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

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2021001458 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tad S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2021001458 Hearing No. 490-2020-00013X Agency No. FSA-2019-00055 DECISION On December 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 19, 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 relevant time, Complainant worked as a Farm Loan Manager at the Agency’s Farm Service Agency in Farmington, Missouri. On March 11, 2019, Complainant filed the instant formal complaint. Complainant claimed the Agency discriminated against him on the bases of race (African-American) and color (Black) when, on October 9, 2018, he learned management directed a realignment of his assigned position responsibilities, reduced his staff, and reduced the number of counties he was assigned to manage. 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. 2021001458 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for Summary Judgment. Complainant responded to the Motion. On November 16, 2020, the AJ issued a decision by summary judgment finding no discrimination. In its November 19, 2020 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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 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. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2021001458 3 The undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. The record developed during the investigation establishes that during the relevant period Complainant was a Farm Loan Manager at the Agency’s Farm Service Agency in Farmington, Missouri. The District Director was Complainant’s first-line supervisor and the Acting State Executive Director was his second-line supervisor. The AJ noted that the determination for realignment was taken by the supervisor with advice and consultation with the Acting State Executive and other employees from the State Office. Prior to the realignment, Complainant repeatedly complained to management about working with the Farm Loan Officer because he felt that she was rude and hostile to him. In the realignment, the Agency specifically reassigned the Farm Loan Officer (and the five counties she serviced) out of Complainant’s jurisdiction to another Farm Loan Manager. The AJ further noted that it was undisputed that discussions regarding the need for a realignment to distribute the workload more evenly among the Farm Loan Managers had been occurring for many years prior to its effectuation in 2018. The record reflects that the other three Farm Loan Managers (all Caucasian) were affected by the realignment as well. Two Farm Loan Managers gained staff and one Farm Loan Manager lost staff, two gained counties and one remained the same, and two serviced fewer counties than Complainant after the realignment. The supervisor (Caucasian, white) consulted with the Acting State Executive Director and other employees at the State Office, and the realignment took place on October 9, 2018, shifting the employees and servicing counties of four Farm Loan Managers, including Complainant. Following the realignment, Complainant supervised one employee and serviced six counties. Another Farm Loan Manager (Manager 2) also supervised one less employee after the realignment. The supervisor noted that the Farm Loan Officer was one of Complainant’s direct reports prior to the realignment. Complainant had raised multiple issues with the Farm Loan Officer with management before the realignment. Following discussions with management, the supervisor decided that it would be a positive situation to help the team reset. The supervisor identified the five counties that the Farm Loan Officer was working under Complainant’s direction and decided to put the Farm Loan Officer and her counties under another Farm Loan Manager which was equivalent to Complainant, with the same job title. Furthermore, the supervisor noted that Complainant’s position responsibilities did not change nor did the responsibilities of any of his co-workers changed. Complainant was still a supervisor, had the same six counties, and his salary remained the same. 2021001458 4 Complainant claimed that the realignment was a deliberate attempt to retaliate against him in response to his filing a complaint regarding alleged Privacy Act violations. However, the AJ noted in July 2018, Complainant confided in his supervisor that his mother had died. Complainant asked the supervisor to keep this information private. After receiving an email from the Farm Loan Officer expressing her condolences, Complainant filed a grievance with the Agency’s State Office against the supervisor alleging violations of his privacy rights. The AJ noted that the Commission has no jurisdiction over enforcing the Privacy Act. The record reflects that in March 2019, Complainant took a position as a Farm Program Manager in a Farm Service Agency office located in Helena, Arkansas. In her decision, the AJ correctly determined that Complainant failed to establish that the Agency’s articulated legitimate, nondiscriminatory reasons for the challenged realignment was pretextual. Complainant did not provide any evidence that the alignment was motivated by his race or color. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, 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 2021001458 5 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. 2021001458 6 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 June 2, 2021 Date