[Redacted], Eloy S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2021000347 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eloy S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021000347 Agency No. FPAC-2020-00145 DECISION On October 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 9, 2020 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. BACKGROUND During the period at issue, Complainant worked as a County Executive Director (CED), CO-12, at the Agency’s Madison Parish Field Office in Tallulah, Louisiana. On February 3, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected him to unlawful retaliation for engaging in protected activity (reporting harassment to the State Executive Director at an August 2019 meeting) when: 1. On October 29, 2019, management issued Complainant an “Unacceptable” performance rating on his Fiscal Year (FY) 2019 Annual Performance Evaluation. 2. On October 29, 2019, management paced him on a Demonstration Opportunity Plan and temporarily withheld his within-grade pay increase. 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. 2021000347 2 3. Between November 3, 2019 through November 17, 2019, management issued him a 14-day suspension. 4. He was subjected to various incidents of harassment, including but not limited to the following incidents: a. Management belittled, demonized and harassed him in the workplace, discussed Complainant’s personal matters with his subordinate employees, and failed to do anything when his subordinates made slanderous remarks; b. Management deterred him from holding employees accountable for their inefficiency in work performance and undermined his authority; c. Management altered, mishandled, and denied his approved work schedule and leave requests; and d. Management undermined his authority as a supervisor and provided false, inaccurate and derogatory information to Agency officials, and verbally threatened his continued employment with the Agency. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on September 9, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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). 2021000347 3 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant worked as a County Executive Director (CED) at the Agency’s Madison Parish Field Office in Tallulah, Louisiana. The District Director (RMO1) was Complainant’s first-level supervisor and the State Executive Director (RMO2) was Complainant’s second-level supervisor. RMO1 was responsible for administrative and operational activities at eight county offices located in Northeast, Louisiana, including the Madison County Office in Tallulah, Louisiana. In consultation with eight elected County Committees for each county office, he was responsible for personnel management, performance management, scheduling, time and attendance (T&A), and related administrative and operational matters. Each county office in RMO1’s District was managed by a County Executive Director (CED), who was hired by an elected County Committee (COC) consisting of farmers and ranchers for the service area. After the CEDs were hired, they met periodically with the COC to administer programs and make decisions. However, RMO1 was their supervisor. RMO1 consulted with COC on conduct or performance matters involving the CEDs. Regarding claim 1, Complainant claimed that on October 29, 2019, management issued him an “Unacceptable” performance rating on his FY 2019 Annual Performance Evaluation. RMO1 explained that the 2018-2019 performance period was from October 1, 2018 to September 30, 2019. He said he consulted with relevant COC in his district and sought input in preparing Complainant’s CED performance evaluation. The COC Chairperson for the Madison Parish, Louisiana, explained that he was a self-employed property owner and COC members were not salaried employees of the federal government. As a Chairperson, he served as liaison with the property owners, COC members and Complainant on FSA program administration, accomplishments and payments to property landowners residing in Madison Parish, Louisiana. In 2018-2019, he said the members of the Madison Parish COC reviewed and evaluated Complainant’s job performance. RMO1 stated that after reviewing the performance documentation with the COC, he concurred in the Summary Rating of “Unacceptable” job performance as recommended by the COC. RMO1 stated that Complainant’s job performance was evaluated as “Does not Meet” for the critical elements of “Communications” and “Program Management.” 2021000347 4 The Chairperson noted that he provided information to both Complainant and RMO1 on numerous complaints received from property owners concerning delayed payments and/or non- receipt payments. As a result, the Chairperson noted that the property owners had complained with FSA USDA processing guidelines. He asserted that the processing delays were attributed to Madison Parish office as managed by Complainant. The Chairperson stated that for several days during the summer of 2019, he personally assisted in the processing of Madison Parish office’s backlogs. Regarding claim 2, Complainant claimed that on October 29, 2019, management placed him on a Demonstration Opportunity Plan (DOP) and temporarily withheld his within-grade pay increase (WIGI). RMO1 explained Complainant’s performance plan for FY19 included measurable benchmarks. Complainant’s job performance was evaluated as “Unacceptable” for the critical performance of Communications and Program Management. Subsequently, RMO1 consulted with members of COC and was aware they voted unanimously to issue the DOP to Complainant with concurrent denial of Complainant’s WIGI. The record contains a copy of the Demonstration Opportunity (DOP) dated October 29, 2019. Therein, Complainant was placed on notice that his performance did not meet the Fully Successful performance standards for his County Executive Director position based on Critical Element 1, Communications and Critical Element 3, Program Management. Complainant was provided 30 calendar days to demonstrate acceptable performance of the two critical elements. During the DOP, RMO1 would closely monitor and review Complainant’s work and at the end of the 30-day DOP, his performance would be evaluated. Regarding claim 3, Complainant asserted that between November 3, 2019 through November 17, 2019, management issued him a 14-day suspension. The proposed suspension was based on the charge of “Providing Incorrect Entry on an Official Document, Lack of Candor, and Directing a Co-worker to destroy official documents.” The Louisiana State Committee made the final decision to suspend Complainant for 14-days (November 3, 2019 to November 16, 2019) after meeting with Complainant and his COC, and reviewing documentation submitted by both. In addition, the Chairperson met with RMO1 who provided his interpretation of the issues involved in the proposed suspension. Subsequently, the state committee members and the Chairperson voted unanimously to deny Complainant’s appeal of the proposed suspension. Complainant failed to prove, by a preponderance of the evidence, that the legitimate, non- discriminatory reasons for the disputed actions proffered by Agency officials were a pretext designed to mask retaliatory animus. He asserted he was retaliated against for reporting harassment to the State Executive Director (RMO2) in August 2019, several months before. However, RMO1 denies any knowledge of the meeting and there is no evidence that anyone in the Madison Parish COC were aware of the meeting. There is simply no evidence to suggest that retaliatory animus played a role in the events at issue. 2021000347 5 Harassment To prove his harassment claim, Complainant must establish that he 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 unlawful retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). RMO1 denied acting in a harassing matter toward Complainant. He noted, for example, that Complainant claimed that in October 2019, RMO1 interrupted a conversation among co-workers and asked if Complainant’s wife “ran away” during their wedding. RMO1 stated, however, that he was in training during the relevant period, away from Complainant’s duty station, and had no conversation as described. RMO1 acknowledged that he had asked Complainant how he had performed in college English classes, as Complainant claimed. RMO1 stated that he had done so because of Complainant frequently being cited for poor verbal and written skills. RM01 also denies that he ever told Complainant to “shut up.” Complainant further claimed that on or about December 2017, RMO1 informed him that he was not going to be employed with the Agency long enough to be concerned about a CO-12 promotion. RMOI denied making the remark. RMO1 stated that Complainant’s claim was inconsistent with RMO1’s recommendation to his COC on August 2, 2018, that Complainant receive a WIGI and a promotion to GS-12. The record reflects that Complainant received the scheduled WIGI and promotion based on RMO1’s recommendation. Complainant asserted that RMOI awarded the entire Madison Parish office a monetary award for FY19 accomplishments. Complainant claimed, however, that RMO1 never consulted with Complainant with his opinion of whether the staff members deserved the awards. Complainant claimed that RMO1’s “favorable actions” toward the staff disregarded Complainants’ efforts as a supervisor and caused the staff members to lose respect for him. Complainant asserted that staff members shirk responsibilities without retribution due to RMO1’s “protection” by rewarding them all “spot awards.” RMO1 stated that while Complainant claimed that his staff “shirked their responsibilities” in 2019, Complainant nevertheless rated all their performance elements fully successful or superior for the 2019 rating period. The image which emerges from considering the totality of the record is that there were conflicts and tensions with RMO1’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). 2021000347 6 Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that RMO1 was motivated by retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by unlawful retaliatory animus. 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 unlawful retaliation 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 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. 2021000347 7 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 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 March 31, 2022 Date