[Redacted], Eric T., 1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2021000948 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eric T.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2021000948 Agency No. FPAC-2020-00033 DECISION On October 13, 2020, 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 August 27, 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., 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 for the Agency as a Computer Specialist, GS- 2210-13, in Washington, D.C. On December 2, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on race (Caucasian), disability (vision, back and left leg injuries, and hypertension) and age (48), as well as in reprisal for prior protected EEO activity, when: 1. On November 18, 2019, Complainant received a Fully Successful rating on his Fiscal Year (FY) 2019 Performance Evaluation. 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 2021000948 2. On October 4, 2019, Complainant became aware that he was not selected for a Supervisory Information Technology position, advertised under Vacancy Announcement Number: FPAC-19-10560907-DH-ISD-SF. 3. On several dates, Complainant was subjected to various acts of harassment including, but not limited to, the following incidents: a. in October 2018 and other unspecified dates, Complainant’s co-workers confronted and yelled at him; b. during mid-2018, a co-worker informed Complainant that two other employees informed her that Complainant was a racist; c. on May 21, 2018, a document about “White Privilege” was left on Complainant’s desk with Complainant’s name written on it; d. on May 18, 2018, management relocated Complainant’s office and two employees verbally attacked and yelled at Complainant to “get the fuck out;” and e. on unspecified dates, an employee accused Complainant of bringing down filing cabinets and putting them in the hallway, moving items on other employees’ desks, and bothering staff members. After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.2 The instant appeal followed. 22 Complainant raised another claim regarding a reassignment. The Agency had dismissed this claim for untimely EEO counselor contact. As the Agency properly noted on appeal, Complainant has not addressed this matter on appeal, and we therefore will not consider it further in this decision. 3 2021000948 ANALYSIS AND FINDINGS Disparate Treatment: Claims 1 and 2 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). 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 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). Regarding Claim 1, Complainant was given ratings of “three” (Fully Successful) on his FY 2019 evaluation, when he had previously received mostly “fours” on his evaluations. The rating was prepared by RMO1 (Caucasian female, over age 40), who did not become Complainant’s first-line supervisor until after the end of the fiscal year. The record shows that for the majority of the rating year, Complainant’s first-line supervisor was RMO2 (East Indian/Asian, over 40), who left in July 2019. Between RMO2’s departure and RMO1’s arrival (July - October 2019), Complainant’s second-level supervisor (RMO3) (Caucasian, over 40) served as his first-line supervisor. The record shows that Complainant submitted his FY 2019 accomplishments report to RMO3, who had also conducted Complainant’s (late) mid-year review. On appeal, Complainant argues that RMO1 should not have been the rating official because she had not been Complainant’s supervisor at all during FY 2019. Complainant asserts that he requested that RMO1 speak to RMO2 who had been Complainant’s supervisor for most of the rating year. Complainant argues that the proper individuals were not contacted regarding his rating and, as a result, he was not fairly evaluated, and the evaluation was inconsistent with Agency protocol. 4 2021000948 RMO1, however, stated that she relied on the evaluation of Complainant’s work received from both RMO1 and RMO3 for Complainant’s rating. RMO3 testified that the rating accurately reflected the input he provided RMO1 of Complainant’s work performance, as well as the input he had received from RMO2 before he left. All the responsible management officials stated that Complainant was in a new role that differed from previous years, which accounts for the decrease from his previous rating. Despite Complainant’s assertions to the contrary, RMO3 stated that he did not promise any specific rating to Complainant during the midyear review. The record shows that eight other employees (of a variety of races and ages) who reported directly to RMO3 during FY 2019 also received a Fully Successful rating for the year. After careful review of the record, we conclude that Complainant has not demonstrated that the Agency’s articulated legitimate, non- discriminatory rationale for the rating was pretextual. There is simply no evidence that Complainant’s protected classes played any role whatsoever in the rating of his work performance. Regarding Claim 2, the Vacancy Announcement for the Supervisory Information Technology position specifically stated: Mandatory Selective Placement Factor: You must possess one of the following industry certifications…PMP… FAC-/PM…NCSF…CISSP…CSSLP…CCSP… CISA… CISM… FITSI… or SANS GIAC [] …. Your application, including the online Assessment Questionnaire, will be reviewed to determine if you meet … minimum qualification requirements...Your resume must clearly support your responses to all the questions addressing experience and education relevant to this position…. Errors or omissions may affect your rating. Complainant’s application for the Supervisory Information Technology position, neither listed any of the industry certifications listed on the Vacancy Announcement nor did his application include copies of any certificates. As a result, RMO2 determined that Complainant was deemed not qualified and, therefore, ineligible to be considered, for the position because his application did not indicate that he satisfied the Mandatory Selective Placement Factor (an industry certification). Two other applicants were also deemed by RMO2 as not qualified because their applications did not indicate that they satisfied the Mandatory Selective Placement Factor. The selectee was Caucasian, but younger than Complainant. On appeal, Complainant does not address the Agency’s articulated legitimate, non-discriminatory rationale for his disqualification for the position in question. Instead, Complainant states that he trained the individual who was ultimately selected, and that Complainant did not receive transition training. Complainant fails to establish how he was subjected to discriminatory animus during the selection process. The Agency established that Complainant was disqualified from the position because he did not possess the selective placement factor requirements. Complainant does not demonstrate that the Agency’s rationale is pretext for discrimination. 5 2021000948 Harassment: Claims 3(a)-(e) To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected classes; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove her 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 a protected basis - in this case, his race, age or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant stated there were several incidents of harassment. In response, RMO3 acknowledges that Complainant informed him of the incidents and RMO3 forwarded the information to Human Resources (HR) for investigation. Witness testimony, about the incident alleged in Claim 3a, characterized the interaction as Complainant having an argument with another co-worker regarding space assignment. The witness (W1) (over 40 years old, African-American) stated that Complainant came to the work area, and a coworker (CW2) (unspecified) asked Complainant why he was in the area. Complainant stated that he was looking for the space where he would be seated. W1 stated that Complainant and CW2 started discuss the matter back and forth, and Complainant made remarks about his seniority. W1 testified that Complainant was told to stand down. With regard to Claim 3b, Complainant stated that W2 (under 40 years old, African-American) told him that other co-workers asked her why she associated with Complainant, and that the other co- workers called Complainant racist. W2 confirms Complainant’s statement. W2 testified that she can get along with most people, and she got along with Complainant, but that many other people did not get along with Complainant. With regard to Claim 3c, the HR Specialist (HRS) testified that RMO2 contacted him, on May 18, 2018, about the article titled “Four Hundred Years of Affirmative Action is Enough” that was left on Complainant’s desk. RMO2 and HRS scheduled a meeting for May 23, 2018, and HRS testified that he did not think anything could be done because the identify of whoever left the article was unknown. The motivation for leaving this article on Complainant’s desk was also unclear. 6 2021000948 With regard to Claim 3d,3 Complainant stated that he was assigned to a new work location and went to find his name plate when he was accosted by CW2. Complainant stated that CW2 asked why Complainant was there, and then told Complainant that he needed to “get the fuck out of here.” W1 testified that he interacted with Complainant when Complainant attempted to claim a desk and CW2 informed Complainant that it was not Complainant’s location or space. W1 testified that CW2 and Complainant continued to discuss this matter. Another witness (W3) (over 40 years old, Caucasian, disabled, prior protected activity) testified that W1 raised her voice, which W3 stated was uncharacteristic of W1. Claim 3e contains allegations that employees accused Complainant of bringing down filing cabinets and putting the cabinets in the hallway, moving items on other employees’ desks and bothering staff members. Other than RMO3 reiterating that he forwarded Complainant’s allegations to HR, there is no witness testimony relating to this claim. Complainant does not establish that these incidents occurred, and even assuming that the incidents in Claim 3e occurred, there is no evidence that the motivation was Complainant’s protected bases. Finally, Complainant stated in his appeal that he was dissuaded from filing an EEO complaint. While Complainant did not raise this matter in his formal complaint, he did so during the investigation. The management official who Complainant alleged told him not to file an EEO complaint is no longer an Agency employee and was not interviewed during the investigation. Complainant also asserted that the management official, with discriminatory animus, told another management official to ignore Complainant’s complaints. However, the record does not sufficiently demonstrate that any management officials improperly dissuaded Complainant from proceeding with his complaint. Complainant has not demonstrated that he was targeted because of his statutorily protected bases. Instead, each of the incidents, when considered individually and as a whole, do not lead to a demonstrable claim of harassment. Harassment must be sufficiently severe or pervasive, and not just coworkers who do not get along. Additionally, he has not shown that any of these incidents were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. 3 It is unclear whether or not the incidents in Claims 3a and 3d are separate incidents or the same incident. We will assume that, while the incidents sound identical, that they are two separate incidents and will analyze them as such. 7 2021000948 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. 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). 8 2021000948 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 January 22, 2021 Date