Otis B., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jul 21, 2017

0120161607 (E.E.O.C. Jul. 21, 2017)

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

Otis B.,
Complainant,

v.

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

Appeal No. 0120161607

Hearing No. 540-2013-00075X

Agency No. FS-2012-00195

DECISION

On April 26, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 7, 2016, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

Complainant was hired on January 31, 2011, as a Human Resources Assistant in the Human
Resources Management (HRM) Contact Center for the Agency’s Albuquerque Service Center
located in Albuquerque, New Mexico. Complainant’s position was to serve as the first line of
assistance for responding to human resources related inquiries from internal and external
customers. He was subjected to a one-year probationary period.

Person A was Complainant’s first line supervisor from January 2011 through September 2011,
and then from December 2011 to January 2012.

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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In October 2011, Complainant was transferred to the supervision of Person B. From October
2011 to December 6, 2011, Person B was Complainant’s first line supervisor. Person C was
Complainant’s Team Lead from October 2011 to December 6, 2011. The Team Lead was
responsible for making sure all the agents under Person B, including Complainant, were doing
their assigned case work and to provide them with assistance with their cases and review their
cases. Person C provided feedback to Complainant on his cases through email and “Sametime”
messages.

Person D was Complainant’s second line supervisor during the entire time he was employed at
the Agency.

In October and November 2011, Complainant told Person B that that he felt the emails and
“Sametime” messages from Person C were harassing. Complainant did not say that he believed
this harassment was based on age or sex discrimination.

Beginning on November 10, 2011, and thereafter, Person B and other managers repeatedly met
with Employee Relations for guidance in dealing with concerns regarding Complainant’s
performance.

On November 25, 2011, Complainant emailed Person B, Person C, and Person D requesting a
meeting to address concerns about his performance and a training plan. Complainant specifically
requested Person E serve as his Team Lead.

On December 2, 2011, Complainant sent management a packet of information setting forth his
concerns after hearing from a coworker on December 1, 2011, that he would be terminated
during his probationary period.

In December 2011, the Secretary of Agriculture visited the Agency and held a town hall meeting.
Complainant’s name was placed in a hat, along with others, and names were randomly selected
who could attend the meeting. Complainant’s name was not selected.

On December 6, 2011, Complainant met with the Branch Chief for the Contact Center and
Person D. Complainant stated that Person C was talking to him in a rude, condescending
manner, and was harassing him and picking on him with her communications. Complainant
stated that he wanted to change supervisors and Leads. The Branch Chief stated he would be
willing to change Complainant’s supervisor back to his former supervisor, Person A, to remove
him from working with Person C. Complainant stated that he did not want that change and
instead wanted to be transferred to the Information Technology (IT) section. The Branch Chief
stated that he could not transfer Complainant to the IT unit because it was not part of HRM and
also that as a probationary employee, Complainant had to complete his probationary year in
HRM.

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Complainant was moved from the supervision of Person B and Person C and returned to the
supervision of Person A. After the move, Person E was assigned as Complainant’s Team Lead
(whom Complainant had requested).

On December 13, 2011, Complainant first contacted an EEO Counselor alleging harassment by
his Lead Supervisor.

On December 22, 2011, Person A gave Complainant his evaluation for the rating period of
January 30, 2011, through September 30, 2011. Complainant received an overall rating of fully
successful. The second page of the evaluation contained information that was critical of
Complainant’s performance. Complainant claimed that he did not obtain a copy of the second
page of the evaluation until January 5, 2012.

On January 6, 2012, the Assistant Director for HRM and the Knowledge Division Manager met
with Complainant and presented him a Notice of Termination During Probationary Period. The
Notice indicated that Complainant has been unable to progress in his aptitude as an effective
Contact Center Agent. The Notice stated Complainant failed to attend individual training, failed
to respond to emails his supervisor sent, has not complied with management instructions, and has
not received constructive criticism well.

On March 31, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to harassment on the bases of sex (male), age, and in reprisal for
protected EEO activity when:

1. on January 6, 2012, he was issued a Letter of Termination during his Probationary
Period, which immediately removed him from his Career Conditional appointment as
a GS-0203-05, Human Resources Assistant;
2. on December 6, 2011, management denied his request to transfer to the Information
Technology (IT) unit and instead placed him under his previous supervisor, who had
allegedly failed to adequately train him;
3. on November 25, 2011, his request to transfer to another Lead Human Resources
Assistant for training was denied;
4. In October 2011, he was not placed on a Performance Improvement Plan (PIP)
5. beginning in October 2011, and continuing until January 6, 2012, he was subjected to
various acts of harassment, including but not limited to:
a. on December 28, 2011, he was threatened with removal if he did not reveal
the sources who advised him of his pending termination;
b. on December 22, 2011, he requested a copy of his Performance Appraisal and
did not receive it until January 5, 2012, when it was supplemented with
documentation which contained negative comments about his performance;
c. on December 8, 2011, he was denied the opportunity to attend a town hall
meeting held by the Secretary of Agriculture;
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d. on November 14, 2011, November 22, 2011, December 6, 2011, and
December 28, 2011, management failed to take corrective action in response
to his complaints about harassment and a hostile work environment;
e. from October 2011 to December 6, 2011, he continuously received rude,
embarrassing, harassing, and hostile communications from his training Lead
Human Resources Assistant; and
f. in October 2011, he was not given an interim appraisal.2

At the conclusion of the investigation on the accepted issues, 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
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing and issued a decision without a hearing on
March 21, 2016. In her decision, the AJ noted that Complainant dropped his claim of age
discrimination and claim (4) that in October 2011, he was not placed on a Performance
Improvement Plan (PIP).

The Agency subsequently issued a final order on April 7, 2016. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

On appeal, Complainant reiterates many of the same arguments raised before the EEOC AJ.
Complainant cites a December 6, 2011 email he sent to the Branch Chief complaining about
harassment by Person C. Complainant argues that this put the Agency on notice that he was
subjected to harassment. Further, Complainant stated that on December 8, 2011, the Employee
Relations (ER) Supervisor informed management of the importance of providing an assessment
documenting a potential termination of Complainant. Complainant argues the timing is suspect
since he filed a complaint with the Branch Chief on December 6, 2011, about harassment by
Person C. Complainant also notes he initiated an EEO complaint on December 13, 2011.
Complainant states that on December 23, 2011, the Agency sought delegation of authority to
terminate him, stressing the importance of his pending end date of probation and his EEO
complaint. Complainant argues this shows that no decision had been made to terminate him at
that time. Complainant argues he established retaliation since the Agency took adverse action by
removing him within two months of reporting harassment.

In response to Complainant’s appeal, the Agency requests the Commission uphold the AJ’s
decision and the Agency’s final order.

2 Complainant also alleged four additional claims regarding the issue that the Agency did not
offer him union representation and actions by union officials. The Agency dismissed all four
claims for failure to state a claim. Complainant does not challenge the Agency’s dismissal of
those claims on appeal. Thus, we will not address the dismissal of those claims on appeal.
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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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact. Moreover, we note that on appeal Complainant does not challenge
the AJ’s definition of the bases or claims raised in his complaint.

At the outset, we find Complainant failed to establish that he engaged in EEO activity prior to
December 13, 2011. Although Complainant did complain about harassment by Person C
beginning in November 2011, he did not allege that such harassment was based on any protected
bases.

With regard to his termination, we find the Agency articulated legitimate, nondiscriminatory
reasons for his termination. The Agency noted Complainant was terminated for poor
performance during his probationary period. The record reveals that beginning on November 10,
2011, and thereafter, Person B and other managers repeatedly met with Employee Relations for
guidance in dealing with concerns regarding Complainant’s performance. Moreover, the record
reveals that Complainant was on notice that his supervisors thought his performance was lacking.

Complainant notes that on December 23, 2011, the Agency sought delegation of authority to
terminate him, stressing the importance of his pending end date of probation and his EEO
complaint. Complainant claims this shows that no decision had been made to terminate him at
that time and thus, he argues he established retaliation since the Agency took adverse action by
removing him within two months of reporting harassment. First, while we note that Employee
Relations requested delegated authority from the Agency to terminate Complainant’s
employment on December 23, 2011, the record reveals this is one part of a larger process to
remove an employee from the Agency. The record reveals that management was actively
working with Employee Relations regarding the possibility of terminating Complainant prior to
his EEO contact. Moreover, the record shows that Complainant himself believed the decision to
terminate him was made on December 1, 2011, when he contacted management after being told
by a coworker that the Agency decided to terminate him. Second, we note that while the
December 23, 2011 email from Employee Relations Supervisor mentioned Complainant’s
probationary period was ending on January 29, 2011, and noted that an informal EEO case was
pending against Person C, we find nothing improper about those references.

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With regard to his request to transfer to the IT Unit, the Agency stated it denied this request
because the Branch Chief and Person D did not have the authority to transfer Complainant to a
unit outside of HRM and also because Complainant was a probationary employee who had to
finish his probation inside HRM.

With regard to his request to transfer to another Lead, we note that the Agency ultimately
granted this request and Person E was assigned as Complainant’s Lead (as he had requested).

As part of his harassment claim, Complainant stated that on December 22, 2011, he requested a
copy of his performance evaluation and did not receive it until January 5, 2012, when it was
supplemented with documentation that contained negative comments about his performance.
The record reveals that on December 22, 2011, Person A presented Complainant a copy of his
evaluation which he signed as having received the same day. Complainant requested a copy of
his evaluation that same day. The record reveals Person A was on leave from December 23,
2011 until January 4, 2012. Complainant was on sick leave on January 4, 2012. Person A
provided Complainant a copy of his appraisal on January 5, 2012, the first day they were both in
the office after his request for a copy of the appraisal. There is no indication the delay in
providing Complainant a copy of the evaluation was discriminatory or retaliatory. Even
assuming the second page with the critical information was not given to Complainant until
January 5, 2012, there is no evidence that this action was taken because of reprisal or sex.

With regard to not being able to attend the town hall meeting, the record reveals the Agency had
a limited number of seats available for the meeting with the Secretary of Agriculture. As a
result, the Agency randomly selected employees to attend the event. The record reveals
Complainant’s name was submitted for the random drawing; however, his name was not
selected.

With regard to Complainant’s claim that he was threatened with removal if he did not reveal the
sources of who advised him of his pending termination, we note that in his affidavit Complainant
dropped that claim.

Despite his assertion to the contrary, we find that he failed to establish that he continuously
received rude, embarrassing, harassing communications from Person C. A review of the record
reveals that Person C’s comments were not objectively harassing or rude. As the AJ noted, at
times her comments were “somewhat sharp or direct” but we note there was no evidence that the
tone was unlike that used for non-male employees. In addition, Complainant failed to show that
the comments were made in retaliation for his protected activity.

Upon review we find the evidence fails to establish a genuine issue of material fact regarding the
existence of a hostile work environment or whether management took any action against
Complainant based on unlawful consideration of his sex or in reprisal for protected EEO activity.
To the extent that Complainant is contending that he was subjected to disparate treatment
discrimination, the Agency has provided legitimate, nondiscriminatory explanations for its
actions.
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Complainant has failed to adduce any evidence showing these explanations to be pretextual.
With regard to his hostile work environment claim, Complainant has not established that any of
the actions taken by the Agency as set forth above were motivated by discriminatory animus.
Consequently, we find Complainant did not prove that he was subjected to unlawful harassment.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFRMED.

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

July 21, 2017__
Date