[Redacted], Ashley H., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.Download PDFEqual Employment Opportunity CommissionJun 30, 2021Appeal No. 2020001997 (E.E.O.C. Jun. 30, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashley H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency. Appeal No. 2020001997 Hearing No. 510-2018-00041X Agency No. AMS-2017-00577 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 16, 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 AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Agricultural Commodity Grader (ACG)/Inspector, GS-1980-09, in the Agency’s Agricultural Marketing Service (AMS) located in Winter Haven, Florida. RMO 1 was employed since 2015 as an ACG, GS-1980-10. RMO 1 stated she worked as Inspector-in-Charge and was in the chain of command for the inspectors in the AMS lab where Complainant worked. RMO 2, Assistant Officer-in-Charge was Complainant’s first level supervisor, but the record reveals Complainant also worked under the direction of RMO 1. RMO 3, the Officer-in-Charge, was Complainant’s 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. 2020001997 2 second level supervisor. RMO 4, the Eastern Operations Branch Chief, was Complainant’s third level supervisor. RMO 5 was the Division Director. RMO 6 was a Management Analyst. On July 24, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and in reprisal for protected EEO activity when: 1. on an unspecified date in May 2017, management rotated her out into the field for one- month, although she had not worked in the field for over five years; 2. on unspecified dates, management changed her job duties and downgraded her responsibilities as Lead Grader; and 3. on several dates, she was subjected to various acts of harassment, including but not limited to: a. on an unspecified date in May 2015, an employee said he did not feel that it was right that she was promoted based on her race; b. from June 2015 to April 2016, management failed to address the incidents of harassment by fellow coworkers that she reported; c. on an unspecified date in July 2016, a supervisor told her a racially, insulting, inappropriate joke; d. on an unspecified date in December 2016, employees discussed having knives in the workplace, and the employee showed the knives and said there was someone she wanted to cut; e. on an-unspecified date in January 2017, management told her he was waiting to hear from Compliance about the results of the complaint, although he had already heard from Compliance and was aware of the results of the investigation; f. on an unspecified date in March of 2017, she was required to perform menial and janitorial duties; g. on June 8, 2017, a coworker tore down her cubicle wall, while she was sitting there working; h. on June 26, 2017, management relocated her desk; i. on unspecified dates, two coworkers, encouraged other coworkers not to follow her instructions; and 2020001997 3 j. on various occasions, she was isolated from all the team and unit. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, non- discriminatory reason for its actions. Texas Department of Community 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 (2000). Regarding claim 1, RMO 3 stated that Complainant was included in a rotation of all GS-9 ACGs assigned to the Winter Haven laboratory. RMO 3 noted the Inspector-in-Charge at that field duty location was rotated out of duty and into the Winter Haven lab due to a performance concern. She noted this created the need to fill the Inspector-in-Charge position in the field and a decision was made to rotate all GS-9 ACGs for two pay periods each into the position as Acting Inspector-in-Charge. RMO 5 noted the ACG role is not exclusively an office lab position, but a position that also required field work. He stated that due to the vacancy in the field office, the decision was made to rotate all the GS-9 ACGs assigned to the Winter Haven lab. He noted “[t]he thinking was that this might also improve the working environment” in the lab by allowing 2020001997 4 these employees to be apart from each other for periods of time. RMO 4 added that the rotation was done in part to prepare and help complete a high volume of work related to the large import juice volume. He noted during a conversation with himself and RMO 6, Complainant inquired why only the GS-9s were being rotated into the field and not the GS-5 and GS-6s. RMO 6 explained that only the GS-9s could work in certain plants. Complainant failed to show by a preponderance of evidence that the Agency’s actions were a pretext for discrimination based on her race or protected EEO activity. Regarding claim 2, RMO 3 stated that there was no Lead Grader position and that all GS-9 AGCs, including Complainant, have the same position description and performance plan. RMO 3 explained that during the last two years, the lab had experienced a significant increase in work volume and an increase in newly hired personnel. She stated to address the effects of these increases in operations, it was determined a formal organization of specific responsibilities was needed. She stated that the responsibilities of all GS-9s assigned to the Winter Haven lab were reorganized to ensure that all responsibilities were equally shared and all GS-9s were equally trained and proficient with all GS-9 lab responsibilities. RMO 1 stated that after she received the GS-10 Inspector-in-Charge (IIC) position, she was still responsible for the same GS-9 duties she previously had as most of the GS-9s were not familiar with some of those functions. She explained with the new duty rotation, all the GS-9s had the opportunity to learn new aspects of the job. RMO 1 stated with all inspectors fully trained in each function, this ensured the timeliness of completing all aspects of their job. Complainant failed to establish that the Agency’s actions were based on discriminatory animus. Harassment To establish a claim of hostile environment harassment, 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) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). With regard to retaliatory harassment, Complainant only needs to show that such actions are the type of action that would dissuade a reasonable employee from making or supporting a charge of discrimination. See EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). 2020001997 5 Upon review, we find that Complainant failed to establish she was subjected to a hostile work environment as alleged. Regarding incident 3a, Complainant claimed that on May 27, 2015, RMO 3 announced that she was promoted to the ACG GS-9 position. Complainant claimed that she confronted Person 1 (ACG GS-7), who had not congratulated her on her promotion and she claimed that he stated he had a problem with her being promoted because of her race and commented that he had a problem with any being “given” promotions because of rules about quotas and not about experience. In his affidavit, Person 1 stated that by the time of her promotion, Complainant was not talking to him anymore and he denied speaking to Complainant about her promotion. Regarding incident 3c, in her affidavit Complainant stated that the Sub-Area Supervisor told her a racial, insulting, and inappropriate joke. She said the joke made on July 2, 2016 was: “Question: How do you know you’re in the ghetto? Answer: When you see cops chasing black men and killing them.” In the Compliance Branch Report of Investigation, the Sub-Area Supervisor stated during lunch he once looked at a video posted online that was titled, “You Know You Live in the Ghetto When…” He stated that in the video, it showed someone watching the news on their mobile phone and it showed a car chase going on and then it panned outside the window of the car and the person watching was in the actual car chase. In the Compliance Investigation, the Sub-Area Supervisor denied making a comment or joke. He stated that he never made any jokes or comments that were racist. In his affidavit taken during the investigation of the subject complaint, the Sub-Area Supervisor stated that he never told Complainant a racial, insulting, or inappropriate joke. Assuming the comment at issue was made in incident 3c, we note this was an isolated incident and there has been no showing the comment was directed at Complainant. Moreover, we find the comment alone insufficient or pervasive to constitute a hostile work environment. Regarding the remaining incidents of harassment, we find none were shown by a preponderance of the evidence to be motivated by discrimination based on Complainant’s race or in retaliation for her protected EEO activity. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020001997 6 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). 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. 2020001997 7 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 June 30, 2021 Date Copy with citationCopy as parenthetical citation