U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jessica T.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, (National Institute of Food and Agriculture) Agency. Appeal No. 2020002992 Agency No. NIFA-2019-00623 DECISION On March 5, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 5, 2020 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., 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 At the time of events giving rise to this complaint, Complainant worked as a Program Assistant, GS-0344-07, assigned to the National Institute of Food and Agriculture (NIFA), Institute of Bioenergy, Climate, and Environment, located in Washington, D.C. On July 11, 2019, Complainant claimed that her supervisor (S1) issued her a FY2018 performance appraisal that rated her as “Unacceptable.” Complainant alleged that S1 stated that her communication skills were deficient because she communicated with her colleagues by email rather than walking to their offices to assist. S1 added that Complainant failed to complete work on time. 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. 2020002992 2 S1 noted that Complainant’s position description specifies deadlines for completing her duties and Complainant often did not meet those deadlines. Further, S1 stated that Complainant did not communicate with people with whom she needed to. Complainant alleged that in September 2019, NIFA was relocating to Kansas City, but because of her medical condition, she was not able to relocate. Complainant requested a reassignment on or around July 8, 2019 but was told that there was not a position available into which she could be reassigned. Complainant claimed that she was also denied a detail assignment. S1 stated that employees were informed of the relocation plans and that they were given the option to relocate, resign, or retire. S1 stated that he was not authorized to approve a reassignment or detail assignment once the relocation plans began and he advised Complainant to contact the Director’s office for her options. S1 affirmed that management supported Complainant’s efforts to obtain a detail assignment at the National Arboretum, but they subsequently changed their staffing plans. Complainant claimed that management failed to award her a Federal service Pin for her 20 years of service. Complainant’s second-level supervisor (S2) asserted that he awarded Federal Service Pins based on information provided by the Office of the Director and noted that he was eligible for a pin, but also did not receive one. Other witnesses noted that it was not unusual to not receive a pin. Complainant subsequently received one in May 2019. Complainant alleged that she received a Letter of Reprimand for contacting S1 when he was not working to request telework. Complainant claimed that she contacted S1 while he was out of town in a different time zone, but she had no way of knowing that. S1 asserted that Complainant was issued the reprimand for communicating improperly with individuals, calling people at inappropriate times, refusing instructions, and being argumentative with staff. The Employee and Labor Relations Contractor affirmed that he recommended to management officials that they issue the reprimand for several reasons including, Complainant’s failure to follow instructions and her improper call to S1 demanding that he respond to her request for telework. Complainant’s reasonable accommodation allowed her to telework up to three days a week provided there was sufficient work. Complainant claimed that on April 9, 2019, S1 told her that she had not completed enough work the day before. The next day, Complainant stated that S1 allowed her to telework. S1 affirmed that he approved Complainant’s request to telework on April 5, 2019 as long as she completed the mail merge for four panel appreciation letters. S1 denied Complainant’s request on April 9, 2019, because she only completed one of the four letters; therefore, he did not believe Complainant was capable of completing the assigned work. Complainant alleged that management officials subjected her to a hostile work environment beginning in 2013 as evidenced by multiple incidents. Among the incidents, Complainant claimed that sometime in 2016 or 2017, S1 disclosed to an official seeking an employee for a detail assignment that Complainant teleworked as a reasonable accommodation and later laughed at her for not getting selected for the detail assignment. 2020002992 3 In addition, Complainant claimed that she received verbal and written warnings, S2 sent her an email in all capital letters as if S2 was screaming at her; in November and December 2018, she overheard management officials talking about her in a negative manner; and S1 suggested that she retire. On June 24, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment based on her race (African-American), color (dark skin), disability (Degenerative Disc Disease), and age (62) when: (1) on July 11, 2019, she learned management issued an invalid Fiscal Year (FY) 2018 Performance Evaluation in her electronic personnel folder and she was disqualified for the GS-0301-09, Administrative Specialist position, advertised under Vacancy Announcement Number NC-1616-WHHO-19- 10477491-ST; (2) beginning on or around June 28, 2019, and continuing to present; management ignored her request for reassignment, and she learned management disapproved her request for a SET (acronym unspecified) detail assignment; (3) on May 14, 2019, management ignored her request for a detail assignment; (4) on May 2, 2019, management failed to present her with the Years of Federal Service Pin for which she was eligible; (5) on April 11, 2019, management issued her a Letter of Reprimand; (6) on or around April 9, 2019, management failed to accommodate her in accordance with her reasonable accommodation and denied her situational telework; and (7) on several dates, she was subjected to various incidents of harassment, including, but not limited to: (a) on an unspecified date in 2013, her supervisor contacted a hiring manager regarding a disapproval decision of a detail assignment, (b) on an unspecified date in 2016, her supervisor laughed at her for not getting selected for a detail assignment, and disclosed to the detail selection panel that she had an reasonable accommodation, (c) on an unspecified date in 2016, her supervisor ignored her inquiries about a promotion and college tuition assistance, (d) on an unspecified date in May 2016, her supervisor presented her with an incorrect Years of Federal Service Pin, and requested that she provide proof of her years of Federal service, (e) on October 5 and 15, 2018, she received verbal and written warnings from a former supervisor indicating, “they are firing me because I refused to fire you," (f) on October 29, 2018, her supervisor sent her an email correspondence in all-caps, (g) on an unspecified date in November and December 21, 2018, she overheard management talk about her in a negative manner and stated, “we can get her to do all of this work, then when we come back, we can get rid of her," (h) on an unspecified date in 2019, management informed various Agency personnel not to speak to her or assist her with human resource matters, (i) on March 28 and 29, 2019, because of her situational telework agreement, her supervisor berated her work performance by stating, “she was sick of my not being in the office” and, “well, then you need to find another job,” (j) on or around April 11 and May 9, 2019, her supervisor discussed her age and suggested her need to retire by stating, “you're going to have to retire,” and (k) on an unspecified date in April 2019, her supervisor stared at her with a “grimace on his face” and ignored her greeting.2 2 The Agency dismissed several additional claims for untimely EEO Counselor contact. Complainant raised no challenges to the dismissal of these claims and the Commission can find no basis to disturb the Agency’s decision in this regard. 2020002992 4 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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since management officials have articulated legitimate and nondiscriminatory reasons for each of their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). We agree with the analysis and findings set forth in the Agency’s final decision. Specifically, we agree that the record does not support the finding that the legitimate, nondiscriminatory explanations offered by management for the alleged employment actions were a pretext or otherwise motivated by discriminatory animus. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a claim of a hostile work environment, 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; and (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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2020002992 5 The Commission finds that the totality of the incidents alleged by Complainant are not sufficiently severe or pervasive to establish a hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “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). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. We note that Complainant claimed that her supervisor disclosed information about her reasonable accommodation to an official who inquired about a potential detail assignment. S1 stated that the official called and said that he needed someone to detail in their office five days a week. Complainant’s supervisor stated that he mentioned to the official that Complainant was regularly in the office twice a week. There is no corroborating evidence that the supervisor disclosed any confidential medical information regarding Complainant or any details regarding Complainant’s reasonable accommodation. Additionally, there is no evidence demonstrating that the supervisor acted with discriminatory animus in this regard. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. Denial of Reasonable Accommodation Under the Rehabilitation Act and the Commission's implementing regulations, a federal agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. Based on this evidence, we concur with the Agency's conclusion that there is no indication that the Agency failed to provide Complainant reasonable accommodation under the Rehabilitation Act. Complainant was provided telework as needed up to three days a week with supervisory approval and sufficient workload. On the occasions Complainant was denied telework, it was under the terms of reasonable accommodation. Complainant presented no evidence indicating that the provided accommodation was ineffective. Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination or a hostile work environment as alleged by Complainant. 2020002992 6 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). 2020002992 7 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 June 24, 2021 Date
