Marquis K.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Aug 16, 2019

0120181086 (E.E.O.C. Aug. 16, 2019)

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

Marquis K.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120181086

Agency No. FNCS201700492

DECISION

On February 13, 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
January 7, 2018 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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

During the period at issue, Complainant worked as a Diversity Program Manager, GS-0343-13 at
the Agency’s Office of Management, Office of Diversity and Inclusion in Alexandria, Virginia.

On May 12, 2017, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on national origin (Hispanic), sex (male), and in reprisal
for prior protected EEO activity as evidenced by separate incidents of alleged harassment
involving Complainant’s first line supervisor, the Director of Management Services, (RMO1),
his second line supervisor, the Deputy Administrator for Management (RMO2), as well as
Complainant’s coworker, (CW1).

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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Specifically, Complainant raised the following claims:

1. On June 1, 2017, RMO1 informed Complainant that his EEO complaint had become a
“team issue,” and as a result, RMO1 presented Complainant with the option to participate
in Conflict Prevention and Resolution or to attend a supervisor mandated conflict
management course.

2. Since filing the instant complaint, RMO1 increased deadlines for his work products.

3. Since March 2016 to the present, RMO1 assigned him with performing duties beyond
Complainant’s position description including, serving as manager and delegating duties
to a lower level employee.

4. Complainant also claimed the following incidents of harassment:

a. on October 26, 2016, Complainant’s request to provide feedback in a report was
received with indignation by RMO1; Complainant further contends that RMO1 yelled
at him that a GS-15 did not need to ask permission of her GS-13 to send something to
her boss;

b. on November 1, 2016, during a team meeting, RMO1 rolled her eyes and disregarded
Complainant’s input;

c. on November 8, 2016, RMO1 directed him and another co-worker to refrain from
contacting RMO2 by email;

d. on November 15, 2016, RMO1 recounted a story that Complainant found racially
insensitive and laughed off Complainant’s concerns;

e. on December 16, 2016 RMO1 publicly accused him of whining about his workload
and characterized his behavior in a meeting with RMO2 as distrustful;

f. on February 22, 2017, RMO1 interrupted him during a team meeting;

g. on February 27, 2017, RMO1 publicly criticized the content of an email he sent to
management as inappropriate and unnecessary;

h. on March 13, 2017, RMO1 ignored Complainant’s feedback regarding the perception
of Hispanics at a Women in Agriculture event;

i. on March 20, 2017, RMO1 scolded Complainant for his refusal to say, “good
morning,” following his disappointment with his performance appraisal; Complainant
further contends that RMO1 taunted him for moping around the office; and

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j. on March 30, 2017, RMO1 scrutinized his input during a speaker event for Women’s
History month.

After an 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Disparate Treatment – Claims 1 - 3

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII, ADEA, or Rehabilitation Act case alleging discrimination is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.
1976), aff’d 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
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 Constr. 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, 441 U.S. at
804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas 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 Products, Inc., 530 U.S. 133,
143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

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Assuming, arguendo, Complainant established a prima facie case of discrimination based on sex,
national origin and reprisal, we find that the Agency articulated legitimate, non-discriminatory
reasons for the incidents Complainant cites to establish his claim. We further find that
Complainant failed to demonstrate that the Agency’s alleged conduct was based on any
discriminatory animus toward Complainant’s protected classes.

Conflict Resolution Training

With respect to claim 1, the record indicates that Complainant approached RMO2 to discuss
problems he was having communicating with RMO1. According to RMO2, he did not
categorize Complainant’s pursuit of the EEO complaint process as a “team issue.” Rather,
RMO2 indicated that Complainant expressed concern that his supervisor, RMO1 was creating
conflict with other members of the work team as well. In an effort to help Complainant and
RMO1 improve their working relationship and communication, RMO2 suggested participation in
a training course aimed at resolving their differences. The record contains a copy of an email
from RMO2 to Complainant addressing Complainant’s concerns. Therein, RMO2 indicated that
although not mandatory, he encouraged Complainant to participate in order to learn tools
necessary to manage conflict.

Increased Work Deadlines/Higher Level Duties

Complainant contends that RMO1 increased deadlines for work products assigned to him. In
addition, Complainant alleges that RMO1 assigned him with performing duties beyond his
position description, and required him to serve as manager and delegate duties to a lower level
employee.

According to the Agency, Complainant held the incorrect belief that his coworker, CW1 reported
to him regarding work assignments. The record is clear that Complainant does not have
supervisory authority over CW1 and managerial duties are not a part of his position description.
Nonetheless, the record indicates that Complainant regularly assigned tasks to CW1 for
completion. In an effort to reestablish the proper lines of authority, RMO1 sought assistance
from the Agency’s Human Resources (HR) office. At the suggestion of HR, RMO1 instituted a
system of daily assignments for Complainant and CW1 to complete. Daily assignments came
directly from RMO1 and provided for follow-up to RMO1 as well. The system was designed to
clearly establish that both Complainant and CW1 reported to RMO1 directly and that
Complainant had no supervisory authority. Complainant’s workload remained the same.
However, the manner in which he reported his accomplishments was modified as reflected in the
daily assignment system.
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Incidents of Harassment – Claim 4

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.” 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.
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.” Id. at
23. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated
incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684
F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No. 05950152 (Feb. 8,
1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996).

In sum, 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 – in this case, his national origin, sex or
retaliatory animus. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.

Complainant claims that that RMO1 yelled at him while asserting her GS-15 grade level, rolled
her eyes in response to his input at meetings, directed him to refrain from contacting RMO2
directly, accused him of whiting about his workload, referred to him as disrespectful, interrupted
him while he was speaking in front of a group, referred to an email he sent as inappropriate and
unnecessary, called him unprofessional when he did not say “good morning” to her after he
received his performance appraisal and told him that he was moping around the office.

Concerning claim 4 (a-j), we find that the Agency properly concluded that Complainant did not
establish a claim of harassment because he failed to show that that he was subjected to severe or
pervasive treatment such as to create an unlawful work environment on any basis. The
Commission has consistently held that an alteration to an employee’s working conditions exists
if a tangible, discrete employment action is taken, e.g., hiring, firing, transfer, promotion, non-
selection, or the Agency’s actions were sufficiently severe and/or pervasive to create a hostile
work environment. The harasser’s conduct is evaluated from the objective viewpoint of a
reasonable person in a complainant’s circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). We agree with the Agency’s findings
in the FAD that the incidents, considered together and taken as a whole, do not rise to the level
of a discriminatory hostile workplace.

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CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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
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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

August 16, 2019
Date