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

Equal Employment Opportunity Commission

Nov 2, 2018

0120170941 (E.E.O.C. Nov. 2, 2018)

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

Illa S.,1
Complainant,

v.

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

Appeal No. 0120170941
Hearing No. 461-2014-00087X
Agency No. OCFO201300780

DECISION

On January 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
December 10, 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
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether Complainant established that she was subjected to harassment based on race (Black) and
age (46), when she was criticized for her work performance and was assigned to another position.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Assistant GS-07/08 at the Agency’s Service Division facility in New Orleans,
Louisiana. On September 12, 2013, Complainant filed an EEO complaint alleging that on June 7,
2013, the Agency discriminated against her on the bases of race (Black) and age (46) when her

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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Direct Premium Remittance System (DPRS) job duties were removed; she was re-assigned to
Employee Personal Page (EPP) job duties; on various dates she was yelled at; accused of poor
performance and being unable to “take criticism;” escorted out of the building by security; required
to take Administrative Leave (AL) for the remainder of the day; and her work and her time and
attendance were subjected to a heightened scrutiny.

Claim 1 - Removal and Re-assignment

On June 7, 2013, management removed Complainant from DPRS job duties and assigned her to
EPP job duties. The Agency stated that Complainant had provided incorrect answers while
performing her duties. Complainant stated that she was never shown the tapes supporting the
Agency’s contentions. Complainant averred that age was a factor because CW1, a younger co-
worker, had poor performance, but was never reassigned. Complainant further averred that her
race was a factor because CW2, a Caucasian co-worker, had “worse performance issues” than
she did, but unlike Complainant, never suffered any of the consequences that were applied to her.

The Supervisory Fiscal Technician (RMO1), African-American, denies that Complainant’s age or
race played a role in the re-assignment of her duties. According to RMO1, she removed the DPRS
job duties from Complainant. She stated that she monitored each of Complainant’s calls, how
Complainant answered callers’ questions, and how Complainant resolved issues. She stated that
Complainant was not clear in resolving clients’ issues and was giving out indirect and unclear
answers to callers.

RMO1 further stated that the removal of duties was not a complete job reassignment. Complainant
remained in the Call Center and continued to take calls, but she was required to use a different skill
set. RMOl stated that she held at least one meeting with Complainant to discuss her work
performance prior to the reassignment of her duties. Additionally, RMO1 stated that CW2
displayed good work performance. RMO1 stated that she met with CW2 to discuss her missing
work, not because of poor work performance.

RM02 (Supervising Program Analyst) denied that Complainant’s age or race played a role in the
decision to reassign her duties. She stated that RMO1 reassigned Complainant’s job duties because
Complainant’s work performance did not meet required standards. RM02 further stated that a
similarly situated Caucasian employee, about age 60, also had her job duties reassigned to EPP job
duties to better met her skill set.

RMO3 (Branch Chief) also denied that Complainant’s age or race played a role in the decision to
reassign her job duties.

Claim 2 - Harassment

2(a) - Complainant stated that management yelled at her, accused her of poor performance and
told her that she was not able to take criticism. Complainant stated RMO1 had security escort her
out of the building.
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Complainant stated that race was a motivating factor because CW3, a Caucasian co-worker, who
allegedly created a disturbance, was not escorted out of the building by security.

RMO1 stated that she called Complainant into the conference room for a meeting to discuss the
reassignment of her duties. RMO1 stated that Complainant became very upset. RMO1 summoned
security because she believed that she could not calm Complainant. RMO1 denied that
Complainant was forced to take Annual Leave. RMO1 stated that Complainant “wanted to go
home.”

Regarding Claim 2(b), Complainant averred that she experienced harassment when RMO1 applied
heightened scrutiny to her work and her time and attendance. Complainant stated that the
heightened scrutiny made her reluctant to take time off, thereby forcing her to neglect her health.
Complainant stated that she believed her age was a factor. She averred that CW1 had an
“atrocious” attendance record but did not receive the same level of scrutiny as Complainant.
Complainant also stated that race was a motivating factor because CW-2 had a poor attendance
record, but was never subjected to the same level of scrutiny.

RMO1 denied that she subjected Complainant to heightened scrutiny and stated that she only
brought to the Complainant’s attention her poor work performance, not her time and attendance.
RMO1 stated that Complainant never complained to her or management that she was being
unfairly scrutinized.

RM02 testified that she was not aware that RMO1 allegedly subjecting Complainant to any
heightened scrutiny. RMO2 stated that Complainant never told her that she believed she was
unfairly scrutinized. RMO2 stated that if there was any scrutiny of Complainant, it was related to
her work performance and not her race or age.

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). Although Complainant initially requested a
hearing, she later withdrew her request and asked for a final decision from the Agency. The AJ
remanded the complaint to the Agency, and 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.

CONTENTIONS ON APPEAL

Complainant provided a statement where, among other things, she objected to the Agency’s
findings and conclusions set forth in its FAD.

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).
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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

To prevail in a disparate-treatment claim, Complainant must satisfy the 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 she was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Construction Co. 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
802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. 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 pretextual. 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). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

Harassment Claims

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” The Court explained that an “objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether
the harassment is sufficiently severe to trigger a violation of Title VII must be determined by
looking at all the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.”

To establish a claim of harassment, Complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the protected class;
(4) the harassment had the purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11.
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The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person
in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires
careful consideration of the social context in which particular behavior occurs and is experienced
by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race and age, we find that the Agency presented legitimate, nondiscriminatory reasons for its
actions with regard to Complainant’s performance as an employee. The Agency’s supervisors
determined that Complainant’s performance in her position was not adequate. Therefore, she was
re-assigned to duties that they felt were more commensurate with her skills. Employers have broad
discretion to set policies and carry out personnel decisions, and should not be second-guessed by
a reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v.
Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We find no persuasive
evidence of pretext.

Further, the record does not support a finding that the Agency subjected Complainant to
discriminatory harassment. The evidence presented by Complainant did not establish that the
incidents occurred because of her race or age. The incidents presented appear to be normal
workplace instructions, activities and tensions found in a workplace environment. Complainant
also failed to demonstrate that the purported harassment had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating, hostile, or an offensive
work environment because the acts attributable to management were neither severe or pervasive.
We also note that the discrimination statutes are not civility codes and do not address rude or
obnoxious behavior, but only discriminatory conduct.

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 FAD.

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.
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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

November 2, 2018
Date