Tyra F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.Download PDFEqual Employment Opportunity CommissionJul 25, 20180120162837 (E.E.O.C. Jul. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyra F.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 0120162837 Agency No. FSIS-2015-00815 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 August 1, 2016, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Summer Trainee, GS-5, at the Agency’s facility in Philadelphia, Pennsylvania. On August 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to unlawful harassment on the basis of her race (Asian)2 when: 1. beginning on June 7, 2015, management gave her minimal work assignments; 2. on or about June 4, 2015, her request to be assigned to another supervisor was denied; 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. 2 Complainant also alleged the discrimination was based on her parental status. However. parental status is not protected by the statutes administered by this Commission. 0120162837 2 3. on June 4 and 26, 2015, her supervisor (S1) directed her to notify her daily when she arrived to work, took lunch, and left for the day; 4. on June 3, 2015, management ordered her to relocate to another cubicle; 5. from June to September 2015, management did not afford her the same training and work opportunities as they did to the other summer trainee; 6. on several dates she was subjected to various acts of harassment, including but not limited to: (a) on June 2, 2015, S1 was annoyed by her request for a schedule change; (b) on June 8, 2015, S1 told her that she was “unprofessional”; (c) in June 2015, S1 told other management officials that she and the other summer trainee had taken a 2-hour lunch, which was false; (d) on July 9, 2015, S1 required her to have her mentor corroborate the time of her arrival to work; (e) in July 2015, she was not provided with contact information for an alternative supervisor to contact when S1 was away from the office; (f) on an unspecified date, in response to her request to work late, S1 advised her that “someone needs to be here to supervise you”; and (g) on unspecified dates, S1 failed to provide her with clear instructions, gave her blank stares, responded shortly to her questions, and contributed to the discord in the office. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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”). To prevail in a disparate treatment claim, 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 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. The burden then shifts to the Agency to articulate a legitimate, non- 0120162837 3 discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, we find that assuming, arguendo, Complainant established a prima facie case of race discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with respect to claim (1), the record shows that when Complainant began her internship as a summer trainee, she was assigned to the programmatic side of the office and the other intern (CW1) was assigned to the administrative side. S1 and other management officials state that summer interns, such as Complainant, have always been divided between the programmatic and administrative sides of the office. As to claim (2), the record shows that Complainant requested that she be assigned to another supervisor, however her second-level supervisor (S2) denied the request. Specifically, S2 states that Complainant never provided him with a reason for the request and that to reassign her would have undermined S1’s supervisory authority. With respect to claim (3), S1 states that she required both Complainant and CW1 to send her an email alerting her when they arrived to work and when they left the building in order to accurately certify their timesheets. As to claim (4), S1 states that she requested that Complainant move to another cubicle because they needed the cubicle Complainant had originally selected for a contract employee. With respect to claim (5), S1 states that because Complainant was assigned to the programmatic side, she was given opportunities to go into the field which led to her having more hands-on training than CW1. We find that Complainant has not shown that the Agency’s actions were motivated by discriminatory animus toward her race; nor has she shown that the Agency’s articulated reasons for its actions were pretextual. Finally, with respect to Complainant’s claim that she was subjected to a hostile work environment, to establish this claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). In the instant case, we find that the evidence does not support a finding that any of the alleged incidents occurred as the result of Complainant’s race. We further find that, even assuming the incidents occurred as alleged, they are not sufficiently severe or pervasive as to constitute a hostile work environment. 0120162837 4 CONCLUSION The Agency’s final decision 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. 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 0120162837 5 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 July 25, 2018 Date Copy with citationCopy as parenthetical citation