[Redacted], Ashley H., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Jun 30, 2021

Appeal No. 2020001976 (E.E.O.C. Jun. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashley H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency. Appeal No. 2020001976 Hearing No. 510-2019-00113X Agency No. AMS-2018-00597 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 October 18, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Agricultural Commodity Grader (ACG)/Inspector, GS-1980-09, in the Agency’s Agricultural Marketing Service (AMS) located in Winter Haven, Florida. Effective April 29, 2018, Complainant was transferred from the Winter Haven, Florida duty station to the Auburndale, Florida duty station. RMO 1, the Officer-in-Charge in Winter Haven was Complainant’s second level supervisor. RMO 2, the Assistant Officer-in-Charge (AOIC) in Winter Haven was Complainant’s first level supervisor. 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. 2020001976 2 On June 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and in reprisal for prior protected EEO when: 1. on April 25, 2018, management transferred her from the Winter Haven, Florida duty station to the Auburndale, Florida duty station, effective April 29, 2018; 2. on April 9 through 13, 2018, she learned management excluded her from work- related matters, pertaining to the efficiency of the laboratory; 3. on March 28, 2018, she learned she was not nominated for the Wilbur Whatley Award (WWA); and 4. from June 2017, to present, management changed her duties and assigned them to other coworkers.2 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). Complainant requested a hearing but subsequently withdrew her request. Consequently, 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. 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”). To prevail in a disparate treatment claim, Complainant must satisfy the three-part 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, non- 2 Complainant’s formal complaint originally included four additional claims which the Agency dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). On appeal, Complainant does not challenge the Agency’s dismissal of those four additional claims. Thus, we decline to address them in this decision. 2020001976 3 discriminatory reason for its actions. Texas Department 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 (2000). In the present case, the Agency provided legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Agency stated it rotated Complainant to the Auburndale, Florida duty station based on business needs in accordance with its rotation policy. Regarding claim 2, RMO 1 stated during this time she talked separately with three employees who had direct information about a personnel matter involving another employee and noted after she speaks with employees she often asks them how the work is going, if they are experiencing any problems, or if they have any suggestions. RMO 1 explained that Complainant was not called into her office during this time period because Complainant did not have knowledge about the particular personnel matter and it was not necessary to involve her. Regarding claim 3, the Agency stated Complainant did not receive the Wilbur Whatley Award because she did not meet the criteria for receipt of the award. Regarding claim 4, RMO 1 and RMO 2 noted there were no exclusive duties for any of the GS-9 ACGs. RMO 1 stated that knowledge in all areas was essential because someone may be assigned to the field or otherwise away from the office and those tasks still needed to be performed by other employees. RMO 1 acknowledged that Complainant had not rotated for many years and may have been handling some of the tasks herself as others were away from the office; however, RMO 1 stated those tasks were at no time solely hers. Upon review of the record, we find Complainant failed to show by a preponderance of evidence that any of the Agency’s actions were a pretext for discrimination based on her race or in reprisal for her protected activity. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to 2020001976 4 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 2020001976 5 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 30, 2021 Date