[Redacted], Maddie H., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Oct 7, 2021

Appeal No. 2021001094 (E.E.O.C. Oct. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maddie H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021001094 Agency No. OCFO-2019-00717 DECISION On December 2, 2020, 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 27, 2020, final agency decision (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. ISSUE PRESENTED The issue presented on appeal concerns whether the Agency subjected Complainant to discrimination based on race and color when management declined to revise Complainant’s FY2018 performance appraisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Assistant, GS-0503-07, at the Agency’s Office of the Chief Financial Officer (Financial Management Services), in New Orleans, Louisiana. 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. 2021001094 2 On July 23, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and color (brown) when on May 10, 2019, she learned that management would not revise the “Fully Successful” rating that was issued to her on her Fiscal Year (FY) 2018 performance appraisal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision on October 27, 2020, pursuant to 29 C.F.R. § 1614.110(b).2 The Agency concluded that Complainant failed to prove that the rating was based on any reason other than her demonstrated performance. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of her appeal. The Agency vehemently opposes the appeal and requests that the Commission affirm the final decision “because there is no evidence that [Complainant] was subjected to discrimination in connection with her FY2018 performance appraisal.” STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS To prevail on her claim of disparate treatment, 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). 2 The Agency initially issued a final decision on October 14, 2020, but subsequently retracted it and reissued a final decision on October 27, 2020. 2021001094 3 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We assume Complainant established a prima facie case of discrimination based on race and color. Upon review, we find that the Agency articulated a legitimate, nondiscriminatory reason for rating Complainant as “Fully Successful” for FY2018. As reflected in the ROI, Complainant’s first level supervisor (Supervisor, African American, Brown) asserted that she rated Complainant as “Fully Successful” because Complainant performed at the “Fully Successful” level. In rating Complainant, the Supervisor emphasized that she considered Complainant’s self-assessment. However, the Supervisor maintained that many of the items that Complainant listed as her accomplishments, did not relate to the Agency’s objectives or performance measures. The Supervisor denied giving Complainant any negative feedback. The Supervisor averred that Complainant’s protected bases were not factors in the issuance of Complainant’s performance rating or the refusal to revise her performance appraisal. In arguing pretext, Complainant asserted that the “Fully Successful” rating was pretextual because while the Supervisor told her that she “did not have evidence that would support [higher] scores,” the Supervisor never specifically told her what she needed to do to receive a higher score. ROI at 000091. Complainant contended that she deserved a higher rating because she “exceeded the performance requirements demonstrating and performing at a high level for which [she] received recognition from internal and external customers.” Id. at 000090. Complainant further contended that she deserved an “Outstanding” rating because she performed her duties with little or no supervision and generated a large volume of “exceptionally high- quality work.” Id. at 000091. She surmises that management’s articulated reasons were pretextual because a Caucasian employee on her team received a higher rating than her even though the comparator performed the same duties at the same level as her. Complainant asserted her belief “that the employee was given a higher rating because she challenged the decision to upper management and that she looked like them.” Id. at 000092. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that she was subjected to discrimination, as the record reflects that the Agency had legitimate, nondiscriminatory reasons for rating Complainant as “Fully Successful.” 2021001094 4 We are unpersuaded by Complainant’s speculative and subjective offers of pretext (e.g., that the comparator received a higher rating because she looked like upper management), and we find that preponderant evidence fails to persuasively show that Complainant’s FY2018 rating was based on any factor other than her demonstrated performance. As such, we conclude that Complainant cannot prevail on her complaint. 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 final 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). 2021001094 5 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 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 October 7, 2021 Date