Karlene G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120170842 (E.E.O.C. Nov. 30, 2018)

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

Karlene G.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120170842

Agency No. APHIS201500612

DECISION

On December 28, 2016, 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
November 17, 2016, 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 (FAD).

ISSUES PRESENTED

Whether Complainant established that she was discriminated against and harassed based on
national origin (Latino)2, sex (female), color (brown) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when she: (1) received an annual performance
appraisal rating of fully successful; (2) was not afforded the opportunity to telework; (3) was not
allowed to work more than 10 hours per workday; (4) had her scheduled and approved training
cancelled or was ordered to reschedule her training when it preceded or followed her leave or
telework days; and was subjected to harassment when (5a) her supervisor stated that there was an
“appearance that she was never at her desk”; (5b) accused her of making administrative mistakes;

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.
2 The Commission considers terms like “Hispanic” and “Latinio” to be descriptions of national
origin, not race.
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and (5c) she was told that she had poor customer service skills and lacked attention on the
importance of good customer care.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Assistant, GS-0344-07 at the Agency’s Animal and Plant Health Inspection Service,
facility in Riverdale, Maryland. Complainant’s first level supervisor was S1 (African American,
female; medium-toned). Complainant’s second level supervisor was S2 (Caucasian, male).

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 Equal Employment
Opportunity Commission Administrative Judge). 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.

Claim 1:

Complainant stated that S2 unfairly assessed her work performance. She stated that a new
assignment was given to her with only three months remaining in the rating period. She stated that
she was not sure what S1 meant about the status of funds and her input with resource management.
She stated that S1 sought to provide her with a rating of “exceeds fully successful,” but that rating
was rejected by S2. She stated that S2 had become her second level supervisor nine (9) months
into her rating period, and that S2 was condescending towards women, claiming “he spoke
differently to men.” Complainant also stated that S2 did not like “brown people.”

S1 stated that Complainant received a “Fully Successful” rating because she did not do anything
outside the scope of her normal day-to-day assignments. She gave Complainant an opportunity to
justify a higher rating, but Complainant did not give her a response or provide examples of
performance that supported her belief that she should have been rated higher.

S2 stated that he and his immediate superior (S3) discussed evaluations. S3 believed that the
supervisors were providing inflated evaluations, and that to recognize the best employees, they
took a different stance.

Claim 2:

Complainant stated that S1 denied her request to telework from the fall of 2014 until the winter of
2015. S1 stated that S2 and S3 reduced the number of telework hours for the entire staff to one
day a week. S1 stated that after S2 and S3 saw improvement in the staff work performance,
telework was increased to 2 days per week. S1 allowed Complainant to perform some telework
during Complainant’s pregnancy.

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Claim 3:

Complainant was not permitted to work more than 10 hours per work day. She stated that it was
a violation of Agency policy. She also stated that others were permitted to work 10.5 to 11 hours.

S1 stated that S3 ordered that employees should not work more than 10 hours per workday without
prior approval, unless they were working on a special project. S1 stated that no employees under
her supervision worked more than 10 hours, nor did she recall Complainant requesting to work
more than 10 hours. S2 also did not recall any employees being authorized to work more than 10
hours per day.

Claim 4:

Complainant stated that her prescheduled training was cancelled and that she was asked by S1 to
reschedule or cancel it. Complainant stated that S1 told her the reason was that management’s
perception of her was that she was often unavailable. Complainant also stated that others were
permitted to take leave prior to and after attending the training. On the day of the training,
Complainant attended the training anyway. Complainant felt that she was being singled out, when
other could attend the training, and that this was evidence of discrimination.

S1 stated that she denied one of Complainant’s requests, a training opportunity in Minneapolis,
because it was also being held at her duty station. S1 stated that Complainant did not object. S1
also recalled an occasion when she requested that Complainant reschedule her training because
she did not have sufficient staff coverage. S1 explained that because of Complainant’s leave
schedule, she would have been absent from work for 2 consecutive weeks which would have made
coverage difficult. She stated that in the end, Complainant attended the training and rescheduled
her leave. S1 maintained that Complainant’s race, sex and/or color were not factors in this action,
and that Complainant never complained to her about being harassed.

Claim 5(a):

According to Complainant, S1 informed her that S2 felt that there was “an appearance” that
Complainant was never at her desk. Complainant stated that this allegation harmed her and caused
her stress. She considered it to be harassment because she was singled out. She asserted that she
was made to feel like she was an untrustworthy employee and because of her race, color and sex,
she was an easy target for S2 and his personal animus against her for being “female, brown, Latina
Puerto Rican.”

S1 denied making the alleged comment to Complainant. She maintained that she would not tear
someone down in that manner. S2 stated that he once commented that between Complainant’s
telework and her commitments that “she was not easy to find.” He maintained that the comment
was not made to Complainant, but only to S1. Although S2 could not recall the specific date the
comment was made, he stated that it was in the prior year.
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S2 indicated that he believed that a discussion between S1 and Complainant about attendance
would be the appropriate response to management’s concern that Complainant was hard to locate
during business hours. S2 stated that such a discussion would have applied to any employee under
similar circumstances.

Claim 5(b):

According to Complainant, on June 20, 2015, an employee emailed her and S1 regarding a payroll
issue. Complainant stated that on Monday, June 22, 2015, the employee’s issue was still
unresolved. She stated that when S2 was informed of the issue he started “cursing and yelling in
the meeting trying to ask for an explanation.” She recalled that S1 told S2 that the error was due
to an incorrect SF-52 and S1 stated that Complainant handled the SF-52. She stated that C1,
another employee, came to her defense and stated that he believed another employee had
committed the error. Complainant indicated that following the meeting it was determined that
Complainant had done nothing wrong but she did not receive an apology. Complainant maintained
that this action made her feel as if she had been “stomped on,” and that she was “disrespected.”

S1 testified that it was brought to her attention that an administrative task had not been done and
that the error was attributable to Complainant. Subsequently, they found out, however that the
error was made by another employee (African American; female; Brown). S1 stated that she was
not accusing Complainant of being at fault but was only telling her what had happened.

S2 stated that he was not aware of any harassment, but was aware that there were instances of
administrative errors and work product problems with Complainant. He maintains that there were
clear mistakes in Complainant’s documents and he requested a reconciliation, which never
occurred. S2 advised that he reported these mistakes to S1 and told her that corrections were
needed. He stated that he could not recall the date but he did recall meeting with Complainant and
S1 regarding this issue. S2 stated that Complainant’s race, color, or sex did not motivate his
actions.

Claim 5(c):

Complainant stated that she was told by S2 that she had poor customer service skills and a lack of
attention regarding the importance of good customer service. Complainant stated that she felt
singled out and that she was being attacked professionally and personally and made to feel that she
was incompetent. She argued that the feeling was enhanced because her co-workers made negative
comments behind her back. Complainant felt that this was “rude” and she felt attacked.

S2 denied telling Complainant that she had poor customer service skills and lacked attention to the
importance of good customer service. According to S2, the allegation was a misinterpretation of a
statement he made to Complainant during their discussion about service delivery and the front
office. S2 stated that he spoke about individual contributions which makes the mission successful
or unsuccessful. He explained that during the discussion, Complainant stated that she felt singled
out to which he replied that she was not being singled out and he regretted that she felt that way.
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S2 stated that he suggested that they meet with S1 to make sure that any communication issues
that led to her conclusion were resolved. He maintained that they met the following week,
discussed the prior exchange and that Complainant concluded that she understood what he was
attempting to communicate.

CONTENTIONS ON APPEAL

Complainant did not submit a brief on appeal. The Agency submitted a brief that, among other
things, asks that its FAD 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
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”).

Disparate Treatment

To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
national origin, color, sex, and reprisal, we find that the Agency presented legitimate,
nondiscriminatory reasons for its actions with regard to claims 1 - 4. Complainant did not provide
persuasive evidence that the Agency’s reasons were a pretext or that discriminatory animus played
any role.

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Harassment Claims

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” The Court explained that an “objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether
the harassment is sufficiently severe to 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.”

To establish a claim of harassment, Complainant must show that: (1) she is a member of 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 protected class;
(4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. 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 (Mar. 8, 1994) (Enforcement
Guidance on Harris). The evaluation “requires careful consideration of the social context in which
particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998).

In this case, the record does not support a finding that the Agency subjected Complainant to
discriminatory harassment, specifically, with regard to claims 5(a), (b) or (c). In this regard, we
find that the evidence does not indicate that these matters occurred because of her national origin,
(Latino), sex (female), color (brown) and reprisal for prior protected EEO activity. Moreover, these
incidents appear to reflect the normal workplace interactions, instructions, activities and tensions
found in a work environment. Further, Complainant failed to demonstrate that the purported
harassment had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or an offensive work environment because the alleged incidents,
even if accurately depicted, were neither severe or pervasive enough to rise to the level of a hostile
work environment.

Finally, with regard to claims 1 – 4, we also find that under the standards set forth in Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by the Agency in claims 1 – 4
were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).
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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 FAD.

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. 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.

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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. 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 30, 2018
Date