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

Equal Employment Opportunity Commission

Nov 19, 2018

0120171784 (E.E.O.C. Nov. 19, 2018)

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

Dania S.,1
Complainant,

v.

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

Appeal No. 0120171784

Agency No. OCFO201600392

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 10, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a Program Analysis, 0343, GS-11 at the
Agency’s Government Employee Services Division - National Finance Center in New Orleans,
Louisiana.

On March 21, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency subjected her to discrimination and harassment (nonsexual) based on race (African-
American) and reprisal for prior protected EEO activity when:

1. on January 26, 2016, Complainant’s first level supervisor informed Complainant
that she was removed from the Annual Pay Raise Project (APRP), 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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Complainant subsequently learned that she was replaced by her back-up, a
Caucasian employee, as Team Lead;

2. on October 29, 2015, during Complainant’s annual performance evaluation,
management informed her that all Client Management Branch (CMB) analysts
would be cross-trained and rotated on all annual projects to gain experience in
performing that project; however, unlike Complainant, no other analysts have
rotated, cross-trained, or have been removed from their assigned annual projects;
and

3. on an unspecified date, despite Complainant’s protest, Complainant’s supervision
put her back in rotation to cover the CMB mailbox duty and gave her the task of
updating the existing Standard Operating Procedures (SOP) on a weekly basis,
even though Complainant was assigned to the Union to work on contract
negotiations 75% of her work time, which made it “impossible” for Complainant
to cover the rotation.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Compliant
initially requested a hearing but later withdrew her request. The AJ then dismissed
Complainant’s request and remanded the matter to the Agency.

On April 10, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant did not submit any statements or briefs in
support her appeal.

ANALYSIS AND FINDINGS

Disparate Treatment:

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
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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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions.
Complainant’s first line supervisor (“S1”) (Caucasian) stated, regarding claim 1, that she was the
responsible management official for rotating Complainant off the Annual Pay Raise Project. S1
explained that she and Complainant’s second line supervisor (“S2”) (Caucasian) decided to
rotate employees on this project for a two-year term so that every employee could familiarize
him/herself with all processes. S1 further explained that Complainant was rotated off the project
to allow other employees to gain experience.

S2 explained that the management team discussed and agreed to rotate, not remove, Complainant
off the Annual Pay Raise Project. S2 further explained that Complainant had been on the Annual
Pay Raise Project for at least two years, and that rotating Complainant off this project would be
an opportunity for other analysts to understand these project duties. S2 further explained that
there are two employees assigned to each project, one individual having more experience than
the other. S2 indicated that Complainant was not replaced by her other team member when
Complainant was rotated off the project. S2 clarified that Complainant would have rotated in
October 2016, and not January 2016.

Regarding claim 2, S1 stated Complainant initiated a discussion during her annual performance
evaluation on management’s decision to rotate employees on all annual projects. S1 further
stated that this discussion did not occur during other employees’ annual performance evaluations
because these employees were notified of the rotations changes during the monthly branch
meetings. S1 explained that Complainant may have been unaware of the changes because she
was unable to attend the branch meetings given her extensive work with the Union.

S2 stated that Complainant inquired during her annual performance evaluation about
management’s decision to rotate employees on and off projects.

S1 and S2, both indicated that other analysts who had been assigned annual projects either had or
were in the process of being rotated.

Regarding claim 3, S1 stated that Complainant had asked her to help find coverage for mailbox
duties during the period Complainant was working for the Union.
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S1 further stated that she offered to help Complainant find coverage if Complainant was unable
to find individuals to cover her mailbox duties. However, S1 explained that for a few months,
S1 “found coverage for [Complainant] 100% of the time when [Complainant] was out of the
office with Union responsibilities.” S1 stated that she asked Complainant in January 2016, to
resume responsibility for finding coverage while out of the office. S1 further stated that
“everyone” is responsible for finding coverage when out of the office, and S1 expected the same
of Complainant.

S1 also explained that Complainant was notified on February 10, 2016, that she would be rotated
off the Annual Pay Raise Project, and she would be assigned to mailbox duties as well as SOP
updating duties. S1 further explained that she provided Complainant one SOP at a time. S1
requested that Complainant provide progress updates, and she did not require that Complainant
complete the SOP duties within a week.

S2 explained that updating the SOPs was a task Complainant could conduct while she worked at
the Agency 25% of her time. S2 further explained that this project did not “entail that much time
because the SOPs are already established,” and Complainant was responsible for “reviewing” the
SOPs. S2 also explained that the mailbox duties “do not consume [the analysts’] whole day”
because one person is assigned mailbox duty either in the morning or in the afternoon.

The record contains a copy of the mailbox coverage schedule which states “You are responsible
for ensuring that your coverage of the CMB box during the pay period is coordinated with other
analysts” (emphasis in original). The schedule further reflects that Complainant was assigned
either the morning or afternoon shift for her scheduled days.

The record also contains a February 10, 2016 email from S1 to Complainant explaining the
rationale for Complainant being rotated off the Annual Pay Raise Project. The email states that
management is “rotating that task to give everyone an opportunity to gain experience in
performing that task.” The email requests that Complainant provide S1 advanced notice of the
individuals who will cover Complainant’s mailbox duty days during Complainant’s absence.
The email also informs Complainant that she will begin updating one SOP per week.

The record includes a March 15, 2016 email to Complainant from S1 containing guidelines for
updating the SOPs. The email indicates that Complainant is responsible for proof-reading for
clarification, format, grammar, and punctuation. A March 16, 2016 email to Complainant from
S1 informed Complainant that “[t]he assignment of updating the SOPs is now an annual CMB
project and an integral part in the daily CMB operations.” The email further informs
Complainant that these annual duties would also be rotated amount the analysts for cross-
training.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on her race or
reprisal for prior protected EEO activity.
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Harassment

To the extent that Complainant alleged that all matters discussed above were also designed to
subject her to discriminatory harassment, 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 basis – in this case, her race and reprisal for
prior protected EEO activity. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself. Here, as we have already
concluded, Complainant simply has provided inadequate evidence to support her claim that her
treatment was the result of her race and/or reprisal.

A case of harassment is precluded based on our findings that Complainant failed to establish that
any of the actions taken by the agency were motivated by her protected bases. See Oakley v.
U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.

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.
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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 (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

November 19, 2018
Date