Salvatore B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

0120181485 (E.E.O.C. Aug. 27, 2019)

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

Salvatore B.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120181485

Agency No. FS-2017-00698

DECISION

On March 22, 2018, 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
January 23, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Fisheries Biologist, GS-0482-12, in Lufkin, Texas. On June 2, 2017, Complainant requested to
telework more than one day per week to transport his daughter during the summer. Complainant
claimed that his second-level supervisor (S2) denied the request citing Complainant’s abuse of
telework privileges, needing a clean slate, and the need for Complainant's team lead to determine
whether Complainant was working. Complainant stated that he never had a telework agreement,
therefore he could not abuse telework. Complainant alleged that other employees were treated
more favorably with far more liberal telework arrangements.

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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Complainant’s supervisor (S1) explained that Complainant had been working under a provisional,
time-limited telework agreement since March 2017. S1 noted that telework was not an entitlement,
and that Complainant sought unlimited telework which was not allowed by the Agency. S2 added
that he explained to Complainant that he was allowed to telework one day per week on a trial basis.
S2 affirmed that he told Complainant that he was willing to allow him more telework days if he
could prove to his team lead that he accomplished the required tasks of his position while utilizing
telework appropriately.

Complainant alleged that on May 1, 2017, S2 refused to allow him to work from the remote office,
even though he had been allowed to work there for years. Complainant claimed that S2 verbally
criticized his performance based solely on S1’s false representations. Complainant alleged that
after filing an EEO complaint in 2016, S2 has refused to allow him to work from the remote office.
Further, Complainant claimed that S2 provided several false statements to support his decision.

Both S1 and S2 stated that the management did not have a telework agreement with the remote
location, and Complainant should not have been allowed to report there. S1 affirmed that he was
directed by the prior Forest Supervisor and Human Resources (HR) to terminate the informal
agreement and bring Complainant back to his assigned duty location. S1 noted that the prior Forest
Supervisor initially decided that Complainant would not return to work at the remote office
because management was unable to contact Complainant on several occasions while he was
working at the remote location. S2 added that if he were to allow Complainant to work from the
alternate site, he would have to let others do the same and it would affect locality pay. S2 further
explained that the Agency’s teleworking policy provided that if a telework agreement was not a
short-term assignment of six months or less, the official duty station must be changed to the
alternate work site and pay must be set accordingly.

Complainant alleged that on April 28, 2017, he learned that S1 changed his performance standards
without notifying him in violation of Agency regulations. Complainant claimed that when he
spoke to S2, his concerns were dismissed. Complainant alleged that management used this to
harass him and to damage his reputation with false unsuccessful ratings in an effort to force him
out. Complainant alleged that the change in his performance standard doubled his workload as he
had to document everything he was working on to show accountability and protect himself.

S1 affirmed that he added a supplemental standard to reflect Complainant's responsibility on the
Forest Plan Revision Interdisciplinary Team (FPRIT). S1 stated that he informed Complainant of
the change to his performance standards during his mid-year performance appraisal. S1 stated that
it was his duty to review the performance standard of the employees he supervises and that his
actions were consistent with the Agency's standard operating procedures, the responsibilities of
his position and his supervisor's expectations. S1 noted that it was customary practice for a
supervisor to change an employee’s performance standards every year or even within a fiscal year.
S1 recalled that Complainant expressed that it was too much work and that he was being set up to
fail. S1 stated that he offered Complainant assistance and denied changing Complainant’s
performance standard to harass him. S2 noted that changes were made to all employees’
performance standards under S1’s supervision.
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Complainant claimed that on April 28, 2017, S1 raised an issue regarding his “chit-chatting” with
a co-worker during that co-worker’s mid-year performance. Complainant alleged that S1 raised
this issue with the co-worker in an effort to dissuade the co-worker from speaking to Complainant.
Complainant claimed that when he raised the issue with S1, S1 became incensed and then told S2
an embellished version of this situation, which resulted in S2 forwarding a scolding email on May
3, 2017 directing Complainant not to conduct any more “human experiments.”

S1 stated that Complainant reported to him that he enlisted the help of a co-worker to conduct an
experiment to prove that S1 harassed him. S1 affirmed that Complainant explained that he
pretended to confront a co-worker in a staged experiment to note the difference in reaction he
would receive from S1. S1 affirmed that Complainant indicated the results of his experiment
proved that he was being harassed by S1. S1 stated that he informed S2 that Complainant admitted
to conducting a disruptive experiment in the office to prove that he was harassing Complainant.
S2 confirmed that he sent Complainant an email directing him not to conduct any more “human
experiments,” but did not issue any discipline after consulting with Employee Relations. S1
asserted that his intent in reporting the incident to S2 was to prevent Complainant from engaging
in this type of unprofessional and disruptive behavior in the future.

Following Complainant’s report of harassment by S1, management conducted an inquiry into the
allegations. Complainant alleged that on May 22, 2017, S2 informed him that management's
inquiry into his allegations of harassment against S1 found that his claims were unsubstantiated.
Complainant insinuated that management used the process as a weapon against him by having a
former employee conduct the review. Complainant asserted the reviewer stood to benefit from a
promotion, and he changed the dates that the harassment occurred in order to change the outcome.
Complainant does not believe that all of his harassment claims were investigated.

S1 and S2 stressed that all of Complainant’s harassment claims were investigated and found to be
unsubstantiated. S2 stated that he presented Complainant with the findings of one of the inquiries
and Complainant informed him that he had a prior history with the investigator and that the
investigator was biased against him based on that prior history. S2 affirmed that he initiated a
second inquiry into Complainant’s second claim of harassment with at different investigator and
those claims were also unsubstantiated.

On June 13, 2017, Complainant claimed that S2 called him into his office on three separate
occasions to harass him about work. S2 stated that he called Complainant into his office to discuss
Complainant’s additional allegations of harassment. S2 affirmed that he only wished to gather
more information about Complainant’s claims and that he never criticized Complainant’s work
during this meeting.

Complainant claimed that on June 15, 2017, S2 threatened him with disciplinary action for failure
to provide a letter S2 should have obtained from others involved in an allegation. Complainant
believed that S2 did not obtain the letter which showed that S2 began a cover-up rather than
conduct an investigation.
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S2 explained that he requested that Complainant submit a copy of a February 2014 letter that was
used in a 2016 disciplinary action against him. S2 stated that Complainant believed that this letter
was unfairly used against him, and S2 wanted to see the letter to learn more about S1’s relationship
with Complainant. S2 affirmed that he had only seen a portion of the letter and it was used as
support for issuing a letter of reprimand to Complainant in 2016. S2 stressed that he requested a
copy of the letter from everyone involved and Complainant was the only one who had a copy, but
he refused to provide it. S2 added that he only threatened Complainant with disciplinary action
after consulting with HR.

On July 27, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment in reprisal for prior protected EEO
activity when:

1. on June 2, 2017, management denied his telework request;

2. on May 1, 2017, management denied his request to return to his remote office;

3. on April 28, 2017, he learned that management changed his performance standards
without notifying him; and

4. on several dates, he was subjected to various acts of harassment, including but not
limited to:

a. on May 3, 2017, management sent him an email directing him to not
conduct any more “human experiments;”
b. on May 22, 2017, his supervisor informed him that his management
inquiry request regarding harassment was “unsubstantiated;”
c. on June 13, 2017, management called him into their office several
times to criticize his work and discuss prior management decisions
regarding him; and
d. on June 15, 2017, management sent him an email indicating that his
failure to comply with a request to submit an unadulterated copy of
a February 2014 letter could lead to disciplinary action.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation on November 2, 2017, and a notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). On December 21, 2017, the Agency provided Complainant a
copy of the supplemental report of investigation. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant had not proven
that the Agency subjected him to reprisal or a hostile work environment as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was not aware that by allowing the Agency to issue a
final decision, that he would not be afforded the opportunity to have a hearing before an EEOC
AJ. Further, Complainant contends that the Agency denied him additional telework and
disallowed his request to return to his remote office to retaliate against him. Complainant denies
that S1 offered him any assistance after changing his performance standards. Complainant argues
that the intent of the inquiries into his harassment allegations were to free both S1 and S2 of all
charges in one sweeping action they initiated and controlled. Complainant claims that S1 refused
to turn over all emails and covered up emails during the inquiry. Complainant contends that the
weight of the evidence shows that management retaliated against him and subjected him to a
hostile work environment. Accordingly, Complainant requests that the Commission reverse the
final decision.

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”).

As an initial matter, the Commission will address Complainant’s claim that he was not fairly
afforded the opportunity to request a hearing. The record indicates that the Agency issued a
Complainant copy of the report of investigation on November 2, 2017. Therein, the Agency
provided Complainant with several options including the opportunity to supplement the record and
to request a hearing before an EEOC AJ. There is no evidence indicating that Complainant
requested a hearing within the regulatory 30-day timeframe. The Agency subsequently issued a
supplemental report of investigation to Complainant on December 21, 2017. Complainant
provided additional documentation for the supplemental report of investigation and referenced
specific pages in the initial report of investigation that he challenged, evidencing that he had
received the initial report of investigation. Further, Complainant provided a copy of email
correspondence between Complainant and the Agency’s Equal Employment Specialist in which
Complainant asked, “so if I do not make a selection, after the default agency decision, I still have
the option to an appeal?” The Equal Employment Specialist informed Complainant that his appeal
rights would be explained after the final decision was issued.

The Commission finds that because Complainant did not exercise his right to request a hearing,
the Agency properly issued its final decision. On appeal, Complainant presents no evidence that
he is entitled to a hearing before an EEOC AJ pursuant to 29 C.F.R. § 1614.108(f).
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Therefore, we find that Complainant's current request for a hearing on appeal is untimely. As such,
we shall review the Agency's final decision based on the record before the Commission.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No, 05950351 (Dec. 14, 1995).

Claim #1 (Telework Denied)

According to the Agency, Complainant was denied permission to telework because, in the past,
while Complainant was teleworking, management had experienced difficulty contacting
Complainant. ROI at 410. This is a legitimate, non-retaliatory reason for the Agency’s actions.
Complainant has not shown it to be a pretext designed to conceal retaliatory animus.

Claim #2 (Remote Office Denied)

According to the Agency, Complainant was not permitted to work from the remote office because
management had experienced difficulty contacting Complainant while he was working at that
location. ROI at 412. Further, management did not have an official agreement with the remote
office for Complainant to report there. Id. Management decided it had to treat employees fairly
as other employees may have requested to work from closer alternate work sites that would affect
locality pay. Id. at 413. Accordingly, Complainant was not allowed to work from the alternate
site. This is a legitimate, non-retaliatory reason for the Agency’s actions. Complainant has not
shown it to be a pretext designed to conceal retaliatory animus.

Claim #3 (Performance Standard Changed without Notice)

The Agency explained that Complainant’s performance standards were changed to reflect
Complainant’s participation in the Forest Plan Revision Interdisciplinary Team. ROI at 396.
According to the Agency, it was “common practice” for supervisors to change an employee’s
performance standard, “even within a Fiscal Year.” ROI at 397. Furthermore, these changes were
discussed with him during his mid-year performance appraisal. Id. at 396.
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This is a legitimate, non-retaliatory reason for the Agency’s actions. Complainant has not shown
it to be a pretext designed to conceal retaliatory animus.

Claim #4 (Harassment)

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 his harassment claim, Complainant must establish that he 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 failed 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. The Commission finds that,
based on the totality of the circumstances, Complainant has not demonstrated that the alleged
incidents were sufficiently severe or pervasive to establish a hostile work environment. The
Commission notes 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).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency's
actions were based on retaliatory animus. 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, S2 sent Complainant an email directing him not to conduct any more
“human experiments” after Complainant admitted to staging a disruptive scene to prove a point
about S1’s treatment of him. S2 noted that no disciplinary action was taken. Regarding the
inquiries into Complainant’s harassment allegations, S2 confirmed that he initiated the inquiries,
but that Complainant’s allegations were unsubstantiated. S2 noted that he initiated a second
inquiry after Complainant claimed that the first investigator was biased against him. Nonetheless,
both investigations found that Complainant’s claims were unsubstantial. Finally, S2 informed
Complainant that he could be subjected to disciplinary action if he did not provide a copy of a
February 2014 letter based on advice from HR. S2 stated that Complainant was the only one who
had a copy of the letter and had claimed it was misused against him, but he refused to provide it.
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S2 affirmed that he requested the letter because he had only seen a portion and needed to know
more about the entire relationship between Complainant and S1.

Complainant has not shown that he was subjected to a retaliatory hostile work environment.
Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the
Commission finds that, as discussed above, Complainant has not proffered any evidence from
which a reasonable fact finder could conclude that the Agency's explanation for its actions was
pretext for reprisal. As a result, the Commission finds that Complainant has not established that
he was subjected to reprisal or a hostile work environment as 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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:

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507.
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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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

August 27, 2019
Date