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

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2021001699 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxima S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2021001699 Agency No. FSIS-2019-00668 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 23, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a Food Inspector, GS-7, in the Office of Field Operations at the Pilgrims Plant located in Carrollton, Georgia. Complainant’s first line supervisor was S1, and her second line supervisor was S2, Supervisory, Public Health Veterinarian. She filed an EEO complaint alleging that she was subjected to discrimination and harassment based on mental disability (bi- polar disorder), age (over 40), and reprisal (prior EEO activity) 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. 2021001699 2 1. on May 1, 2019, management issued her a Letter of Reprimand (LOR); 2. on unspecified dates, she was not selected for various unspecified promotion opportunities; 3. on several dates, she was subjected to various incidents of harassment, including but not limited to: a. on July 14, 2018, management responded inappropriately when she requested leave; and b. on November 26, 2018, and continuing, several management officials bullied, gossiped, and spread rumors about her, and management condoned their actions rather than addressing them. 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 did not respond; therefore, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. With respect to claim 1, Complainant maintained that on or about February 2, 2019, she contacted S2 to inform her that she would not report to work. Complainant stated that S2 subsequently indicated that she was insubordinate and rude during their conversation. Complainant denies conducting herself in such a manner. The Agency issued her a LOR. Management indicated that, on February 2, 2019, Complainant failed to report to work and contacted management six minutes before her scheduled, mandatory Overtime (OT). S2 stated that Complainant acknowledged that she was aware of the mandatory OT but decided to attend another event rather than report to work and did not have time to find a replacement. S2 stated that when Complainant was asked the reason, she hung up the phone on her. She argued that Complainant’s absence negatively impacted the Agency’s ability to conduct mission critical duties. S2 also stated that this was the second occurrence of this type of behavior; therefore, she contacted Human Resources, and S1 issued the LOR. Regarding claim 2, Complainant stated that she applied but was not selected for a Consumer Safety Inspector position and various other positions. Complainant became aware of the positions and applied via USAjobs.com. According to Complainant, she met the qualifications listed in the vacancy announcements and had a 10-point veterans’ preference designation. Complainant, however, was not selected for the positions. She was unaware of the other applicants, and did not claim that she was “more qualified” for the positions; however, she felt that her 10-point veterans’ preference status should have placed her application ahead of the other applicants, and at a minimum she should have been considered for the positions. 2021001699 3 S4, a District Manager, and Complainant’s fourth-level supervisor, stated that Complainant was not referred or interviewed for the positions, and did not make the Eligibility Certificate (Cert List) for any of the positions. S4 maintained that Complainant was not referred because she did not score high enough on the assessment questions to be referred as one of the top l0 candidates. Specifically, her application and resume did not provide enough detail and they were unable to determine her qualifications for the positions. Also, in one instance, the job was announced for employees only in the Jackson, Mississippi District Office. Complainant was in the Atlanta, Georgia District Office, therefore, she was ineligible for consideration. S4 indicated that management does not know the candidates who applied for the positions prior to the creation of the Cert List, and that when a candidate is not referred, management officials are not involved. Regarding claim 3(a), Complainant stated that, on July 14, 2018, she called-in to provide advance notice that she would be absent from her OT shift. She was informed, however, that it was mandatory OT, and as such, no annual leave or sick leave could be granted. Complainant stated that she complied with Agency policy when she called to indicate she could not report to duty. Complainant stated that she was unable to request leave and felt verbally abused because she was not reporting to work OT. She denied having a history of abusing leave and was offended that her supervisor subjected her to her “opinions” with no good reason. Complainant indicated that she faced difficult circumstances, as her spouse was battling stage-4 kidney cancer and, on August 30, 2018, he died. Complainant felt that management responded inappropriately because instead of expressing concerns for her circumstances that required her to call-off from work, management did not even follow its own call-in procedures. Management indicated that shortly before Complainant’s shift was to begin on July 14, 2018, she called in and requested sick leave. She was told that she was scheduled to work mandatory OT and had to report unless she had a suitable replacement. Complainant did not report to work or provide a suitable replacement. During her conversation with a manager, Complainant, when told that if she intended not to report, she had to find suitable coverage in her absence, allegedly cursed, and hung-up the phone. Complainant was issued a Letter of Instruction (LOI) and provided with a copy of the established call-in procedures. S1 indicated that with respect to OT it is the responsibility of the employee to either work or find a suitable replacement, and that Complainant made no attempt to find a replacement and waited until approximately two hours prior to the beginning of her shift to inform her supervisor, which made it impossible for her to identify a replacement. With respect to claim 3(b), Complainant stated that, on November 26, 2018, she was bullied, gossiped about, had rumors spread about her, and that these actions were condoned by management. Complainant maintained that she was subjected to hurtful statements, i.e., she was “drunk,” she “did not know her job,” “she may get back at employees for making statements,” and “she has PTSD.” Complainant claimed she reported the incidents to management, but they did not address her concerns. Complainant maintained the incidents affected her workplace environment. 2021001699 4 S1 stated that Complainant reported alleged workplace harassment and indicated that people were gossiping and/or talking about her at work. Management, S1 stated, addressed her concerns but she was not at liberty to disclose specific private information concerning other employees to Complainant. Complainant filed a workplace report that was later investigated. S1 maintained that actions were taken against the supervisors and coworkers who were gossiping about Complainant, and that the results of the investigation were presented to Complainant and she verbally agreed that these actions were enough. S1 felt the issue was resolved. S2 stated that she was aware of the incidents in this claim and that management responded and addressed the incidents. S2 indicated that when Complainant informed her of her concerns, she responded and addressed the matter. S2 noted that Complainant wanted to complete a workplace violence form, and that she asked Complainant how she would like to see the matter resolved. Complainant responded that she could work without issue with the responsible individuals; however, she asked that the facility acknowledge the incidents and professionally handle the matter. S2 stated that she addressed the incidents with Complainant’s peers and spoke to the Plant Shift Manager. S2 maintained that there was a suspension issued, and that appropriate measures were taken, so the matter was resolved. Moreover, management created a formal Memorandum of Information and presented it to Complainant and the Plant Manager. The Workplace Violence Team closed the case after an investigation. 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”). Assuming Complainant established a prima facie case of discrimination on all alleged bases, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions in claims 1, 2, and 3(a) and that Complainant did not establish the Agency’s reasons were a pretext for discrimination. We also do not find that she was subjected to a hostile work environment with respect to claim 3(b).2 Assuming these matters occurred as alleged, we do not find that Complainant established that these matters were based on her alleged bases. 2 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 also fail with regard to claims 1, 2, and 3(a). See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that 2021001699 5 CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or harassed by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. Complainant failed to establish that these matters were motivated by discriminatory animus. See Complainant v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). 2021001699 6 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 September 30, 2021 Date