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

Equal Employment Opportunity Commission

Jul 31, 2019

0120181434 (E.E.O.C. Jul. 31, 2019)

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

Latoyia B.,1
Complainant,

v.

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

Appeal No. 0120181434

Agency No. APHIS-2017-00679

DECISION

On March 19, 2018, 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 13, 2018 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. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Plant Protection and
Quarantine Technician, GS-0421-7, in the Citrus Health Response Program at the Agency’s
facility in Orlando, Florida.

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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On June 23, 2017, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her race (Native American) 2, national origin (Native
American), sex (female) and in reprisal for her prior protected EEO activity when:

1. On February 9, 2017, Complainant’s Manager failed to renew her four-year term
appointment resulting in her termination;

2. On November 20, 2016, Complainant was issued a “Fully Successful” Fiscal Year (FY)
2016 performance rating;

3. On November 9, 2016, Complainant was denied leave under the Family Medical Leave
Act (FMLA); and

4. On several dates, Complainant was subjected to harassment, including but not limited
to:

a. On August 8, 2016, Complainant was instructed to perform inspections in
dangerous working conditions;

b. On November 9, 2016, Complainant was mistreated and yelled at;

c. On unspecified dates, the Manager retrieved information from Complainant’s
computer during her absence from the office;

d. On unspecified dates, Complainant was subjected to racial slurs and name
calling while in the workplace; and

e. On unspecified dates, Complainant’s coworkers denied her an office template
in order to prepare correspondence.

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).

In the decision, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal and determined that management articulated legitimate,
nondiscriminatory reasons for its actions.

2 The Letter of Acceptance listed Complainant’s race as Hispanic and her national origin as Puerto
Rican. Complainant subsequently stated that her race is American Indian and her national origin
is American.
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With regard to claim (1), Complainant stated that her Manager asserted the Agency had been under
a hiring freeze for several years, and all hiring decisions required submission and approval of a
hiring waiver. Complainant stated that the Manager informed her he submitted the hiring waiver,
but he had not yet received a positive response. Complainant maintained that all of her coworkers
with similar term appointments had their appointments renewed. According to the Agency, the
Federal government-wide hiring freeze due to the change in Administration precluded
Complainant’s position from being advertised. The Manager asserted that he never received
approval for a hiring waiver. According to the Manager, if there had been no hiring freeze, the
position would have been advertised and Complainant would have had an opportunity to compete
for the position. The Manager and Complainant’s Second-Line Supervisor stated that Complainant
was the only staff employee whose four-year term appointment expired during the hiring freeze.

Complainant argued that the Presidential Memorandum regarding the Hiring Freeze did not
prohibit making reallocations to meet the highest priority needs to ensure that essential services
were not interrupted, and national security was not affected. The Agency noted that management
did not believe Complainant’s position qualified for an exemption from the hiring freeze. The
Agency observed that the Memorandum provided that a term appointment may be extended up to
the maximum allowable time limit, consistent with the conditions/requirements of the legal
authority used to appoint the employee. The Agency reasoned that the four-year term for
Complainant’s term appointment expired on Complainant’s termination date, thus the position had
already reached the maximum allowable time limit. Neither the Manager nor the Second-Line
Supervisor had any authority to supersede the Presidential Order.

With respect to claim (2), Complainant argued that she should have received a higher rating than
“Fully Successful”. According to Complainant, she should have received an “Exceeds” rating
because she performed at the 100 percent level in each category on her performance assessment.
The Manager asserted that he issued Complainant a “Fully Successful” rating because that is what
she earned. The Manager stated that Complainant received a 2017 performance plan suggesting
actions she might pursue to attain an “Exceeds” level of performance, and she received a mid-year
review to discuss her standing. According to the Manager, Complainant did not engage in the
activities suggested for her to receive an “Exceeds” rating.

The Agency considered Complainant’s accomplishments alongside her position description. The
Agency determined that Complainant’s accomplishments appeared to be in line with, but not above
the position description’s requirements. The Agency concluded that Complainant’s performance
did not demonstrate that her work exceeded daily production goals, provided a heightened level of
leadership or assistance, or improved the efficiency and productivity of the work overall.

In terms of claim (3), Complainant claimed that the Manager denied her request for FMLA leave.
According to Complainant, the Manager informed her she should not have applied for FMLA leave
and asked her questions about her leave request. Complainant stated that the Second-Line
Supervisor notified her she had not applied for FMLA correctly. The Manager asserted that
Complainant was initially confused about the type of leave she should be taking, and the
appropriate circumstances for taking FMLA.
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According to the Agency, the Manager addressed concerns Complainant had and worked with her
to make the necessary adjustments to properly enter her time.

The Agency concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or reprisal as to claims (1) – (3).

In terms of the incidents in Complainant’s harassment claim, as for (4a), Complainant stated that
a coworker set up samples for her to retrieve and one sample was placed in an area she could not
safely access. Complainant claimed that the coworker recorded her refusal to retrieve the sample.
The coworker asserted that no one was instructed to work in dangerous working conditions. With
regard to claim (4b), Complainant maintained that the Manager confronted her publicly and loudly
to discuss her leave request. Complainant emailed the Manager afterwards complaining about his
demeanor and tone of voice. The Manager denied mistreating or yelling at Complainant. As for
claim (4c), Complainant asserted that her Manager retrieved information from her computer during
her absence from the office. According to Complainant, she received an error message stating that
she had already logged in, and that it was a duplicate login attempt. The Manager denied having
any knowledge of this matter.

With regard to claim (4d), Complainant claimed that she was subjected to racial slurs and name
calling while in the workplace. Complainant stated that she heard her coworkers say the only way
minorities got promoted was by filing EEO complaints, and that they did not deserve their
positions. According to Complainant, she informed that Manager she was being harassed and he
transferred her from the Mt. Dora office to the Orlando office. Complainant stated that she
believed she was targeted for harassment once she arrived in the Orlando office. With respect to
claim (4e), Complainant maintained that her coworkers denied her an office template and
documents when she needed to complete certain assignments. The Agency stated that the
Manager, the Second-line Supervisor and a coworker denied having any knowledge of this issue.

The Agency determined that Complainant did not establish that she was subjected to a
discriminatory or retaliatory hostile work environment. The Agency stated there were no
corroborating witnesses attesting to any demeaning or racially insensitive statements. The Agency
noted that in support of her claim that she was subjected to hateful speech due to her Native
American heritage, Complainant presented a vague recollection of overhearing a conversation
about minorities being undeserving of their positions. The Agency stated that even assuming all
of Complainant’s claims were true, the actions were not sufficiently severe or pervasive to create
a hostile work environment. Accordingly, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged.

Thereafter, Complainant filed the instant appeal without submitting any arguments or contentions
in support. In response, the Agency asserts that the appeal should be dismissed as Complainant
filed a civil action pertaining to the matters at issue in the instant appeal. The Agency submits a
copy of the civil action.
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ANALYSIS AND FINDINGS

Initially, we shall address the Agency’s assertion that the claims in the instant appeal were raised
in a civil action. By regulation, the filing of a civil action terminates EEOC processing of an
appeal. See 29 C.F.R. § 1614.410. The record reflects that Complainant filed a civil action on
June 20, 2017, in the United States District Court for the Middle District of Florida, Civil Action
No. 6:17-cv-00989-GKS-TBS. Therein, Complainant raised allegations regarding being subjected
to racial slurs as referenced in claim (4d). The civil action, however, addresses the alleged hostile
work environment Complainant experienced while she worked at the Mt. Dora office. Thus, to
the extent that any portion of claim (4d) involves Complainant’s tenure at the Mt. Dora office, our
review of that claim is precluded by the filing of the civil action. The portion of claim (4d) that
involves a hostile work environment for Complainant at the Orlando office is not affected by the
filing of the civil action.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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 Constr. Corp. 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 prima facie inquiry may be dispensed with where the Agency articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995)

We shall assume arguendo that Complainant has set forth a prima facie case of discrimination and
reprisal with regard to claims (1) – (3). The Agency has articulated legitimate, nondiscriminatory
reasons for its actions. With regard to claim (1), the Agency stated that the Federal government-
wide hiring freeze due to the change in Administration precluded Complainant’s position from
being advertised. The Manager asserted that he never received approval for a hiring waiver. The
Agency observed that the Presidential Memorandum Regarding the Hiring Freeze provided that a
term appointment may be extended up to the maximum allowable time limit, consistent with the
conditions/requirements of the legal authority used to appoint the employee. The Agency stated
that the four-year term for Complainant’s term appointment expired on Complainant’s termination
date and therefore the position had already reached the maximum allowable time limit.

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In terms of claim (2), the Agency determined that Complainant’s accomplishments warranted a
“Fully Successful” rating as they appeared to be in line with, but not above the position
description’s requirements. The Agency stated that Complainant’s performance did not
demonstrate that her work exceeded daily production goals, provided a heightened level of
leadership or assistance, or improved the efficiency and productivity of the work overall. With
respect to claim (3), the Manager maintained that Complainant was initially confused about the
type of leave she should be taking, and the appropriate circumstances for taking FMLA. The
Manager stated that he addressed Complainant’s concerns and worked with her to make the
necessary adjustments to properly enter her time. Complainant requested and was granted one day
of FMLA leave off.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

The Commission finds no persuasive evidence that Complainant's protected classes were a factor
in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory or retaliatory motivation was a factor in its actions. Complainant
failed to carry this burden. As a result, the Commission finds that Complainant has not established
that she was subjected to discrimination or reprisal as alleged.

Hostile Work Environment

To establish this claim, Complainant must show that: (1) she belongs to a statutorily protected
class; (2) she 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 her 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.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working
environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes
with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Upon review of the alleged acts of harassment, we find that whether considered individually or
cumulatively, the incidents alleged by Complainant do not constitute a hostile work environment.
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or retaliatory
animus played a role in any of the Agency's actions. The record reflects that the alleged incidents
were more likely the result of routine supervision and general workplace disputes and tribulations.
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Complainant has not provided corroboration to support her version of the alleged incidents. For
example, management officials denied that any Agency employee was instructed to work in
dangerous conditions. Furthermore, Complainant’s Manager denied raising his voice or
mistreating Complainant. He noted that Complainant sent him an email stating she was disturbed
by his demeanor and tone of voice during a leave request discussion; however, he denied using an
angry tone of voice. In addition, management officials explained that each employee had their
own log-in information; therefore, no one could access information from Complainant’s computer
without that information. Management officials denied any knowledge of Complainant being
denied an office template.

With regard to her claim that she was subjected to racial slurs, Complainant did not provide
specific information about this allegation; however, as noted above, it appears that the remarks
Complainant considered racially offensive were uttered during her tenure at the Mt. Dora office.
Complainant stated that she reported to management that she was being harassed and was
transferred from Mt. Dora to the Orlando office. As previously discussed, the record indicates that
Complainant included this allegation in her civil action; therefore, our review of those remarks is
precluded by that filing. The only aspect of this claim that relates to Complainant’s time at the
Orlando office is her statement that the Manager had a nasty disposition with her. We discern no
evidence of discriminatory or retaliatory animus toward Complainant with regard to her work
environment in the Orlando office. Accordingly, we find that Complainant has not established
that she was subjected to discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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. The court has the sole

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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

July 31, 2019
Date