[Redacted], Tommy C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021003039 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2021003039 Agency No. RD-2020-00706 DECISION 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 March 23, 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 this complaint, Complainant was employed as a Branch Chief, GS-1165-13, at the Agency’s Hawaii State Office located in Hilo, Hawaii. Complainant filed a formal complaint on September 11, 2020, alleging that he was subjected to discrimination and harassment (nonsexual) based on sex (male), color (non-white), race (Asian), national origin (other/Filipino), and reprisal (prior EEO activity), when: 1. on April 28, 2020, he learned management issued him a lower performance evaluation and denied him a monetary award, in contrast to his colleagues; 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. 2021003039 2 2. on an unspecified date in August 2019, his first-level supervisor cancelled his official duty travel as the Housing Program Director at the State Office for Hawaii and the Western Pacific; 3. on unspecified dates, his first-level supervisor removed several of his housing program official work duties; and 4. on several dates, he was subjected to various incidents of harassment, including, but not limited to: a. on an unspecified date in July 2019, his first-line supervisor announced to his colleagues that Complainant was transferring out of unit five months prior to his acceptance of a subsequent transfer; b. on unspecified dates in August 2019, his first-line supervisor ignored his request to address allegations of a hostile workplace, stating that she did not want to hear about the history, stated, “Believe it or not, I know how you are,” and put her hand in his face to prevent him from answering a question in front of his subordinate; c. beginning during the month of August 2019, and continuing through December 2019, management scrutinized and delayed the processing of his travel compensatory time submittal; d. on an unspecified date in September 2019, his first-line supervisor undermined his authority when she gave instructions to his direct reports without his involvement. e. beginning during the month of October 2019, and continuing through May 2000, management ignored his request for a work cell phone case; and f. on unspecified dates, his first-line supervisor failed to support his efforts to discipline subordinates, which resulted in his subordinates ignoring his supervisory authority, criticizing his work and speaking negatively about him to another management official. 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. Regarding claim 1, S1, Complainant’s immediate supervisor, stated that the reason she rated Complainant as fully successful on October 23, 2019, was because she identified issues within the housing programs Complainant managed.2 S1 stated that Complainant neglected many duties and responsibilities including servicing the housing portfolio. 2 Complainant noted that because he was rated as a “3” or “satisfactory,” he was denied a monetary award, because a “4” or higher was required to qualify for the award. 2021003039 3 S1 noted that this included ensuring that loans and grants were processed, approved, and closed in accordance with regulations. S1 maintained that she also had concerns about Complainant’s management style. Although she enrolled Complainant in a supervisory training program and recommended that he take courses in the program, Complainant declined to take the training on October 7, 2019. S1 indicated that she and Complainant had several discussions about his programs and responsibilities, and that she provided him feedback on issues such as the lack of converting construction loans to permanent loans, the backlog of housing applications, and ways to improve his program. With respect to claim 2, S1 noted that Complainant wanted to travel to America Samoa with a coworker, CW1. S1 stated that due to high travel costs, she did not feel it was a benefit to the Agency to send two staff members on this trip. S1 maintained that CW1 was responsible for American Samoa and could have completed the travel on his own and it was unnecessary for Complainant to go there. In addition, S1 stated that Complainant did not provide a definitive purpose for the travel though he did indicate that he had not been to the island before. S1 stated that she followed the same travel policies for all employees and Complainant traveled at other times during her tenure as his supervisor. With respect to claim 3, S1 denied removing duties from Complainant’s areas of responsibility. S1 stated that Complainant was on leave June 27, 2019 - July 22, 2019, and on travel status to the Western Pacific territories of Guam, Saipan, Palau, Pohnpei, and Majuro from July 28, 2019, to August 9, 2019. During Complainant’s absence and at other times when Complainant took leave, S1 directed other housing program staff to perform Complainant’s duties. According to S1, Complainant, upon his return from travel and leave, resumed all of his official duties. Regarding claim 4(a), Complainant maintained that in July 2019, S1 announced by email that Complainant intended to transfer. According to Complainant, S1 disliked him and that he did not know why. By announcing his intent to transfer before he decided to do so, Complainant believes S1 took away his program authority. He also stated that he did not know how S1 found out that he was thinking about leaving, but that “[s]omeone must have told her.” S1 stated that Complainant informed her of his acceptance of a position with the Guaranteed Housing Integrated Unit and that his plans were discussed within the leadership team in order to plan for his departure and to ensure continuity of operations within the Housing Programs. CW2, a coworker, stated that she received the email indicating that Complainant was transferring on July 26, 2019, but had already heard the news in April 2019. CW2 maintained that Complainant’s plans were not a secret. Regarding claim 4(b), Complainant stated that CW1 came to him with a situation involving an employee. Complainant and CW1 went to S1 to discuss the matter. According to Complainant, he wanted to tell S1 the background, present the issue, and work with her on a solution. According to Complainant, however, S1 placed her hand in his face and looked at CW1 and stated, “You explain to me what’s going on.” Complainant stated that he tried to speak and S1 told him, “I don’t want to hear it. Stop!” 2021003039 4 Complainant again tried to explain but S1 interrupted him and stated, “stop! I don’t want to hear the history.” Complainant maintained that S1 then leaned towards CW1 while her hand remained blocking his face and asked CW1 to explain their concerns. Complainant stated that he felt embarrassed and disrespected. S1 stated that she recalled a conversation with Complainant and CW1 where Complainant was discussing an issue about certain documents being missing. During the discussion, Complainant brought up a coworker who Complainant alleged destroyed documents and began discussing that coworker’s prior EEO activity. S1 indicated that she told Complainant it was inappropriate to talk about the employee’s EEO activity and raised her hand to stop the discussion on that topic. S1 denied putting her hand up to Complainant’s face and denied saying the things Complainant alleged. CW1 recalled being in a room with Complainant and S1 when S1 put her hand up in a motion to say just stop. CW1 also recalled S1 saying on occasion, “I don’t want to hear about the past, I want to move forward ....” CW1 did not recall other details of the incident but noted that S1 was there to get her job done, was professional, but was not necessarily nice to anyone. Regarding claim 4(c), Complainant maintained that upon his return from official travel, he had to report his compensatory time use to receive credit. Complainant stated that he sent an email to CW5, a Management and Program Analyst, to request 11 hours of credit, which Complainant stated was an estimate since his travel involved many hours of flights through five different time zones. CW5, according to Complainant, rejected his request and instructed him to fill out a specific form to calculate the hours. According to Complainant, this was a tedious process, but he complied. Upon completing the calculation using the form, he identified over 30 hours of compensatory time and submitted his request for credit to CW5. Complainant indicated that he had several back and forth interactions with CW5 that lasted over five months. He contrasted his treatment with that of a female coworker who submitted a request for 26 hours of compensatory time and CW5 approved it with an email. Complainant stated that he reported the delay to S1, and his second line supervisor, S2, and that S2 followed up on his request. S1 stated that Complainant traveled to the Western Pacific in August 2019, and emailed her on August 22, 2019, outlining travel that occurred on August 11. S1’s records indicated, however, that his travel period was July 28 through August 9, 2019. Complainant maintained that he failed to include his request for compensatory time on his previous pay period’s timesheet. S1 stated that she asked him to work with CW5 to determine the correct amounts to which he was entitled. S1 maintained that CW5 provided Complainant guidance on the proper procedure for calculating his compensable hours, and that the two worked together to achieve that result. CW5 stated that Complainant’s request for compensatory time came in after his trip was completed and his time and attendance was already processed for pay periods 15 and 16. On August 27, 2019, S1 asked Complainant to provide flight information to her so that she could process a corrected timesheet. CW5 noted that Complainant’s request showed inconsistencies with his flight itinerary and the hours he was claiming. 2021003039 5 CW5 maintained that she and Complainant exchanged emails from late August 2019 through early December 2019, and that a corrected timesheet was eventually processed on December 12, 2019, for pay periods 15 and 16. CW5 also maintained that the delay was attributable to the fact that four new employees were hired during this period and she was heavily involved with onboarding, training, and system access issues. Regarding claim 4(d), S1 stated that when she was appointed as Acting State Director in Hawaii, she discovered that the construction loans for the self-help housing program were not being converted to permanent loans upon completion of the construction. This resulted in applicants moving into their homes and not paying back their loans to the government. S1 stated that she discussed this issue with Complainant, but he did not rectify the situation. Complainant, she stated, reported her instructions to his staff but they did not comply. Consequently, she established a team consisting of a National Headquarters representative and several of Complainant’s subordinates to convert construction loans to permanent loans. Complainant, according to S1, was aware of the project, attended a few meetings, but did not show any initiative to be involved. Complainant believed that S1 undermined his authority when she gave instructions to his direct reports, who were on the team, without his involvement. Regarding claim 4(e), Complainant stated that he ordered a cell phone case in October 2019; however, after multiple follow up emails with CW5, who handled purchasing, she did not submit a request until May 2020, and he did not receive the cell phone case until mid-July 2020. Complainant contends that CW5 ignored his request but was responsive to purchasing requests submitted by others. According to Complainant, S1 supported and protected CW5. S2 stated that she received an email from Complainant about a request for a cell phone case that he had made four months earlier. S2 spoke to CW5 about the matter. According to S2, CW5 did not explain the delay but stated that she would order the cell phone case. S2 discussed the delay with CW5 and S1. S2 noted that she has also experienced delays in getting reimbursements and felt that CW5’s attitude of “I’ll get to it when I get to it” was unacceptable. CW5 stated that she forgot to place the order for Complainant’s cell phone case. Her records show that Complainant’s original request was made on October 11, 2019, and she received follow up emails from Complainant on April 21, 2020 and May 19, 2020, and that the cell phone case was procured in June 2020. Regarding claim 4(f), Complainant maintained that S1 failed to support his efforts to discipline subordinates, which resulted in them ignoring his supervisory authority, criticizing his work and speaking negatively about him to another management official. According to Complainant, in his role as Housing Program Director, he was obligated to ensure the program remained strong and consistent with the Agency’s mission in Hawaii and the Western Pacific. Complainant argued that S1 and CW7, an Associate Enterprise Director, made sure he was not able to accomplish his mission. Complainant alleged that S1 favored the local group that had harassed him for years and undermined his work. For example, Complainant stated that the Team Leads did not ask for Complainant’s approval on work related items but went straight to S1. 2021003039 6 Complainant attributed this treatment to the fact that his colleagues were all born and raised in Hawaii and were either part Caucasian, Native Hawaiian, or Japanese while his parents were from the Philippines. S1 stated that she was aware Complainant had problems with employees but stated that he never requested her support or assistance in formally disciplining anyone. Furthermore, she noted that he would have had to go to Human Resources for disciplinary actions. 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”). 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 he 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 his 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination on all alleged bases, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions in claims 1, 2, and 3. We find no persuasive evidence of pretext. Complainant, other than speculation, offered no evidence that his protected bases played any role in the Agency’s actions. 2021003039 7 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 4(a) - 4(f),3 we do not find that he established that these matters were motivated by discrimination or reprisal; nor do we find that they were 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, acting 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 does not establish that Complainant was discriminated against 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 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, and 3. 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 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). 2021003039 8 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). 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. 2021003039 9 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 November 22, 2021 Date