[Redacted], Charlene S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2020003384 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2020003384 Agency No. RD-2017-00800 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 1, 2020, finding no discrimination concerning her 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 a Processor, GS-7, at the Agency’s Central Servicing Center, Rural Development, in St. Louis, Missouri. On February 2, 2017, Complainant filed an EEO complaint alleging discrimination and harassment based on race (Caucasian) and in reprisal for prior EEO activity when: 1. On July 25, 2017, she was issued a “Notice of Proposed 14-day Suspension” and on August 30, 2017, she was issued a suspension effective September 5, 2017, through September 18, 2017; 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. 2020003384 2 2. On several dates, she was subjected to various incidents of harassment, including but not limited to: a. On May 25, 2017, her supervisor and Workflow Coordinator (WC) yelled at her and interrupted her when she tried to explain a computer problem; and b. On unspecified dates, management made false statements and accusations against her. After completion of the investigation of the complaint, the Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. The Agency indicated that Complainant was suspended for her inappropriate conduct on May 25, 2017, and July 13, 2017. Specifically, on May 25, 2017, Complainant’s conduct was inappropriate, unprofessional, and disruptive when she yelled and used profanity to her supervisors who were trying to assist her with the foreclosure database. Complainant became irate and shouted at them, “I ain’t yelling dammit!” Also, on July 13, 2017, while Complainant was driving into the main entrance to her office building with her rental car, she was stopped by the Federal Protective Security Officer. She told the officer that her car was being worked on and she forgot to bring in her parking tag. The officer then asked her to pull her car into a visitor’s parking space to check her identity. While waiting, Complainant, perceiving the security officer to be working at a slow pace, said to him, “Let’s not move at a glacial pace” twice. And, when the security officers were not able to get hold of anyone by phone in Complainant’s office to check her in, she was upset and frustrated and said to them, “This is fucking ridiculous, I cannot believe this is happening. I am trying to get to work.” The Federal Protective Service submitted a written report of Complainant’s “Demonstrations and Disturbances - disorderly conduct” of the foregoing incident to the Agency on July 13, 2017. The Director noted in the suspension letter that in issuing the suspension at issue, he considered Complainant’s June 18, 2014 suspension for her inappropriate comments in her email to her former supervisor; her June 10, 2014 suspension for her inappropriate conduct in the work area; and her past work record. The record reflects that Complainant received her past performance annual summary rating of “Unacceptable” (the lowest rating) for the appraisal period from October 1, 2015, to September 30, 2016. The record reveals that Complainant subsequently received her performance summary rating of “Fully Successful” for the appraisal period from October 1, 2016 to September 30, 2017. Complainant filed the instant appeal. 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 2020003384 3 1614 (EEO MD-110), Chap. 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"). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Complainant was suspended for her unprofessional conduct when she was stopped by the security officers and when her supervisors were trying to assist her with her computer issues. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. 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. 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. 2020003384 4 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. 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. 2020003384 5 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 6, 2021 Date