
the ORDER below.
ORDER

Unless otherwise indicated, the Agency is ordered to complete the following remedial actions
within 60 days of the date this decision is issued:

1. The Agency shall post a notice in accordance with the paragraph below.

2. The Agency shall provide in-person or interactive training to its EEO management officials
in the Office of Adjudication regarding their responsibilities concerning case processing
under 29 C.F.R. Part 1614.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0617)
The Agency is ordered to post at its Office of Adjudication facility located in Washington, D.C.
copies of the attached notice. Copies of the notice, after being signed by the Agency's duly
authorized representative, shall be posted both in hard copy and electronic format by the
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Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
60 consecutive days, in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be submitted
to the Compliance Officer as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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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

November 29, 2018
Date