Wen Y.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jan 9, 2020

Appeal No. 2019002189 (E.E.O.C. Jan. 9, 2020)

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

Wen Y.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 2019002189

Agency No. RMA-2018-00438

DECISION

On March 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 1, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Compliance Specialist at the Agency’s Risk
Management Agency, Southern Regional Compliance Office in Dallas, Texas.

On June 10, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), color (Black), disability,
age (over 40), and in reprisal for prior EEO activity when:

1. on January 31, 2018, management issued her a Letter of Reprimand;
2. on January 22, 2018, management instructed her to report to work during the
government shutdown;

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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3. management denied her requests for a reasonable accommodation;

4. on several dates, she was subjected to various incidents of harassment, including:

a. on July 20, 2017, during departmental training, the Acting Civil Rights
Director gave candid details about Complainant’s EEO case that was settled
on the same day; and

b. on March 28, 2018, during a meeting, management informed her that her
performance was “not meeting the bar.”

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

In its February 1, 2019 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment: Claims 1 and 2

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See 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
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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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

Regarding claim 1, Complainant asserted on January 31, 2018, management issued her a Letter
of Reprimand.

The Deputy Director, Southern Regional Compliance Officer (Caucasian, white, over 40 years)
(“the supervisor”) stated that during the relevant period, she was Complainant’s supervisor. The
Deputy Director explained that she issued Complainant a Letter of Reprimand after being told by
the Director, Southern Regional Compliance Office that Complainant had not followed the
guidelines pertaining to the government shutdown on January 23, 2018. Specifically, the
supervisor stated that Complainant was charged “with returning to the office during the time the
office was officially shutdown to retrieve her laptop computer, and not returning to work at the
office, as instructed, when the shutdown ended.”

The supervisor explained that before the shutdown, all employees received the shutdown
guidelines on January 19, 2018 “the Friday before the shutdown. On January 22, 2018, the day
of the shutdown, employees were told to report to the office to lockup their computers at the
office, if the shutdown was ordered, to stay home until the government reopened, and when the
office reopens to report for work at the office even if it is a scheduled telework day.” She further
stated that the shutdown ended during the evening of Monday, January 22, 2018, and the next
day, January 23, 2018, Complainant did not report to the office to work but instead reported to
the Director by email that she was teleworking.

The Director, Southern Regional Compliance Officer (Caucasian/Hispanic, brown, over 40
years) (“the Director”) was Complainant’s second level supervisor. He stated that on January 22,
2018, he directed the shutdown procedures that staff members had to perform. The Director
stated that at approximately 10:00 p.m. on the same day, January 22, 2018, he learned that
funding was approved and “immediately sent notice to staff to report to the office on the 23rd at
their normal time. Complainant did not follow the shutdown guidelines in two areas: she
returned to the office on the 22nd before funding was approved, during the time the office was
officially shutdown, to retrieve her laptop computer and on the morning of the 23rd, she sent me
an email informing me that she was reporting for duty and that she would be working from
home.”

The Director informed the supervisor about Complainant’s non-compliance with the shutdown
instructions and directed the supervisor to contact Human Resources “concerning the issues and
to find out the appropriate disciplinary actions to take and the procedure to follow to comply
with Agency rules and procedures.” He stated that Complainant was the only employee issued a
Letter of Reprimand for failure to comply with the government shutdown procedures.
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Furthermore, the Director stated that Complainant’s race, color, disability, age and prior
protected activity were not factors in his decision to have the supervisor issue her a Letter of
Reprimand.

Regarding claim 2, Complainant alleged that on January 22, 2018, management instructed her to
report to work during the government shutdown.

The Director noted that all staff members, including Complainant, were instructed to report to
work during the government shutdown to complete the shutdown procedures. The Director
stated that this requirement was conveyed to employees through email from the Office of the
Secretary.

With regard to the two claims discussed above, beyond her bare assertions, Complainant failed to
prove, by a preponderance of the evidence, that the responsible Agency officials’ proffered
explanations for the disputed actions were a pretext masking discriminatory animus. There is
simply no evidence that Complainant’s race, color, disability, age or prior EEO activity played
any role in the events at issue.

Harassment: Claim 4

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of her protected bases -- in this case, race, color, disability, age and
prior EEO activity. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself. Here, the evidence simply does not
establish that the incidents occurred as alleged by Complainant and/or occurred because of her
race, color, disability, age and prior EEO activity.

Complainant alleged that on several dates, she was subjected to various incidents of harassment,
including, but not limited to the following matters: on July 20, 2017, during departmental
training, the Acting Civil Rights Director gave candid details about her EEO case which was
settled on the same day; and on March 28, 2018, during a meeting, management informed her
that her performance was “not meeting the bar.”

The Director stated that on July 20, 2017, he attended the departmental training that the Acting
Civil Rights Director conducted. The Director further stated that the Acting Director, Office of
Civil Rights presented an overview of Office of Civil Rights including “a discussion of how to
file a complaint and how complaints are processed.
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To my knowledge, [Acting Director] never cited any specific case as an example of alleged
discrimination; although she did reference her own situation.”

The Acting Civil Rights Director (African-American, black, disability, over 40) stated that on
July 20, 2017, she conducted training for the Southern Regional Compliance Office. She
acknowledged that during the training, she “presented hypothetical situations using myself as a
point of reference. For example, I said- “if I, as a black woman applied for a position…, or, If I,
a person with a disability…I did not give examples drawn from actual case and I certainly did
not divulge the specifics of Complainant’s EEO case. I used myself as an example because I fit
many of the covered bases.” Moreover, the Acting Director stated that Complainant did not say
anything to her about her remarks during training.

Complainant claimed further that on March 28, 2018, during a meeting, management informed
her that her performance was “not meeting the bar.” The Director acknowledged that on that day
the Associate Deputy Administrator, also Complainant’s third level supervisor, was visiting the
office “to give us an update on where things stood in compliance-future plans and moving the
regional office.” The Director noted that the supervisor mentioned that various staff members
were having performance issues and in the case of Complainant, the supervisor mentioned that
she has having issues meeting deadlines.

The Director stated that it may have been during management’s meeting with Complainant that
the Associate Deputy Administrator “may have commented that Complainant’s performance was
“’not meeting the bar.’ I cannot quote [Associate Deputy Administrator] precisely, but his
comment was intended to indicate that Complainant needed to improve her performance.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these incidents of alleged harassment occurred as alleged and/or were
motivated by race, color, disability, age and prior EEO activity.

Reasonable Accommodation: Claim 3

Under the Commission’s regulations, an agency is required to make reasonable accommodations
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9. The Commission will assume for purposes of analysis only, and without so
deciding, that Complainant is an individual with a disability.

Here, Complainant claimed management denied her requests for a reasonable accommodation.

The record reflects that on July 18, 2017, Complainant requested a reasonable accommodation
due to a chronic medical condition.

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Specifically, Complainant and her physician requested that she be allowed to telework 8 to 10
days per pay period; be provided an Autonomous (Non-Fixed) Telework schedule; be provided a
warm environment when working at the official work station; not to walk more than 15 feet; take
periodic breaks; and if mandatory meetings, significant projects, and/or training are scheduled on
a telework day, she be allowed to report to the official work station.

On August 7, 2017, the Disability Employment Program Manager (“Disability Manager”) issued
a Reasonable Accommodation Decision which he notified Complainant that Agency
management had agreed to the following accommodations: allow Complainant to telework from
home 4 days a pay period; provide an isolated work station to effectively manage a warm
environment; take periodic breaks; if mandatory meetings, significant projects, and/or training
are scheduled on a telework day, she would be allowed to report to the official work station. The
Manager noted that this plan covers the period from August 7, 2017 to August 6, 2018.

On April 3, 2018, Complainant’s doctor wrote a letter stating that Complainant would benefit
with 4 to 5 days per week teleworking, a warm environment, and to be instructed not to walk
more than 15 feet. The 2018 Plan reveals that Complainant made the following requests: (a)
Teleworking from home 3 days, which is 6 days per pay period; and (b) a private work station
where the temperature can be manually raised.

On May 15, 2018, the Disability Manager emailed Complainant the 2018 Accommodation Plan
with a cover email noting that the supervisor had “adjusted the telework days to what
[Complainant] had requested.” The 2018 Plan reveals that the Agency agreed to the following
reasonable accommodations: (a) Teleworking from home 2 days per pay period with an
additional 2 days “as needed,” with the as needed days “not pre-scheduled out,” for a total of 4
days per pay period; and (b) a private work station where the temperature can be manually
raised. The Disability Manager noted that this plan covers the period from May 15, 2018 to
December 30, 2018. Complainant signed concurring with the 2018 Accommodation Plan.

On May 17, 2018, the supervisor notified Complainant that the government contractors needed
the space she was using and requested that she move out of her current space and pick a new
space. Complainant replied “Okay.”

The supervisor stated that she disagreed with Complainant’s allegation that her requests for
reasonable accommodation were denied. Specifically, the supervisor noted that Complainant
made “several request for accommodations and in each request nearly everything she requested
was granted.”

Substantial record evidence supports the Agency’s finding that Agency management
accommodated Complainant within her medical restrictions. There is no evidence of record to
dispute this assertion. Complainant is entitled to a reasonable accommodation, but not
necessarily the accommodation of her choice. Here, the evidence supports the Agency’s
conclusion that Complainant was provided effective accommodation.

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CONCLUSION

After a review of the record in its entirety, including considerations of all statements on appeal,
we AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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

January 9, 2020
Date