Glenna O.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 20180120173009 (E.E.O.C. Dec. 13, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glenna O.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 0120173009 Agency No. RD201700003 DECISION On September 13, 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 August 9, 2017, final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Loan Specialist, Pathways Program (Intern) at the Agency’s Visalia Area Office facility in Merced, California. On October 3, 2016, Complainant sought EEO counseling. On January 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (not specified), national origin (Egyptian), disability, and age (41) 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. 0120173009 2 1. From December 2015 to August 23, 2016, Complainant’s supervisor repeatedly failed to sign off on her completed training accomplishments and her monthly training plans. 2. From December 2015 to August 23, 2016, management denied her requests for a transfer to a new supervisor/mentor. 3. On August 23, 2016, Complainant learned management decided not to retain her after she completed her one-year Pathway Student internship, and declined to place her in a permanent Loan Specialist position. 4. On an unspecified date, management did not provide her with leave under the Family & Medical Leave Act (FMLA). 5. On several dates, she was subjected to various acts of harassment, including, but not limited to: a. during the periods of June 2, 2015 through October 2015, management failed to respond to her complaint that she was not being properly mentored by her supervisor; b. during September 2015, her supervisor made negative comments about her accent; c. on November 12, 2015, her supervisor publicly humiliated her in front of a customer; and d. on June 24, 2016, management accused her of violating work hours. The pertinent record reveals the following facts. Complainant was the only employee of Egyptian national origin and was the oldest of the similarly situated employees. Complainant stated that she had a disability, which she described as anxiety, depression and Post Traumatic Stress Disorder. The responding management officials were: (1) the Area Specialist, GS-11, Single Family Housing Program (“RMO-1”) (Caucasian, United States, no disability, 1960); (2) the Area Director, GS-13, Rural Development (“RMO-2”) (Caucasian, United States, no disability, 1957); (3) Co-worker/Administrative Officer (“CW-1”) (Caucasian, Venezuela, no disability, 1965); (4) Coworker (“CW-2”) Single Family Housing Specialist, GS-12, RD (Hispanic United States, no disability, 1972); and (5) Coworker (“CW-3”) Loan Specialist, GS-11 (Hispanic, Mexico, no disability, 1987). CW-2 was assigned to train Complainant for one week in April 2016. CW-3 was Complainant’s co-worker and trained her periodically. None were aware of her alleged disability. Claims 1 and 2 – Refused to Sign Off on her Training Plans and Denied New Mentor Complainant worked in her position as an intern under the Pathways Internship Program. RMO-1 was assigned to be Complainant’s mentor. The record confirms that RMO-1 refused to sign off on the Complainant’s training assignment. RMO-1 averred that Complainant refused to commit to her training or to perform the duties required of her. RMO-1 described Complainant as combative, argumentative, and asserts that Complainant refused to be trained. 0120173009 3 RMO-1 stated that she did not sign-off on Complainant’s training program because Complainant did not comply with her training plans. She gave an example of the non-compliance. RMO-1 averred that when she asked Complainant to file documents in the office, Complainant informed her “I don’t file.” RMO-1 also averred that Complainant’s refusal to follow the training plan led to her inability to meet the competency goals of the training. Complainant complained to RMO-2 about her inability to work with RMO-1. Complainant alleged that RMO-2 did not address her concerns and would not sign off that Complainant had completed her training. RMO-2 averred that Complainant was provided with training, but Complainant did not possess the level of competency required to perform the position duties successfully. He stated that he responded to Complainant’s concerns regarding obtaining a new mentor several times. Management denied that it ignored Complainant’s requests to move to a different mentor. RMO- 2 stated that, although people respected Complainant’s experience, education and intelligence, many people did not have the time or capacity to take her on as a trainee. Co-Worker (CW2) testified that she found it difficult to train Complainant and that Complainant made mistakes and constantly questioned why she had to perform the duties in a certain way. Claim 3 – Agency Refused to Place Her in a Permanent Position Complainant was an intern in the Pathways Program which is designed as a one-year training program. Interns are notified that a permanent job is not guaranteed. RMO-2 attested the Complainant was not proficient at completing the tasks required of her and had not completed her training plan, which was required for a conversion to a permanent position. Several witnesses testified that Complainant was not performing at a competent level. Complainant claimed that management should have provided her with an extension. Complainant claimed that the Agency refused to convert her to a permanent employee status in order to prevent her from receiving FMLA benefits. Complainant’s employment was terminated on August 23, 2016, at the end of her internship period. The record shows that the Agency did not offer a permanent position for similar reasons to a substantially younger Pathways Intern, who was not of Complainant’s national origin and who had no known disability. Claim 4 – Complainant denied FMLA Leave During the summer of 2016, Complainant mentioned to management she had a disability (depression and anxiety) and might need to take FMLA leave in the future. However, RMO-2 maintained that Complainant never sent him a FMLA leave request. 0120173009 4 On August 8, 2016, Complainant went on leave, approved by RMO-2, for personal reasons in order to search for her mother who was missing. Complainant asserted that, when she went on leave around August 8, 2016, management “assumed” she would need FMLA in the future, and as a result terminated her. Complainant acknowledged that she never made a formal request for FMLA. Claim 5 – Complainant was Subjected to Harassment As noted above, Complainant claimed that, during the period of June 2, 2015 through October, 2015, management failed to respond to her complaint that she was not being properly mentored by her supervisor. The record shows that the Agency did provide other employees to train Complainant, but none of the mentors stated they were able to accomplish the goal of making Complainant competent in her position. One of the co-workers assigned to train Complainant had been the top performer. Complainant stated that RMO-1 told her that Complainant was very difficult to understand and asked where she was from. Complainant attests RMO-1 often said “huh?” to her, which Complainant believed was because her accent was strong. Complainant also stated that RMO-1 made degrading remarks to her to that implied Complainant was not intelligent. RMO-1 denied making the negative remarks or comments. On November 12, 2015, Complainant claimed that her supervisor publicly humiliated her in front of a customer when she described Complainant as the “girl who does the paperwork.” RMO-1 states that she was on vacation and denied making any negative comments about Complainant in front of their clients or anyone else. On June 24, 2016, management accused her of violating work hours. Complainant states that she asked RMO-2 for permission to stay in the office after work hours. He approved it, but told Complainant not to inform him when she did it, as it was against the Agency’s policy. She said RMO-2 subsequently reprimanded her for staying late, despite initially providing his permission for her to do so. 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. On appeal, Complainant contends that the Agency’s decision is factually erroneous and that the Agency failed to do a proper investigation, submitted an incomplete record, and wrongly shifted the burden of proof to Complainant. Further, Complainant states that the Agency falsely claimed that Complainant had not provided a rebuttal when she had provided a rebuttal several times. 0120173009 5 Complainant also challenges the veracity and credibility of management’s witnesses and states that the Agency failed to comply with its own policies. In response, the Agency states her claims were untimely and asks that we affirm its decision finding no discrimination. 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”). 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 case 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 Dep’t of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Even assuming that Complainant established the elements of her prima facie claims,2 the Agency articulated a legitimate, non-discriminatory reason for its actions. Agency management witnesses explained that Complainant was provided with adequate training and a number of different trainers, but failed to successfully meet the training requirements during her internship period. Moreover, she was not retained in a permanent position because she did not meet the Agency’s performance standards and had not successfully completed her training. 2 The Agency determined that Complainant failed to meet the threshold issue of whether Complainant established that she had a permanent medical condition that substantially limited a major life activity. For purposes of our analysis however, we assume, without finding, that Complainant met her burden of showing that she is an individual with a disability. 0120173009 6 The Agency also presented evidence that another intern was similarly not retained for work performance issues. With regard to a denial of FMLA leave, the record establishes that Complainant never requested FMLA, and was granted the other leave she requested to search for her missing mother. While Complainant argued that some of management’s actions were inconsistent with Agency policy, she did not prove, by a preponderance of the evidence, that the Agency’s explanations of the disputed actions were a pretext for unlawful discrimination. With regard to Complainant’s disability claim, we also note there is no claim of a request for, or a denial of, reasonable accommodation. Harassment 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 a protected basis – in this case, her race, national origin, age or disability. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, the evidence of record does not prove the incidents claimed by Complainant to be harassing either occurred as she alleged or were sufficiently severe or pervasive to establish hostility. Even more significantly, there is simply no evidentiary support for her claim that her race, national origin, age or disability played any role in the alleged incidents. For these reasons, we find that Complainant did not establish, by a preponderance of the evidence, that she was the victim of an unlawful discriminatory hostile work environment. CONCLUSION Accordingly, we AFFIRM the Agency’s finding for the reasons stated herein. 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 tends 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. 0120173009 7 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 (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. 0120173009 8 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 13, 2018 Date Copy with citationCopy as parenthetical citation