Edwina W.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Jun 6, 2018

0120161739 (E.E.O.C. Jun. 6, 2018)

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

Edwina W.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.

Appeal No. 0120161739

Agency No. NRCS-2015-00790

DECISION

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 March 18, 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 VACATES the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst,
GS-0560-13, with the Agency’s Natural Resources Conservation Service (NRCS), Strategic
Budget Division located in Washington, D.C. Complainant began working for the Agency as a
Budget Analyst in November 2008.

On August 12, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female), color (black), and age (over 40) 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 June 11, 2015, management denied her desk audit and promotion to the GS-14
level;
2. Since February 2011, management has failed to provide her with an official
position description that accurately reflects her position; and
3. Since February 2011, she has been assigned and performed GS-14 level duties,
but management has neither compensated her at nor promoted her to such level.

The Agency accepted Complainant’s complaint and referred the matter for investigation on
October 16, 2015. The investigation was conducted from November 6, 2015, through December
12, 2015. The report of investigation was submitted on December 18, 2015. The report of
investigation noted that Complainant alleged she was subjected to discrimination by responsible
management official 1 (RMO 1) and RMO 2. The report of investigation did not contain an
affidavit from either RMO 1 or RMO 2. The report of investigation noted that RMO 2 was not
contacted because he had retired from the Agency.

The investigation contained a Memorandum for the Record dated December 14, 2015, in which
the investigator noted that RMO 1 was contacted and interviewed on December 1, 2015. The
investigator stated that RMO 1’s affidavit was submitted to him via email for review, correcting,
initials, and signature. The investigator noted that RMO 1 responded on December 2, 2015, at
9:40 p.m., stating he had not yet had a chance to review his affidavit; however, he would do so
by December 3, 2015.

The Memorandum noted that on December 7, 2015, a follow up email was sent to RMO 1
regarding his affidavit with no response. The Memorandum noted that on December 10, 2015, a
phone call was made along with another follow up email to RMO 1 regarding his affidavit. The
investigator stated that contact was made with an Agency Liaison on December 10, 2015,
requesting assistance in obtaining RMO 1’s affidavit.

The investigator explained that on December 11, 2015, she contacted the Employment
Investigation Division (EID) Specialist to provide notice of the situation. She stated that in
response to her request, the EID Specialist also sent RMO 1 an email instructing him to submit
his completed affidavit by close of business Monday, December 14, 2015. The investigator
noted that as of December 14, 2015, RMO 1 had failed to submit his completed affidavit.

The report of investigation contained affidavits from the following individuals: Complainant, a
Human Resources Specialist, and two coworkers. In her affidavit, Complainant stated that her
prior supervisor was the Budget Director (Person A), who since left the Agency. Complainant
stated while working for Person A, a GS-14 employee (Employee 1) left the branch in February
2011, and she was assigned Employee 1’s duties in addition to her regularly assigned duties.
Complainant claimed she asked Person A about a promotion when she was given the additional
duties and that Person A stated she would talk to management about her promotion.
Complainant explained that Person A went on a detail and then left the Agency.

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Complainant stated that Person B then served as Acting Budget Director and noted that when in
September 2012, another GS-14 (Employee 2) left, she and her assistant were also assigned his
work. Complainant stated she spoke to Human Resources about a desk audit, but was informed
she had to ask her supervisor. Complainant contended that she informed her former supervisor
that she wanted a desk audit, that she needed an SF-52, and an up-to-date position description.

Complainant stated she was told by the Chief Financial Officer (RMO 2) that a new Budget
Director was to come on board and he would discuss her situation when he arrived. Complainant
contended the new Budget Director (RMO 1) arrived in February 2013. Complainant stated that
RMO 1 did not provide her with a new position description and her desk audit was denied.

Complainant noted that due to a reorganization she was moved from the Budget Formulation
team to the Budget Reporting team. Complainant claimed there was no separation of duties
before or after her transfer to Budget Reporting in May 2013. Complainant claimed she
performed the duties of a GS-14, Budget Analyst since she came to the Agency in November
2008.

Complainant also noted that in July 2015, another GS-14 member of the Budget
Formulation/Executive Team (Employee 3) retired. Complainant stated that upon retirement,
one of Employee 3’s duties was the Monthly Status of Funds. Complainant stated that those
duties were then assigned to her team and she was made the unofficial lead.

The record contains an affidavit from a Human Resources Specialist (HRS) who stated she spoke
with Complainant regarding a desk audit request. The HRS stated that no desk audit request was
submitted for Complainant. She stated that she explained to Complainant that in order to submit
a desk audit request, she needed to go through her supervisor who would provide her with a
current position description and a new proposed position description outlining the changes to her
duties. The HRS did not know if Complainant made an official request for a desk audit or if a
desk audit was warranted. The HRS stated that she believed there was a freeze on desk audits at
that time.

The record contains an affidavit from Employee 1 who was a Budget Analyst, GS-14, with the
Strategic Budget Division. Following a reorganization, Employee 1 became a Financial
Specialist. Complainant and Employee 1 were coworkers when Employee 1 was assigned to the
Budget Division. Employee 1 stated that upon her departure from the Budget Planning and
Analysis Division (BPAD), her Watershed programs were transferred to Complainant.
Employee 1 stated that she believed that the duties given to Complainant warranted a desk audit.
Employee 1 stated that the programs shifted to Complainant were her “heavy workloads” and
that they were assigned to Complainant on top of the duties for which she was already
responsible.

The record contains an affidavit from a Program Analyst, GS-14, with the Strategic Budget
Division who was a coworker of Complainant’s during the relevant time. The Program Analyst
stated that she was aware that Complainant was assigned some programs that Employee 1 was
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performing when Employee 1 left the division. The Program Analyst explained that Program
Analysts and Budget Analysts were required to do different tasks and that she would not have
knowledge of the specific job tasks assigned to Complainant.

A copy of the report of investigation was sent to Complainant on December 30, 2015, and she
was notified 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). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. The
Agency explained that in reaching its decision, it was considering the statements RMO 1 made in
the EEO Counselor’s report, as RMO 1 did not submit an affidavit.

Complainant filed an appeal of the Agency’s final decision. On appeal, Complainant argues that
the Agency did not develop an appropriate and impartial factual record. Complainant notes the
Agency did not obtain an affidavit from a single RMO. Complainant claims the Agency failed to
present legitimate, nondiscriminatory responses in the record from any named RMO as to why
the Agency took the actions it did. Complainant also argues the Agency’s actions were a pretext
for discrimination.

In response to Complainant’s appeal, the Agency notes that in October 2015, RMO 2 left NRCS
to take a position with the National Highway Traffic Safety Administration (NHTSA). The
Agency states that despite indications to the contrary, the investigator concluded that RMO 2 had
retired. The Agency notes as a result, the investigator did not attempt to contact RMO 2 to
obtain his affidavit.

The Agency notes the investigator contacted and interviewed RMO 1 on December 1, 2015, but
as of December 14, 2015, she had yet to obtain a signed copy of RMO 1’s affidavit and for that
reason, she did not include it in the report of investigation. The Agency requests the
Commission affirm its finding of no discrimination. In the alternative, the Agency states that
“should the Commission decline to uphold the findings set out in the aforementioned [Agency
decision], the Agency concurs with Complainant that the matter may appropriately be remanded
for a supplemental investigation.” The Agency states should the Commission decline to uphold
its decision, it should remand this matter so that the affidavits of RMO 1 and RMO 2 can be
obtained.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Upon review, we find the present matter should be remanded for further investigation.
Specifically, we note that the completed report of investigation does not contain an affidavit
from either of the alleged RMOs. We note the complaint file provided to the Commission by the
Agency inexplicably contains an affidavit from RMO 1 dated December 14, 2015, which was not
part of the report of investigation. The affidavit is initialed and signed by RMO 1. However, the
signature and date lines for the investigator/witness is left blank. We note that all of the other
affidavits in the record were dated and contained a typed signature from the EEO investigator.
There is no indication that the investigator or Complainant ever received a copy of RMO 1’s
affidavit. Moreover, we note the report of investigation itself states, “The affidavit from [RMO
1] had not been submitted prior to the conclusion of the investigation; therefore, Complainant
could not provide a rebuttal.” Clearly, if Complainant had not received a copy of RMO 1’s
affidavit, she would not have had the opportunity to provide a rebuttal statement.

Furthermore, after reviewing the December 14, 2015 affidavit from RMO 1, we find additional
information is needed to properly address Complainant’s claims. For example, RMO 1 mentions
there was a freeze on desk audits; however, it is unclear from the record when that purported
freeze began and ended. Moreover, while RMO 1 stated that other similarly situated employees
were not denied desk audits, it is unclear if other similarly situated employees requested desk
audits and if requested, whether any such desk audits were granted. Additionally, we note that
Complainant and two witnesses stated that Complainant took on specific tasks from GS-14
Budget Analysts; however, RMO 1 did not address those specific tasks in his affidavit. For
example, it is alleged that Complainant took on Watershed Programs from Employee 1, which
consisted of many named duties. Employee 1 stated that the duties Complainant took on were
her “heavy loads.” In addition, Complainant stated that she was assigned as the unofficial lead
for the Monthly Status of Funds when Employee 3 retired. We note that in his affidavit, when
asked which duties a Budget Analyst, GS-13, performed, RMO 1 responded, “Pulling reports out
of the financial system and creating reports. This is not work that a GS-14 would perform.”
When asked how the duties performed by a Budget Analyst, GS-13, differed from the duties of a
Budget Analyst, GS-14, RMO 1 stated “It depends on the tasks to be performed and the level at
which those tasks will be performed.” We note RMO 1 did not provide specific detail regarding
the actual duties performed by Complainant as compared to other GS-14s during the relevant
time.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is VACATED and the
complaint is REMANDED to the Agency for further processing in accordance with the Order
herein.
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ORDER

Within 60 days of the date this decision is issued, the Agency shall take the following actions:

1. The Agency shall provide a supplemental affidavit from RMO 1 addressing the issues
discussed in this decision including information about desk audits and Complainant’s
duties.
2. The Agency shall provide an affidavit from RMO 2 addressing Complainant’s
allegations. If the Agency is unable to obtain an affidavit from RMO 2, it should
document this in the record and explain the attempts made to obtain this affidavit.
3. The Agency shall obtain affidavits from any other Agency personnel who are able to
provide relevant information regarding Complainant’s allegations.
4. The Agency shall provide to Complainant a copy of all the materials placed into the
record pursuant to this Order including a copy of the affidavit from RMO 1 that was
submitted by the Agency in this appeal.
5. Complainant shall have the opportunity to submit rebuttal affidavit(s).
6. The Agency shall issue a new final decision on the merits of Complainant’s
complaint.
7. A copy of the additional evidence obtained pursuant to this Order and a copy of the
new final decision shall be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 filed your
appeal with the Commission. 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.
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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. 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 6, 2018
Date