William G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120171754 (E.E.O.C. Dec. 19, 2018)

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

William G.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120171754

Hearing No. 461-2013-00055X

Agency No. OCFO-2009-01327

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 final action 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. For
the following reasons, the Commission AFFIRMS the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Specialist, GS-6, in the Agency’s Office of the Chief Financial Officer (OCFO),
National Financial Center, in New Orleans, Louisiana.

On December 10, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), color (black), and
in reprisal for prior protected EEO activity when:

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 September 14, 2009, he was harassed when Agency officials refused to allow
him a reasonable amount of official time in order to work on EEO cases for himself
and for others that he represents; and
2. Complainant further alleges that his requests for official time are not handled in the
same manner as those of other employees.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On
October 22, 2015, the AJ ordered a default judgment against the Agency. On December 17, 2015,
the AJ conducted a hearing to determine whether Complainant established a prima facie case of
discrimination and retaliation and the appropriate amount of damages. The AJ found Complainant
established a prima facie case of retaliation. The AJ found Complainant did not establish a prima
facie case of harassment on the bases of his race, sex, or color. The AJ also found the harassment
was not so severe or pervasive as to alter the conditions of Complainant’s employment and create
an abusive working environment. As relief, the AJ ordered the Agency to: pay Complainant
$1,000 in nonpecuniary, compensatory damages; provide to the individuals responsible for
processing EEO cases at the Agency’s EEO Office in Washington, D.C., two hours of training on
their rights and responsibilities in processing EEO cases; post a notice of the finding of retaliation;
and consider taking disciplinary action against the responsible management officials responsible
for processing EEO cases.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the
AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).

ANALYSIS AND FINDINGS

At the outset, we note Complainant does not challenge the Agency's finding that he did not
establish a prima facie case of harassment on the bases of his race, sex, or color or that the
harassment was not so severe or pervasive as to alter the conditions of his employment and create
an abusive working environment. Thus, we will not address the propriety of the Agency's finding
with regard to those issues.

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

We note the Agency asserts it paid Complainant $1,000 in nonpecuniary, compensatory damages
on June 12, 2017, and produced evidence of such payment to Complainant. On appeal,
Complainant does not dispute that he received this payment for nonpecuniary, compensatory
damages. Therefore, we shall not order this payment.

Additionally, the AJ ordered the Agency to train the individuals responsible for processing EEO
cases at the Agency’s EEO office in Washington, D.C. with two hours of training on their rights
and responsibilities in processing EEO cases. The Agency produced evidence that it provided two
hours of “EEO Case Processing” training to the Office of Adjudication (OA) managers in
Washington, D.C. on March 1, 2017, in compliance with the AJ’s order. Upon review, we find
that the responsible management officials in the Agency’s New Orleans facility should also receive
training on their rights and responsibilities in processing EEO cases. In a July 11, 2017
memorandum from the Chief, Employment Adjudication Division, the Agency states the Office
of Adjudication will provide training to the OCFO Civil Rights office located in New Orleans,
Louisiana on the rights and responsibilities of managers and personnel in the processing of EEO
cases. However, we find there is no evidence that the OCFO Civil Rights office actually received
training on their rights and responsibilities in processing EEO cases. Therefore, we shall order
EEO training to the New Orleans facility.

The Agency has produced evidence that it posted the notice as ordered in the AJ’s decision. Thus,
we will not order the Agency to post the notice, as it has already done so.

The record also contains a July 13, 2017 memorandum from the Branch Chief, Employee and
Labor Relations Division stating that the office has initiated an inquiry to consider whether
disciplinary action against the responsible management officials responsible for processing EEO
cases is appropriate. The record does not contain further information concerning the outcome of
this investigation.

Complainant does not claim on appeal that he took leave as a result of the Agency’s actions.
Moreover, Complainant does not claim on appeal that he is due any additional relief. Thus, we
find the relief ordered by the Agency appropriate, as slightly modified by our Order herein.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final action and order the Agency to implement the AJ’s
relief, as slightly modified herein.

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ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 90 days of the date this decision is issued, the Agency shall provide eight hours
of in-person or interactive training to the responsible management officials in its Civil
Rights Office in New Orleans, Louisiana facility regarding the obligation not to
restrain, interfere, coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in proceedings under,
the Federal equal employment opportunity laws.

2. Within 60 days of the date this decision is issued, the Agency shall consider taking
disciplinary action against the management officials identified as being responsible for
the discrimination perpetrated against Complainant. The Commission does not
consider training to be a disciplinary action. The Agency shall report its decision to
the Commission and specify what, if any, action was taken. If the Agency decides not
to take disciplinary action, then it shall set forth the reasons for its decision not to
impose discipline.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
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IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission.
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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. 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

December 19, 2018
Date