Rosie T.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Apr 13, 2016

0120142278 (E.E.O.C. Apr. 13, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rosie T.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.

Appeal No. 0120142278

Agency No. NRCS-2013-00127

DECISION

The Commission accepts Complainant’s appeal from the Agency’s May 9, 2014 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-8 Area
Management Assistant at the Agency’s Marquette Area Office in Marquette, Michigan.
Complainant claims that in May 2012, she was assigned the extra duties of Certifying Officer.
Complainant believed that this was part of the promotion process and that she was entitled to a
higher pay grade. Complainant alleges that her first-level supervisor (S1) requested a desk
audit on her behalf on several occasions. Complainant claims that S1 spoke with her second-
level supervisor (S2) several times about the desk audit, and Complainant sent copies of her
request to S2 and the Administrative Officer (AO). Complainant never received a response to
her requests. In October 2012, in an effort to undermine her goal of obtaining a promotion,
management directed S1 to strip her of the Certifying Officer duties.
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.

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In August 2012, Complainant scheduled a “meeting of the minds” teleconference.
Complainant claims that management officials undermined her by ordering participants not to
participate on the day the event was to take place. Complainant believes that AO ordered the
participants not to attend the teleconference to discredit her authority and keep her from getting
a promotion.

On February 12, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American/French/Native American), color (golden brown), and in reprisal for prior
protected EEO activity when:

1. On October 1, 2012, in an effort to undermine her goal of obtaining a promotion,
management directed her first-line supervisor to strip her of her Certifying Officer
duties that she was assigned in May 2012;

2. On unspecified dates after she received additional duties, her first line supervisor
made multiple requests on her behalf for a desk audit of her Area Management
Assistant position, but to date, management has refused to approve the desk audit or
even officially respond to any of the requests; and

3. On unspecified dates, management officials subjected her to additional acts of
harassment, including when they disrupted her planned “meeting of the minds”
teleconference by ordering scheduled attendees not to participate.2

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency initially found that Complainant established a prima facie case of
discrimination and reprisal. Next, the Agency determined that management articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, with respect to claim (1),
S2 and other witnesses stated that the extra duties Complainant performed were not those of a
Certifying Officer, and were temporary in nature as the Agency transitioned to a new software
system. Numerous employees stated that Complainant approved payments in the ProTracts
software, but did not perform Certifying Officer duties. Thus, the Agency determined that the
clear weight of the testimony supported the inference that Complainant was not performing
Certifying Officer duties on a permanent basis, and instead temporarily approved payments in
2 The Agency dismissed several additional claims as previously raised in a prior complaint
pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant raised no challenges to this dismissal on
appeal; therefore, the Commission will not address those claims in this decision.

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the new ProTracts software system. As a result, the Agency determined that the record
evidence established that there may have been some overlap between Complainant’s duties and
those of a Certifying Officer; however, the evidence supported that Complainant's extra duties
did not merit promotion to the GS-09 level.

Regarding her request for a desk audit, Complainant argued that she was performing her Area
Coordinator job as well as the extra duties of being a Certifying Officer, and consequently, she
was entitled to a higher pay grade than GS-08. S1 requested a desk audit on Complainant’s
behalf. S2 stated that rather than give Complainant the desk audit, he removed the extra duties
from her; therefore, it was unnecessary for him to authorize the desk audit. S2 perceived
Complainant’s request as an ultimatum: either she should be promoted, or the duties should be
removed from her. The Agency noted again that the evidence showed that Complainant was
not performing official Certifying Officer duties; rather, she was performing payment approval
duties on a temporary basis with the migration to new software. This suggested that
Complainant's premise for requesting the desk audit was incorrect. Thus, while management
responded poorly to Complainant’s requests for a desk audit, the Agency determined that there
was no evidence of discriminatory or retaliatory animus in management’s inaction.

Finally, Complainant claims that that management officials ordered participants to not
participate in her scheduled teleconference. According to Complainant, she scheduled a
teleconference on August 15, 2012, which she intended to be a "meeting of the minds" to
discuss ongoing problems with software. However, other area management officials began
questioning the purpose of the call and at least one directed his staff not to participate. On the
day of the call, S2 apparently called S1 upset that Complainant scheduled the call outside of
ordinary procedures, causing confusion. S2 denied ordering the attendees of the
teleconference not to participate, but acknowledged that other managers contacted S1 with
concerns about the teleconference as it did not originate with an official team member. Emails
about the teleconference show that after Complainant scheduled the call, two area management
officials responded to S1 to ask the purpose of it, and one directed his staff not to participate.
The emails suggest that other area management officials directed their staff not to participate
on their own initiative and were not directed to do so by S2. S1 stated that S2 called him about
five minutes before the teleconference, and S2 was not pleased about how the call was
organized. The Agency determined, however, that this was likely because of the backlash that
the call generated from other area management officials, and not as a deliberate attempt to
harass or intimidate Complainant.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretext for unlawful discrimination or reprisal. Further, to the extent that
Complainant claimed that the alleged incidents constituted a hostile work environment, the
Agency determined that there was no evidence that the alleged incidents were sufficiently
severe or pervasive or based on discriminatory or retaliatory animus. As a result, the Agency
found that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to conduct a proper investigation into
her complaint and that relevant evidence and witnesses were omitted. Complainant believes
that a new investigation should be conducted into her complaint. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant's dissatisfaction regarding the
investigation of her complaint. Complainant claims on appeal that the investigator assigned to
investigate her complaint made several errors, and that the investigation was inadequate and
incomplete. Upon review of the entire record, the Commission is not persuaded that the
investigation into Complainant's complaint was incomplete or improper. Complainant has not
presented any evidence of impropriety in the processing of her complaint, and Complainant
failed to request a hearing, a process which would have afforded her the opportunity to conduct
discovery and to cure alleged defects in the record. Thus, despite the above referenced
arguments, the Commission determines that the investigation was properly conducted.

Hostile Work Environment

Turning to the merits of the instant complaint, to establish a claim of harassment a 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; (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).

Therefore, 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.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her protected classes, management subjected her to a

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hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to her. The Commission concludes that Complainant failed to
show that she was subjected to a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, personality conflicts, and
general workplace disputes and tribulations. For example, with respect to claims (1) and (2),
numerous management officials and witnesses stated that Complainant was not performing the
duties of a Certifying Official; rather, she performed temporary duties including payment
review and approval related to the Agency’s migration to new software. ROI, at 98, 102, 106.
Nonetheless, Complainant requested a desk audit on several occasions based on her belief that
she was entitled to a promotion for performing the higher-level Certifying Official duties. S2
believed that Complainant either wanted a non-competitive promotion or for the extra duties to
be removed. Id. at 81. As a result, S2 decided to remove the extra duties rather than non-
competitively promote Complainant, and no desk audit was necessary. Id. Finally, regarding
claim (3), S2 affirmed that other area managers contacted S1 about their personnel being
requested to be involved in Complainant’s teleconference since it was not coming from an
official management team member. Id. at 83. S1 confirmed that he received emails from area
managers who were not pleased and that they had advised their staff not to participate. Id. at
113. Agency officials agreed that Complainant did not obtain the proper approval of the
intended participants’ supervisors prior to scheduling the teleconference. Id. at 108, 114.

The Commission finds that Complainant has not proffered any evidence showing that the
Agency's explanation was a pretext for discrimination or reprisal. As a result, the
Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

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 of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

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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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

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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

April 13, 2016
Date