[Redacted], Lelah T., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Nov 30, 2021

Appeal No. 2020004328 (E.E.O.C. Nov. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lelah T.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020004328 Hearing Nos. 570-2019-00325X, 579-2019-01452X Agency Nos. FSIS-2018-00196, FSIS-2019-00150 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 April 14, 2020 final order 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., 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. At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-14, at the Agency’s Food Safety Inspection Services in Washington, D.C. On January 17, 2018 (and later amended), Complainant filed an EEO complaint (Agency No. FSIS-2018-00196) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), disability (asthma), and age (48) 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. 2020004328 2 1. on January 9, 2018, management informed her she was assigned as Manager of the Student Employment Program (SEP), that she owned any “hiccups” and would be responsible for all follow-ups; 2. on October 24, 2017, she received a “Fully Successful” rating on her Fiscal Year 2017 Performance Evaluation; and 3. on several dates, she was subjected to various acts of harassment, including but not limited to: a. on December 7, 2017, she met with her supervisor and was informed management wanted to place her on a Performance Improvement Plan; b. on November 8, 2017, she was issued a Letter of Instruction; c. on September 14, 2017, her supervisor told her that maybe management needed to take disciplinary action when she provided her supervisor an explanation regarding an issue with an employee’s pay and series that needed to be corrected; d. on August 9, 2017, and August 22, 2017, her supervisor approached her and asked her whether she had seen her email to update her reasonable accommodation request; e. on October 18, 2017, and other unspecified dates, management was unavailable to her when she attempted to inform them of the hostile work environment; f. on May 25, 2017, she was told she pushes back, is strong willed, and questions authority; g. on May 24, 2017, the Assistant Director of Human Resources did not respond to her email request; h. from April 2015 through December 18, 2017, she was not provided proper guidance on the direction of the SEP, was promised resources even though staff members were cut from the program, and the Program Intern was replaced with a Temporary Student Intern; i. on several unspecified dates between 215 through 2017, staffing and classification mistakes were attributed to her, as well as other various mistakes made within the Human Resources office; j. on several unspecified dates, management made inappropriate comments to her such as “you would need to eat s**t;” k. on several unspecified dates, management officials made false accusations regarding her competency level; and l. on several unspecified dates, her supervisor informed her she was a target of the Deputy Director and other management officials. On January 24, 2019, Complainant filed a second EEO complaint (Agency No. FSIS-2019- 00150) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race, sex, age, disability, and in reprisal for prior protected EEO activity when: 2020004328 3 1. on August 9, 2018, management denied her request for situational telework; 2. on December 13, 2017, management denied her a monetary award; 3. on several unspecified dates, management held her accountable for duties and responsibilities which were not in her position description or performance plan, including Human Resources Office responsibilities 4. on several dates, she was subjected to various acts of harassment including, but not limited to: a. on December 18, 2017, she was not allowed to replace her intern who was removed from her division, and b. on April 16, 2018, management included derogatory and false information in her interim performance rating; and 5. on June 18, 2019, several employees responsible for staffing for the SEP received acknowledgement and OM excellence awards. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request hearings before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The AJ assigned to the matters consolidated the complaints and issued a summary judgment decision finding that Complainant failed to show that she was subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed without comment. 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 or retaliatory 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 in Complainant’s favor. 2020004328 4 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 or retaliated 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. 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. 2020004328 5 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 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 30, 2021 Date