Manuel R.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Dec 2, 2016

0120142958 (E.E.O.C. Dec. 2, 2016)

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

Manuel R.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120142958

Hearing No. 531-2013-00207X

Agency No. ARS-2012-00805

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 15, 2014 final
order 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supply
Technician at the Agency’s Agricultural Research Services facility in Beltsville, Maryland. On
June 28, 2012, Complainant sent an e-mail to his supervisor (S1) stating that he was requesting
overtime to handle a backlog of work regarding ordering fleet cards, correcting errors on
Personal Property Inventory Reports, and screening purchase orders. S1 informed
Complainant that there were other employees who could assist with those tasks and requested
more detail as to what Complainant was unable to complete. Complainant failed to provide the
requested information and told S1 to forget he asked. Shortly after requesting overtime,

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 verbally requested two hours of annual leave from 2:00 p.m. to 4:00 p.m. S1
informed Complainant that she had to deny the annual leave request because Complainant had
inventories that were due the next day.

On June 29, 2012, Complainant called S1 at 7:30 a.m. informing her that he was going to be
late. Complainant called again at 11:30 a.m. informing S1 that he would be not be reporting
to work that day at all, and did not provide a reason. S1 reached out to another employee to
complete Complainant’s assigned task of updating the inventory in time to meet the deadline.
S1 consulted with Labor Relations and issued Complainant a Letter of Caution on July 3,
2012. The Letter stated that Complainant was being issued the caution due to Complainant’s
deficient performance of his duties regarding his responsibility in inventory updates.
Additionally, the Letter indicated that Complainant needed to have his leave approved in
advance, except in emergency situations.

On July 3, 2012, Complainant sent the Human Resources Specialist (HRS) an email stating that
S1 was harassing him. That same day, Complainant emailed his second-level supervisor (S2),
HRS, S1, and the Area Director stating that he would like to “file a[n] official complaint
against [S1] on the bases of Harassment, Intimidation, Abusiveness, and Threats.” On July
16, 2012, S2 responded to Complainant’s email stating that if Complainant believed he was
being harassed, he should immediately contact Employee Relations. S2 mentioned that
Complainant could contact the Union Representative as well. S2 further asked that
Complainant provide a written statement regarding his allegations and assured Complainant
that he would take the steps necessary to address the issue once he received the written
statement.

On August 3, 2012, S2 met with Complainant regarding his allegations. S2 asked Complainant
about the written statement, and Complainant indicated that he was working on it.
Complainant claims that during this meeting, S2 told him that he was the “low man on the
totem pole,” that he was “holding other minorities down” by filing an EEO complaint, and
warned him not to make false accusations or risk losing his job.

On August 8, 2012, Complainant sent S1 an email requesting permission to attend the Aspiring
Leader Program, a two-month program intended for employees who have demonstrated
leadership potential. The Program cost $2,175. On August 13, 2012, S1 responded to
Complainant thanking him for his interest, but indicating that he failed to demonstrate the
necessary leadership skills. S1 stated, however, that she would provide the tools and support
necessary to enhance his position requirements and assist with finding opportunities that would
provide the leadership qualities to meet the requirements for the next session of the training.
S1 denied the requests of two other subordinates for the same training. On August 21, 2012,
S1 sent Complainant and other employees an email asking for training requests from the
Graduate School. Complainant did not respond to S1’s offer.

On November 19, 2012, S1 met with Complainant to issue his Fiscal Year 2012 performance
appraisal. Complainant received a rating of “Exceeds Fully Successful” on four of the six
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performance elements and “Meets Fully Successful” on two performance elements.
Complainant received an overall rating of “Superior.” Complainant refused to sign his
performance appraisal and ended the meeting by telling S1 that he intended to fight the
downgrade of his performance.

On September 17, 2012 (and amended on November 23, 2012), Complainant filed a formal
complaint alleging that the Agency discriminated against him and subjected him to a hostile
work environment on the bases of race (African-American), color (Black), age (53), and in
reprisal for prior protected EEO activity when:

1. On June 28, 2012, his supervisor denied his requests for overtime and annual leave;

2. On July 3, 2012, he was issued a Letter of Caution;

3. On August 13, 2012, his request to attend leadership training was denied;

4. On August 3, 2012, he was told that he was a “low man on the totem pole” and was
holding other minorities down by filing an EEO complaint, and warned to not make
false allegations or risk losing his job; and

5. On November 19, 2012, he received a “Fully Successful” rating on his annual
performance evaluation without justification.2

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ partially granted the Agency’s motion and issued a summary judgment decision on July
23, 2014, regarding claims (1), (2), (3), and (5).

In the summary judgment decision, the AJ determined that the alleged incidents (claims (1),
(2), (3), and (5)) were insufficiently severe or pervasive to establish a hostile work
environment. Additionally, the AJ found that there was no evidence that the conduct at issue
was based on discriminatory or retaliatory animus. For example, as to claim (1), S1 confirmed
that she denied Complainant’s request for overtime on June 28, 2012, because there was no
support for overtime. S1 stated that the facility had to use available resources effectively, and
she offered Complainant the assistance of other employees to complete the work to avoid the
expense of overtime. That same day, Complainant requested two hours of annual leave.
Complainant could not explain to S1 why he was requesting annual leave and overtime to
complete his work at the same time. S1 denied the request informing him that he had a
deadline to meet.

2 For ease of reference, the Commission has re-ordered the claims in chronological order.
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With respect to claim (2), Complainant was issued the Letter of Caution after he did not timely
appear for work on June 29, 2012, and requested annual leave later that day. Complainant’s
manager had to enlist the assistance of another employee to meet Complainant’s deadline for
the completion of his work at the end of the month. Regarding claim (4), S1 stated that she
informed Complainant that she denied his request for leadership training because he had not
demonstrated some of the leadership skills or potential necessary for the program.

Finally, as to claim (5), S1 provided ample justification for the overall rating of “Superior”
that she gave to Complainant. Specifically, S1 stated that Complainant had communication
problems with her which caused her to scramble to meet deadlines regarding personal property
at the last minute on several occasions when Complainant failed to tell S1 that he was having
trouble updating property inventory by the end of the month. As a result she had to assign
another employee to finish the task or pull another employee on short notice to assist
Complainant. Complainant did not challenge S1’s reasons or present evidence that the
rationale for the appraisal was not clearly set forth in the narrative in support of each
individual rating.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as to claims (1), (2), (3), and (5).

On July 23, 2014, the AJ held a hearing as to claim (4), and issued a bench decision on August
1, 2014 (and a written decision on September 5, 2014). In the decision, the AJ determined
that the record evidence did not establish that the incident occurred as Complainant alleged.
Further, the AJ found that Complainant failed to show that the conduct at issue was based on
his protected classes. At the hearing, S2 denied ever making the statements Complainant
attributed to him. S2 testified that he was not born and raised in the United States and was not
familiar with the phrase “low man on the totem pole.” In addition, S2 noted that he emailed
Complainant on July 16, 2012, informing him the process for filing a complaint and
encouraged him to contact Employee Relations and/or the Union. S2 further cited his meeting
with Complainant on August 3, 2012, where he again encouraged Complainant to detail his
problem with S1 and pointed Complainant to Employee Relations. Additionally, Complainant
did not challenge S2’s contemporaneous handwritten notes written immediately after the
meeting detailing what the two discussed. Accordingly, the AJ concluded that S2 did not make
the comments Complainant alleged and found that there was no evidence of discriminatory or
retaliatory animus. As a result, the AJ found that Complainant had not been subjected to a
hostile work environment, discrimination, or reprisal as to all claims.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as to claims (1), (2), (3), and (5). Complainant argues that the AJ ignored the
evidence he submitted showing that he was discriminated against. Accordingly, Complainant
requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The AJ’s Partial Summary Judgment Decision

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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). 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 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that he established a prima facie case of discrimination and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, nondiscriminatory reasons its actions.
Specifically, as to claim (1), S1 stated that Complainant sent her an email requesting overtime
with a list of all the duties he needed to do. ROI, at 170. S1 affirmed that she informed
Complainant that she would get him help, but Complainant responded by stating “Forget that I
ever asked.” Id. Complainant later requested two hours of annual leave that same day, but S1
denied the request because Complainant had inventories that were due the next day. Id. at
170-71. Complainant subsequently called out the next day, and another employee completed
the inventory. Id. at 171.
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With respect to claim (2), S1 asserted that she issued the Letter of Caution to Complainant
because he was deliberately calling out from work when he knew that he had deadlines to
meet. ROI, at 168. S1 added that she learned that Complainant shared with a co-worker that
he was calling out at the last minute so that management would need him and give him a raise.
Id. Further, S1 affirmed that she issued the Letter of Caution to communicate to Complainant
that she was no longer going to tolerate his actions and that if he needed assistance she would
provide it. Id.

Regarding claim (3), S1 confirmed that she denied Complainant’s training request because the
program was directed to employees who demonstrated leadership potential and Complainant
had not demonstrated the skills that the training required. ROI, at 166-67. S1 added that she
offered to provide him the tools to enhance his present position requirements and would assist
him in finding opportunities that would provide him the qualities to meet the program
requirements for the next session. Id. at 167.

Finally, as to claim (5), S1 stated that she rated Complainant as “Superior” overall because
Complainant had serious communication problems during the year. ROI, at 163. S1 affirmed
that Complainant failed to communicate with her when he was unable to meet deadlines and
management had to scramble to get work accomplished. Id. at 163-64. S1 noted that
Complainant deliberately took time off work so as not to meet deadlines and it affected the
Agency’s metrics. Id. at 164. S1 confirmed that she sent emails throughout the year asking
Complainant for communication as to when he needed assistance. Id. S1 added that
Complainant refused to sign his performance evaluation and left the meeting without discussing
it. Id. at 162-63.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's disability or prior protected activity was 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 the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed
to carry this burden. As a result, the Commission finds no basis to disturb the AJ's summary
judgment decision finding that Complainant was not subjected to discrimination or reprisal.

The AJ’s Decision After a Hearing

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

Hostile Work Environment

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).

Therefore, to prove his harassment claim, Complainant must establish that he 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 his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Upon review, the Commission finds that substantial record evidence supports the AJ’s
conclusion that Complainant failed to show that he was subjected to conduct sufficiently severe
or pervasive to create a hostile work environment. The Commission agrees with the AJ that
the record lacks evidence demonstrating that S2 made the comments as Complainant alleged.
The AJ found that S2 testified credibly that he was not familiar with the phrase “low man on
the totem pole” as English is his second language. Hr’g Tr., at 93. Additionally, the AJ
found that S2 credibly denied telling Complainant that he was holding other minorities down or
otherwise attempt to discourage Complainant from filing an EEO complaint. Id. Substantial
record evidence shows that S2 attempted to assist Complainant once he reported his harassment
allegations, including twice encouraging Complainant to submit a written statement detailing
his allegations and suggesting that he contact Employee Relations and the Union. ROI, at 237,
239.

After reviewing the record and considering arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and his factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ's finding that Complainant
has not shown that he was subjected to a discriminatory or retaliatory hostile work
environment.
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Furthermore, the record fails to disclose any evidence purporting to show any of the alleged
incidents were based on discriminatory or retaliatory animus. Accordingly, the Commission
finds that Complainant has not established that he was subjected to discrimination, reprisal, or
a hostile work environment as to all claims alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

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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

December 2, 2016
Date