[Redacted], Jane K., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2020001336 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jane K.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020001336 Agency No. FSIS-2019-00246 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 30, 2019, final decision concerning her 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 Enforcement Investigations and Analysis Officer (EIAO) in the Agency’s Atlanta District Office, in Atlanta, Georgia. S3 was the District Manager and Complainant’s third-line supervisor. S1 at the time of the matters at issue was Complainant’s first-line supervisor.2 On March 12, 2019, Complainant filed an EEO complaint alleging that she was discriminated against and subjected to harassment based on sex (female), race (African American), and in reprisal (prior EEO activity) when: 1) on November 14, 2018, she learned she was not selected for the Resource Manager, position advertised under Vacancy Announcement Number FSIS2018-MMP-1 152; 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. 2 S2, Complainant’s second-line supervisor, retired prior to the investigation and left no forwarding contact information. Therefore, S2 was not interviewed. 2020001336 2 2) on several dates, she was subjected to various incidents of harassment, including, but not limited to: a. on September 19 - 21, 2017, management denied her request to transfer to a duty location closer to her home; b. on October 7, 2014, management ended her detail and directed her to return to her duty station; c. on May 7, 2014, management overly scrutinized her monthly travel times and dates for her monthly travel to D.C.; d. on March 24, 2014, management denied her request for a “mutual swap”; e. on March 24, 2014, management sent her emails and phoned her multiple times regarding her travel status, house hunting, and compensatory time; and f. on February 27, 2014, management called her and yelled at her regarding her application for a detail position. 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. Complainant requested a final decision, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. With respect to claim 1, Complainant stated that on October 4, 2018, she timely applied for the Resource Manager position. She further stated that she was qualified for the position, as she was on the list of eligible candidates; however, she was not selected. Complainant argued that S2 and S3 discriminated against her by making derogatory comments about her leading up to her non- selection. Additionally, Complainant alleged that her previous EEO activity resulted in her non- selection because she was a witness in an EEO case against S2 and S3. Complainant argued that she had extensive experience as a Resource Manager because she worked in the position multiple times while the former Resource Manager was on leave. S3 stated that she was the Selecting Official for the position and that S2 provided recommendations to her. She indicated that there were two panels, one for reviewing the applications and the other one for conducting interviews. The second panel included A1, a supervisor, and A2, a manager. S3 explained the criteria used to assess the candidates included leadership, cognitive skills, interpersonal skills, and self-management. She also stated that the candidates were asked situational questions under each category and their responses were scored individually on a scale of 1 to 5. S3 indicated that her selection was not based solely on the interview scores, but the experience shown on the resumes and how the candidates articulated their experience during the interview. S3 stated that the selectee C1 (White male) articulated his experience in detail and gave specific examples. S3 stated that the selectee was also currently conducting Resource Manager activities at the GS-13 level. 2020001336 3 Complainant, according to S3, was knowledgeable based on her experience but she was not selected because she lacked a strong background in budgeting, accounting, or managing a program like Resource Management. C1, in contrast, had a strong background in those areas. With respect to claim 2(a), Complainant stated that two positions became available in Monroe, Georgia; however, S2 and S3 would not allow her to transfer. Complainant maintained that, unlike other employees, they sabotaged her on multiple occasions when she attempted to advance or relocate within the Agency. She stated, for example, that in 2014, a White female coworker was allowed to change her duty station from another district to a position in the Atlanta District; a White male coworker was allowed to change his duty station from Rome to Atlanta; a Black male coworker was allowed to change his duty station from Vienna to Carrolton; and a Black female coworker was promised the Atlanta vacancy if she applied and made the certificate. S3, according to Complainant, maintained that she was strategically placing people for the best coverage. S3 stated that she was unsure what positions Complainant was referring to in this allegation, but that there were two positions that she did not fill. According to S3, it was not cost effective or a sound managerial decision to have all her EIAOs in the Atlanta Area. She stated that her staff needed to be strategically located to respond to issues and food safety concerns in different geographical areas throughout the District. S1 stated that Complainant’s duty station was in Savannah, Georgia and she wanted to transfer to the Atlanta area; however, there were no EIAO vacancies in that area. Complainant, he stated, accepted the position where they needed coverage and her race, sex, and prior EEO activity were not factors in the action taken. He stated that he was not aware of any other employees who experienced similar issues. The District Case Specialist in the Atlanta District Office stated that S2 and S3 decided not to fill the vacancies, and that another African American female EIAO with prior EEO activity wanted to transfer into one of the positions but she was denied as well. Regarding claim 2(b), the record indicates that Complainant had the opportunity to work on a detail in Washington, D.C. on B1’s staff. B1, at the time, was the Director for the Recall Management and Technical Analysis Division. Complainant alleged that S3 interfered with her opportunity to work on B1’s staff, fulltime. She explained that she was made aware of the opportunity during a conference in Dallas; however, she was later informed that B1 had changed her mind after speaking with S3. S3 stated that Complainant was on a 6-month detail, and that the normal process was that when a detail ended, EIAOs returned to their assigned duty stations. She stated that she was unaware of Complainant’s interest in working on the detail longer than the assigned time frame. B1 stated that she did not recall having a negative conversation about Complainant at any time. She also stated that it was normal for her to return a person serving a detail to their District if requested to do so by their management. 2020001336 4 With respect to claim 2(c), Complainant maintained that before her detail to Washington, B1 instructed her on procedures for travel to and from the detail. As such, she decided to travel home on Sundays. She indicated that after the first month of traveling, S1 informed her she could no longer travel on Sundays, but instead to travel on Monday and Friday. S1 did not recall making this comment to Complainant. S3 stated that she was unaware of Complainant’s travel being “overly scrutinized,” however, she noted that although Complainant may have received instructions from her detail supervisor, B1 regarding travel, her time and attendance was processed and approved by S1 at her permanent duty station. Because he was unaware of the details of Complainant’s travel, S1, according to S3, had to ask questions and make inquiries. B1 recalled “going back and forth” with S1 because Complainant was not assigned to her for time and attendance purposes. S3 stated that S1 told her that he could not approve Complainant’s time and attendance because he did not know anything about it. Consequently, she made the changes to ensure Complainant’s reporting lines were appropriately transitioned in the system to reflect her detail. S3 stated that this happened often when people transferred from one District to another as the system does not immediately reflect the transfer. With respect to claim 2(d), Complainant stated that after completing her EIAO training, she requested to be moved into a vacancy in Savannah. She stated that S3 denied her request and filled the position with C2, a Black male. Subsequently, C2 asked if he and Complainant could swap positions; however, S3 denied the request stating that she wanted them both to learn their positions first. Complainant then went to S4, S3’s supervisor, and requested the swap. As a result, S4 approved Complainant’s request to change her duty station to Savannah. Complainant stated that S3 told her that she was disappointed in her for going to S4, and that since the time of this incident, S3 has shown her animosity. Complainant stated that there were other examples where S3 denied transfers for other employees, including White and Black females. S3 stated that Complainant’s request was originally denied because, based on the information she received at that time from the District management staff, there was no process in place for job trades for non-bargaining positions. She also felt the trade was not in the best interest of the District or the Agency; hence her denial. Thereafter, she approved the trade. With respect to claim 2(e), Complainant alleged that while she was away for training, S1 called and yelled at her for not house hunting, even though she was required to attend the training. He accused her of stalling on house hunting, after the mutual swap request was not approved, and told her it would not be approved. She maintained that S1 constantly harassed her by phone. Complainant stated that she reported S1 to S3 and he later apologized when she returned from training. Although S1 acknowledged speaking with her, he denied contacting her multiple times or harassing her. He indicated that the District also would have wanted to know Complainant’s schedule for addressing this matter. With respect to claim 2(f), Complainant stated that prior to being selected for an EIAO position, she applied for the detail opportunity at issue in claim 2(b). 2020001336 5 She maintained that after being notified about her EIAO selection, she learned she was also selected for the detail. According to Complainant, she made S1 aware of her selections, and he responded by asking her, “What the hell is this? Who told you that you could go on a detail?” S1, she explained, thought that she had went over his head when she applied to the detail without his approval. Complainant stated that she received S3’s approval and therefore S1’s approval was not required. She alleged that S1’s actions created a stressful environment, and she reported the incident to S3, and never heard anything further about this issue. However, since the incident, S1 has questioned, targeted, yelled, and cursed at her. S1 stated that he did not recall the conversation or yelling at Complainant. S1 stated that he never would have asked Complainant, “What the hell is this?” He admitted calling Complainant and asking her about relevant dates and times to arrange a schedule to accommodate her. 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”). Regarding claims 1, 2(a), 2(b), and 2(d), we note that in order 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 she 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 Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her 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). 2020001336 6 Assuming Complainant established that prima facie case of discrimination on alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for claims 1, 2(a), 2(b), and 2(d), and that Complainant provided no persuasive evidence of pretext. Employers have broad discretion to set policies and carry out personnel decisions and should not be second- guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). With respect to Complainant’s hostile work environment claim concerning claims 2(c), 2(e), and 2(f),3 we do not find that she established that these matters were based on her sex, race, or protected EEO activity; nor do we find that they are 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. Moreover, the Commission has consistently held that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998), which we do not find here. CONCLUSION Upon careful review of the evidence of record, including Complainant’s arguments 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. 3 Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail with regard to claims 1, 2(a), 2(b), and 2(d). See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment for claims 1, 2(a), 2(b), and 2(d), is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). 2020001336 7 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). 2020001336 8 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 July 6, 2021 Date