[Redacted], Jene M., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021001226 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jene M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2021001226 Hearing No. 560-2018-00285X Agency No. RD-2017-00727 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 26, 2020, final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Accountant at the Agency’s National Financial Accounting and Operations Center in St. Louis, Missouri. On August 3, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to discriminatory harassment based on race (Black) when: 1. on July 3, 2017, management placed Complainant on a 30-day Opportunity to Improve (OTI); 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. 2021001226 2 2. on June 27, 2017, management denied Complainant’s reasonable accommodation request to telework from June 23, 2017 through July 25, 201, and on July 3, 2017, management suspended her telework agreement, and on July 7, 2017, required Complainant to come into the office although she had a doctor’s note to telework;2 3. on July 3, 2017, management denied Complainant the opportunity to speak with a Union Representative; 4. on July 3, 2017, Complainant learned management created inaccuracies that increased her maximum error limit, which negatively impacted her performance rating; 5. on June 26, 2017, management denied Complainant a promotion to a GS 11; 6. on May 22, 2017, Complainant learned management altered her 2015 Pathways Agreement to include a not to exceed date of June 23, 2017; 7. on May 20, 2017, Complainant learned that she was not converted from a Pathways student, as she should have been converted in June of 2016; 8. on April 28, 2017, management denied Complainant the opportunity to attend a preapproved agency-hosted Civil Rights Training; and 9. on several states, Complainant was subjected to various incidents of harassment, including but not limited to: a. on March 1, 2017, and June 1, 2017, Complainant learned management allowed a co-worker, who is not the designated reviewer, to review and correct her work, although this was not required for other employees; b. on May 12, 2017, the Team Lead told Complainant she needed to complete a form when talking to a Union Representative, although she was having a general conversation and not discussing Union matters; c. on May 17, 2017, management required Complainant to work, although she was preapproved to take annual leave for that time; 2 In an Order dated October 8, 2019, the AJ dismissed claim 2 after Complainant failed to include this claim in her initial case report; address the specific evidence demonstrating that she requested a reasonable accommodation; and identify her disability or provide medical documentation of a disability to support her request for accommodation. 2021001226 3 d. on June 1, 2017, management provided Complainant verbal instructions to deviate from standard departmental operating procedures, and also refused to provide her with follow-up written verification upon request; e. on June 1, 2017, Complainant learned a co-worker was required to email her supervisor of any errors found in her work, although this was not required for other employees; f. on June 9, 2017, management rushed Complainant to complete job duties so that another employee could depart work early; g. on June 14, 2017, and on an unspecified date in February 2017, management required Complainant to perform tasks that she had not been fully training to perform; h. on several occasions from March 2016 to February 2017, when Complainant inquired about training, her supervisor would respond “don’t’ you have a degree,” and suggested she find another job that would accommodate her training needs; i. on an unspecified date in June 2017, management excluded Complainant from receiving information pertaining to her treasury transmittal job duties; j. on an unspecified date, management threatened to deny Complainant’s promotion if she did not complete a specific job, although that job was completed by another co-worker; and k. on several occasions, management spoke to Complainant in a demeaning and belittling manner. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency.3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant, represented by counsel, does not submit a brief on appeal. 3 The AJ dismissed claims 1, 3, 4, 5, 6, 7, and 9, for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(4), finding that Complainant had previously raised these claims in the negotiated grievance process. 2021001226 4 The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021001226 5 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. 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. 2021001226 6 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 February 16, 2022 Date