Samuel R.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Mar 23, 2018

0120160065 (E.E.O.C. Mar. 23, 2018)

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

Samuel R.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.

Appeal No. 0120160065

Hearing No. 540-2015-00125X

Agency No. NRCS-2013-00138

DECISION

On September 14, 2015, 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
August 19, 2015, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Soil Scientist, GS-
0470-12, in the Agency’s Soils Division, New Mexico State Office, Natural Resources
Conservation Service in Grants, New Mexico.

On February 19, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his age (57) and in reprisal for his prior protected EEO
activity under the ADEA 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.
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1. On or about October 19, 2012, Complainant received a lower annual performance
rating for Fiscal Year 2012 than he had received in previous rating periods.

2. Beginning on or about March 20, 2012, and continuing, Complainant’s Supervisor
subjected him to acts of harassment, such as:

a. Sending him harassing email and otherwise communicating with him in a
demeaning, belittling manner;

b. Giving him unclear, inconsistent and/or incorrect guidance; and

c. Falsely accusing him of incompetence and suggesting that he was in need of
remedial training.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The Agency noted that Complainant stated that he has filed two or three prior EEO
complaints against his Supervisor. With respect to claim (1), Complainant received a rating of
“Fully Successful” on his Fiscal Year 2012 performance appraisal. The Agency stated that
Complainant maintained that he merited at least a “Superior” rating since he exceeded his goals
and previously received “Superior” ratings. The Supervisor explained that he issued
Complainant a “Fully Successful” rating given that he met or was close to meeting all of his
goals. According to the Supervisor, an employee must meet and surpass the goals in order to
achieve a higher rating. The Supervisor stated that Complainant was within 90% of his
performance elements and over 100% on none of them.

The Supervisor stated that Complainant’s previous supervisor permitted Complainant to choose
his own rating. The Supervisor asserted that Complainant is used to “doing his own thing,”
which is not the norm at the Agency. The Agency noted that Complainant argued that the
Supervisor was not aware of his goals and did not discuss them with him for the first year.

As for claim (2), the Agency stated that Complainant claimed that his Supervisor sent him emails
asking him to do things that he did not understand. Complainant maintained that his Supervisor
would issue accusations and then subsequently learn he was wrong. Complainant stated that the
Supervisor falsely accused him of incompetence and suggested he needed remedial training. The
Supervisor denied that he sent harassing emails and explained that Complainant was difficult to
manage as he would argue with instructions. The Supervisor denied that he has accused
Complainant of incompetence, but stated that Complainant did not comprehend guidance that a
GS-12 Soil Scientist should understand.
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The Supervisor also denied that he indicated that Complainant needed remedial training,
although he stated that Complainant asks questions that make it clear he would benefit from
further training. The Agency stated that Complainant responded by asserting that his Supervisor
lashes out and becomes frustrated when he is proven wrong.

The Agency noted that Complainant is the oldest person in his work unit among twenty
employees ranging in age from 32 to 58. With regard to the two performance appraisals prior to
the evaluation at issue, for Fiscal Year (FY) 2010 Complainant received a “Meets Fully
Successful” on all six of his performance elements for a summary rating of “Fully Successful.”
As for FY 2011, Complainant received “Exceeds Fully Successful” on two performance
elements and “Meets Fully Successful” on the other six performance elements for a summary
rating of “Fully Successful.” With respect to the FY 2012 performance evaluation at issue,
Complainant received a rating of “Meets Fully Successful” on all eight performance elements for
a summary rating of “Fully Successful.”

The Agency assumed arguendo that Complainant established a prima facie case of discrimination
based on age and reprisal as to claim (1). The Agency pointed out that Complainant was rated
lower on two performance elements in his most recent performance evaluation than in the prior
evaluation for FY 2011. The Agency stated that Complainant was within 90% of his
performance elements but did not exceed 100% on all of them. The Agency determined that it
articulated a legitimate, nondiscriminatory reason for Complainant’s ratings. The Agency
determined that Complainant did not submit sufficient evidence to establish that he exceeded
100% of his performance elements. The Agency determined that no discrimination occurred as
to Complainant receiving a “Meets Fully Successful” rating.

With regard to claim (2) concerning harassment, the Agency stated that it was unable to give
Complainant’s evidence substantial weight in light of the fact that the emails that are purportedly
to and from his Supervisor are clipped, cut and pasted, and interspersed with Complainant’s
typed annotations. The Agency noted that most of the emails are from Complainant to the
Supervisor, thus weakening the harassment claim. The Agency takes note of two emails from
the Supervisor to Complainant. One of the emails indicates that a project was on hold due to
orders from the New Mexico State Conservationist. The Agency states that the other email
involves the Supervisor mentioning that he would ask two employees to assemble a training plan
because apparently more training is needed. The Agency observed that Complainant typed
annotations into the body of the latter email and it did not know the email’s meaning and context
since it could not see the entire email chain. The Agency reasoned that a single email suggesting
more training does not constitute severe and/or pervasive behavior that constitutes harassment.
Further, the Agency determined that taking into consideration all of the copied emails that the
Supervisor sent to Complainant and the claims of unclear and inconsistent guidance, it discerned
no evidence to demonstrate that this behavior was severe enough to constitute harassment or that
it was motivated by Complainant’s age or prior EEO activity.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that his Supervisor did not offer documentation in support of
his assertions. Complainant states that consideration of a pattern of behavior should be given
based on two other complaints filed against his Supervisor by two employees that were settled
for monetary damages. In support of his position, Complainant submits a statement from a
coworker that Complainant claims corroborates the Supervisor’s harassment practices and
challenges the Supervisor’s abilities and knowledge of certain processes utilized at
Complainant’s work facility.

ANALYSIS AND FINDINGS

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. 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, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency 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 Products, 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).

With respect to claim (1), we shall assume arguendo that Complainant set forth a prima facie
case of age discrimination and reprisal. The Agency stated that Complainant received a rating of
“Fully Successful” on his FY 2012 performance appraisal to reflect that he met or was close to
meeting all of his goals. According to the Supervisor, an employee must meet and surpass the
goals in order to achieve a higher rating. The Supervisor stated that Complainant was within
90% of his performance elements and over 100% on none of them. We find that the Agency
articulated a legitimate, nondiscriminatory reason for Complainant’s performance rating.

Complainant argued that the Supervisor was not aware of his goals and did not discuss them with
him for the first year. Complainant challenges the fact that he received a lower rating in two of
his performance elements in comparison with his FY 2011 performance evaluation. Upon
review of the record, we find that Complainant has not refuted the Agency’s explanation for his
rating of “Fully Successful” on all of his performance elements and as his overall rating. We
find that Complainant has not produced persuasive evidence that his performance warranted a
higher rating.

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Complainant claims that he was subjected to harassment by management officials. To establish
this claim, 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; (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. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile,
factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s
work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).

Complainant claims that the Supervisor sent him harassing emails and otherwise communicated
with him in a demeaning, belittling manner. Complainant also claims that the Supervisor
provided unclear, inconsistent and/or incorrect guidance, and falsely accused him of
incompetence and suggested that he needed remedial training. The Supervisor denied that he
sent harassing emails and explained that Complainant was difficult to manage as he would argue
with instructions. The Supervisor denied that he has accused Complainant of incompetence, but
stated that Complainant did not comprehend guidance that a GS-12 Soil Scientist should
understand. The Supervisor also denied that he indicated that Complainant needed remedial
training, although he stated that Complainant asks questions that make it clear he would benefit
from further training.

It is clear that Complainant and his Supervisor did not communicate effectively with each other.
The record suggests that they lacked sufficient respect for each other’s capabilities. Upon review
of the emails in the record, we do not discern from the Supervisor’s communication with
Complainant interaction that was sufficiently demeaning to rise to the level of harassment. The
suggestion of additional training and inconsistent or possibly even incorrect guidance does not
reflect sufficient severity or pervasiveness to constitute a hostile work environment. Nor do we
find that Complainant has established that the Supervisor’s emails are evidence of animus on the
basis of his age or protected EEO activity. We note that the submissions on appeal from the
coworker also have Complainant’s handwritten annotations and seem to merely confirm that
Complainant and his Supervisor had a contentious relationship. We find that Complainant has
failed to establish that he was subjected to harassment on the basis of his age or prior EEO
activity.

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
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Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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. 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.
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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

March 23, 2018
Date