Shila V.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Jul 26, 2018

0120181394 (E.E.O.C. Jul. 26, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shila V.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120181394

Hearing No. 430-2015-00321X

Agency No. APHIS-2014-00862

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated February 20, 2018, finding no discrimination
regarding her 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,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Agreement Specialist, GS-0501-11, a probationary employee, in Animal and Plant Health
Inspection Service (APHIS), Field Operations, Agreements Organization Unit, Raleigh, North
Carolina. On October 28, 2014, Complainant filed her complaint alleging discrimination based
on race (Black), color (unspecified), and in reprisal for prior EEO activity when she was
subjected to harassment (nonsexual) in that:

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.
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(1) On September 12, 2014, she was terminated from her position as a GS-0501-11,
Agreement Specialist, during her probationary period;

(2) On August 19, 2014, she was ordered to directly report to a coworker about whom she
had previously complained to her supervisor;

(3) On several dates, she was subjected to various acts of harassment including but not
limited to:

(a) On July 8, 2014, while discussing the proper procedures for processing an agreement,
her coworker told her, “you have to be more careful, we work with numbers on this
job;”
(b) On July 24, 2014, she was “ambushed” at her cubical, told that she needed to learn
her job in less than one year, and her coworker remarked to her, “oh, we ain’t cracked
the whip yet, but we can;”
(c) On July 11, 2014, her coworker spoke very quickly while training her and later
criticized her inability to perform the work;
(d) On July 30, 2014, her supervisor was unresponsive to her complaint about her
coworkers’ conduct towards her;
(e) On August 8, 2014, she learned that a new Agreement Specialist had been hired to
perform the same work that she had been hired to complete;
(f) On August 21, 2014, she was directed to repeatedly move and shuffle files between
two filing cabinets;
(g) In August 2014, she caught her supervisor and coworkers joking about her;
(h) On September 4, 2014, her supervisor questioned her knowledge of time and
attendance reporting regulations;
(i) From September 8 - 10, 2014, her coworkers did not communicate with her;
(j) On unspecified dates, her coworkers demeaned her, avoided her, subjected her to
unrealistic performance expectations, overemphasized her errors, and yelled at her;
(k) On unspecified dates, she was not introduced on a teleconference nor to visitors in the
office; and
(l) On unspecified dates, she was constantly questioned about her work completion when
other employees stopped by her desk and told her to “hurry up” when she took a
break.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On April 22, 2016, the Agency filed a Motion for a
Decision Without a Hearing. On May 20, 2016, Complainant filed an Opposition to the
Agency’s Motion. On February 20, 2018, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the AJ’s decision.
Complainant appeals the Agency’s final order.

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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ adopted the Agency’s Motion regarding its recitation of the facts. The
AJ, assuming arguendo that Complainant had established a prima facie case of discrimination,
determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The
record indicates that on June 11, 2014, Complainant began her Agreement Specialist position at
the Agency subject to a one-year probationary period.

Regarding claim (1), Complainant’s supervisor (S1) stated that S1 hired Complainant in June
2014, in her position and S1 was not aware of her prior EEO activity at the relevant time. S1
indicated that Complainant’s position was a very detail oriented and busy job which involved
typing legal Notice of Awards that provided money to the states and universities, talking directly
with stakeholders, making payments, and typing letters. S1 stated that Complainant was
terminated on September 12, 2014, three months after her hiring (during her probationary period)
because despite all the necessary training to be able to complete her job, she failed to meet the
standards for her performance in that she made too many errors in legal Notices of Awards, the
errors were not corrected in later work, and her performance did not get better.

Regarding claim (2), S1 denied telling Complainant to report to anyone because she reported
directly to S1. S1 noted that Complainant received hands on training directions from two
coworkers.

Regarding claim (3), S1 stated that despite Complainant’s claims, no new Agreement Specialists
had been hired to perform the same work that she had been hired to complete. S1 stated that the
individual identified by Complainant filled a vacant position via a lateral transfer. S1 also
indicated that at the relevant time, Complainant did not notify S1 that she was harassed by her
coworkers. S1 stated that at the end of the fiscal year, all employees, including Complainant,
were required to redistribute files to make room for the new files. S1 did not recall joking with
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Complainant’s coworkers about Complainant. S1 stated that S1 questioned Complainant about
her knowledge of time and attendance reporting regulations because her timesheet was not filled
out correctly. Despite her claim that a couple of days prior to her termination her coworkers did
not communicate with her, Complainant acknowledged that her coworkers did either come by
her cubicle or send her emails.

The AJ stated and we agree that Complainant merely complained about a poor relationship with
her coworkers concerning her work performance as well as her failure to perform her work well.
As the AJ pointed out, and Complainant acknowledged, Complainant initially told her
coworkers, “Well y’all don’t have to act like y’all are cracking a whip” and in response to her
comment, the coworker said, “Oh we ain’t cracked the whip yet, but we can.” Concerning her
claim of harassment, we find that Complainant failed to establish the severity of the conduct in
question or that it was related to any protected basis of discrimination.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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).
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All requests and arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission. Complainant’s request may be submitted via
regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street,
NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall
be deemed timely filed if it is received by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in
digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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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

July 26, 2018
Date