[Redacted], Margaret L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Oct 27, 2022

Appeal No. 2021003878 (E.E.O.C. Oct. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margaret L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2021003878 Hearing No. 490-2020-00156X Agency No. FSA-2019-00987 DECISION On June 24, 2021, 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 May 11, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Technician, CO-1101-07, at the Agency’s Independence County Office in Batesville, Arkansas. On November 4, 2019 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and religion (Christianity) when: 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. 2021003878 2 1. on July 15, 2019, Complainant learned management denied her opportunity to participate in the County Office Trainee Program; and 2. on several dates, Complainant was subjected to various incidents of harassment, including but not limited to: a. on an unspecified date, a management official exerted pressure on her when he attempted to place her in the middle of a contentious personal matter involving her colleague, and b. on an unspecified date, a management official implied she negligently allowed privacy information to be viewed that was contained in Adjusted Gross Income applications. Regarding the County Trainee Program, Complainant noted that she twice applied to participate, but her first application was denied because she failed to properly complete the application. Claim (1) focuses on Complainant’s second application, which was denied. Complainant disagreed with the denial, arguing that she has been very dedicated and devoted to her job and is well known within the office. Complainant’s application is in the record, and therein Complainant attested that she met the education and/or specialist experience required at the CO-07 level, but not at the CO- 09 level. Complainant noted that the Executive Director is her direct supervisor (S1) and that S1’s husband “was told in a meeting that [she] only completed one line sentences for her Knowledge, Skills and Abilities but [she] had completed five pages.” Complainant believed this was a violation of her Personally Identifiable Information. Complainant suggested that her sex is a factor because she is a woman over the age of 50 and does not have a personal relationship with the State Executive Director (SED). According to Complainant, “it is commonly known with employees in the state that he has promoted ones that have a personal relationship with him.” Complainant also argues her religion was a factor because she does not “party/drink or carry out in the click group. Also it is known of married women and the married men having sexual relationships.” Complainant asserted that because she does “not believe in the way these employees carry on that [she] has been discriminated against.” Complainant further stated that her sex and religion were a factor because she is “a happily married woman that does not participate in other extracurricular activities” and because “all of the female promotions are connecting to partying/drinking and carrying on with [SED].” SED denied being involved with the selection process in Claim (1). The Administrative Officer explained that she reviewed all applications and determined if each applicant was eligible for the grade level for which they applied. The Administrative Office stated that Complainant was not denied the opportunity to participate in the County Office Trainee Program. Rather, she was determined to be ineligible because she did not have the specialized experience or education required for the CO-09 level. In addition, the Administrative Officer explained that Complainant failed to submit her most recent completed annual performance appraisal as required by the job announcement. The Administrative Officer noted that the position received 51 applications, of which 24 were deemed ineligible. 2021003878 3 With respect to Claim (2)(a), Complainant claimed that a management official contacted her while in use-or-lose leave status and asked her if the County Office Committee members would keep the office open or a co-worker (CW1) would be placed in the office. Complainant stated that she explained to management that County Office Committee members had requested CW1’s keys because of an incident in which CW1 was allegedly insubordinate. Complainant claimed that management insisted that CW1 would open the office because that is what SED wanted. Complainant alleged that this put her in a difficult position and amounted to bullying. In Claim (2)(b), Complainant claimed that her office was randomly audited, and the auditor noticed that Complainant had Adjusted Gross Income (AGI) applications on her desk. The auditor then told the District Director that Complainant had AGI applications all over her desk, implying that they were unsecured. Complainant speculated that “this is a combination of age, sex, religion and hostile work environment” and that the auditor was sent in to break her confidence. Complainant believed “this audit was a way in order to let us know who was in charge and we were told so many times.” The County Office Reviewer stated that she observed large stacks of AGI applications with visible personally identifiable information in an open area and that it was noted as an observation in the County Office Review. She added that the matter was rectified when a temporary employee filed all the documents in a safe area. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter dismissed the hearing request and remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency found that management officials provided a legitimate, non- discriminatory reason for not selecting Complainant in Claim (1), which Complainant failed to sufficiently rebut. The Agency then concluded Complainant failed to establish a discriminatorily hostile work environment because she failed to demonstrate the Agency engaged in conduct that was sufficiently severe or pervasive or based on her protected classes. As a result, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the office was beset with preferential treatment, bullying, and favoritism. Complainant argues that she is a hard-working and dedicated employee, and she was ignored while others were promoted. Complainant contends that she was subjected to bullying and harassment. Accordingly, Complainant requests that the Commission reverse the final decision. 2021003878 4 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”). Disparate Treatment - (Claim (1) - Non-Selection) To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Constr. Corp. 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, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We will assume arguendo that Complainant established a prima facie case of discrimination. The record reveals Complainant sought a position at the CO-09 grade but did not possess the experience or education required to advance to the CO-09 level. In addition, Complainant failed to submit her most recent annual performance appraisal; instead, Complainant provided the performance plan itself with no rating. This, according to the Administrative Officer, resulted in her application being declared ineligible along with 23 other applicants. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. Aside from Complainant's conclusory allegations and speculations, Complainant has failed to establish that the Agency's reasons were pretext for discriminatory animus. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. 2021003878 5 Claim (2) - Hostile Work Environment To establish a claim of discriminatory harassment, 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 -- in this case, because of her sex or religion. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that Complainant has not demonstrated that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. The antidiscrimination statutes are not civility codes. 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). While Complainant expresses disagreement with her coworkers’ extracurricular activities, Complainant does not show how these activities resulted in a hostile work environment against her. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. In this case, Complainant offers no evidence, beyond her own speculation, that the actions complained of were based on her sex or religious beliefs. Accordingly, the Commission finds that Complainant has not established that she was subjected to discrimination or a hostile work environment as to all claims alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2021003878 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). 2021003878 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 October 27, 2022 Date