[Redacted], Angeles C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020001072 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angeles C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency. Appeal No. 2020001072 Agency Nos. FNCS-CF-2018-00240, FNCS-2018-00258 DECISION On November 1, 2019, 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 September 27, 2019, 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. For the following reasons, the Commission MODIFIES the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination or harassment based on race, national origin, sex, and/or reprisal. BACKGROUND At the time of events giving rise to this consolidated complaint, Complainant worked as a GS- 0201-15 Human Resources (HR) Director at the Agency’s Food and Nutrition Service (FNS), Office of Management, Human Resources Division (HRD) facility in Alexandria, Virginia. 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. 2020001072 2 Complainant’s first-line supervisor was the Deputy Administrator for Management (S1), her second-line supervisor was the Associate Administrator and Chief Operating Officer for Management, Finance, and Technology (S2), and her third-line supervisor was the Food and Nutrition Service Administrator (S3). Complainant is female, her national origin is Panamanian, and she identified her race as Afro Latina or Black Latina. Complainant stated that she is very vocal about being proud of her Panamanian and Afro Latina heritage. According to Complainant, she engaged in protected EEO activity in December 2017 when she first contacted an EEO counselor. Complainant also informed the contract consultant (CC1) who was conducting a December 2017 climate assessment and management inquiry that she was considering filing an EEO complaint based on the way she was being treated. Complainant alleged that CC1 told her that she was conducting the climate assessment because S1 had filed an EEO complaint against S2, which alleged that S2’s treatment of Complainant was a cause of tension between S1 and S2. Complainant averred that CC1 told her that it would be better to resolve her issue through the climate assessment instead of the EEO process, because “the process is long and furthermore it will be difficult under this Administration since this Administration does not care about EEO. Thus trying to deter me from filing.” Report of Investigation (ROI) at 161. Complainant stated that, on August 4, 2016, she scheduled a meeting with S1 to discuss some concerns. According to Complainant, S1 sent her Special Assistant (SA1) to the meeting in her place. Complainant alleged that her concerns dealt with the way S1 was supervising Complainant, so SA1 would not be able to discuss or address her concerns. S1 averred that she did not specifically remember the referenced meeting, but she stated that she has sent a Special Assistant to attend a meeting on her behalf on multiple occasions. SA1 stated that he did not remember the meeting in question, but he stated that he met with Complainant multiple times to discuss work. Complainant stated that S1 created barriers for her as the HR Director. Complainant averred that, on January 31, 2017, S1 admonished her for responding to and directly communicating with upper management. S1 denied admonishing Complainant. According to Complainant, S1 told her not to communicate with senior management without first going through S1, even if it meant she would not be able to meet a deadline. Complainant averred that, on June 22, 2017, an employee was having trouble obtaining documents from an unresponsive Agency official for an EEO matter. Complainant stated that she asked S1 to help because the documents were due the following day and that S1 agreed. According to Complainant, when she forwarded the email correspondence to S1, S1 responded that she expected such matters to be handled at the staff level first and asked for evidence that the staff member had attempted to handle the matter before Complainant escalated it to S1. Complainant alleged that S1’s response was inappropriate because she implied that HR had failed to do something when the Agency official in question had a reputation for not responding to inquiries. 2020001072 3 Complainant alleged that, during a June 22, 2017, meeting, the Associate General Counsel (GC1) repeatedly addressed Complainant using the incorrect Hispanic surname, “Hernandez,” even after being corrected that Complainant’s last name was not Hernandez. According to Complainant, GC1 told her, “Word on the street about you is not good” and implied that there were issues with Complainant’s performance. ROI at 162. Complainant averred that, when S2 stated that there were no issues with Complainant’s performance, GC1 responded, “Not yet.” Id. Complainant stated that, when she referred to her background as an organizational psychologist, GC1 stood up and picked up a few plaques and other credentials, as though she was countering Complainant’s professional background by highlighting GC1’s own achievements and accolades. According to GC1, she attended a meeting to address some recurring Human Resources and EEO issues. GC1 denied that anyone at the meeting stated that Complainant had a bad reputation, but she stated that it was communicated that HRD “needed to get their house in order so that they would come into compliance with EEO and HR requirements.” ROI at 285. GC1 averred that she did mistakenly refer to Complainant using the wrong last name because she had a high school classmate whose last name was “Hernandez” who had the same first name as Complainant. S2 stated that the meeting was very tense and that GC1 was very aggressive during the meeting. S2 averred that GC1 said, “Word on the street is that there are issues in personnel” and compared Complainant to a former employee who had caused a number of HR issues that reflected poorly on management. ROI at 291. According to S2, when she responded that Complainant did not have any performance issues, GC1 replied, “None that you are aware of.” Id. S2 added that GC1 repeatedly referred to Complainant using the wrong last name, “Hernandez.” According to Complainant, S1 inundated her with emails on November 17, 2017, which was a week before Complainant would resume reporting to S1. Complainant averred that many of the emails concerned the transition of HRD from the Chief Operating Officer and would have been more appropriately addressed to S2. S1 denied inundating Complainant with emails, although she averred that she uses email to communicate with her staff and to assign work. S1 stated that HRD was returning from reporting to S2 to reporting to her on November 26, 2017, and she added that she was on annual leave and out of the country through November 29, 2017. Complainant stated that during a November 21, 2017, meeting, S3 referred to Human Resources as a “thinkless job.” ROI at 163. Complainant alleged that S3’s statement implied that completing Human Resource tasks did not require critical thought or brain power, which was demeaning and degrading. According to Complainant, S3 repeated the “thinkless” terminology two times during the meeting. S3 stated that he did not remember calling HR a “thinkless job.” According to S3, he has said on multiple occasions that HR is a “thankless job,” meaning that HR is difficult and often underappreciated and that S3 wanted to commit the needed support to accomplishing HR tasks. S2 stated that she was present at the meeting and that S3 twice referred to HR as a “thinkless job.” The Senior HR Technical Advisor (C1) averred that S3 twice referred to HR as “thinkless,” and she stated that there was no confusion that he meant “thinkless.” 2020001072 4 Complainant alleged that S1 treated her differently than she treated her other subordinates. Complainant averred that, on November 30, 2017, S1 provided her with a spreadsheet and asked her to complete it, implying that S1 asked all of her direct reports to complete the spreadsheet. Complainant alleged that she later learned that she was the only employee S1 was requiring to complete the spreadsheet. S1 denied treating Complainant differently than her other subordinates. According to S1, Complainant was her only direct report who was transitioning back to her, so she went over administrative issues as well as HR matters with Complainant on November 30, 2017. Complainant stated that S1 also asked for full access to her calendar to improve communication and logistics. However, according to Complainant, even after she granted S1 access to her calendar, S1 continued to schedule meetings that conflicted with Complainant’s schedule. Complainant averred that S1 gave HRD budget approval authority to the Chief Learning Officer (C2), one of Complainant’s direct reports, and restricted Complainant’s ability to access, execute, or monitor the budget and attend meetings between S1 and C2. S1 denied taking budgetary authority away from Complainant or giving budgetary authority to C2. According to S1, as the senior executive, she maintained budgetary authority over HRD while HRD reported to her. S2 stated that, when HRD began reporting to her for 120 days, she learned that S1 had given budgetary authority to Complainant’s subordinate, C2, and that S1 had directed management to withhold access to the budget from Complainant. C1 averred that, when C2 left the Agency, S1 placed the budget authority with herself instead of giving Complainant oversight of the budget. According to C1, the HR Director historically had the budget authority. S3 stated that, after a management investigation, a third party recommended a climate assessment for the HRD. S3 averred that he notified S1 about the climate assessment and asked her to notify HRD employees and schedule the interviews for the climate assessment. According to Complainant, on November 30, 2017, several of her subordinates told her that they had been asked to complete a survey about the office environment and were contacted by S1’s office about meeting with S3 on December 4 or 5, 2017, to discuss a climate assessment that was being conducted about the HRD. Complainant stated that she had been unaware of the survey or that a climate assessment was being conducted and that she was unable to answer subordinates’ questions about why the climate assessment was being conducted. Complainant averred that she called S1 on November 30, 2017, and S1 told her that a climate assessment was being conducted and that Complainant would need to make herself available at 9:00 a.m. on December 4, 2017, to meet with an investigator. According to S1, S3 informed her about the climate assessment for the first time during the afternoon of November 30, 2017. S1 stated that she went to Complainant’s office around 2:15 p.m. and that Complainant was not there, so she sent her an email at 2:20 p.m. asking her to call her. S1 averred that Complainant called her about an hour later, which is when S1 informed her about the climate assessment. Complainant alleged that, when she asked S1 why the climate assessment was being conducted during their November 30 phone call, S1 told her that S3 had indicated that he had invested a lot in Human Resources and wanted to make sure that there were no concerns or issues in the HRD. S1 denied any involvement in deciding to conduct a climate assessment. 2020001072 5 At 4:31 p.m. on November 30, 2017, Complainant sent an email to her subordinates that repeated what S1 had said, that S3 had invested a lot in the HRD and wanted to ensure that there were no issues or concerns. According to Complainant, several individuals subsequently approached her and said they had been provided with different reasons for the climate assessment that did not align with the reasons stated in Complainant’s email. A Human Resources Specialist (C3) stated that, when he asked Complainant about the climate assessment after he was called by S1’s secretary to schedule an interview, Complainant did not know that a climate assessment was being conducted and appeared frustrated that she had been cut out of communication. According to C3, it was unusual that Complainant was not the first person to tell him about the climate assessment and that she did not seem to know anything about the process. C1 agreed that Complainant seemed to have been excluded from communication about the climate assessment and that the way the climate assessment was announced was unusual. Complainant stated that, on December 1, 2017, S1 sent an email to C1, questioning guidance that had been provided by HRD. Complainant averred that S1 also distributed emails suggesting that HRD had failed to provide required notifications to the union when HRD had not been involved in the process in question. According to Complainant, these emails were another attempt by S1 to undermine her authority and make HRD look bad. S1 denied undermining Complainant’s authority, noting that Complainant was on sick leave on December 1, 2017. The record contains a November 30, 2017, email from S1 to her direct reports, asking them to update their employees’ performance standards. On November 30, 2017, C1 emailed S1 and copied Complainant, asking S1 if the union was notified that the performance standards were going to change and if the union was provided with a final copy of the new standards. On December 1, 2017, S1 responded to C1, copying Complainant and SA1. S1 asked C1 to provide the requirements from the collective bargaining agreement or other guidance that performance standards needed to be negotiated with the union. S1 added, “Based on your question, I assume that HRD notified the union and ensured they were provided the final copy of the changes sent to supervisors in September and October. Please provide this information by noon today so that we can clear up any confusion.” ROI at 244. C1 stated that S1 abused her authority and created a hostile work environment for HRD staff. According to C1, instead of supporting Complainant and the HRD, S1 frequently challenged and sabotaged HRD. C1 noted that Complainant was the fourth HR Director she had worked with at the Agency and that previous HR Directors had more support, more authority, and less scrutiny than Complainant received from S1. C1 averred that the environment improved while HRD temporarily reported to S2. Complainant met with CC1 on December 4, 2017, for her climate assessment interview. According to Complainant, CC1 did not ask her questions typical of a climate assessment. Complainant alleged that CC1 told her that S1 had filed an EEO complaint naming S2 as the responsible management official and describing Complainant as a cause of her conflict with S2. Complainant stated that she was not aware that S1 had filed an EEO complaint and added that she became concerned that S1 naming Complainant in her EEO complaint had prompted the climate assessment. Complainant averred that CC1 told her that the climate assessment was happening because HRD had concerns and S3 wanted to assess the climate. 2020001072 6 Complainant alleged that CC1 also discouraged Complainant from pursuing the EEO process, stating, “It is better for you to try to resolve this issue in this platform rather than EEO. Because the process is long and furthermore it will be difficult under this Administration since this Administration does not care about EEO.” ROI at 167. On December 4, 2017, Complainant emailed the Civil Rights Division Director (CR1), requesting a meeting to discuss her concerns that she was being subjected to a hostile work environment and discrimination. Complainant and CR1 met on December 5, 2017. After the December 5 meeting, CR1 sent Complainant a responsive email. In the email, CR1 notified Complainant that he had notified the Agency about her harassment allegation and that the Agency would take appropriate and corrective measures to address her claim. CR1 also stated that, if Complainant wanted to file an EEO complaint regarding the harassment or other claims of discrimination, she should initiate contact with an EEO counselor within 45 days of the alleged incident. Complainant stated that, on December 6, 2017, S1 told her to report any upcoming meetings with senior management so that S1 could attend. According to Complainant, her peers were not required to give notice of meetings with senior executives to their supervisor or get supervisory approval to respond to senior executives. S1 stated that she asked Complainant to tell her about any upcoming meetings so she could attend as Complainant transitioned back under her supervision. According to S1, Complainant sent her an email on December 6, 2017, asking her to clarify her expectations, and she responded with an email clarifying her expectations. The record contains a December 6, 2017, email from S1 to Complainant, attaching a version of the spreadsheet she had discussed with Complainant at their November 30, 2017, meeting and asking Complainant to tell her about any briefings or meetings that HRD had with S1’s chain of command, including S2 and S3. Complainant responded on December 6, 2017, “As it relates to briefs or meetings with your chain of command, since the 120-days are over, I am under the impression that the chain of command would inform you that they wish for HRD to brief or meet with them. Unless, something changed, that was the mode of operation previously under your leadership. Please clarify if I am mistaken.” ROI at 247-48. S1 responded on December 6, 2017, that Complainant was correct that her chain of command would communicate any needs or expectations moving forward. However, S1 added that she was asking Complainant to include her in any pending meetings or briefings HRD had scheduled prior to HRD coming back under S1’s supervision on November 26, 2017. S3 stated that a Confidential Assistant (CA1) asked Complainant to attend a management inquiry and that Complainant told CA1 that she was refusing to attend the inquiry. On December 8, 2017, S3 emailed Complainant, conveying his disappointment that Complainant was refusing to attend a management inquiry interview conducted by CC1’s company that was scheduled for December 11. According to Complainant, she responded on December 11, 2017, clarifying that she was respectfully declining to attend the meeting because she did not believe the process would be objective or neutral, particularly since it was being conducted by CC1’s company. After S3 replied, directing Complainant to participate in the interview with CC1’s company, Complainant emailed CR1. 2020001072 7 Complainant asked CR1 for guidance, noting that she had respectfully declined “the management inquiry interview due to a conflict of intertest and my belief that the process will not be objective or neutral, since [CC1’s company] introduced a chilling effect by their statement indicating they ‘would not recommend me to file an EEO complaint,’ which I believe is inappropriate and in violation of Title VII statu[t]es. Furthermore, the narrative included the statement that ‘if you go down that route it will be a long process and under this administration, EEO is not important.’” ROI at 206-07. On December 11, 2017, CR1 responded, noting that the management inquiry was in response to harassment allegations Complainant had raised against S1 and was unrelated to her EEO complaint. CR1 added, “You have stated that [CC1’s company] has discouraged you from exercising your right to file an EEO complaint. I want to ensure you that you do in fact have a right to file an EEO complaint.” ROI at 205. Complainant averred that, on December 20, 2017, she signed into a meeting that S1 had scheduled for the time as another meeting on Complainant’s calendar, but the meeting had already concluded. According to Complainant, although the meeting with S1 was supposed to last an hour, S1 told her that the meeting had only lasted 10 minutes. Complainant stated that S1 sent her an email rebuking her for not being on time for meetings, directing Complainant to make S1 aware of her schedule, and implying that Complainant’s staff was unprepared for the meeting. Complainant averred that S1 was aware that Complainant had another meeting at that time because she had demanded access to Complainant’s calendar. Complainant alleged that S1 had not communicated the purpose of the meeting or provided an agenda. S1 denied rebuking Complainant. According to S1, she sent an email to Complainant on December 20, 2017, stating her expectations that Complainant and her staff should timely attend meetings, that Complainant tell her when she could not attend meetings, and to make sure Complainant’s staff was prepared to brief S1 at scheduled meetings. C3 stated that he and C1 attended the meeting and that S1 asked for updates about projects that were outside of his responsibilities. According to C3, S1 had not provided any information about the meeting other than the subject line of the invitation. C3 averred that the employee who was responsible for the projects in question was not invited to attend. C1 stated that she told S1 that Complainant had a conflict with the time of the meeting but that S1 insisted on proceeding. According to Complainant, when she returned to work after two weeks of leave in January 2018, S1 told her that she would need to change her schedule because of a change in the Agency’s telework policy. Complainant stated that she asked to work a compressed 4-10 work schedule with no telework days and that S1 denied her request. Complainant averred that she asked S1 for an extension of her current schedule to make the necessary adjustments to her personal schedule. According to Complainant, S1 never responded to her request for an extension, so she effectively denied the request. S1 stated that all her direct reports, including Complainant, were granted an extension of their schedules until March 5, 2018. The record contains a January 30, 2018, email from Complainant to S1 about her new schedule, stating, “As I await your consideration, I wanted to let you know that the effective date of my new schedule was today, however, since this is the 2nd week of the pay period - if the decision is to proceed as schedule[d], I will begin that schedule on Monday the beginning of the pay period. This is because the 5/4/9 schedule will not work since I worked regular hours last week.” ROI at 266. 2020001072 8 On January 30, 2018, S1 replied, “Hi [Complainant], Yes, that works.” Id. The record also contains a February 2, 2018, email from SA1 to S1’s direct reports, including Complainant, stating that S1 would allow her staff to extend their previous schedules until March 5, 2018. Complainant alleged that she was constructively discharged when, on February 2, 2018, she was forced to retire, effective immediately. According to Complainant, S1’s harassment rose to the level where she was forced out of her position. Complainant stated that S1 subjected her to unnecessary scrutiny, questioned her work ethic, disrespected her heritage, race, and gender, excluded her from management decision processes, and required her to justify every decision and all guidance from HRD staff. Complainant averred that, at the end, S1 subjected her to attacks of a personal nature. Complainant alleged that S1, S3, and GC1 did not want an Afro Latina/Black Hispanic woman as the HR Director. The record contains a copy of Complainant’s February 2, 2018, resignation letter. In the letter, Complainant stated that she had been subjected to unfounded and unwarranted scrutiny for the past two months that seemed to have been designed to make her working conditions intolerable and force her to resign. ROI at 368. Complainant alleged that she was disrespected and humiliated because she is a woman and because she is Hispanic and that she had no choice but to resign. Id. Complainant stated that S1 altered her final timesheet, delaying payment for hours she had worked. Complainant alleged that S1 had her time and attendance altered to investigate false claims that Complainant was trying to defraud the government by requesting payment for non- work hours. According to Complainant, S1 had authorized her to work overtime over a weekend to prepare for a government shutdown. Complainant averred that S1 even sent her an email thanking her for all the work she did during the shutdown. The record contains a January 22, 2018, email from S1 to Complainant, which states, “Thanks for all your work related to Shutdown activities. Please validate your timecard today so I can certify it.” ROI at 217. The record also contains a February 6, 2018, email from S1 to C2, who had validated Complainant’s timecard, asking about the 14 hours of overtime that did not appear to correspond to an overtime request and a February 7 response, stating that Complainant told C2 that the overtime was preparation for the government shutdown. ROI at 227-28. On February 7, 2018, C2 emailed S1, stating that he had removed the overtime from Complainant’s timesheet pursuant to S1’s instructions. ROI at 222-23. According to S1, overtime is supposed to be preapproved, and she had not approved Complainant’s overtime. S1 averred that, after an investigation, Complainant was paid for the overtime hours worked. Procedural History Complainant initiated contact with an EEO counselor on December 5, 2017, and this inquiry was given Agency No. FNCS-CF-2018-00240. Complainant contacted an EEO counselor again on December 15, 2017, and this inquiry was given Agency No. FNCS-2018-00258. On February 5, 2018, Complainant filed two EEO complaints, which the Agency consolidated for processing. Complainant amended her consolidated complaint on March 14, 2018. 2020001072 9 In her consolidated EEO complaint, Complainant alleged that the Agency discriminated against her on the bases of race (Afro Latina/Black Latina), national origin (Panamanian), sex (female), and reprisal for prior protected EEO activity when: 1. On various dates, she was subjected to harassment, including when: a. On August 4, 2016, S1 sent SA1 to meet with Complainant to discuss her concerns, rather than attending in person; b. On January 31, 2017, she was admonished for responding to and directly communicating with upper management and was instructed not to do so without notice to S1; c. On June 22, 2017, S1 chastised her for failing to provide evidence that she had attempted to resolve an issue at the staff level prior to escalating the issue to management; d. During a June 22, 2017, meeting, GC1 repeatedly addressed her by the wrong name, criticized her, and implied that she had a bad reputation; e. On November 17, 2017, she was inundated with emails from S1; f. On November 21, 2017, S3 referred to Human Resources as a “thinkless” job; g. On November 30, 2017, she was notified by a subordinate, rather than management, that the HRD would be going a climate assessment per the direction of S3; h. On December 1, 2017, and other dates, Complainant and her staff were accused of not executing the responsibilities of the HRD, and Complainant’s authority as the HRD Director was undermined; i. On December 4, 2017, during her climate assessment interview, she was: i. Informed that she had been raised as an issue in another employee’s EEO complaint; ii. Given several conflicting reasons for management’s request for the climate assessment; and iii. Discouraged from utilizing the EEO process by CC1; j. On December 6, 2017, she was directed to report any upcoming meetings with upper management so that S1 could attend; k. On December 8, 2017, and continuing, she was severely reproached for declining to attend a management inquiry interview; l. On December 20, 2017, S1 rebuked her for missing a meeting and accused her of sending unprepared staff members in her place; and m. After February 2, 2018, management altered her final timesheet, which delayed her payment for time she had worked; 2. On November 30, 2017, S1 treated her differently by placing demands on her that were not placed on her similarly-situated colleagues; 3. On an unspecified date, S1 placed the HRD budget authority with C2, Complainant’s subordinate employee, and restricted Complainant’s ability to access, execute, or monitor the budget and attend budget-related meetings; 4. On or about January 30, 2018, she was not permitted to change her work schedule in light of the new Agency-wide telework policy; 2020001072 10 5. On or about February 2, 2018, S1 denied her request to continue her existing telework schedule until March 5, 2018; and 6. On February 2, 2018, she was constructively discharged when she was forced to retire from her GS-0201-15 Human Resources Director position.2 The Agency processed Complainant’s consolidated EEO complaint as a mixed case. At the conclusion of the investigation, the Agency issued a final decision on September 7, 2018, with appeal rights to the Merit Systems Protection Board (MSPB). Complainant appealed the Agency’s decision to the MSPB, which dismissed Complainant’s appeal on jurisdictional grounds. Complainant filed a petition for review of the MSPB’s final order to the Commission. In EEOC Petition No. 2019004078 (June 26, 2019), the Commission denied Complainant’s petition for lack of jurisdiction, remanding the matter to the Agency for further processing as a non-mixed case. On remand, 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). In accordance with Complainant’s request, on September 27, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s final decision was subjective and not supported by substantive evidence. Complainant argues that the Agency did not comply with the Commission’s order in Petition No. 2019004078, noting that the September 27, 2019, final decision was identical to the original final decision issued on September 7, 2018. According to Complainant, she established that she was subjected to discrimination and a hostile work environment that culminated in her constructive discharge. In response to Complainant’s appeal, the Agency requests that its final decision finding no discrimination be affirmed. 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 2 The claims from the consolidated EEO complaints have been rearranged in chronological order. 2020001072 11 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS As a preliminary matter, Complainant contends on appeal that the Agency failed to comply with the Commission’s order in Petition No. 2019004078. However, the record reflects that the Agency complied with the Commission’s order by processing Complainant’s EEO complaint as a non-mixed case and notifying her of the right to request a hearing before an EEOC AJ or to request an immediate final decision pursuant to 29 C.F.R. § 1614.110. Complainant requested a final decision, and the Agency issued its final decision in accordance with her request. 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). 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has 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 Products, 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). Complainant alleged that she was discriminated against when S1 placed demands on her that were not placed on S1’s other subordinates. According to Complainant, S1 asked her to fill out a spreadsheet that she had not asked her other direct reports to complete and asked her to share her calendar. The Agency’s legitimate, nondiscriminatory explanation is that Complainant and the HRD were returning to S1’s supervision after temporarily reporting to S2 and that no other divisions had been temporarily reassigned. S1 asked Complainant to add upcoming HRD deadlines, meetings, and deliverables to the spreadsheet so she would understand the status of HRD work. Although Complainant contends that S1 singled her out, she has not established by preponderant evidence that the Agency’s legitimate, nondiscriminatory reason is a pretext for discrimination based on race, national origin, sex, and/or reprisal. Complainant also alleged that she was subjected to discrimination when S1 gave HRD budgetary authority to one of Complainant’s subordinates and restricted Complainant’s access to the budget. The Agency’s legitimate, nondiscriminatory explanation is that S1, as the senior executive responsible for HRD, retained authority over the HRD budget. S1 denied giving authority for all or part of the HRD budget to C2 or any of Complainant’s subordinates. 2020001072 12 Complainant, S2, and C1 all stated that the HR Director had more authority over the HRD budget while HRD reported to S2 and while HRD had reported to other Deputy Administrators before S1. However, we find that, although S1’s actions deviated from past practice, Complainant has not established by the preponderance of the evidence that the Agency’s proffered reason is a pretext for discrimination based on race, national origin, sex, and/or reprisal. Complainant also alleged discrimination regarding her schedule change and alleged that she was discriminated against when S1 would not allow her to extend her current schedule. The Agency’s legitimate, nondiscriminatory reason for asking Complainant to change her schedule in January 2018 was the Agency’s new telework policy, which limited the number of days per pay period that Complainant could telework. As evidence of pretext, Complainant noted that S1 allowed another employee to telework full time when she had to move to Williamsburg, Virginia, to care for her parents. However, Complainant did not request to telework full time, and we find that she has not otherwise established that the Agency’s legitimate, nondiscriminatory reason for asking her to change her schedule in January 2018 was pretextual. Complainant also alleged that S1 denied her request for a new schedule and that S1 subsequently would not allow her to postpone the effective date of her new schedule. However, we find that Complainant has not established a prima facie case of discrimination with respect to these allegations, as the record contains a January 30, 2018, email from S1 approving Complainant’s new schedule and a February 2, 2018, email from S1 to her staff, including Complainant, allowing the staff an extension to implement their schedules under the new telework policy. Therefore, Complainant has not established by preponderant evidence that she was subjected to an adverse action. Complainant alleged that she was discriminated against when S1 interfered with the processing of her final timesheet, delaying payment for overtime hours Complainant had worked to prepare for the government shutdown. The Agency’s legitimate, nondiscriminatory reason for investigating Complainant’s overtime hours was that Complainant had not requested overtime hours or received approval to work the overtime hours in advance, in accordance with the Agency’s policy. Once S1 received documentation that Complainant had been asked to work the overtime hours, Complainant was compensated for the overtime she worked. Although Complainant generally contends that S1 interfered to discriminate against her, we find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for its actions was a pretext designed to mask discriminatory or retaliatory animus. Harassment Complainant alleged that she was subjected to harassment based on race, national origin, sex, and reprisal. To establish a claim of harassment a 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) 2020001072 13 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). 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 at 6 (Mar. 8, 1994). Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a hostile work environment. Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). We find that there is no evident connection between many of the instances of alleged harassment and Complainant’s membership in any protected class. Complainant alleged that she was harassed by S1, including when S1 sent SA1 to meet with Complainant instead of attending the meeting herself, when S1 “admonished” her for responding directly to upper management without notifying S1 first, when S1 asked if HRD had attempted to resolve an issue before asking S1 to escalate it, when S1 “inundated” Complainant with emails, when S1 accused HRD of not executing its responsibilities and undermined Complainant’s authority as HR Director, when S1 directed her to report upcoming meetings with senior management, and when S1 “rebuked” her for not attending a meeting on time and told her that C1 and C3 had not been prepared for the meeting. We find that these alleged instances of harassment amount to S1 assigning Complainant work and addressing communication issues. Similarly, Complainant alleged that she was subjected to harassment when S3 referred to HR as a “thinkless job,” when she found out about the climate assessment from her subordinates instead of from S3 or S1 directly, and when she was “reproached” by S3 for declining to attend a management inquiry interview. Although S3 denied referring to HR as a “thinkless job,” S2 and C1, who also attended the meeting, agreed that it was unambiguous that S3 called HR “thinkless.” However, Complainant has not established that this remark was connected to her race, national origin, sex, and/or participation in protected EEO activity. Moreover, although several witnesses agreed that it was unusual that Complainant was not aware of the climate assessment before her subordinates, Complainant has not established that these actions were based on her membership in any protected class. Finally, regarding the management inquiry, S3’s communication appears to amount to a direction to participate in an investigation of Complainant’s own harassment allegations. 2020001072 14 Complainant alleged that, during a June 22, 2017, meeting, GC1 referred to her multiple times using the wrong Hispanic surname and also criticized her and implied that she had a bad reputation. GC1 stated that she used the wrong name for Complainant because she had a classmate who shared a first name with Complainant whose last name was Hernandez. S2 agreed that the atmosphere at the meeting with GC1 was tense. However, based on the statements of GC1 and S2, the preponderance of the evidence establishes that GC1’s comments were directed at recurring personnel issues and issues with the EEO program rather than directed at Complainant personally. Although it was discourteous for GC1 to use the wrong name for Complainant, we find that this is insufficient to establish a connection between the alleged harassment and Complainant’s race, national origin, or membership in another protected class. Reprisal Complainant alleged that during the December 4, 2017, climate assessment interview, CC1 attempted to dissuade Complainant from filing an EEO complaint. The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 at II.B (Aug. 25, 2016). Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions in Title VII, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, we have held that a supervisor threatening an employee by saying “What goes around, comes around” when discussing an EEO complaint constitutes an adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, “as a friend,” that her EEO claim would polarize the office). Here, Complainant stated that, during the course of an interview for a climate assessment, CC1 informed her that S1 had filed an EEO complaint, told her that, in the EEO complaint, S1 blamed Complainant for her tension with S2, and that S1’s EEO complaint had prompted the climate assessment. Moreover, when Complainant discussed her own workplace issues, she alleged that CC1 stated, “It is better for you to try to resolve this issue in this platform rather than EEO. Because the process is long and furthermore it will be difficult under this Administration since this Administration does not care about EEO.” ROI at 167. 2020001072 15 The EEO Investigator did not interview CC1 during the investigation, despite GC1 and SA1 specifically recommending CC1 as a witness who might have more information regarding Complainant’s EEO complaint.3 Accordingly, Complainant’s affidavit describing the December 4, 2017, meeting with CC1 is unrebutted, and we find that Complainant established by the preponderance of the evidence in the record that CC1 made these statements about S1’s EEO complaint and that it would be better for Complainant to resolve her issues through the climate assessment rather than through the EEO process. We further find that CC1’s behavior constituted a violation of Title VII because her comments were reasonably likely dissuade a reasonable person from engaging in EEO activity. We will reverse the Agency’s finding of no discrimination on this claim and remand the matter for corrective action. Constructive Discharge Complainant alleged that she was constructively discharged. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). While Complainant found her working conditions difficult, we find that Complainant did not establish that her working conditions were so intolerable that she was forced to resign. Despite our finding that CC1 engaged in behavior that would dissuade a reasonable person from engaging in EEO behavior, we note that, after Complainant reported CC1’s conduct to CR1, CR1 promptly arranged for an investigation of Complainant’s harassment allegations and reiterated that Complainant had the right to file an EEO complaint and be protected from reprisal, despite what CC1 told her. Although CR1’s actions cannot shield the Agency from liability for CC1’s statements, we must consider whether a reasonable person in Complainant’s position would have felt compelled to resign on February 2, 2018, nearly two months after her December 4, 2017, interview with CC1. We do not find that Complainant established by preponderant evidence that a reasonable person in her position would have found the working condition intolerable and felt she had no choice but to resign in February 2018. 3 There is no indication in the record whether the EEO Investigator contacted CC1 at all during the investigation. 2020001072 16 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part the Agency’s final decision finding no discrimination, finding the agency to be in violation of Title VII with regard to CC1’s statements. We REMAND this matter to the Agency for further processing in accordance with this decision and with the ORDER below. ORDER The Agency shall undertake the following remedial actions: 1. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 30 days after the completion of the investigation. 2. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order.” 3. Within 90 calendar days of the date this decision is issued, the Agency shall provide four hours of in-person or interactive EEO training, with a special emphasis on reprisal, to CC1. 4. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against CC1. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Food and Nutrition Service, Office of Management, Human Resources Division facility in Alexandria, Virginia copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this 2020001072 17 decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 2020001072 18 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020001072 19 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 22, 2021 Date