[Redacted], Calvin D., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2020001263 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Calvin D.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency. Appeal No. 2020001263 Hearing No. 531-2019-00451X Agency No. AMS-2018-00596 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 11, 2019, final decision 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist in the Agency’s Agricultural Marketing Service located in Washington, D.C. He filed a complaint alleging that he was subjected to discrimination and harassment (nonsexual) based on reprisal when: 1. on March 22, 2018, he became aware that he was placed on an Absent Without Leave (AWOL) status for his absence on March 16, 2018; 2. on an unspecified date, he was placed on leave restriction, denied working longer hours and teleworking: 3. other incidents of harassment, including but not limited to: a. on unspecified dates, he was coerced into withdrawing from the Reasonable Accommodation program and 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. 2020001263 2 provided misinformation regarding his attendance record;2 b. on an unspecified date, his supervisor abused his authority, exhibited unprofessional behavior and mocked him during a meeting as Complainant inquired about office timeframes (his supervisor saying, “oh, I guess not, it will be until we say”); and c. on unspecified dates, his supervisor subjected him to name calling, slanders, threats, and bullying. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Although he initially requested a hearing, Complainant withdrew his request and asked for a final decision from the Agency. The AJ dismissed the hearing request and remanded the matter to the Agency for a decision. 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 him to discrimination as alleged. This appeal followed. 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson 2 Complainant maintained that S1, the Director and his immediate supervisor, and the Deputy Director “tricked” him into withdrawing his reasonable accommodation of telework by telling him that there would be new positions becoming available soon and asked if he could “come in more often.” From May 2016 until December 2017, Complainant was only required to come into the office to work two days a pay period. This accommodation was reevaluated every 90-days. 2020001263 3 Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for his prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions set forth in claims 1 and 2. S1 stated that he placed Complainant on leave restriction on March 2, 2018. Complainant was required to bring in a doctor’s note when he called out sick. On March 16, 2018, Complainant called out sick, but did not provide a doctor’s note. S1 stated that he gave Complainant two weeks to bring in medical documentation, but he did not comply; therefore, S1 placed him on AWOL for March 16, 2018.3 As for claim 2, S1 stated that he placed Complainant on leave restrictions because Complainant had problems with maintaining regular attendance and that it caused issues with his, S1’s, ability to perform his responsibilities, i.e., timely submitting Time and Attendance information, submitting projects on time, or managing issues at the service desk. S1 also noted that in the preceding 90 days, Complainant arrived to work on time only 14 times. Regarding longer working hours, S1 noted that the core hours were from 9:00 am to 6:00 pm. Complainant, pursuant to his reasonable accommodation, started at 7:30 am. On days when he was late, Complainant would sometimes stay as late as 9:00 pm in order to make up the time. S1 stated that “I told him we could not do that because we cannot document his work and what he was doing after hours.” S1 further stated that he does not allow anyone to work after 6:00 pm., because “there is no reason for anyone to stay at work after hours.” Finally, S1 stated that he denied Complainant telework due to the March 2, 2018, leave restriction letter, and that he consulted with Employee Relations prior to denying Complainant teleworking.4 We find no persuasive evidence of pretext. As for Complainant’s overall hostile work environment claim including claim 3, we find, with respect to his allegation that he was coerced into withdrawing his reasonable accommodation, no persuasive evidence that this matter occurred as alleged. 3 Complainant maintained that he did provide medical evidence to support his absence; however, S1 indicated that he could not accept a medical note Complainant provided because the note stated Complainant had been seen on March 20, 2018, as opposed to March 16, 2018, the date at issue. Also, a screenshot of a patient portal Complainant provided did not indicate that Complainant attended a medical provider’s office and did not provide a date for when Complainant was to have visited a doctor. 4 The denial of telework at issue here took place months after Complainant’s withdrawal from the Reasonable Accommodation program, which is at issue in claim 3. 2020001263 4 The record indicates that on October 21, 2017, Complainant sent an email to an Agency official stating he did not need any more accommodations. His meeting with S1 and the Deputy Director about the IT reorganization took place in December 2017. There is simply no persuasive evidence that he was coerced in any way into withdrawing from the Reasonable Accommodation program. We further find no persuasive evidence that any of these matters were based on retaliatory animus; nor do we find that the actions in this case were severe or pervasive enough to have subjected Complainant to unlawful harassment. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. There is no indication that any of the alleged harassing incidents, if they occurred as alleged, were motivated by discrimination. CONCLUSION Upon careful review of the evidence of record, including Complainant’s brief on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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). 2020001263 5 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. 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. 2020001263 6 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 22, 2021 Date