EEOC Appeal 2020001835

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Akimi L.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 2020001835
Hearing No. 420-2019-00274X
Agency No. FSIS-2018-00475
DECISION
On December 29, 2019, 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
November 4, 2019 	final order concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Food Inspector, GS-05, at the Agency’s
Sanderson Farms in Hazlehurst, Mississippi. 	Complainant’s employment included a year-long
probationary period that began on March 19, 2017.
On June 7, 2018, Complainant filed a formal EEO complaint and claimed that the Agency
discriminated against her based on sex (female) when, on March 13, 2018, Complainant was issued
a Notice of Termination During Probationary Period, which terminated her career conditional
appointment.
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 an investigation, 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 (AJ).
Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that
the formal complaint did not warrant a hearing, issued a decision by summary judgment in favor
of the Agency on October 28, 2019. 	On November 4, 2019, the Agency issued a final order
adopting the AJ’s finding of no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. See Fed. R. Civ.
P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines
no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge
is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id.
at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence
and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue
of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex
v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.
1988). A “material” fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We
carefully reviewed the record and find that it is adequately developed. To successfully oppose a
decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. In the present matter,
Complainant did not present evidence or to identify evidence of record that would substantiate a
factual dispute. As a result, we concur with the AJ’s decision to grant the Agency’s motion for
decision without a hearing.
We have examined Complainant’s claim of disparate treatment in accordance with the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	For
Complainant to prevail, she must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to the inference of discrimination. 	Here,
Complainant alleged that her raised basis was a factor in the Agency’s decision to terminate her
employment during the probationary period. See Furnco Constr. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 	If the
Agency carries the second 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 Ctr. v. Hicks, 509 U.S. 502 (1993).

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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 Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No.
05900159 (Jun. 28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC Request No.
05900467 (Jun. 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
We presume that Complainant established a prima facie case regarding the raised basis, and now
proceed to an analysis of whether the Agency articulated a legitimate, non-discriminatory reason
for its action. We recognize the Agency had greater discretion to terminate a probationary hire as
opposed to a career employee. Here, the Agency provided legitimate performance-based reasons
for terminating Complainant shortly before she had completed her probationary employment.
Specifically, the record reflects that, on diverse occasions, Complainant had been late for her start
time and she had left early before completing her shift. 	Moreover, Complainant established a
pattern of being unreliable in her presence on certain workdays and requesting leave in an untimely
manner. Additionally, management had charged Complainant with three hours of being Absent
Without Leave (AWOL). 	Furthermore, the shift supervisor documented an instance when he
observed that Complainant had neglected her duty to visually inspect chicken carcasses.
Complainant did not persuade us that the Agency’s stated reasons for its action was pretext
designed to mask discrimination. 	Dalesandro v. U.S. Postal Serv., Appeal No. 01A50250 (Jan.
30, 2006). The record revealed that Complainant’s shift supervisor had counseled more than one
of Complainant’s male co-workers for similar conduct violations including irregularity of time and
attendance or for failure to adhere to policies applicable to food inspectors. Moreover, the Agency
proffered that other similarly-situated female food inspectors had achieved career status after they
had completed their probationary terms.
CONCLUSION
We AFFIRM Agency’s final order, implementing the AJ’s decision without a hearing finding no
discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if 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).
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).

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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
October 26, 2020
Date