Tyra F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jul 25, 2018

0120162837 (E.E.O.C. Jul. 25, 2018)

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.
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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-
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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.

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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
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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