Freddie M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

0120171647 (E.E.O.C. Dec. 21, 2018)

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

Freddie M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120171647

Agency No. OCFO-2016-00508

DECISION

On April 5, 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
March 6, 2017, final decision concerning his 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.

ISSUE PRESENTED

The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to a hostile work environment based on race, sex, age, and/or reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Information Technology Specialist/Branch Chief, GS-2210-14, in the Information Security
Branch, Information Technology Service Directorate (ITSD), at the Agency’s National Finance
Center in New Orleans, Louisiana.

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, a 50-year-old African-American male, had previously filed an EEO complaint in or
around February 2015. Complainant’s first-line supervisor was an ITSD Associate Director (S1,
55-year-old African American male with prior protected EEO activity). S1 stated that he was aware
of Complainant’s race and sex and estimated that Complainant was in his late 40s. According to
S1, he was aware that Complainant had filed another EEO complaint alleging discrimination by a
different Associate Director because he was asked to provide information during the investigation.

Complainant alleged that on April 30, 2015, S1 told him that his coworkers thought that
Complainant is arrogant, cocky, and standoffish. S1 confirmed making this statement. According
to S1, he told Complainant that he needed to “chill some” because of the way that he came across
to his coworkers. S1 stated that Complainant’s race, sex, age, and prior protected activity were not
factors in making this comment to Complainant.

In August 5, 2015, Complainant sent an email to the Acting ITSD Director requesting that two of
his subordinates be recognized with a time-off award for help with a last-minute project. S1
responded to Complainant and stated that the request should have come from S1 instead of
Complainant. According to Complainant, he usually made this type of recommendation without
S1’s approval. S1 stated that Complainant should have followed the chain of command, in
accordance with established protocol.

According to Complainant, on September 22, 2015, there were investigators in the workplace who
needed to interview his subordinates, but S1 failed to notify him in advance that the investigators
were coming. Complainant averred that the interviews were very disruptive. S1 stated that he was
unaware that there were investigators present that day until Complainant complained.

Complainant alleged that, although his coworkers frequently earned compensatory time, on
October 7, 2015, S1 questioned Complainant’s need to ever work compensatory time. S1 denied
questioning Complainant’s need to work compensatory time. According to S1, compensatory time
must be requested in advance and is approved on a case-by-case basis. Complainant stated that he
requested compensatory time for a high-priority task he completed while working extra hours on
October 21, 2015. According to Complainant, S1 questioned the need for compensatory time.
Complainant averred that it was not practical to request compensatory time in advance because of
the nature of his work. S1 stated that he asked for a reason for the compensatory time request and
that Complainant did not provide one, so he did not approve the request.

According to Complainant, he has chronic migraines, which became more frequent in January
2016. Complainant alleged that on January 20, 2016, S1 questioned his annual and sick leave
requests related to his migraines. S1 averred that Complainant originally requested two and a half
months of administrative leave, annual leave, and sick leave and that he denied Complainant’s
request for administrative leave. S1 stated that Complainant resubmitted a request for three weeks
of annual and sick leave and that he approved the revised leave request.

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S1 was out of the office on February 26, 2016, and he appointed Complainant as the Acting
Associate Director. Complainant alleged that S1 promised to have his secretary give him a list of
required tasks but that the secretary did not do so in time for Complainant to prepare for meetings
he attended. According to S1, there were no pressing issues that needed to be addressed and that
he informed Complainant about the one meeting that he needed to attend that day. On February
26, 2016, S1 emailed Complainant and asked him to complete a task for him. According to
Complainant, he had already completed the requested task on February 25, 2016. Complainant
averred that S1 admonished him for not saying that he had already completed the task. S1 denied
admonishing Complainant for not telling him that he had already completed the task.

On March 1, 2016, S1 sent Complainant an email, which stated that he sat in on a Disaster
Recovery Drill meeting and “did not like what he saw.” Complainant alleged that the tone of the
email was combative. Complainant stated that he asked S1 for a reason for not liking what he saw
and that S1 responded that the meeting was poorly attended. S1 averred that the tone of the email
was not combative but that he expressed his displeasure that turnout at the meeting was light
considering the tight timeframe for the project.

On March 15, 2016, Complainant submitted a sick leave request for the remainder of the day. S1
stated that Complainant left the workplace without telling anyone that he was leaving for the day.
S1 averred that protocol in this type of situation is to notify a manager prior to leaving for the day.
According to Complainant, S1 approved the sick leave request on March 18, 2016. On March 22,
2016, S1 emailed Complainant and stated that Complainant was missing a leave slip for March 15,
2016, and that Complainant failed to follow leave protocol because he left the office around 10:15
a.m. without telling S1 or S1’s secretary that he was leaving for the day. According to
Complainant, S1 had his secretary call him several times to ask about the status of his sick leave
request and to ask for medical documentation. On March 28, 2016, Complainant responded to the
March 22, 2016, email and attached the approved leave slip. Complainant averred that later in the
day S1 said, “My bad,” in response to the leave slip situation.

On April 29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), age (50), and reprisal for prior
protected EEO activity (filing a previous EEO complaint in February 2015) when:

1. On April 30, 2015, S1 stated that his coworkers think that he is arrogant, cocky,
and standoffish;

2. On August 5, 2015, S1 admonished him for sending a time-off request to the Acting
Division Director;

3. On October 7, 2015, S1 questioned his need to work compensatory time;

4. On October 21, 2015, S1 questioned his need for compensatory time for a high-
priority task;

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5. On January 21, 2016, S1 questioned his annual and sick leave requests;

6. On February 25, 2016, S1 appointed him acting Associate Director but failed to
provide him with an agenda or list of required tasks;

7. On February 26, 2016, S1 directed him to complete a task and then criticized him
for not informing him that it had been completed 24 hours earlier;

8. On March 1, 2016, S1 became combative and expressed his displeasure with the
first Disaster Recovery Drill meeting;

9. From March 10 to 22, 2016, S1 verbally reprimanded him by:

a. Stating that Complainant failed to follow sick leave request protocol;
b. Stating that Complainant failed to notify him prior to taking sick leave; and
c. Having his secretary make multiple phone calls to Complainant requesting the
status of sick leave documents.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his 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 him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he established a prima facie case of a hostile work
environment by preponderant evidence in the record. Complainant also contends that he
established that the Agency was liable for the hostile work environment and requests that the
matter be remanded for a supplemental investigation concerning his entitlement to compensatory
damages.

In response to Complainant’s appeal, the Agency contends that its final decision properly found
that Complainant failed to establish that he was subjected to a hostile work environment and
requests that its final decision be affirmed.

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
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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) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
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).

Here, there is no evident connection between the alleged harassment and Complainant’s race, sex,
age, and/or prior protected activity. Moreover, the alleged harassment is insufficiently severe or
pervasive to constitute a hostile work environment. With the exception of S1’s arguably
unprofessional April 30, 2015, comment, the alleged harassment appears to consist of ordinary
supervisory oversight of work performance and time and attendance. Accordingly, we find that
Complainant has failed to establish that he was subjected to a hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance
of the evidence in the record does not establish that discrimination 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:
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.
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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.

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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 21, 2018
Date