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

Equal Employment Opportunity Commission

Dec 13, 2018

0120173009 (E.E.O.C. Dec. 13, 2018)

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.
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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.
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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.

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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.
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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.

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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.
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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.
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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