Tammi C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jun 12, 2019

0120181557 (E.E.O.C. Jun. 12, 2019)

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

Tammi C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120181557

Hearing No. 430-2018-00015X

Agency No. FS-2017-00384

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated February 13, 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., 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. 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 worked as a Cook, WG-1805-
05, at the Agency’s Schenck Job Corps Civilian Conservation Center in Pisgah Forest, North
Carolina.

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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On April 17, 2017, Complainant filed her complaint alleging discrimination based on age (over
40), race (Black), disability, and in reprisal for prior EEO activity when she was subjected to
harassment in that:

(1) On February 2, 2017, her supervisor (S1) did not meet with her to discuss her
performance appraisal, instead S1 handed her a sealed blue envelope that contained her
FY16 performance appraisal and kept walking. Further, she received a lower than
expected performance rating.

(2) On several dates, she was subjected to various acts of harassment including but not
limited to:
(a) On December 30, 2016, S1 made disparaging remarks about her.
(b) On October 20, 2016, S1 made racial comments about her.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On February 8, 2018, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

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.

To prevail in a disparate treatment claim such as this, 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
he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). 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.
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The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant worked as a Cook at the Agency since 2007. S1
(Black) indicated that S1 and Complainant grew up together in the same town and went to the
same high school.

Regarding claim (1), Complainant indicated that S1’s action was unprofessional giving her
performance appraisal in a sealed envelope without talking to her in person. S1 indicated that S1
sent Complainant emails on January 25 and 31, 2017, to meet with her in person regarding the
performance appraisal but she refused to meet with S1. Complainant does not dispute this. S1
stated that Complainant’s fully successful rating was good and was justified for her performance
for FY16. Specifically, S1 indicated that Complainant did not perform her duties above and
beyond which is required to receive higher ratings. We note that Complainant did not specify
any duties that would justify her receiving a higher rating. We also note that two other
employees (White) S1 also supervised received a fully successful rating for FY16 as well.

Regarding claim (2)(a), Complainant indicated that S1 was on “social media (Facebook) calling
her nigga, monkey, etc.” S1 acknowledged that she made the comment in her Facebook that
“you cannot take a monkey to the circus,” but she was not referring to Complainant.
Complainant stated that S1’s action was unprofessional. Complainant acknowledged that she
however did not report the foregoing incident to S1 or management. Furthermore, there is no
indication that these comments were associated with the workplace.

Regarding claim (2)(b), Complainant indicated that her coworker (Black) told her that S1 made
the racial comment to that coworker that “the nigga and monkey needs to get in her own lane,”
and that “there are no niggas and monkeys on this job.” S1 denied making the subject racial
comments. Complainant stated that S1’s actions were unprofessional.
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Complainant acknowledged that she however did not report the foregoing incidents to S1 or her
management. We also find that even if the comments were made as alleged in claim 2(b), there is
no allegation that they were made to Complainant or overheard by Complainant.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Regarding her claim of harassment,
we find that Complainant was aware of the Agency’s workplace harassment policies, but she
admitted that she did not report the harassment to her supervisors and there was no tangible
action stemming from the alleged harassment. See Burlington Indus., Inc., v. Ellerth, 524 U.S.
742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Assuming (without deciding)
that Complainant was an individual with a disability, she has not claimed that she was denied a
reasonable accommodation. Based on the foregoing, we find that Complainant has failed to
show that the Agency’s actions were 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). 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.
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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. 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

June 12, 2019
Date