Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Sep 20, 2013

0120113554 (E.E.O.C. Sep. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120113554

Agency No. FSA-2010-00481

DECISION

Complainant filed an appeal from the Agency’s June 22, 2011 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program
Coordination Specialist at the Agency’s Human Resources Management and Internal
Operations Staff of the Farm Services Agency in Washington, D.C. On April 29, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American), sex (female), and in reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:

1. On March 31, 2010, the Assistant Deputy Administrator tried to coerce her into
signing a Fiscal Year (FY) 2010 performance plan, and

2. On March 31, 2010, Complainant learned she had received a “Superior” rating
for fiscal year 2009 rating of record instead of “Outstanding.”

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 EEOC
Administrative Judge (AJ). Subsequently, the Agency issued a Final Decision pursuant to 29
C.F.R. § 1614.110(b).

0120113554

2
In its Decision, the Agency found that Complainant failed to establish a prima facie case of
discrimination based on her race or sex because she failed to identify any similarly situated
employees, not in her protected groups, who were treated any better than her. The Agency
observed that all of the six employees rated by S1 during the time in question are female.
Additionally, the Agency noted that S1 issued “outstanding” ratings to one of two Black
employees with prior EEO activity. The Agency found these facts defeated Complainant’s
claim that S1 was motivated by Complainant’s race or sex when he rated Complainant as
“superior” rather than “outstanding” consistent with his stated opinion that Complainant was
the weakest member of his staff. The Agency concluded that S1’s decisions regarding her
performance plan and appraisal were legitimate and void of pretext.

Regarding Complainant’s complaint based on reprisal, the Agency found Complainant
established a prima facie case of reprisal discrimination. Specifically, the Agency observed
that S1 participated in Complainant’s prior complaint and the civil action that followed, as a
witness and deponent. S1 rated Complainant’s performance as “fully successful” in 2008 and
“superior” for fiscal year 2009.

The Agency found that S1’s reasons for rating Complainant as “superior” were based on his
assessment of her performance for 9 months of the rating period, with input from S2. S1, the
Agency noted, considered Complainant’s performance as her direct supervisor for the 2009
fiscal year beginning October 1, 2008 and through June 29, 2009. However, beginning on
June 30, 2009, and continuing for another two years, Complainant reported to S2, the
supervisor overseeing Complainant’s detail to the Office of Civil Rights Program Complaints
Taskforce. S2’s input into Complainant’s 2009 rating, the Agency found, raised
Complainant’s rating for the year from “fully successful” to “superior.”

The Agency acknowledged that the evidence supported Complainant’s recollection of S1’s
conduct during his meeting with Complainant on March 31, 2010. The Agency further found
that S1’s behavior (door slamming) was inappropriate. The Agency found, however, that S1’s
behavior during the meeting had nothing to do with Complainant’s knowledge of the
“superior” rating. The Agency found that Complainant’s performance rating was void of
pretext and retaliatory motive.

With respect to Complainant’s performance plans, the Agency found the evidence showed that
Complainant’s detail performance plan for 2009 when she began her detail was not signed and
that the official date of its commencement is unknown. Accordingly, the Agency found the
evidence supports the Agency’s position that S1 properly appraised Complainant’s performance
based upon her permanent performance plan. The Agency found S1’s actions were reasonable
under the circumstances and that even his request to use her office while she was absent from
her permanent position was understandable and based on necessity, not reprisal.

The Agency’s Decision concluded that Complainant failed to show by a preponderance of the
evidence that she was subjected to discrimination on any basis as alleged.

0120113554

3
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. (November 9, 1999) (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”).

To establish a claim of harassment, a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their 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 (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.

, EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

The record confirms that S1 agreed to raise Complainant’s rating to “outstanding” and we find
that Complainant has not shown how discrimination motivated the Agency’s rating at issue.
Complainant does not argue or show that her performance merited a higher rating; rather, she
argues about the timing of the rating and the performance plan that should have been used to
0120113554

4
rate her. We find that nothing in the record shows that either the timing of the rating or the
choice of performance standards was motivated by discrimination.

The record confirms that Complainant signed performance standards with S2 in January 2010,
and nothing in the record indicates that the performance standards S1 prepared for
Complainant for 2010 were ever implemented. We find nothing in the record that indicates that
discrimination motivated the Agency’s decision to place Complainant on particular
performance standards for FY10. Furthermore, while S1’s conduct during the meeting
regarding the rating may have been professionally inappropriate (door slam), there is no
indication that the conduct was motivated by discrimination rather than just an argument
regarding a rating and performance standards. We find no evidence of a discriminatory hostile
work environment.

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s Final Decision finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
0120113554

5
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 20, 2013
Date