Fudge: Earp ‘isn’t the right person’ for USDA civil rights post

Naomi Earp, the Agriculture deputy assistant secretary for civil rights, who ran into trouble trying to get the Senate to confirm her as assistant secretary, has won the ire of Rep. Marcia Fudge, D-Ohio, who chairs the House Agriculture Nutrition, Oversight and Department Operations Subcommittee.

Fudge expressed indignation with Earp at many points during a November 19 oversight hearing, but was particularly upset by Earp's statement that some USDA employees use Equal Employment Opportunity complaints to punish managers and supervisors.

"I think that some frequent filers use EEO complaints to punish managers and supervisors. It is a pretty effective tool," Earp said.

She then gave an account of her dealings with a member of her staff.

Earp testified that the Equal Employment Opportunity Commission had remanded a complaint to USDA because it did not have sufficient facts and that a member of her staff said that it's the complainant's responsibility "to satisfy his prima facie" case. Earp said when she told her staffer that she disagreed and that it was the responsibility of the Office of the Assistant Secretary for Civil Rights (OASCR) "to lay out a road map of facts that makes it easy for an administrative judge to make a decision — discrimination, no discrimination," the staff member filed an EEO complaint alleging that Earp had discriminated against her.

"I merely share it as an example of how the complaint can be used against management," Earp said.

After the hearing, Fudge said in a statement, "I have serious, serious concerns about a great deal of Ms. Earp's testimony, but her insinuation that some USDA employees who are clearly within their rights to file multiple civil rights complaints are doing so to ‘punish managers and supervisors,' is absolutely horrifying.

"Her comments perpetuate the conspiracy theory that accusations are fake, and enables a culture of victim blaming at USDA. This rhetoric seeks to preemptively absolve bad actors at the department of the role they may play in these cases. USDA's own decades-long track record shows clearly that complaints of this nature should be investigated fully.

"What is clearly worse, though, is that this is the person in charge of protecting all employees at USDA. These comments and their underlying attitude will breed an atmosphere at the department where employees are less likely to report discrimination and harassment for fear of reprisal or that their complaints won't be taken seriously.

"These statements show me – and should show anyone else who's watching – that Ms. Earp isn't the right person for this job."

Earp's statement on frequent filers seemed to be the straw that broke Fudge's back.

In her opening statement, Fudge told Earp that her staff contacted USDA on November 12, to request information on the number of vacancies in her office over the last four years and details on any management inquiries or reports initiated by employees during her current tenure.

Fudge said she and her staff had not received the information, but had gotten an email at 8:40 a.m. that "lacked sufficient detail and failed to address the subcommittee's initial inquiry. I can only assume the decision to provide such a response, on the morning of today's hearing, is intentional."

"However, what we do know from the information you shared with my office, is there have been significant declines in the number of employees in the Office of Civil Rights from fiscal year 2016 to fiscal year 2019. There are also inconsistencies in the number of EEO complaints department-wide. The figures your office shared show out of over 300 complaints filed by employees, across 10 agencies in fiscal year 2019, there were only two findings of wrongdoing."

Fudge said she found it "incredulous" that only two of 300 civil rights cases had "merit."

As to the information Fudge requested, Earp said only that the subcommittee chair would get it "as soon as possible."

Fudge noted that many of the complaints about Earp's management came from African-Americans who have for years occupied many of the top civil servant positions in the civil rights office. Fudge put into the record a statement from Shawn McGruder, a member of the USDA's Senior Executive Service (SES) who was executive director for civil rights enforcement. McGruder called Earp's rule "malicious" and then resigned.

Fudge also asked Earp to introduce her top staff who was with her, and Fudge pointed out three women sitting behind her and said that one was her chief of staff and the others were from USDA's Legislative Affairs Office. At the end of the hearing, when Fudge said that none of the top staff was African-American, a woman sitting in the back row of the hearing room raised her hand.

Fudge saw the woman waving and said, "I asked her to tell me who was with her. She did not mention you. You must not be a part of the big team."

"Historically, African-Americans have had high-ranking positions in OASCR, and I see none here today, which goes to the visual that supports their position that there has been a deliberate attempt to have them removed from their positions, there has been a deliberate attempt to make the environment uncomfortable for them. The information I requested can support your position if you just give it to me."

Fudge also noted that at her Senate Agriculture Committee confirmation hearing, Earp had used the term "silliness" to describe sexual harassment, a phrasing that got her into trouble with Senate Democrats. Earp replied that she was only referring to the "continuum" of behavior in the workplace and that Senate Agriculture Committee ranking member Debbie Stabenow, D-Mich., had accepted her explanation.

Agriculture Secretary Sonny Perdue later appointed Earp as deputy assistant secretary, a position that does not require Senate confirmation, and Fudge told her "there are many of us who think" that Perdue appointed her to the deputy post "to circumvent what the Senate was going to do."

During the hearing, Earp repeatedly said that her powers were limited and that her interest was to "imbed civil rights consciousness" into all divisions of USDA. She also said she was particularly proud of an American Diversity Month, which had stressed a "one USDA approach" and urged supervisors to mentor minority staff.

When Rep. Alma Adams, D-N.C., told her she was worried about discrimination against black farmers and asked her when the Farmer Fair Practice rule will be released, Earp said she has "no direct responsibility over the mission areas," but will try to get her a copy of the rule.

Discussing black farmers, Earp told Rep. Jahana Hayes, D-Conn., that she was recently introduced to the Black Growers Council, a group of farmers whose farms range from 500 to 15,000 acres. These farmers, Earp said, do not borrow money from USDA but rely on it for technical assistance. Noting that there is so much emphasis on limited-resource farmers, Earp said she wants to reach out to minority farmers "one step above" those minorities with which USDA and Congress are usually concerned.

Fudge noted that "we all" represent people at all income levels and said "most of those I help are those who need the most help."

Earp said she spends most of her time on under-resourced farmers "unfortunately in the process of addressing their complaints."

Earp's interactions with Republican members of the subcommittee were more positive. She told Rep. Rodney Davis, R-Ill., that USDA needs more data on veterans and that it's often necessary to "cross walk" data from one agency to another on who is an under-resourced farmer or rancher.

When Rep. Jimmy Panetta, D-Calif., asked about the proposed rule limiting eligibility to the Supplemental Nutrition Assistance Program (SNAP), she replied that the Office of the Assistant Secretary for Civil Rights has "no role in rulemaking."

When Panetta asked whether she had reviewed the civil rights impact analysis on the rule, Earp said, "Civil rights impact analysis is a tool that just looks at the facts, the data, it is neutral, it does not signal a go or stay to the agency. We advise them on what we find and then the agency, in this case Food and Nutrition Service, makes a decision."

Panetta also asked about the impact of the relocation of the Economic Research Service and the National Institute of Food and Agriculture to Kansas City on the gathering of information and its dispersal to minority farmers, but Earp said her role focused on the impact of the relocation of USDA employees.

Earp said she considers the Forest Service to be a model for dealing with sexual harassment. She said the Forest Service, which has a particularly extensive history of sexual harassment, has established "cutting-edge" approaches: a victim-centered approach and bystander intervention training, which focuses on teaching people who have "seen something" to intervene.

The Forest Service's success in reducing its caseload has reduced USDA's caseload of complaints because the Forest Service is such a big division of USDA, she said.

At the end of the hearing, Rep. Dusty Johnson, R-S.D., the subcommittee ranking member, said, "Ms. Earp's testimony highlighted her lifelong commitment to civil rights and her continued fight for those who fall victim to harassment, retaliation, and discrimination. It is evident that OASCR is making strides toward fulfilling its mission, and today's hearing offered us a glimpse of that progress. I appreciate the dedication of Ms. Earp and her team and look forward to their continued work."

But Fudge said, "Civil rights is there to enforce the civil rights of people. You might have a lot of good programs, but your No. 1 job is to enforce the civil rights of protected classes. There is nothing in what you have said to me today that makes me believe that that is what your No. 1 priority is."

After the hearing, a USDA spokeswoman accompanying Earp said she did not have time to answer questions before returning to her office.