Cassie O.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120172528 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassie O.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 0120172528 Agency No. FSIS-2016-00842 DECISION On July 3, 2017, 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 June 1, 2017, final decision concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Consumer Safety Inspector, GS-10 with the Agency’s Springdale District in Springfield, Arkansas. On November 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), physical disability (diabetes), mental disability (anxiety and panic disorder), age (44), and 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. 2 0120172528 1. On June 17, 2016, Agency management escorted Complainant from the premises of her permanent duty station at a food processing plant, and temporarily reassigned her to a different duty station, because of a misconduct allegation brought against her from an a food processing plant employee at her permanent duty station; 2. Since 2015, Agency management has subjected Complainant to various acts of harassment, including but not limited to: a. From April 2015 to present, Complainant’s supervisor gender-stereotyped her, criticized her and unfairly assessed her personality and behavior with comments such as: she was not acting like a woman, she was angry, she was not a team player, she was moody, that her body language and tone were too aggressive, she needed to change the way she interacted with people, and that by the time he was done with her, she would act the way a woman in the Agency should act; he also told her she was a liar; b. On June 9, 2016, Agency management issued Complainant a “Notice of Proposed Removal” dated June 8, 2016; c. On July 15, 2016, Complainant’s supervisor informed her the reason she had been reassigned from her permanent duty station was because the "establishment" felt she would retaliate against them for their part in an Office of Inspector General (OIG) investigation that occurred in November 2015; and d. On unspecified dates in past conversations with her supervisor, he told her she would get a 2-week suspension whether she liked it or not; an official in the Labor & Employee Relations Division (LERD) would ensure that she was terminated this time; she should be thankful she still had a job since her 30 days were up, she should have already been terminated; and she would never return to her permanent duty station. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant’s representative contended that the Agency failed to provide a legitimate or non-discriminatory reason for her reassignment as stated in Claim 1. He further asserted that the Agency violated its own policies regarding reassignments and investigations based on misconduct accusations from the food processing plant that Complainant inspected. Regarding the harassment allegations in Claim 2, Complainant’s representative argued that Complainant the Agency’s final decision erroneously found no discrimination. According to 3 0120172528 Complainant’s representative, the supervisory actions and statements described in Claim 2 were extreme, pervasive and ongoing. Additionally, he stated that the Agency’s final decision improperly declined to address the veracity of Complainant’s harassment claims. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Claim 1 In Claim 1, Complainant alleged that the Agency subjected her to disparate treatment discrimination when her supervisor reassigned her to a new duty station as opposed to allowing her to continue work at her permanent duty station. To prevail, Complainant needed to satisfy the three-part evidentiary test articulated by the Supreme Court of the United States. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that the Agency took adverse employment actions under circumstances that would support an inference of discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978); McDonnell Douglas at 804 n. 14. If Complainant were to establish a prima facie case, then the burden 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 articulates such a reason, then the burden of proof shifts back to Complainant who must prove, by a preponderance of the evidence, that the Agency’s explanation was pretextual. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000). On one hand, Complainant alleges that her supervisor targeted her because she was older, had diabetes and her gender, in that Complainant was an aggressive inspector in a manner that her supervisor found “unladylike.” She accused her supervisor of denying her request for an assignment that was desirable and accommodating of her diabetic condition. Complainant stated that her supervisor favored her coworker and they spied on Complainant in order to fabricate performance deficiencies and disciplinary write-ups. This coworker was a woman who Complainant alleged was in collusion with the business that they were assigned to inspect. Complainant’s union representative provided a sworn statement fully supporting Complainant’s positions. The union representative opined that this was a matter of ongoing hostility in reprisal for Complainant and another inspector making accusations against each other. 4 0120172528 On the other hand, the supervisor stated that he had advocated for Complainant to remain in her position and denied threatening Complainant or challenging her femininity. Agency management witnesses corroborated the supervisor and described Complainant as quick to anger when criticized and noncompliant with procedures. The Agency officials stated that at some points Complainant had requested reassignment but was most recently detailed pending a higher headquarters’ decision whether to retain or remove Complainant. Taken together, we have been presented with conflicting testimonies were in equipoise. We note that Complainant declined the opportunity to request a hearing before an AJ. Had she done so, then she or her representative may have had an opportunity to present their own witnesses and to cross-examine those from the Agency. Complainant also could have benefited from an AJ’s determinations of credibility. Complainant had the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence was at best equipoise. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014). As a result, Complainant fails to meet her burden to prove disparate treatment. Claim 2 In Claim 2, Complainant alleged that she was subjected to a hostile work environment due to criticism, discipline, and reassignment by her supervisor. Unlawful harassment occurs because of an employee’s protected status and where it is sufficiently severe or pervasive. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Wibstad v. U. S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998). To prove her harassment claim, Complainant had to establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in his situation would have found the conduct abusive. Complainant must also prove that she was harassed because of her protected bases — in this case disability, gender, age, and for prior EEO activity. Only if Complainant established elements of hostility and motive, would Agency liability arise. Based upon the record, we cannot discern that the alleged misconduct was severe or pervasive to qualify as hostile. Although Complainant's work environment was stressful and contentious, we do not find that it was hostile or abusive. We note that not every unpleasant or undesirable action occurring in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). We find that the Agency's actions toward Complainant were difficult but otherwise routine workplace interactions as opposed to abusive conduct. We have consistently held that routine work assignments, instructions, and admonishments are neither severe nor pervasive enough to rise to a level of abuse or otherwise engender a hostile work environment. See Liz M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160016 (Jan. 18, 2018); Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). Even assuming that the alleged conduct was sufficiently severe or pervasive, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or 5 0120172528 retaliatory animus. The Commission's finding with regard to Claim 1 that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus precluded her harassment allegation in Claim 2. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). As such, Complainant has not established that she was subjected to a hostile work environment based on her protected classes, as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of EEOC to AFFIRM the Agency’s final order because the record fully supported the AJ’s finding that Complainant had failed to prove unlawful employment discrimination to a preponderance of the evidence. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 6 0120172528 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation