EEOC Appeal 2020001923

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kendra W.,1
Complainant,
v.
Mark Green,
Administrator,
Agency for International Development,
Agency.
Appeal No. 2020001923
Agency No. OCRD-049-19-F
DECISION
On January 17, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s December 18, 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 relevant time, Complainant worked as a Chief Administrative Officer (CAO)/Deputy
Administrative Officer (Deputy), GS-0341-14 at the Agency’s USAID Bureau for Latin America
and the Caribbean (LAC), Office of the Assistant Administrator (OAA), Executive Management
Team (EMT) in Washington, D.C.
On January 17, 2020, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (African-American, Irish, Spanish and Indian),
sex (female), color (brown), and in reprisal for protected EEO when, in March 2019 and ongoing,
her tasks were reassigned, her work schedule was changed, she was told her work assignments
were not completed satisfactorily, and her supervisor has not shared essential information so that
Complainant can perform her duties.
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 claims, 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 Judge.
In accordance with Complainant’s request, the Agency issued a final decision on February 18,
2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. 	On appeal, Complainant requests for her untimely brief to be
considered. In response, the Agency contends that Complainant’s brief was untimely and should
not be considered on appeal.
ANALYSIS AND FINDINGS
As a threshold matter, we note that on appeal, Complainant acknowledged that her brief was late.
Consequently, we will not consider her untimely brief. Moreover, even if we were to consider the
arguments raised on appeal, we would determine that they would not change our disposition of the
case.
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,
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, as
here, 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).
During the investigation, the responsible management officials articulated legitimate, non-
discriminatory reasons for the disputed actions.

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Complainant asserted that in March 2019 and ongoing, her tasks were reassigned, her work
schedule was changed, she was told her work assignments were not completed satisfactorily, and
her supervisor has not shared essential information so that she can perform her duties.
The Supervisory Management and Program Analyst (Latino, male, brown) stated that during the
relevant period he was Complainant’s supervisor. With respect to Complainant’s allegation that
she was told her tasks were reassigned and she was told her work assignments were not completed
satisfactorily, the supervisor acknowledged he had performance concerns with Complainant which
resulted in a downgrade of one level in her performance evaluation for Fiscal Year 2018. 	The
supervisor averred that he was working to address Complainant’s performance issues and decided
to reassign the task of maintaining the Bureau’s organizational charts.
Specifically, the supervisor explained that the organizational charts “were not being kept up-to-
date, and because [Complainant] had been assigned another task that added to her workload, I was
reassigning the organizational chart task to another member on the team.” 	He stated that he
informed Complainant that the organizational charts were not being kept up-to-date, and
“reminded her why it was important to keep them up to date in a timely manner. My role as her
manager is to provide guidance and feedback, and remind her of the importance of the task.”
The supervisor further stated that when his office was reassigned the task from the Bureau’s
Program Office, he had a discussion with Complainant about coordinating the approval
memorandum and this overall task, and “she agreed to take over the task, which was no small task
in and of itself. 	I then reassigned the organizational chart, as I was essentially increasing her
workload with this other task, which I thought would be a good challenge for her.”
Regarding Complainant’s allegation that the supervisor changed her work schedule, the supervisor
stated it was brought to his attention that his team was not in alignment with Agency policy (“ADS
479”) pertaining hours of duty. He also noted that because “we provide customer service to the
Bureau and Region, with some of our largest, most high profile overseas offices, in earlier time
zones, such as Mexico, Guatemala, El Salvador, and Honduras, it was prudent that our work hours
better aligned with those of these overseas office so that we were available and as accessible as
possible to our customers in the Bureau and to the staff overseas.”
The supervisor asserted that he explained to his team in a staff meeting and through email on
February 4, 2019, that in order to be in compliance with the Agency’s policy, all team members,
including himself, had to submit a Work Schedule Request Form. He averred that the Agency’s
policy allowed the earliest start time as 7:00 a.m. and 6:30 p.m. as the latest end time. 	The
supervisor noted that Complainant’s hours were changed from 6:30 a.m. to 7:00 a.m., and “she
finished her work at 4:45 p.m. instead of 4:15 p.m.”
Complainant asserted that management’s true reasons for changing her work schedule was because
the supervisor just did not want her to come in early and wanted to “make her life miserable.”
However, she provided no evidence that any other employee was treated more favorably.

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The Deputy Assistant Administrator, Senior Foreign Service (Caucasian, male, white) stated that
he supervised the supervisor. He acknowledged that the supervisor informed him that “some of
our missions being an hour behind Washington DC time, he needed staff to be in the office later
in the afternoon as opposed to early morning hours to respond to requests. My understanding is
this was applied to the whole team – that the team had to be within in the flexitime hours for the
Agency.”
Finally, the supervisor denied Complainant’s claim that he does not share essential information so
that she can perform her duties. 	Specifically, the supervisor explained that Complainant is an
Administrative Officer, not a Deputy. 	The supervisor further stated “we all work in close
proximity to each other. There would be times when I would be out-of-office and [Complainant]
would be acting in my stead. 	[Complainant] had a lot of experience in the Bureau and on the
Team. Everyone on the team is pretty self-sufficient. She was aware of major Bureau priorities
at all times. I would be out of the office a couple of times a year for one week, to one and one-
half weeks at a time, but even in travel and when I was on leave, I was always accessible by email.”
Here, Complainant failed to meet her ultimate burden of proving, by a preponderance of the
evidence, that her supervisor acted on the basis of a prohibited reason. In sum, Complainant has
simply provided no evidence to support her claim that her treatment was the result of her race, sex,
religion or prior EEO activity.
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 (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).

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Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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.

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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
October 26, 2020
Date