[Redacted], Georgianne B., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001175 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgianne B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2020001175 Agency No. FSA-2019-00330 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 11, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Litigation Specialist, GS-13, at the Agency’s Human Resources Division, on the Administrative Hearings Conflict Management Staff, in Washington, DC. On February 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on color (black) and in reprisal for prior protected EEO activity when, since December 11, 2018, management has not provided Complainant with her Fiscal Year (FY) 2018 Annual Performance Evaluation and accompanying performance award, and management refused to meet with her to discuss her performance rating. 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. 2020001175 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge. Complainant requested a final Agency decision without a hearing. In its final decision, the Agency found that Complainant failed to prove that the Agency subjected her to discrimination or retaliation as alleged. The Agency concluded that it had articulated a legitimate, nondiscriminatory reason for its action-namely, that the Agency’s Office of General Counsel (OGC) requested Complainant’s second-level supervisor, Director of Human Resources (Director), to hold Complainant’s FY2018 appraisal in abeyance due to an OGC investigation into Complainant’s performance. The final Agency decision further concluded that Complainant failed to present sufficient evidence to demonstrate that the Agency’s stated reason was pretextual. The instant appeal followed. 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”). Assuming Complainant established a prima face case of discrimination and retaliation, we find that the Agency provided a legitimate, nondiscriminatory reason for its action. While the record does not support Director’s contention that he was explicitly ordered by OGC to withhold Complainant’s FY2018 performance appraisal, there is evidence that OGC had concerns about Complainant’s then-recent performance and informed Director of these concerns. The record shows that the issue was elevated to OGC during the relevant time period. Specifically, an OGC attorney voiced concerns that in one of Complainant’s cases, Complainant had failed to comply with a discovery order. OGC’s Deputy General Counsel, Civil Rights, Labor & Employment Law Division, subsequently emailed several people in Complainant’s office, including Director, about the issue, saying it was “unacceptable” and “deeply troubling,” and that someone from OGC “will be in touch” to “discuss this issue.” Therefore, even if OGC did not directly order Director to hold Complainant’s performance appraisal in abeyance, OGC clearly had concerns regarding Complainant’s work performance and indicated to Director that it planned to review the matter. This is a legitimate, nondiscriminatory reason to withhold Complainant’s performance appraisal. See, e.g., Demarcus I. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162610 (May 16, 2018) (Commission found that postponing a complainant’s performance appraisal pending an investigation into his involvement with “contracting discrepancies” was a legitimate, 2020001175 3 nondiscriminatory reason for the Agency’s action), request for reconsideration denied, EEOC Request No. 0520180462 (Sept. 12, 2018). We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory or retaliatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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 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. 2020001175 4 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. 2020001175 5 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 August 3, 2021 Date