Linda F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120171243 (E.E.O.C. Oct. 25, 2018)

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

Linda F.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120171243

Agency No. ARS201600518

DECISION

On February 15, 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
October 17, 2018, final decision (FAD) 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. 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Biological Sciences
Technician, GS-9, at the Agency’s George E. Brown, Jr. Salinity Laboratory (GEBSL) in
Riverside, CA.

In April 2016, Complainant contends that she provided sufficient information to Agency
management to support an extended medical leave of absence. A review of the record
demonstrates that this documentation consisted of Form WH-380-E, Certification of Health Care
Provider for Employee’s Serious Health Condition, issued by the U.S. Department of Labor.

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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Section III of the form is to be completed by the employee’s health care provider. Complainant’s
physician averred that Complainant was “[u]nable to perform any and all job functions during
period(s) of incapacity.” When asked to describe relevant medical facts, such as symptoms,
diagnosis or any regimen of continuing treatment, Complainant’s physician said “[p]atient being
followed for a serious health condition and will be incapacitated as a result.” Complainant’s
physician signed the form by typewriting a name in the space provided for the signature of health
care provider. Complainant’s supervisor (S1) provided this form to Human Resources, which
asked that S1 obtain more detailed information about Complainant’s medical condition and obtain
a proper signature from the heath care provider. S1 then emailed Complainant and asked her to
provide “something about the reason for medical leave” and to have the form signed by a doctor.
Complainant objected to both requests. She believed that the first request was improper under the
Health Insurance Portability and Accountability Act (HIPAA), and that her physician placed a
proper electronic signature on the form.

Complainant stated that she was instructed to train a co-worker (CW1) on the soil sample data
entry protocol. When she tried to do so, CW1 yelled at Complainant and said that she did not need
Complainant’s help. On another occasion, CW1 returned from a trip collecting soil samples and
commented, “could you imagine if we would have taken [Complainant]?” Complainant contends
this was a reference to her age. Complainant also described a situation where she was standing
behind CW1, who was sitting in a chair. Complainant was training CW1 when CW1 stood up
quickly. In the process, Complainant’s hand accidentally brushed against CW1’s shoulder.
Complainant believes this caused CW1 to yell at her and say “your culture is different from my
culture and my country.” Complainant says that CW1 has verbally abused her by mocking her
accent several times.

CW1 denies harassing Complainant. CW1 also denied that she made derogatory comments
regarding Complainant’s age or making any statements about her voice, accent, or culture. CW1
insisted that Complainant touched CW1 on purpose by rubbing her back while they were sitting
next to each other. CW1 claims she told Complainant to not touch her and thought that was the
end of the matter.

Complainant says she complained to S1 about CW1’s actions on March 3, 2016, but that S1 failed
to take action in response to her complaint. Complainant also averred that there were no witnesses
to CW1’s actions. Complainant says that S1 told her not to pursue her complaint. S1 states that
he immediately notified Personnel and Labor Solutions (PALS) to report Complainant’s
complaints of harassment, and sought guidance from them. According to S1, PALS did not take
action, but S1 informally spoke with both Complainant and CW1 and directed them to be polite
and to not talk about each other in the lab. He also separated them so that they did not work
together anymore. Additionally, he asked for a meeting with Complainant and CW1, but
Complainant refused the meeting.

The PALS employee who received S1’s report of Complainant’s allegations stated that PALS did
not generate a report “due to the inconclusiveness of the Complainant’s statement.”
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According to PALS, S1 requested additional information from Complainant, including the identity
of witnesses, but she did not provide any of the requested information.

Complainant claims that after she complained of harassment by CW1, S1 blamed her when a
critical machine broke down. After Complainant drafted a set of instructions for the lab to ensure
that the machine would not break down again, S1 gave her negative feedback. Additionally,
Complainant alleges that S1 told her that she had too much time on her hands and changed her job
description without talking to her.

S1 denies he gave Complainant negative feedback, but rather thanked her for developing the
instructions and asked her to provide more detail to help employees operate the machine. S1
further denies that he told Complainant she had too much time on her hand. He explained that the
Agency experienced funding cuts and a reduction in staff two years earlier. As a result, he
informed Complainant that she would begin working on plant analysis and formalized this shift in
Complainant’s annual performance plan and goal beginning in October 2015. S1 and Complainant
later met for Complainant’s mid-year review and Complainant said she did not have time for extra
duties. S1 responded that she had time to do what he wanted her to do. S1 further testified that he
was not giving Complainant extra duties, but rather shifting duties as contained in her performance
plan.

On May 11, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (Persian), national
origin (Iranian), age (81), and in reprisal for prior protected EEO activity when:

1. On an unspecified date in April 2016, after submitting documentation from her
physician justifying medical leave, Complainant’s supervisor (S1) required
Complainant to submit private details regarding her medical condition;

2. On an unspecified date in March 2016, management failed to take corrective action
in response to Complainant’s complaint that a co-worker (CW1) was harassing her;

3. On unspecified dates from 2015 to the present, management failed to take
corrective action when CW1 directed demeaning statements toward her, used
insensitive ethnic remarks in her presence, and mocked and yelled at her; and

4. From March 2016 to the present, S1 began to behave negatively toward her after
she reported harassing treatment from CW1.

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 FAD 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.
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In its FAD, the Agency concluded that Complainant failed to demonstrate a prima facie case of
disparate treatment because she could not prove any of her claims caused her to be subjected to an
adverse action and could not establish that other employees not of her protected classes were
treated more favorably. Regarding claim (1), the Agency accepted S1’s explanation that he
requested additional explanation regarding Complainant’s medical condition based on advice from
Human Resources so that Human Resources could determine whether Complainant would be able
to return to work sooner with a work modification or accommodation. Regarding claims (2) and
(3), the Agency concluded that Complainant was not subjected to a hostile work environment
because she failed to demonstrate that the alleged harassment was sufficiently severe or pervasive
enough to alter her employment. The Agency also concluded that Complainant failed to
demonstrate that claim (4) constituted retaliation because she did not demonstrate that she was
subjected to an adverse action or that there was a nexus between Complainant’s protected EEO
activity and the allegedly adverse action.

Accordingly, the Agency concluded that Complainant failed to show that she was subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

In her brief on appeal, Complainant argues that the Agency failed to conduct an adequate
investigation of her complaint and attacks several elements of the Agency’s investigation.
Complainant then maintains that she was discriminated against and retaliated against, and that the
Agency failed to protect her from unlawful harassment. Complainant contends, for the first time
on appeal, that she constructively discharged when she was purportedly forced to retire.
Complainant disputes that she failed to request either a hearing before an EEOC Administrative
Judge or a FAD. She asserts that she selected “Option 2” when the Agency notified her that she
had a right to request a hearing or a FAD; by selecting Option 2, Complainant requested a FAD.
Accordingly, Complainant requests that the Commission reverse the FAD.

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”).

As a preliminary matter, we note that Complainant’s argument that she requested a FAD instead
of failing to submit her request does not materially affect this appeal. In either situation, the
Agency would have been obligated to immediately issue a FAD. See 29 C.F.R. § 1614.110(b).
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Further, with respect to Complainant’s dissatisfaction with the investigation into her complaint,
upon review of the entire record, the Commission is not persuaded that the investigation was
incomplete or improper. The Commission notes that Complainant requested an Agency final
decision instead of a hearing before an EEOC AJ, a process that would have afforded her the
discovery tools enumerated in Section 1614.109(d) to cure alleged defects in the record. Thus,
despite the above referenced arguments, the Commission determines that the investigation was
properly and adequately conducted.

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 he 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 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, we
proceed directly to the pretext analysis. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). Complainant may demonstrate pretext by showing by a preponderance of the
evidence that the Agency’s reasons were motivated by discrimination. Id..; Hernandez v. Dep’t of
Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human
Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, we affirm the Agency’s FAD with respect to Claim 1. Complainant’s submitted medical
information merely stated that Complainant was suffering from a “serious medical condition.”
PALS simply sought greater specificity so that it could adequately process the request for FMLA
protection. At the time, Complainant did not provide further detail. On appeal, Complainant
articulates no argument other than her suspicion that would tend to demonstrate the Agency’s
articulated reasons were false or unworthy of belief.

In claim (4), Complainant alleges that S1 retaliated against her for complaining that she was being
harassed by CW1. S1 asserts that he did not retaliate against Complainant; rather, he suggested
that Complainant add additional details to the set of instructions she developed. In addition, he
explained that the Agency suffered a reduction in personnel due to budget cuts. As a result,
through her performance plan, S1 directed Complainant to assume plant analysis responsibilities.
Thus, S1 asserts that he told Complainant she had time to perform plant analysis responsibilities.
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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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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 the Agency acted on the
basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Upon
review of the record, we find insufficient evidence to establish that the Agency’s actions were
motivated by discriminatory or retaliatory animus.

Hostile Work Environment Harassment

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). An agency is liable for unlawful harassment by a co-worker if it knew or
should have known of the alleged harassment, unless it can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d).

In short, to prove her harassment claim, Complainant must establish that she 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 a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant alleges that she was harassed by a co-worker, reported the harassment, and the
Agency failed to adequately respond. The Commission finds that Complainant has not shown that
she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment.
Moreover, Complainant failed to show that the conduct at issue occurred. There is no
corroborating evidence that CW1 subjected Complainant to any of the alleged offensive conduct.
However, even assuming that the conduct occurred as Complainant alleged, Complainant has not
demonstrated that the Agency should be held liable for the harassment. The Agency learned of
the alleged harassment by CW1 when Complainant reported it to her supervisor, S1. However,
S1’s subsequent actions foreclose imputing liability to the Agency. Once he received
Complainant’s complaint, he reported the matter to PALS and sought advice.
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The record is unclear as to whether S1 asked Complainant to identify additional witnesses, but
Complainant states that she was unable to identify witnesses. Further, S1 states that, even after
PALS notified him that it was not going to take further action, he sought to rectify the situation by
talking to both Complainant and CW1, separating the two, and ensuring they did not work with
each other. There is no evidence that any other alleged offensive conduct reoccurred. As such,
the Agency cannot be held liable for harassment.

Finally, the Commission notes that Complainant raises an allegation of constructive discharge for
the first time on appeal. Complainant is advised to initiate contact with an EEO Counselor if she
wishes to pursue additional allegations. The Commission cannot address new claims raised for
the first time on appeal.

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.

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.
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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
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

October 25, 2018
Date