U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Monroe A.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 2021003030 Hearing No. 510-2020-00387X Agency No. APHIS-2020-00153 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 31, 2021, final decision concerning his 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 his complaint, Complainant was employed as a Plant Pathology Identifier, GS-0434-11, in the Agency’s Plant Protection and Quarantine (PPQ) Unit, located in Miami, Florida. Complainant held the position from October 7, 2013, until May 18, 2020, at which time he resigned. S1 was the Supervisory, PPQ Officer from January 2018 to October 2019. S2 supervised Complainant from October 2019 to May 18, 2020. S3 was his second-level supervisor from July 2016 - May 18, 2020. 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. 2021003030 2 On February 5, 2020, Complainant filed the instant complaint alleging that he was subjected to discrimination and harassment (nonsexual) based on race (Black), national origin (Zambian), and reprisal (prior EEO activity) when on several dates, he was subjected to various incidents of harassment, including but not limited to: a) since October 31, 2019, management has not responded to his request for a copy of a grievance allegedly filed on his behalf and a copy of the “official instructions” instructing him not engage National Identification Services (NIS) employees; b) in September 2019, management prohibited him from signing up for the Plant, Pathology, and Botany training due to the terms outlined in his “official instructions;” c) on October 25, 2019, he became aware that a Human Resources (HR) employee filed a grievance on his behalf without his knowledge and when he contacted various employees for assistance with the matter, no one would assist him, ignored his emails and his request to cancel the grievance; d) since March 5, 2019, management has not provided him with a copy of a restraining order that was placed against him; e) on June 7, 2018, management failed to respond to his request for an explanation as to why he could not attend meetings; f) on June 21 and July 15, 2016, when he requested that management thoroughly investigate incidents of false accusations made against him, they failed to do so; and g) from September 3 - 10, 2015, management engaged in various email exchanges in order to take an adverse action against him. 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 (AJ). Complainant requested a hearing; however, during discovery, the Agency erroneously issued a final (FAD) decision, from which Complainant filed an appeal with the Commission’s Office of Federal Operations (OFO). During a conference with the AJ, Complainant was given the options of the Agency withdrawing its FAD and continuing the hearing process, or Complainant withdrawing his hearing request and proceeding with his appeal before OFO. Complainant selected the option of proceeding with his appeal. The Agency’s FAD found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The record indicates that in June 2015, D1, an employee of the Agency’s National Identification Services (NIS), met with A1, an Agency official, about an upcoming conference in Pasadena, California in August 2015. D1 was concerned about prior comments allegedly made by Complainant that she deemed threatening. For example, Complainant allegedly told D1 that, “You opened up a can of worms in your confidential memo, and I can assure you I will not rest until justice is done.” D1 was concerned about seeing Complainant while they were at the conference. 2021003030 3 A1 followed up with an email to D1 on June 10, 2015, informing her that Complainant was told by his supervisory chain not to engage NIS staff, including at the meeting in Pasadena. A1 stated that “[t]he employee has been advised both verbally and in writing that he is not to engage NIS staff. At any time, if you feel that he has violated the conditions of his official instructions regarding this, please contact [a management official] immediately.” Years later, during discovery concerning other EEO complaints, Complainant maintains that he found out about what had occurred regarding D1, A1, and his “official instructions.” Regarding claims (a) and (c), Complainant maintained that on October 17, 2019, during a meeting with E1, an EEO Intake Specialist, regarding the filing of the instant complaint, E1 informed him that a grievance had been filed on his behalf regarding his not being allowed to engage with NIS staff. Complainant maintained that E1 also told him that A1 supposedly filed the grievance. Complainant stated that on October 25, 2019, he contacted A1 and left a voice message requesting that he cancel the grievance because he was filing an EEO complaint of discrimination. According to Complainant, although he contacted various officials, including A1, he has never received, nor has he seen, a copy of the grievance. The Agency maintains that there was no grievance filed on behalf of Complainant. In an October 31, 2019, email to Complainant, A1 wrote, “[e]ven though I am not clear on what you are referring to, grievances and official letters of instructions are handled by [Human Resources], Please contact [W1].” The Agency cited an email from W1, the Acting Human Resources Branch Manager, that no Human Resource Specialist including any Labor Relations Specialist would file a grievance on behalf of any employee including Complainant, because it would be inappropriate to do so. W1 maintained that the role of the HR Labor Relations Specialist was to provide an employee with options on the Agency’s grievance processes, and to serve as an advocate to management in fact- finding and assistance in drafting responses when an employee files a grievance. Regarding claim (b), the Plant Pathology and Botany training was scheduled for April 29 to May 3, 2019, in Los Angeles, California, and later postponed to September 2019. Complainant did not submit a request to S1, S2, or S3 to attend the training. S1, who was Complainant’s supervisor in September 2019, stated that he “would have allowed him to apply if [Complainant] had asked and if such conference would be beneficial to his duties, and to the mission of the agency.” Complainant assumed that he would not have been allowed to attend the training because of D1’s 2015 accusations, his “official restrictions,” and A1’s refusal to rescind those restrictions. Regarding claim (d), there is no evidence that the Agency has a “restraining order” against Complainant. Complainant, on March 5, 2019, was informed by A1 that his office did not issue a restraining order against him because that was something that a court or a law enforcement authority would do. 2021003030 4 Complainant viewed A1’s June 10, 2015, email as a restraining order that prevented him from engaging with NIS staff. Finally, Complainant’s managers had no knowledge of a restraining order against him. Regarding claim 1(e), Complainant stated that the decision to prohibit his attendance at meetings was not explicitly stated or written but was the result of A1’s failure to rescind the “official instructions.” Complainant maintained that his attendance at a meeting where a NIS employee might be present would be a violation of A1’s instructions. According to Complainant, A1’s failure to rescind the instructions impacted his ability to attend scientific meetings and to interact with NIS staff. S1 stated that Complainant was not denied the opportunity to attend any Agency-sponsored meetings during the period he supervised him. Regarding claim (f), Complainant was accused of making inappropriate and unauthorized comments on the Agriculture Quarantine Activity System (AQAS) database. F1, a former supervisor, was directed to investigate the matter. Pursuant to F1’s investigation, Complainant was issued a Letter of Reprimand in February 2017. F1 noted that Complainant admitted making some of the comments that were attributed to him on the database. According to Complainant, he denied making the comments attributed to him and told F1 that the database contained a major flaw that allowed tentative comments to subsequently be deleted or modified. Complainant maintained that on June 21 and July 15, 2016, he asked that an investigation be conducted into the matter, but that an investigation was never conducted. Regarding claim (g), in November 2018, during the discovery process concerning another complaint, Complainant learned that, in September 2015, several Agency officials believed that he was a no-show at a convention. After an Agency investigation, it was determined that Complainant had attended but had encountered problems with registration and could not pick up his conference/convention materials right away. Complainant contacted E2, who assisted him with the registration, she addressed the issue and Complainant was able to receive his badge around 11:00 am. The record indicates that no action was ever taken against Complainant. 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”). 2021003030 5 To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Upon review, we find that Complainant has not established a claim of harassment. At the outset, we find no persuasive evidence that any of these matters, even if they took place exactly as alleged, were based on Complainant’s race, national origin, or prior EEO activity. Likewise, we do not find that these matters were either severe or pervasive enough as to have altered the conditions of Complainant’s employment and create an abusive working environment. In fact, Complainant was not even aware of many of the claims until years after they had already taken place. Complainant provided no evidence that a grievance was filed on his behalf, a restraining order was obtained against him, or that he was denied training or barred from meetings; therefore, we do not find that he was subjected to harassment when various Agency officials did not address his assertions otherwise. As for claim (f), the record indicates that Complainant filed an EEO complaint regarding his February 2017, Letter of Reprimand which alleged discrimination based on race, national origin, and retaliation. An EEOC Administrative Judge (AJ) granted the Agency’s motion for summary judgment on this issue and other matters. In EEOC Appeal No. 2020003103 (Mar. 31, 2021), the Commission affirmed the Agency’s final order adopting the AJ’s determination. We find that Complainant’s argument that he was subjected to harassment when the Agency did not investigate his concerns about a flaw in the database is an attempt to relitigate the matter of his Letter of Reprimand. Assuming there is evidence of a flaw in the Agency’s database that would have established that Complainant was not responsible for the comments at issue or that the Agency failed to properly investigate the matter, he should have presented that evidence to the AJ in order to show that a genuine issue of material fact was in dispute. We will not revisit Complainant’s claim here. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 2021003030 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). 2021003030 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 25, 2021 Date
