Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Sep 12, 2013

0120121655 (E.E.O.C. Sep. 12, 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
(Natural Resources Conservation Service),
Agency.

Appeal No. 0120121655

Agency No. NRCS-2011-00824

DECISION

On March 2, 2012, Complainant filed an appeal from the Agency’s February 9, 2012, 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 District
Conservationist, GS-11, in Albany, New York. There were nine field offices located in the
region and Complainant was assigned to the Ballston Spa Field Office. During the relevant
time, Complainant’s first level supervisor was the Area Conservationist (S1) who supervised
the nine area field offices. Complainant’s second level supervisor was the State
Conservationist for New York (S2).

On August 17, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and in reprisal for prior
protected EEO activity when:

1. On June 21, 2011, Complainant was counseled by her supervisor regarding job
performance, misuse of a government cell phone, and use of a personal vehicle
without approval while conducting government business;
2. On July 12, 2011, Complainant learned that an internal “Fact Finding”
Investigation had been launched against her on July 6, 2011, at the instigation of her
supervisor;
0120121655

2
3. On July 12, 2011, Complainant learned that her supervisor had used discriminatory
terms to describe her, including, but not limited to, accusing her of “loafing and
wasting time;”
4. Beginning on an unspecified date and continuing, Complainant’s supervisor
subjected her work and whereabouts to heightened scrutiny and surveillance; and
5. Complainant’s supervisor negatively characterized her work history and
performance in responses to the EEO Counselor assigned to the subject complaint
during informal EEO counseling.

On September 20, 2011, the Agency accepted issues (1) – (4) for further processing. The
Agency dismissed issue (5) pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a
claim.

At the conclusion of the investigation on the accepted issues, 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). 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.

In its final decision, with regard to issue (1), the Agency noted that Complainant was contacted
on June 21, 2011, as part of a planned state emergency services test; however, she did not
answer her government issued cell phone. The Agency noted that thereafter S1 asked the staff
where Complainant was; however, no one knew where she was. S1 stated she noticed the
government issued vehicle was in the office parking lot and that she then called Complainant’s
home around 1:00 p.m. wondering if Complainant was on leave. S1 stated Complainant
answered the phone and stated she was not on leave. Complainant stated that she stopped at
home to use the restroom while out in the field working. Complainant told S1 that her
government issued cell phone was dead because it had not been charged and she was using her
personal car because the government car was making an unusual noise. S1 admitted she
questioned the validity of Complainant’s responses and doubted that Complainant was working
that day meeting with clients.

The Agency noted that S1 then met with Complainant because Complainant had not mentioned
that the government vehicle had been making noise; use of a personal vehicle required prior
permission; Complainant did not have any executed contracts or proof that she was getting the
claimed signatures on the day in question; Complainant was aware that an emergency test had
been scheduled; and Complainant’s explanation was unsatisfactory. S1 stated that Complainant
told her that she was seeking signatures on contracts; however, S1 noted that those contracts
had been executed five days prior to June 21, 2011. S1 stated as a result of her concerns she
sought the advice of Human Resources on the matter.

With regard to issue (2), after consulting with Human Resources and S2, S1 decided that a
Fact Finding Investigation (FFI) was appropriate since it would allow an independent
0120121655

3
examination of the facts. The Agency noted from 2008 – 2011 the Agency conducted 21 FFIs.
The Agency noted that eight of those FFIs were launched by S1 and that four of the employees
investigated were Black and four of them were White. S2 stated there is no official policy
prohibiting an employee’s use of an employee’s personally owed vehicle for conducting
government business; however, it is generally only allowed after retaining a supervisor’s
permission. S2 also stated it was the totality of the events of June 21, 2011, that resulted in
the FFI.

With regard to issue (3), S1 stated she did not draft the language for the Fact Finding Letter.
The Human Resources Officer (HRO) stated she constructed the language used in the Fact
Finding Letter. The HRO stated that the language was taken verbatim from the Agency’s
Guide of Disciplinary Penalties.

With regard to issue (4), Complainant contended that S1 subjected her and her work to
heightened scrutiny since May 2010. Specifically, Complainant alleged that on August 25,
2011, S1 sent an electronic mail message suggesting that she did not believe that Complainant
was working, and on August 29, 2011, S1 disregarded her authority. Complainant also stated
that on September 15, 2011, S1 came into the office unannounced and told Complainant in
front of other staff members that Complainant needed to be more attentive to her clients.

S1 denied subjecting Complainant to unwarranted scrutiny or placing her under surveillance.
Rather, S1 described her actions as “routine follow up.” S1 stated her August 25, 2011
electronic mail was a normal follow up request on the status of some contracts. With regard to
the September 15, 2011 incident, S1 stated she met with Complainant in private to discuss why
Complainant was not providing a file notation she requested on a contract.

Complainant’s White co-worker (W1) worked in the Albany Field Office as a Program
Assistant. W1 stated she regularly interacted with Complainant and noted that S1 was also her
supervisor. W1 stated that on August 25, 2011, she filed a grievance with the State
Administrative Office against S1 for a hostile work environment. W1 stated S1 was a “bully,”
had favorite employees, and had “targets.” W1 stated that Complainant was one of S1’s
targets and stated that S1 scrutinized Complainant more than others. W1 stated that she had
also been on the receiving end of S1’s harassment.

Complainant’s White co-worker (W2) was an Administrative Management Specialist who was
also under the immediate supervision of S1. W2 filed a grievance against S1 on August 24,
2011, for harassment and retaliation. W2 stated that she personally observed conduct by S1
towards Complainant that she considered bullying and harassing. W2 recalled an incident on
September 15, 2011, where Complainant was crying after a conversation with S2. W2 stated
she witnessed S1 accusing Complainant of not being at her desk. W2 also described an
incident where S1 demanded a file in a condescending tone and berated Complainant in front of
others. W2 recalled another incident on August 25, 2011, where S1 was insensitive towards
Complainant who received a call from the son of a friend who had just passed away from
cancer.
0120121655

4

With regard to her harassment claim, the Agency found Complainant failed to show a pattern
of severe or pervasive conduct. The Agency also noted S1 listed the reasons she counseled
Complainant and stated S1 followed the proper procedures by consulting with Human
Resources. The Agency noted that Complainant alleged a pattern of heightened scrutiny;
however, she did not show it was based on race. The Agency noted that Complainant’s two
co-workers who were White also alleged that S1 subjected them to a hostile work environment.
The Agency stated based on the evidence it was likely that S1 was a micromanager and a
critical supervisor, but she treated everyone the same.

Additionally, the Agency stated that even if Complainant established a prima facie case of
discrimination, management asserted legitimate, non-discriminatory reasons for its actions. S1
noted that Complainant did not follow protocol for using her personal vehicle and was
unreachable on her government issued cell phone. The Agency noted that Complainant alleged
that no one else was disciplined for not answering their government issued cell phone on June
21, 2011; however, the Agency noted there is no evidence that any other employee was at
home during work hours and using a personal vehicle. Furthermore, the Agency noted that the
record reflected that S1 launched a number of FFIs over the years against both Black and
White employees. The Agency noted Complainant did not show the Agency’s actions were a
pretext for discrimination.

On appeal, Complainant claims the Fact Finding Investigation was in direct contradiction to
General Manual 110-405 Subpart M, which states a supervisor will use oral warning or
reprimand for minor infractions. Complainant claims the alleged allegations S1 accused her of
were frivolous and unjustified. Complainant states that area and state obligations deadlines
were late due to missing farmers’ signatures. She states she was not the only one who
experienced problems with needing landowners’ signatures. Complainant states she did not fail
to carry or utilize her government issued cell phone. Rather, she states that her cell phone was
not fully charged and she did not realize it until she got to the field and noticed she could not
obtain a signal. She states she used her personal vehicle instead of the government vehicle on
June 21, 2011, because the government vehicle was making noise underneath the hood.
Complainant states she did not know she had to obtain permission to use her personal vehicle.

Complainant notes there were two other employees who did not answer their government
assigned cell phone, yet she was the only employee singled out and being subjected to a Fact
Finding Investigation and an oral warning. Additionally, Complainant denies telling S1 that
she was getting signatures on the three contracts identified by S1 as having been executed five
days earlier. Instead, Complainant states that for one of those contracts she was trying to
obtain a control of land form and on the two others she was trying to give the clients forms for
record keeping. Complainant explains that she was trying to obtain signatures for another
contract that was not signed until July 23, 2011. Additionally, Complainant claims that “the
EEO Fact Finder Investigator” altered a sketch map he submitted to him detailing her
whereabouts on June 21, 2011.

0120121655

5
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”).

At the outset, we note Complainant does not challenge the Agency's dismissal of issue (5).
The Commission has the discretion to review only those issues specifically raised in an appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10
(November 9, 1999). Accordingly, we will not address the dismissal of issue (5) in this
decision.

In the present case, we find the record was fully developed. With regard to her contention on
appeal that “the EEO Fact Finder Investigator” altered a sketch map, we note that Complainant
was referring to the Fact Finding Investigator who conducted the FFI and was not an EEO
Official.

To prevail in a disparate treatment claim such as this, a complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1582). Whether the harassment is sufficiently severe to
0120121655

6
trigger a violation of Title VII must be determined by looking at all the circumstances,
including the frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).

Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its
actions which Complainant failed to show were a pretext for discrimination. We note that even
if two other employees failed to answer their phone as Complainant asserts, these two
employees did not have the additional factors like Complainant (such as using a personally
owned vehicle) that led to the FFI. Moreover with regard to her overall harassment claim, we
find Complainant failed to show by a preponderance of evidence that she was subjected to
harassment. Specifically, we find Complainant has not established by a preponderance of
evidence that the conduct to which she was subjected rose to the level of harassment, or was
motivated by discrimination on the bases of race or reprisal.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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.
0120121655

7
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

(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 12, 2013
Date