Velda F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity Commission

Sep 21, 2018

0120161747 (E.E.O.C. Sep. 21, 2018)

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

Velda F.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food and Nutrition Service),
Agency.

Appeal No. 0120161747

Agency No. FNCS-2015-00484

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 March 3, 2016, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 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 Senior Program
Specialist, GS-301-12, with the Agency’s Mountain Plains Regional Office (MPRO) located in
Denver, Colorado. During the relevant time, Complainant’s first level supervisor (S1) was the
Branch Chief for School Nutrition.

On May 22, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to harassment on the basis of age (52). The Agency accepted the
following issues:

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 unspecified dates, she was denied an appointment and the opportunity to
participate on special projects and committees; and
2. On several dates, she was subjected to various incidents of harassment, including
but not limited to:

a. July 3, 2014, her supervisor verbally assaulted her and yelled at her in a
threatening manner;
b. On September 11, 2014, during a meeting, her supervisor and coworkers
dismissed her suggestions and belittled her; and
c. On March 20, 2015, while she was serving on a detail assignment, her
supervisor notified her that a report she had previously drafted was
incorrect and ordered her to revise it.

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

Regarding claim (1), the Agency found Complainant established a prima facie case of
discrimination based on her age. The Agency found it articulated a legitimate,
nondiscriminatory reason for its actions. S1 stated that there were no committees in his office of
12 employees. S1 stated that the only special project opportunity was made available to all GS-
12 employees, which included Complainant. S1 asserted that Complainant failed to submit a
letter of interest for consideration for that special project.

The Agency determined Complainant failed to provide sufficient evidence showing that she
applied for special projects and committees and was then denied them based on her age. S1
asserted that Complainant did not apply for the one special project in his office and that Person
A, Senior Program Specialist for the School Nutrition Program, was the only employee who did
apply. The Agency found Complainant failed to rebut its legitimate, nondiscriminatory reasons
for its actions.

Regarding claims (2)(a) – (c), the Agency noted that Complainant alleged she was subjected to
harassment on July 3, 2014, when she was verbally assaulted and yelled at in a threatening
manner by S1; on September 11, 2014, when during her meeting S1 and her coworkers
dismissed and belittled her; and on March 20, 2015, while on detail she was ordered to revise a
report. The Agency noted that although Complainant alleged that she was subjected to
harassment, the evidence does not support that the alleged harassment was based upon her age.
Additionally, the Agency did not find that a reasonable person would find that conditions she
complained of were abusive or hostile.
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The Agency stated even crediting all of Complainant’s allegations, the behavior complained of
does not create a work environment “permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the victim’s employment and create an
abusive working environment.”

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”).

We note that on appeal Complainant does not challenge the definition of the claims in her
complaint as defined by the Agency. After a review of the record in its entirety, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish that discrimination or
harassment occurred.

CONCLUSION

Accordingly, the Agency’s final decision 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.

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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
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

September 21, 2018
Date