U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sylvester C.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Request No. 2019002268
Appeal No. 0120172949
Hearing No. 461-2016-000107X
Agency No. ARS-2016-00078
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its February 15, 2019 letter which administratively closed EEOC Appeal
No. 0120172949. Complainant had filed Appeal No. 0120172949 in response to the Agency’s
final decision concerning his 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.
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the
reasons set forth below, the Commission GRANTS Complainant’s request.
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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Procedural History
Complainant worked for the Agency’s Agricultural Research Service (ARS) as a Research
Chemist, GS-1320-13, at its Southern Research Center (SRC) in New Orleans, Louisiana. His
position was housed within the Cotton Structure and Quality (CSQ) research unit. On November
24, 2015, Complainant filed an EEO complaint (Agency No. ARS-2016-00078), in which he
alleged that the Research Unit Leader, GS-1320-15, his first-line supervisor (S1), subjected him
to discrimination and a hostile work environment on the bases of race (Asian) and national origin
(Chinese) as evidenced by 11 incidents.
At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing. On March 17, 2017, the AJ notified both parties that he would be granting the Agency’s
motion for summary judgment and issuing a decision without a hearing.
On August 3, 2017, Complainant notified the AJ and the Agency’s representative that he was
withdrawing his hearing request and would request a final agency decision. That same day, the
AJ issued an order dismissing Complainant’s hearing request pursuant to his request and directing
the Agency to issue a final decision on Agency No. ARS-2016-00078. On August 9, 2017, the
Agency issued what it characterized as its final order implementing the AJ’s order dismissing
Complainant’s hearing request. The Agency erroneously provided Complainant appeal rights for
this “final order” to the Commission. As a result, on September 7, 2017, Complainant filed an
appeal of the Agency’s August 9, 2017 final order. This appeal was docketed as EEOC Appeal
No. 0120172949.
On October 1, 2017, the Agency subsequently issued what it identified as its final decision (FAD)
on the merits of Agency No. ARS-2016-00078.
On October 6, 2017, the Agency submitted a response brief in which it asked the Commission to
dismiss Complainant’s appeal of Agency No. ARS-2016-0078 as moot. The Agency asserted that
Complainant’s appeal challenged the Agency’s failure to issue a FAD at all, as opposed to its
issuance of a FAD finding no discrimination. The Agency argued that since it ultimately issued
its FAD on the merits of Agency No. ARS-2016-00078 on October 1, 2017, Complainant’s
previously-filed appeal was moot.
On February 15, 2019, the Commission issued a letter administratively closing EEOC Appeal No.
0120172949. We stated in the letter that the Agency had rescinded its August 9, 2017 final
decision that was the subject of Appeal No. 0120172949. We further stated that the Agency
subsequently issued another final decision addressing the merits of Agency No. ARS-2016-00078
on October 10, 2017, and that Complainant's later appeal of that final decision had been docketed
as EEOC Appeal No. 0120180385.
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Complainant filed the instant request for reconsideration on February 26, 2019. Therein, he argues
that he did not receive any letter stating that the Agency rescinded its August 9, 2017 final decision,
and that the Agency’s final decision dated October 10, 2017 addressed a different complaint,
Agency No. ARS-2017-00478. A review of EEOC Appeal No. 0120180385 (which was
subsequently issued with a finding of no discrimination on May 31, 2019) establishes that the
complaint corresponding to that appeal is Agency No. ARS-2017-00478, not Agency No. ARS-
2016-00078. Commission records indicate that Agency No. ARS-2017-00478 concerned the
Agency’s denial of Complainant’s telework request on February 8, 2017, an issue that was neither
raised nor addressed in Agency No. ARS-2016-00078.
On March 26, 2019, the Agency filed its opposition to Complainant’s request for reconsideration.
The Agency asks the Commission to deny what it characterizes as Complainant’s appeal of the
October 10, 2017 final decision. The Agency opposes reconsideration of that appeal on the
grounds that the Agency rendered its final decision in accordance with the AJ’s August 3, 2017
order of dismissal and the new allegations made by Complainant in his February 26, 2019 request
for reconsideration are untrue. The Agency points out that, prior to requesting the FAD from the
Agency, Complainant responded to the Agency’s December 6, 2016 motion for summary
judgment in this matter, in which he framed the issues the same way they were framed in the FAD
on Agency No. ARS-2016-00078 finding no discrimination.
A reconsideration request is an opportunity to demonstrate that the appellate decision involved a
clearly erroneous interpretation of material fact or law, or will have a substantial impact on the
policies, practices, or operations of the Agency. In this case, the reason given for the letter-closure
was that the Agency had subsequently issued a final decision addressing the merits of the instant
complaint, Agency No. ARS-2016-00078, which would be addressed in EEOC Appeal No.
0120180385. However, EEOC Appeal No. 0120180385 addressed a different complaint, Agency
No. ARS-2017-00478. Accordingly, we find that the administrative letter-closure of Appeal No.
0120172949 was clearly erroneous. We will therefore VACATE the administrative closure and
proceed with an analysis of the merits of the issues raised in Appeal No. 0120172949. See e.g.
O’Brien v. U.S. Postal Serv., EEOC Request No. 05920560 (Feb. 11, 1993) (letter-closure reversed
where allegations of a settlement breach were left unaddressed as a result of the letter-closure).
BACKGROUND
As noted above, Complainant alleged that the Agency subjected him to discrimination and a hostile
work environment on the bases of race (Asian) and national origin (Chinese) when:
1. Since January 2012, S1 had not provided Complainant with a technical support staff;
2. Since January 2012, S1 had not recommended Complainant for ARS leadership
training;
3. Since January 2012, S1 had not assigned Complainant to any SRC committees;
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4. On January 8 and 9, 2014, Complainant was not invited to a meeting for visiting
conference attendees and stakeholders;
5. In August and September 2014, and July 2015, and September 2015, S1 delayed
approval of Complainant’s publication requests;
6. From October 2014 to February 2015, S1 excluded Complainant from the hiring
process for two research associates;
7. On March 2, 2015, Complainant was not invited to meet a J-1 Exchange Student from
China;
8. On March 17, 2015, during a staff meeting, S1 did not spell out Complainant’s name,
address his responsibilities, or provide panel scoring information to him via electronic
mail;
9. On September 18, 2015, Complainant's time and attendance sheet was altered without
his permission, and he was required to submit a justification for its correction;
10. On October 13, 2015, Complainant was not involved in the selection process for a new
scientist; and
11. On October 22, 2015, Complainant’s request for telework was denied.
Incident (1): Complainant claimed that since January 2012, the Research Unit Leader, GS-1320-
15, his first-line supervisor (S1), had not provided him with a technical support staff, despite the
fact that he does so with other scientists in the CSQ. He stated that he did not ask to be provided
with a technical support staff but maintained that such a staff was normally provided to other
scientists in CSQ. IR 274, 283. S1 responded that he never received a request from Complainant
for full-time technical support, and that he provided staff to assist him on an as-needed basis. S1
further stated that Complainant had a temporary employee at his disposal if he ever needed
assistance. IR 288.
Incident (2): Complainant alleged that since January 2012, S1 had not recommended him to attend
ARS leadership training while others in the CSQ have attended. He admitted that he did not
directly ask to attend leadership training but stated that he did not know when the training was
being offered and was not included in the distribution of information pertaining to training. IR
275. S1 responded that he was unaware that Complainant desired ARS leadership training because
Complainant had never requested to attend. He averred that ARS leadership training was assigned
on a volunteer basis, and that Complaint had never volunteered. RI 288.
Incident (3): Complainant averred that since January 2012, S1 had not assigned him to any SRC
committees. He stated that there were at least 10 such committees and service on most of those
committees was voluntary.
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He further stated that S1 made committee assignments if no one volunteered, and that he had asked
to be assigned to a committee because he had no information about the availability of committee
assignments. In addition, he averred that he never asked why he was not assigned to a committee
because he did not want to compete with other SRC employees and that S1 had assigned him to
the awards committee in May 2016, after he filed his formal complaint. IR 285. S1 responded
that Complainant had never volunteered to serve on a committee, and that after Complainant filed
his complaint, he reached out to Complainant and assigned him to a committee. IR 292.
Incident (4): Complainant claimed that he was not invited to attend a meeting for visiting
conference attendees and stakeholders that was held on January 8 and 9, 2014. He averred that
the conferees were invited to tour the CSQ’s facilities, and that he was never given a reason as to
why he was not invited. He further averred that did not become aware of the tours until after they
were over. IR 278, 284. S1 responded that he had held a meeting prior to the conference to discuss
presentations and facilities tours with the visitors, but that at no time during this meeting did
Complainant volunteer or offer to take part in any of the tours but did give a presentation on his
research to the stakeholders on January 9, 2014. IR 290-91.
Incident (5): Complainant alleged that in August and September 2014, and again in July and
September 2015, S1 had caused the approval of his publication requests to be delayed. He averred
that the approval process for his publication requests always seem to take longer than for
publication requests from other scientists, and that S1 routinely delayed his publication requests
without explanation. He cited one occurrence in which it allegedly took six weeks to get approval
when the normal time frame for such approvals is two weeks, as well another occurrence in
September 2014 involving a delay of several weeks. IR 279-80, 285, 309. He acknowledged,
however, that he did have publications approved and published. S1 admitted that in September
2015, there was a delay in the approval of a manuscript submitted by Complainant for publication
but averred that it was an honest mistake on his part, and that once he realized what had occurred,
he immediately moved the process forward and apologized to Complainant. He also stated that he
informed the scientists working under him that delays in publication approval could occur near the
end of the fiscal year, which was the situation with the manuscript that Complainant submitted in
September 2015.
Incident (6): Complainant claimed that from October 2014 to February 2015, S1 excluded him
from the process for hiring two new research associates. He averred that he was not told that the
vacancies had been announced and that S1 routinely fails to add him to the notification lists for
such personnel actions. He further averred that he had not been included in any previous CSQ
hiring actions. IR 279. S1 responded that Complainant had not been included in these two
selection processes because the positions were outside of his area of expertise, and therefore he
had no reason to be included in the process. IR 291.
Incident (7): Complainant alleged that on March 2, 2015, he was not invited to meet a J-1
Exchange Student from China. He averred that he did not request to meet with the student because
he was never told about her arrival until after the fact. IR 278, 284.
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S1 responded that the J-1 exchange visit was arranged by a retired former lead scientist who had
been the student’s mentor, and that Complainant was not included in the delegation because he
was not a specialist in fiber property testing, which was the exchange student’s declared area of
research. He further averred that upon her arrival, the exchange student was introduced to all of
the scientists in the CSQ, including Complainant. IR 290.
Incident (8): Complainant averred that on March 17, 2015, during a staff meeting, S1 neither
spelled out his name, addressed his responsibilities, nor provided panel scoring information to him
via email. According to Complainant, the purpose of that meeting was to provide new information
on policies and instructions to all CSQ scientists and support staff. He averred that during this and
other CSQ group meetings, S1 failed to indicate his name or responsibilities, and that he was not
included in an email list to receive project plan panel scores and comments, as were the other
research scientists. IR 277, 283-84. S1 responded that at the March 17, 2015 group meeting, he
reviewed safety policies and protocols, in particular regarding safety hazard assessment. S1 further
averred that he had no recollection of discussing project plan panel scores, and that he did not send
an email with panel scores to any scientists, which explained why Complainant never received an
email on that subject.
Incident (9): Complainant claimed that on September 18, 2015, someone had altered his time and
attendance submission without his permission, and that as a result, he was required to submit a
justification for getting the error corrected. He averred that when he discovered the error, he
emailed the CSQ timekeeper, and that his correct time entries were restored and his account
balances corrected. IR 277, 283. S1 responded that he was made aware that Complainant’s time
and attendance records had been altered but attributed this to the timekeeping department
attempting to correct what was believed to be an error. S1 also averred that he had no input in the
matter and that Complainant experienced no delay in getting paid. IR 289.
Incident (10): Complainant alleged that he was not involved in the selection process for a new
scientist that had occurred on October 13, 2015. He averred that he did not request to be involved
in the selection process because he did not know that such a process was going on until after the
hire was completed. He claimed that the normal procedure was for staff to listen to technical
presentations given by applicants, and that he was never invited to observe such presentations. IR
276, 283. S1 affirmed that the selection panel for this position consisted of subject matter experts
drawn from the ranks of retired ARS personnel and lead scientists, and that consequently, no other
internal input was necessary. IR 289. One of Complainant’s colleagues stated that unless
Complainant was going to be the supervisor of the newly-hired scientist, there would be no reason
for him to be a part of the selection panel. IR 314.
Incident (11): Complainant alleged that on October 22, 2015, S1 denied his request for telework.
IR 367, 370, 374. Complainant lives in New Orleans, but his family resides in Laurel, Maryland.
He stated that he consulted with S1, who explained to him that an employee can only telework
from within the commuting area and could not telework for four consecutive days. He also stated
that S2 denied his request to the extent that he was asking to telework from Laurel. IR 282.
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S1 agreed that the reason he denied Complainant’s telework request was that he had asked to
telework for more than one consecutive day from a locality outside of his duty station area, New
Orleans. S1 also stated that after consulting the area office for guidance, he had approved
Complainant for telework from Maryland for more than the maximum consecutive day limit.
Furthermore, he averred that since January of 2016, he had relaxed the telework requirements and
allowed Complainant to telework from Maryland on several occasions. IR 287, 360, 362.
STANDARD OF REVIEW
As Appeal No. 0120172949 was 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”).
Disparate Treatment
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, 802 (1973). His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed in this case, however, since S1 articulated
legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983).
Regarding incidents (1) through (3), S1 stated that Complainant had never asked for full-time
technical support, leadership training, or committee assignments, and that he was assigned to the
awards committee when he asked. As to incidents (4) and (7), S1 stated that he did not volunteer
to participate in the tours and that his specialty was not in the exchange student’s field of research.
Concerning incidents (6) and (10), S1 stated that he did not participate in the selections process
for the scientist and the two research associates because there was no need to include him in those
personnel actions. With regard to incident (5), S1 acknowledged that he had mistakenly caused
the delay in the publication of Complainant’s manuscript in September 2015, but that he
immediately apologized to Complainant upon realizing the error and took steps to correct his error.
S1 believed this was the only instance he erred in the submission process and attributed any other
delays to heavy year-end workloads. With respect to incident (8), S1 stated that he did not send
out project plan panel scores to Complainant or anyone else.
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Regarding incident (9), S1 affirmed that the timekeeping department had attempted to correct what
it thought was an error in Complainant’s timekeeping; however, it was later discovered that there
was no error and the matter was immediately corrected. Concerning incident (11), S1 stated that
although he initially denied Complainant’s requests to telework from Maryland, he relaxed the
policy and allowed him to do so on a number of occasions.
To ultimately prevail, Complainant must show that the explanations put forth by S1 were a pretext
for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In other words, he
would have to prove, by a preponderance of the evidence, that S1 was motivated by considerations
of his race and national origin when taking the actions that Complainant identified as
discriminatory. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in S1’s proffered legitimate reasons for his actions that a
reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal
Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No.
0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past
personal treatment attributable to named officials, comparative or statistical data revealing
differences in treatment among various protected-groups, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal
No. 0120141697 (Nov. 12, 2015). The Commission notes, however, that agencies have broad
discretion to carry out personnel actions and cannot be second-guessed without evidence of
unlawful motivation. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
When asked by the EEO investigator why he believed that unlawful considerations of his race and
national origin were behind S1’s actions, Complainant averred that it was because he was the only
Chinese individual working in CSQ. IR 274-76, 281-85. The sole evidence he presented in
support of his claim consists entirely of his initial and rebuttal affidavits. Beyond his own
statements, he has submitted neither affidavits, declarations, or unsworn statements from witnesses
other than himself nor documents which reveal the presence of at least one of the indicators of
pretext listed above, which contradict or undercut the explanations provided by S1 with respect to
the 11 incidents comprising Complainant’s claim, or which call into question S1’s veracity as a
witness. We therefore agree with the Agency that the evidentiary record in this case is not
sufficient to establish the existence of a discriminatory motivation on the part of any Agency
official with regard to any of the matters at issue in Agency No. ARS-2016-00078.
Hostile Work Environment
Furthermore, to the extent that Complainant alleged that he was subjected to a hostile environment,
we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),
such a claim fails. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994).
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A harassment finding is precluded by Complainant’s failure to establish that any of the eleven
incidents were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC
Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that
Complainant’s request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to GRANT the request. The February 15, 2019 administrative letter-closure of EEOC
Appeal No. 0120172949 is VACATED. Based on our independent review of the evidence, the
Agency’s final decision (Agency No. ARS-2016-00078) is AFFIRMED. As this decision vacated
the previous decision, we shall provide both parties reconsideration rights, as set forth below.
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).
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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
July 12, 2019
Date
