[Redacted], Carletta W., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Apr 27, 2021

Appeal No. 2020000672 (E.E.O.C. Apr. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carletta W.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2020000672 Agency No. FSA-2019-00220 DECISION On October 1, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 5, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a District Director, GS-1101-13, at the Agency’s District 3 Office, Farm Service Agency, in Helena, Montana. On February 7, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), disability,2 and age (over 40) when: 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. 2 Complainant identified her disability as multiple sclerosis. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2020000672 2 1. On or about October 29, 2018, she was issued a Fully Successful rating on her 2018 annual performance appraisal and was denied a copy of the draft of her write-up. 2. In September 2018 and other unspecified dates, management denied her training, mentorship and assistance (as other similarly situated employees) while she performed additional managerial and other duties. 3. On several dates, she was subjected to various incidents of harassment, including, but not limited to the following matters: a. from January to March 2018, management failed to assist and respond to her requests for project support; b. since February 2018 and ongoing, management repeatedly made demeaning comments and inquired about her retirement plans in the presence of others, saying, “when are you going to retire?;” c. on unspecified dates, she was threatened with an Opportunity to Improve (OTI) and Letter of Reprimand (LOR) for her refusal to retire in January or March; and d. on unspecified dates, management participated in ongoing intimidation against her and caused her anxiety and stress. Following an investigation, Complainant requested a final Agency decision. The Agency issued a decision on September 5, 2019, finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims 1-2 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2020000672 3 Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on or about October 29, 2018, she was issued a Fully Successful rating on her 2018 annual performance appraisal and was denied a copy of the draft of her write-up. The State Executive Director (male, over 40), also Complainant’s supervisor, stated that on March 11, 2018, he and the Chief Administrator Officer conducted Complainant’s mid-year review and her annual performance appraisal on September 11, 2018. He explained that he came “on board” in February 2018, and the Chief Administrator Officer was present because she was the Acting SED before he was hired and was aware of Complainant’s performance prior to February 2018. The supervisor noted that during the performance period, Complainant had two new County Executive Directors (CEDs) and that she needed to be more proactive in providing support by holding bi-weekly conference callas and meeting with the CEDs The supervisor stated that regarding the Performance Element of “Supervision,” he rated Complainant Fully Successful because of her supervision of the Loan Analyst whose training was taking longer than expected. The supervisor noted that during the performance period, Complainant had two new CEDs and that Complainant needed to be more proactive in providing support by holding bi-weekly conference callas and meeting with the CEDs. Regarding the Performance Element of “Program Management,” the supervisor stated that he did not see anything specific in Complainant’s performance that would have merited an Exceed rating. The supervisor noted that Complainant had a good grasp and showed improvement on farm load programs. The supervisor stated that in regard to the Performance of “Mission Results,” he did not see anything specific in Complainant’s performance that would merit an Exceeds rating. As a District Director, Complainant’s responsibilities include on-site visits to the CED offices. He noted Complainant had improved and conducted more on-site office visits. Furthermore, the supervisor stated that Complainant was not denied a copy of her write-up because there was no draft write up at that time. He stated that on April 30, 2018, he wrote his comments on Complainant’s Performance Plan and told her that she could provide comments, and Complainant did so, on May 15, 2018. The Chief Administrative Officer (female, over 40), also Complainant’s second level supervisor, stated that she led the discussion during Complainant’s mid-year review because the supervisor began his employment in February 2018. She also noted that on September 10, 2018, Complainant provided her 2018 List of Accomplishments to the supervisor for his consideration. 2020000672 4 Complainant asserted that the Chief denied her a copy of the draft write-up of her performance prior to her face-to-face mid-year review. The Chief, however, asserted that there was no draft- up at the time and that there was solely a verbal discussion. The Chief also noted that on April 30, 208, the supervisor entered his comments into the EmpowHR and she submitted her comments on May 15, 2018. Regarding claim 2, Complainant alleged that in September 2018 and other unspecified dates, management denied her training, mentorship and assistance (as other similarly situated employees) while she performed additional managerial and other duties. The Chief stated that she was present during the mid-year performance but does not recall if Complainant requested training. However, the Chief remembered Complainant requested appraisal training. The Chief made arrangements for Complainant to attend appraisal training but it conflicted with a management meeting. Complainant and the District Director were therefore informed that they should attend the management team meeting and that they could attend the next appraisal training. The Chief noted that Complainant has received the same training opportunities that all other District Directors have received. Moreover, the Chief stated that Complainant was never denied assistance. She noted that Complainant’s Senior Loan Officer retired in December 2017, and she requested assistance processing loan applications and assistance was provided by several other districts. The supervisor stated that he was unaware Complainant was denied any training requests and a mentor. Specifically, he stated that during Complainant’s mid-year performance review, he told her that she needs to focus on prioritizing and organizing her workload. But the supervisor noted that on June 7, 2018, he made a request to the National Office to assign Complainant a mentor and that the request was renewed the request on November 14, 2018, but that he had not received a reply. Furthermore, the supervisor asserted that Complainant was not denied assistance. The supervisor noted that Complainant was given a considerable amount if assistance. However, on February 16, 2018, Complainant stated she did not need assistance. The evidence of record, described above in brief, fully supports the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. 2020000672 5 Harassment: Claim 3 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). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex, age or disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Claim 3.a. appears to assert the same matters as those already reviewed in Claim 2, where we have already determined there was no evidence supporting a finding that discriminatory factors played any role in the disputed matters. Regarding claim 3.b., the supervisor denied making demeaning comments to Complainant or treated her differently than the other District Directors. He explained that Agency management complied a list of employees who are eligible to retire from the present, through the ensuing four years. The supervisor stated that the list was used as a management tool to help with succession planning. Specifically, the supervisor stated the retirement status of Complainant has never been viewed any differently than that of any other District Director. The supervisor emphasized to both Division Directors that their respective retirement decisions were purely up to them, and would be respectfully treated as their own personal choices. Furthermore, the supervisor stated that during the summer of 2018, he learned that Complainant had announced to the County Executive Directors in her district that she planning to retire in January 2019. He stated that when he asked Complainant about the retirement news, she responded that it was likely she would retire in either January or March 2019. During a Management Team meeting in November 2018, Complainant revised her status as being unsure if she would retire or not, which the supervisor acknowledged was Complainant’s prerogative. Regarding claim 3.c., the supervisor asserted that he did not threaten to place Complainant on an OTI or issue her a LOR. He explained at that time, Complainant admitted she was overwhelmed with the duties of being a District Director and handling the Farm Loan Program in her district. The supervisor acknowledged that during the summer of 2018, he considered placing 2020000672 6 Complainant on an OTI and issuing her a Letter of Warning due to conduct problems. Specifically, he stated that Complainant made inappropriate comments about a co-worker and bullied male CEDs. The supervisor stated that he reconsidered placing Complainant on an OTI and issuing her a LOR when she announced her retirement to CEDs in her district. Regarding claim 3.d., the supervisor denied intimidating Complainant. He noted that on July 24, 2018, Complainant stated that she perceived that the supervisor was pressuring Complainant to retire, cause her stress. The supervisor stated that only time he questioned Complainant’s request for leave when she informed him in April 2018 that she wanted to go on a six-day river float trip in early May 2018. Considering that she had previously expressed concern about having a difficult time keeping up with her workload, the supervisor asked if this float trip, that included four days of leave, might cause workload problems for her. The supervisor nevertheless approved Complainant’s request. The Chief, moreover, stated that he had not pressured Complainant to retire, and never witnessed anyone else attempting to do so. To the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (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 2020000672 7 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. 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 2020000672 8 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 April 27, 2021 Date