Ebonie L.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20180120171444 (E.E.O.C. Dec. 4, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ebonie L.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 0120171444 Agency No. OCFO-2016-00444 DECISION On March 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 February 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED Whether the Agency discriminated against, and subjected Complainant to a hostile work environment, based on her race, color, sex, and age, when it redistributed her work; allegedly denied her training; did not give her high priority projects; gave her a Fully Successful performance rating; allegedly shared confidential information with others; did not offer her an opportunity to speak at a conference; excluded her from meetings; and communicated via email only, interfering with her ability to perform her job duties. 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. 0120171444 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency’s Collections Processing Center in New Orleans, Louisiana. Complainant stated that in 2014, her first line supervisor (S1) (Caucasian, white, female, age 45) appointed a Lead Accountant (LA), who is difficult to communicate with. Complainant stated that despite sitting near LA, they communicate via email, and are unable to resolve work issues. ROI at pgs. 139-140. Complainant stated that since November 2015, she has been excluded from meetings related to agency visits, daily processing operational changes, and different projects. ROI at pg. 137. On November 4, 2015, S1 gave Complainant a Fully Successful performance rating. Complainant stated that she was not in agreement with her rating, and did not feel that it was an accurate and fair rating of her performance. ROI at pgs. 280-281. Complainant alleged that when she met with S1 to discuss her performance rating, S1 raised her voice and “exploded.” ROI at pg. 131. In February 2016, Complainant stated that S1 asked a new, junior coworker (CW1) to speak at a conference, but not Complainant. ROI at pg. 135. On February 16, 2016, S1 changed Complainant’s registration for the Leadership Skills for Non-Supervisors course from Washington, D.C. to New Orleans on February 23-24, 2016. ROI at pg. 189. Complainant attended the Leadership Skills training, and when she returned to work on February 25, 2016, she discovered that lockboxes were removed from her cubicle. S1 redistributed the lockboxes to other employees because they were due on February 29, 2016. ROI at pgs. 119, 121, 192. Complainant informed S1 that she could have finished the lockboxes by the deadline, and was concerned that the reassignment would negatively affect her; S1 responded that this would not negatively affect her. ROI at pg. 162. Complainant stated that the coworkers who were reassigned her work spoke negatively about her performance to S1 and others. ROI at pg. 134. Also on February 25, 2016, Complainant informed S1 that she enjoyed the Leadership Skills training, and since S1 stated that she wanted to provide an opportunity to have at least “one training out of town,” she requested that S1 share any training opportunities that would be held in Washington, D.C. ROI at pg. 160. Complainant attended the Collections Summit in Washington, D.C. in March 2016. ROI at pg. 123. On unspecified dates, Complainant stated that she has not been asked to work on high visibility projects. ROI at pg. 126. On April 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (dark complexion), and age (52) when: 1. on or about February 25, 2016, her assignments were removed from her work area and redistributed to other employees; 0120171444 3 2. In February or March 2016, she was denied training and treated disparately with respect to training opportunities; 3. On unspecified dates, she was treated disparately with respect to work assignments, especially with respect to high priority projects; 4. On November 4, 2015, S1 issued her a Fully Successful performance rating, and became visibly angry and confrontational when asked for an explanation of the rating; and 5. On several dates, she was subjected to various acts of harassment, including but not limited to: a. On February 25, 2016, and other unspecified dates, management ignored her concerns, shared confidential communications with others, and allowed other employees to speak negatively about her, defame her character and team up against her; b. In February 2016, she was not offered the opportunity to speak at an upcoming summit; c. In February and March 2016, and other unspecified dates, S1 excluded her from meetings and agency visits; and d. On unspecified dates, LA communicated with her via electronic mail only, and interfered with her ability to perform her job duties.2 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 Agency found that Complainant established a prima facie case of discrimination based on her race, color, sex, and age for claims 1, and 3, but not for claims 2, 4, and 5. The Agency then found that the management officials articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, the Agency found that Complainant was out of the office for five work days, and when she returned to the office, she only had one business day to complete her lockbox assignments. S1 reassigned the lockboxes to meet the upcoming deadline. With regards to claim 2, management officials stated that due to budgetary reasons, it was more practical for Complainant to attend the Leadership Skills training locally. 2 The Agency dismissed Complainant’s claim that she was discriminated against, and harassed, when she was denied a training opportunity on or about November 25, 2015, citing untimely contact with an EEO counselor. 0120171444 4 For claim 3, the Agency found that the assignments that Complainant did not receive were given to the accountants, and that Complainant is a Program Analyst. Regarding claim 4, the Agency determined that Complainant had not presented evidence showing that her work product was above her expected duties. The Agency then found that Complainant did not show evidence that the reasons were pretext for discrimination. For Complainant’s harassment allegation, the Agency found that management officials did not consistently subject her to slurs, or other denigrating or insulting verbal conduct related to her protected classes. The Agency noted that Complainant’s alleged harassment came from interpersonal conflict, and that the events seemed isolated. The Agency concluded that the evidence shows that discrimination and harassment did not occur in this complaint. Complainant filed the instant appeal, but did not file a brief in support of her appeal. The Agency submitted a response to Complainant’s appeal on May 29, 2017, requesting that the Commission dismiss Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review 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”). As an initial matter, we note that the Agency’s final decision did not address the dismissal of Complainant’s claim that she was discriminated against, and harassed, when she was denied training in November 2015. Complainant has not challenged its dismissal for untimely EEO Counselor contact, and accordingly, we affirm the dismissal of that claim as untimely. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 0120171444 5 Once complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts back to complainant to demonstrate by a preponderance of the evidence that the agency’s reason(s) for its action was a pretext for discrimination. At all times, complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). We note that Complainant alleges that she was treated differently as compared to CW1 (Hispanic, white, female, age approximately 30 years), and another coworker (CW2) (White, white, male, age in the upper 40s).3 We find that CW1 and CW2 are not similarly situated comparators because they both hold Accountant positions, while Complainant is a Program Analyst. However, we will assume, arguendo, that Complainant established a prima facie case of discrimination based on her race, color, sex, and age. We find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that she reassigned Complainant’s lockboxes to accomplish the goal of meeting the deadline. S1 added that she frequently reassigns work based on workload and employee availability. ROI at pgs. 205-207. With regards to claim 2, S1 stated that due to budget constraints, many of the employees, including herself, had their trainings cancelled. S1 stated that there was no reason to send someone out of state when the same training was offered locally. S1 added that Complainant attended the Collections Summit training in Washington, D.C., and was approved for other trainings. ROI at pgs. 208-211. For claim 3, S1 stated that she assigned Complainant a “huge” project, and that she assigns projects based on grade level, workload, knowledge, skills and abilities, which often means that she assigns projects to the three accountants. ROI at pg. 217. For claim 4, S1 stated that she gave Complainant a Fully Successful performance rating because while Complainant met her goals, she did not “go above and beyond,” and that there was room for improvement. S1 stated that Complainant works diligently and methodically, but that she is often behind in her work. S1 denied yelling or being hostile to Complainant; S1 stated that during their meeting, she answered Complainant’s questions over and over because Complainant did not like S1’s responses. ROI at pgs. 262, 221-222. We find that Complainant has not shown that the reasons are pretext for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. 3 CW1 and CW2 did not provide statements in the instant complaint, and management officials provided their demographic information. 0120171444 6 Complainant did not make any arguments on appeal, but provided a rebuttal during the investigation. For example, Complainant stated that she was not out of the office for five days prior to her work being reassigned; however, she did not provide evidence showing her attendance. The record contains Complainant’s timesheet showing that she was out of the office on February 22-24, 2016, but Complainant did not provide her timesheet for the previous pay period to show that she was at work on February 18, and 19, 2016.4 ROI at pgs. 306-307. For claim 2, Complainant alleged that S1 and her second line supervisor (S2) (White, white, male, age 51) gave inconsistent responses as to why her Washington, D.C. training was denied. However, we do not find that their responses are inconsistent; S1 stated that Complainant’s initial trip to Washington, D.C. was canceled due to budget issues, and S2 stated that it was because the same training was offered locally. The Agency was able to save travel money by sending Complainant to a local training session, rather than sending her out of town. Additionally, the record shows that other employees had out-of-town training requests cancelled. ROI at pgs. 270-271. Complainant asserts that S1 and S2 made other statements that were incorrect or untrue; however, she only made bare assertions, and did not provide any evidence to support her assertions. Accordingly, we find that Complainant has not proven pretext for discrimination, or that the Agency discriminated against her based on her race, color, sex, or age when it redistributed her work; allegedly denied her training; did not give her high priority projects; and gave her a Fully Successful performance rating. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). For the four incidents that Complainant alleged were harassing, we find that Complainant has not shown that they occurred due to her protected categories, or that they rise to the level of an intimidating, hostile, or offensive work environment. For incident 5A, Complainant alleged that coworkers made comments to discredit her “work and character.” ROI at pg. 6. 4 Complainant’s timesheet shows that she worked overtime hours on February 21, 2016. However, S1 stated that Complainant had been out of the office for five “working days,” and Sunday would not be considered a regular work day. 0120171444 7 For incident 5B, Complainant stated that she was not asked to present at the Collections Summit, and felt overlooked and disregarded. ROI at pg. 136. S1 stated that she asked CW1 if she might give a presentation at the Collections Summit, but that Complainant was also being considered. S1 stated that she did not have a chance to talk to Complainant about giving a presentation, and that neither CW1 nor S1 gave a presentation at the conference. S1 added that they were all encouraged to participate in the discussion, but that Complainant did not speak during the session. ROI at pg. 209. For incidents 5C and 5D, we find that these were additional work-related matters. S1 stated that Complainant had been invited to meetings, but she should not expect to attend meetings that do not involve her work responsibilities. ROI at pg. 226. For incident 5D, Complainant stated that communicating with LA was difficult, which led to email communications. ROI at pg. 139. S1 stated that both Complainant and LA expressed frustration with working with the other, but has never witnessed hostile communications by either one. ROI at pg. 227. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In this case, we do not find that the complained of conduct is so offensive that it altered the conditions of Complainant’s employment. As such, we find that the Agency did not subject Complainant to a hostile work environment based on her race, color, sex, or age. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding that the Agency did not discriminate against, or subject Complainant to harassment, based on her race, color, sex, or age when it redistributed her work; allegedly denied her training; did not give her high priority projects; gave her a Fully Successful performance rating; allegedly shared confidential information with others; did not offer her an opportunity to speak at a conference; excluded her from meetings; and communicated via email only, interfering with her ability to perform her job duties. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 0120171444 8 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. 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. 0120171444 9 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 December 4, 2018 Date Copy with citationCopy as parenthetical citation