Erich A.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120171458 (E.E.O.C. Nov. 7, 2018)

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

Erich A.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120171458

Agency No. CRSD-2016-00106

DECISION

On March 6, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 10, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Equal Employment Opportunity Specialist
(EEOS), GS-0260-13, at the Agency’s Civil Rights and Conflict Management Office (CRCMO),
National Finance Center (NFC) in New Orleans, Louisiana.

On December 14, 2015, Complainant filed a formal EEO complaint claiming he was subjected to
harassment and a hostile work environment based on race (African-American) and in reprisal for
prior EEO activity

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing.

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.
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Complainant, however, subsequently withdrew the hearing request. The Agency issued the
instant final decision on February 10, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

To prove his harassment/hostile work environment claim, Complainant must establish that he
was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of his protected bases – in this case, his race
and prior protected activity. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself. Here, as discussed below,
Complainant has provided a variety of alleged incidents in support of his harassment claim.
However, he simply has not provided adequate evidence to support his claim that his race and/or
prior protected activity played any role in the disputed actions.

In allegation 1, Complainant asserted that on November 9, 2015, he was issued a “Superior”
rating on his FY 2015 performance appraisal, lower than he believed was warranted.

The Supervisory EEO Manager (Caucasian) (“the supervisor”) was Complainant’s first-level
supervisor during the relevant period. The supervisor stated that she rated Complainant as
“Superior” on the summary rating for the FY 2015 performance appraisal period. The supervisor
explained that Complainant was rated as “Exceeds” on all individual elements except
Communications and Interpersonal Relationships element in which he was rated as “Meets.”
The supervisor acknowledged that the “Meets” rating resulted in an overall rating of “Superior.”
The supervisor explained that Complainant “was soft-spoken, who preferred face-to-face
meetings (with other employees, including management officials, and co-workers) where he
would show up at their desks; rather than communicating by telephones or emails, or by making
appointments. Complainant did not meet the ‘Exceeds’ performance standard based on the
continuing series of complaints about being disrespectful to others by interrupting their work and
being overly persistent when communicating with others within and outside of CRCMO.”

The supervisor stated that she informed Complainant several times about the concerns with his
method of communication and interpersonal skills “to which he only replied he preferred face-to-
face meetings and that it was his communication style. I have tried to explain to him that his
method of communication is giving him the reputation of one who ‘walks the halls’ (a meaning
at NFC for someone who isn’t working), to no avail.” The supervisor stated that during the
evaluation discussion in October 2015, when she tried to explain to Complainant the basis for the
rating of the communications element and the need to improve his interpersonal skills, he
covered his ears and, “repeatedly said ‘I’m not listening to you’ and walked out of my office
despite my telling him not to leave.”

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In allegation 2, Complainant alleged that on October 27, 2015, the supervisor stated in an
aggravated manner “handicap is just like saying nigger,” and that since October 27, 2015, she
has refused to apologize for her use of the word “handicap” and the racial slur “nigger.”

The supervisor stated that in October 2015, she received a document from another EEOS which
repeatedly contained the word “handicap” in it and, “I explained to the EEOS that using this
word was a slur, and had negative connotations under the disability guidelines, just like the word
‘nigger’ under the racial guidelines and the word for ‘wetback’ (or ‘wop,’ I don’t recall which)
under national origin guidelines. I informed the EEOS that it was more appropriate to use the
word ‘disability.’” The supervisor stated that during her conversation with the EEOS, she was
unaware that Complainant overheard their conversation. The supervisor stated, “I do not
consider overhearing a one-time conversation an act of harassment; my comments were not
directed to Complainant, and were certainly not said aggressively.” Moreover, the supervisor
stated that while she did not apologize to other employees, including Complainant, she
apologized to the EEOS “directly involved in this conversation.”

The EEOS (African-American, prior protected activity) stated that on or about October 27, 2015,
he was involved in discussions with the supervisor on the appropriate terminology for his report
on disability program activities. The EEOS stated that the supervisor’s comments “were made
directly and specifically to me when discussing the use of the word ‘handicap.’ I researched the
issue and determined that the word ‘handicap’ was used extensively in various federal
documents.” The EEOS stated he was offended by the racial epithet used by the supervisor as a
example during this discussion, but indicated he said so and accepted the supervisor’s apology.
Moreover, the EEOS stated “in my opinion, an apology to all other CRCMO staff members,
including Complainant, was unnecessary. Before October 2015, I had not witnessed similar
comments from [supervisor].”

In allegation 3, Complainant asserted on an unspecified date, he was denied the opportunity to
attend training. The supervisor stated that from July 9, 2015 through September 24, 2015, she
was on extended medical leave. The supervisor further stated that at that time she did not have
any discussions including training related issues which involved Complainant. Further, the
supervisor stated that from October 2012 to September 2015, EEO Specialists could only attend
EEOC’s Excel Conference or a similar training conference every other year due to budget and
travel restrictions. The supervisor asserted that Complainant attended conferences in 2013 and
2015.

In allegation 4, Complainant asserted that on February 1, 2016, despite receiving prior approval
from another management official, his supervisor refused to allow him to work on an office
project.

The supervisor explained that on January 29, 2016, she learned that Complainant had been
working on several items with representatives from the Graphics Office. The supervisor stated
that on the day in question, a Visual Information Specialist came to the office wanting to speak
with Complainant.
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The supervisor stated that because Complainant was not in the office, she offered to help the
Visual Information Specialist with some draft documents. The supervisor stated that she
informed the Visual Information Specialist that she would get back to her after reviewing the
documents. The supervisor stated that based on her review of the documents, she provided
Complainant with her reasons for not needing the forms and posters.

In allegation 5, Complainant asserted that the supervisor wanted him to “take the fall” for her
failure to approve funding for investigations. The supervisor, however, stated that she simply
asked Complainant to determine the reasons for the investigation delays when he raised the issue
to her attention.

In allegation 6, Complainant claimed that on November 4, 2015, his supervisor forbade him from
discussing the informal complaint process with a new EEO Specialist.

The supervisor stated that on November 4, 2015, she informed Complainant that two other
EEOSs would mentor the new EEO Counselor and that he did not have to worry about training
the new counselor. The supervisor further stated that her discussion with Complainant was
conducted in a professional manner. Furthermore, the supervisor explained that Complainant’s
focus was within the formal complaints only and “his assigned duties to not involve being an
OCFO EEO Counselor.”

In allegation 7, Complainant asserted that on November 4, 2015, his supervisor refused to
provide him with a copy of his FY 2015 performance appraisal.

The supervisor denied refusing to provide Complainant with a copy of his FY 2015 performance
appraisal. The supervisor stated that Complainant claimed that on November 9, 2015 that, “I had
not given it to him, to which I replied I left it in his chair on November 6, 2015, a day when he
was not at work. He said it was only his mid-year and a worksheet but, as I heard nothing after
this, he must have realized the worksheet was the evaluation and his mid-year including his
standards and my comments.”

In allegation 8, Complainant claimed that on October 18, 2015, his supervisor ignored his
requests to discuss her purposeful deletion of his data from a case log.

The supervisor denied deleting Complainant’s data from any official case logs. The supervisor
stated that she deleted numerous case logs “that were created by someone which had made it
confusing as to which were the official logs.” The supervisor further stated that on December
17, 2015, a Complaints meeting was about to start with the front office and she decided to
prepare Complainant’s report, “but could not find the information in the FY 2016 log.
Fortunately, Complainant showed up out of breath five minutes before the meeting started and
had his report ready. I had already sent him an email asking him to put his information into the
official log.”

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The supervisor stated that on December 24, 2015, Complainant “finally attempted to do what I
had asked him. On January 28, 2016, I brought up the issue of the old and new logs at a
CRCMO staff meeting, stating I would be changing the log titles to clarify which was which;
[Complainant] said nothing about his concerns about the logs.”

With respect to Complainant’s allegation that the supervisor and Acting Deputy Director treated
him poorly after he shared concerns about the EEO complaint process, the supervisor stated that
his allegation is related to the internal EEO logs.

In allegation 9, Complainant claimed that from July 2015 to September 2015, he was denied the
opportunity to act as the EEO manager although he had acted in this capacity periodically over
the past three years.

The supervisor explained that none of the EEOS assigned to CRCMO were designated as Acting
Chief of CRCMO during her extended medical leave. The supervisor stated that a named
manager at her grade level served as the Acting Chief from July 13, 2015 to September 18, 2015.
Furthermore, the supervisor stated that Complainant was not considered for the acting
managerial responsibility “the same as his coworkers.”

In allegation 10, Complainant asserted that in June 2015, his supervisor ordered him not to call a
senior management official to report the alleged discriminatory activities occurring within his
business unit.

The supervisor stated that while she does not recall the exact conversation, it involved
Complainant’s disagreement with one of her supervisory decisions. The supervisor stated that
Complainant told her that he was going to call the Chief Financial Official, and she repeatedly
told him that he was expected to use the chain of command.

In allegation 11, Complainant asserted that on March 11, 2015, his second-level supervisor told
him that it was “none of his business” after Complainant attempted to discuss with him what
appeared to be a discriminatory selection process by the supervisor involving the hiring of an
EEO Specialist.

The supervisor stated that Complainant was concerned that she did not make a second selection
off a particular certificate of eligibles. However, the supervisor indicated she did pick one of the
candidates, but he declined the offer. She stated that she decided to no longer use the certificate
and re-announce the vacancy because she was not impressed with the qualifications of the
remaining candidates on the certificate. She said that she could not “attest to what my supervisor
told [Complainant] because I was not present, but it would not surprise me if [Complainant] was
told filling CRCMO vacancies is part of my supervisory duties and not a part of his job duties.”

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In allegation 12, Complainant claimed that on March 12, 2014, after a coworker in his office
became ill, his supervisor stated to him, “you have to take leave if you are going to take
[coworker] home, and if you do, you will be on your own if something happens to you while you
are doing so.”

The supervisor stated at that time, a co-worker had a panic attack, and she contacted the Safety
Officer stated that the co-worker wanted to go home but did not want to call her husband. The
supervisor stated that the Safety Officer told her that NFC could not be responsible if an accident
occurred while transporting the co-worker home and that they had to be on their own time. The
supervisor stated that when Complainant volunteered to take the co-worker home, she informed
him “of the personal responsibility and workers compensation guidelines as defined by the
Safety Officer. I then asked Complainant if he still wanted to take her home and he said that [he
would]. Complainant requested leave that I approved.”

In allegation 13, Complainant asserted that on an unspecified date, he was prohibited from
retrieving mail near the Acting Deputy Director’s office. The supervisor stated that the Acting
Deputy Director told her “more than once that he observed Complainant in his office area,
interrupting the employees there to just chat. [Acting Deputy Director] informed me that he was
tired of this disruptive behavior.” The supervisor stated that she then informed Complainant of
the Acting Deputy Director’s concerns and “his response was that he went to the Director’s
office to get the mail. I informed Complainant that getting mail was the EEO Assistant’s job.”

Based on the evidence developed during the investigation, we find that the responsible
management official proffered legitimate, non-discriminatory reasons for each of the disputed
incidents. Complainant did not submit any statement on appeal and, during the investigation,
failed to prove, by a preponderance of the evidence, that discriminatory and retaliatory animus
played any role in the events that formed the basis of his harassment/hostile work environment
claim.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination or unlawful retaliation occurred.

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:
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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.
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.

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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 7, 2018
Date