EEOC Appeal 2020001226

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Towanda B.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 2020001226
Agency No. RD-2017-00332
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 October 16, 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.
BACKGROUND
During the period at issue, Complainant worked as a Processor, 1101, GS 7 at the Agency’s
Rural Housing Development in St. Louis, Missouri.
On April 19, 2017, Complainant filed a formal EEO complaint. 	Complainant claimed that the
Agency discriminated against her and subjected her to discriminatory harassment based on
reprisal for prior protected EEO activity (filed an informal EEO complaint in September 2016)
when:
on December 16, 2016, Complainant’s supervisor terminated her telework agreement for
30 days.
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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After the investigation of the accepted claim, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant requested a hearing but subsequently withdrew her hearing request.
On October 16, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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 a complainant to prevail,
he or she must first establish a prima facie case 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, 	non-discriminatory 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, a 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
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).
Our review of the record reflects that the Agency provided legitimate, non-discriminatory
reasons for terminating Complainant’s telework agreement for 30 days.
Complainant acknowledged that her first level supervisor (“S1”) terminated her telework
agreement for 30 days due to Complainant’s failure to follow processing instructions. However,
Complainant indicated that she did not agree with this reasoning because she was not evaluated
in her performance appraisal on her ability to follow these processing instructions.

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Complainant further testified that she not received any negative feedback before December 16,
2016 from S1 regarding her performance.
However, S1 testified that she was the not the management official who made the decision to
temporarily terminate Complainant’s telework agreement. 	Rather, Complainant’s second and
third level supervisors (“S2” and “S3”) made the decision. 	Nevertheless, S1 indicated that
Complainant’s telework agreement was terminated due to failure to follow instructions provided
in a memo to staff on August 19, 2016, which resulted in Complainant making “various errors”
to a “minimum of 300 accounts.” 	S1 noted that Complainant’s efforts were discovered by
internal and external customers and were harmful because the Agency was required to spend
more time and money to correct her errors. 	S1 also indicated that she previously notified
Complainant of her performance issues before issuing the temporary telework suspension on
December 16, 2016. 	Finally, S1 stated that she was unaware of Complainant’s prior protected
EEO activity.
Although S2’s testimony reflected the same reasons S1 provided for suspending Complainant’s
telework agreement, S2 clarified that S3 was the management official who made this decision.
We note that S3 testified that Complainant’s telework agreement was suspended due to errors in
her work performance that were identified by S1 and S2. 	Additionally, both S3 and S2
acknowledged that they were unaware whether Complainant received any counseling prior to the
suspension. 	However both S3 and S2 denied that Complainant’s suspension of telework
privileges was based on Complainant’s prior EEO activity.
A copy of the December 16, 2016 letter suspending Complainant’s telework agreement, effective
December 	27, 	2016 	until 	January 	25, 	2017. 	The 	letter 	indicates 	that 	S1 	suspended
Complainant’s telework agreement for failure to follow instructions provided in an August 19,
2016 memorandum to staff. 	The letter further indicates that Complainant noted funds for 165
accounts even though no funds had been received for these accounts. The letter also indicates
that there were a “minimum of 300 accounts in which [Complainant] failed to verify funds were
posted to account and notated accounts error.”
We conclude that neither during the investigation nor on appeal has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s reprisal for prior protected EEO
activity.
Harassment
To establish a claim of discriminatory environment harassment, 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

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(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
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 basis – in this case, her reprisal for prior protected
EEO activity. 	Only if Complainant establishes both of those elements – hostility and motive –
will the question of Agency liability present itself. 	Here, as discussed above, Complainant
simply has provided inadequate evidence to support her claim that her treatment was the result of
her reprisal for prior protected EEO activity. We conclude that a case of harassment is precluded
based on our finding that Complainant failed to establish that any of the actions taken by the
Agency were motivated by her protected bases. 	See Oakley v. U.S. Postal Service, EEOC
Appeal No. 0119982923 (Sept. 21, 2000).
CONCLUSION
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.

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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. 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 30, 2020
Date