Latoya D.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120172990 (E.E.O.C. Dec. 18, 2018)

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

Latoya D.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120172990

Agency No. FSIS201700117

DECISION

On September 6, 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
August 24, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Food Inspector,
1863, GS-7, at the Agency’s Food Safety and Inspection Service facility in Morton, Mississippi.

On February 24, 2017, Complainant filed an EEO complaint alleging that the Agency subjected
her to harassment (nonsexual) and discrimination on the bases of race (Black), color (Black), and
reprisal for prior protected EEO activity. She alleged the Agency discriminated against her when,
on or about February 17, 2017, management officials placed her on administrative leave (“66”)
for misconduct. She described several alleged instances of harassment by management and co-
workers, including an incident in November 2016 that resulted in Complainant and a co-worker
filing workplace violence complaints, Complainant’s supervisor recommending disciplinary
action against Complainant, and Complainant’s withdrawal of her workplace complaint; an

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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incident on February 17, 2017, when management officials instructed her to return to work or go
home after she reported co-workers threatened her with physical violence; and an incident when
co-workers threatened to contact immigration on Complainant and that immigration would inflict
physical violence upon her. She also alleged she was subjected to cursing, teasing, and bullying.

The Agency accepted the complaint and conducted an investigation which revealed the following
pertinent information.

In November 2016, Complainant and a co-worker got into a heated argument at the facility.
Management removed them from the line and directed them into different office rooms.
Management obtained statements from employees who were working near the argument. The
supervising veterinarian stated that the co-worker indicated Complainant was cursing at her and
taunting her to engage physically. The co-worker felt threatened and the supervisor gave her a
pen and a workplace violence form to fill out.

The supervising veterinarian indicated Complainant was loud and belligerent in the office.
Complainant indicated she heard the co-worker talking about her and she told the co-worker to
stop talking about her and the co-worker called her names and cursed at her. The supervising
veterinarian gave Complainant a pen and a workplace violence form for her statement but
Complainant indicated she was unable to complete it at that time. He instructed Complainant to
return the next day and complete it, which she did.

On November 15, 2016, Complainant learned that the co-worker had filed a workplace violence
complaint against her and the supervisor recommended Complainant receive disciplinary action.
The supervising veterinarian indicated disciplinary action was recommended because witnesses
corroborated the co-worker’s testimony and none corroborated Complainant’s. Management
indicated a recommendation for discipline is consistent with the Agency policy of zero tolerance
for workplace violence. That said, Complainant was not disciplined, as she and the co-worker
withdrew their complaints of workplace violence.

Complainant alleged management failed to intercede when she continued to be bullied and
harassed by co-workers, after she withdrew her workplace violence complaint.

On February 16, 2017, Complainant came to work having taken medication that impaired her
ability to work. Complainant indicated she was sleepy. The supervisory veterinarian indicated
Complainant had difficulty standing and walking and fell asleep when seated. The supervisory
veterinarian asked Complainant if she wanted him to call an ambulance and Complainant
indicated she did not but Complainant agreed to let the nurse onsite check her vital signs. The
nurse determined Complainant did not need to go to the emergency room but she should see a
doctor and she would probably be unable to perform her duties the rest of the day. Complainant
was told to call someone to get her as she was too impaired to drive. She remained in the office,
on absent without leave (AWOL) status, until her family arrived to pick her up. On February 17,
2017, Complainant submitted a leave request, without a doctor’s excuse, asking to convert the
AWOL to leave without pay (LWOP). The request was emailed to the District Office.
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On February 17, 2017, Complainant left the line and came to the office to complain about
another employee on the opposite end of the line. Complainant alleged that the other employee
was talking about her and threatened her with physical violence. The supervisor investigated
Complainant’s complaint and no other employee confirmed her complaint. Complainant’s
supervisor and the supervising veterinarian told Complainant to return to the line or leave and
she refused to do either. During this time, the supervising veterinarian received notice that the
LWOP was disapproved. Management thought Complainant would escalate the situation to
violence and the supervising veterinarian emailed upper management and was instructed to call
the police to remove Complainant. Complainant was put on administrative leave (code 66) until
further notice. Complainant’s supervisor stated that Complainant was placed on administrative
leave for misconduct, which was refusal to follow instructions and insubordination. The
Agency’s policy provides for placing an employee on administrative leave when she is not
performing, behaving within an appropriate employer/employee relationship, not following
guidelines, and/or is creating an unsafe work environment. Complainant filed a workplace
violence report after being placed on administrative leave.

Complainant indicated on her workplace violence report that co-workers threatened to contact
immigration authorities on her and that immigration would inflict physical violence upon her. In
internal management email dated February 15, 2017 indicates supervisors were to speak with
inspection personnel and plant management about planned protests expected the next day,
presumably based on immigration concerns. That said, Complainant is a U.S. citizen.

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 (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.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts she did not commit any misconduct and was following orders of
the district manager. She has evidence to prove she was harassed, bullied, and subject to
discrimination.

The Agency did not submit a statement or brief in response.

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
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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”).

Complainant alleged that the Agency treated her disparately. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the
agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact
finder by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. With respect to management’s placing her on administrative leave for misconduct,
Complainant’s supervisors explained that, when Complainant stopped the inspection line and
reported a co-worker was talking about her and/or threatening her, they questioned the other
employees on the line and no one corroborated Complainant’s allegations. Complainant refused
to return to the line when ordered to do so; she was disruptive and creating a distraction and,
ultimately, was escorted out of the facility by the police. She was placed on administrative leave
for misconduct, which was refusal to follow instructions and insubordination. Therefore, we find
that Complainant has not established by a preponderance of the evidence, that the legitimate,
non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination
or motivated by some unlawful discriminatory animus.

Complainant also alleged the Agency subjected her to harassment. 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 the complainant's employment and create a hostile or abusive
working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75
(1998). 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. Thus, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.

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We find that Complainant’s harassment allegations can generally be described as either being
spoken to rudely, harshly, or in assaulting, bullying, or threatening ways or as relating to
disagreement with managerial decisions and processes, including those relating to discipline and
disciplinary procedures. Even if Complainant’s allegations that her supervisors and co-workers
spoke to her in such ways were true, we find they are insufficiently severe or pervasive as to
have altered the conditions of her employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16, 1998); and
Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the
allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted
to charge him with AWOL, and disagreed with the time the complainant entered into a sign in
log, were found to be insufficient to state a harassment claim). The allegations regarding the
statements, assuming they are true, were isolated incidents that are insufficient to support a prima
facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993).

With respect to Complainant’s allegations relating to management’s decisions, without evidence
of an unlawful animus, we have found that similar disputes do not amount to unlawful
harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014)
(The record established that the issues between the complainant and the supervisor were because
of personality conflicts and fundamental disagreements over how work should be done and how
employees should be supervised, and there is no indication that the supervisor was motivated by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes,
trivial slights and petty annoyances between a supervisor and a complainant do not rise to the
level of harassment). As a result, Complainant has failed to establish that she was subjected to
harassment relating to these allegations, as she has failed to establish that discriminatory animus
played any role in the Agency’s actions.

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.

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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. 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

December 18, 2018
Date