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

Equal Employment Opportunity Commission

May 23, 2018

0120160801 (E.E.O.C. May. 23, 2018)

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

Sanora S.,1
Complainant,

v.

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

Appeal No. 0120160801

Agency Nos. FS201500198 and FS201500350

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 December 17, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 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 worked as a Legal Document
Examiner, GS-03963-07 at the Agency’s Region 5, in the Los Padres National Forest facility in
Frazier Park, California. The Assistant Forest Lands and Mineral Staff Officer, GS-11
(Responding Management Official (RMO1)), had been Complainant's first-line supervisor since
2005. The Employee Relations Specialist, GS-12 (RMO2) provided personnel guidance to
Complainant’s managers. RMO1 also solicited advice from the Public Service and Engineer Staff
Officer, GS-13 (RM03).

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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On January 27, 2015, Complainant filed an EEO complaint (FS201500198) alleging that the
Agency discriminated against her on the bases of age (62) and in reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:

1. on November 4, 2014, she received a Superior performance rating on her Fiscal
Year (FY) 2014 performance appraisal;
2. on an unspecified date, her supervisor denied her request for a laptop;
3. on an unspecified date, her supervisor required her to work at grade levels above
and/or below her GS-0963-07, Legal Documents Examiner position; and
4. on various dates, she was subjected to additional harassing treatment, such as:
a. on various dates, including in August 2012, her supervisor sent her harassing
electronic mail (email) and subjected her work to heightened scrutiny;
b. on an unspecified date, prior to February 21, 2014, her supervisor tried to
discourage her from teleworking;
c. in August 2014, after she threatened to file an EEO complaint, her supervisor
said: "That would not be good for you;"
d. on or about August 22, 2014, after she complained to her supervisor about
coworker harassment, her supervisor became angry and lost her temper yelling:
"That's negative, that's negative!" and
e. since an unspecified date, she has been subjected to harassing treatment by a
coworker, but management has failed to intervene.

On April 15, 2015, Complainant filed another EEO complaint (FS201500350) alleging that the
Agency discriminated against her because of her age and reprisal when:

5. On various dates, she was subjected to various incidents of harassment, such as:
a. in September 2014, her supervisor laughed in her face and also failed to
acknowledge her after she made a comment;
b. in November 2014, her supervisor ignored her presence on two separate
occasions;
c. in December 2014, her supervisor became angry and yelled at her after she
raised concerns about her workload; and
d. in February 2015, her supervisor accused her of being "fixated” on a
coworker.

The Agency consolidated these complaints for investigation. After the investigation, the Agency
provided Complainant with a copy of the report of investigation and notice of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
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 failed to prove that the Agency subjected her to
discrimination.

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The Agency found that Complainant failed to establish a prima facie case of age discrimination.
The Agency also found that, even if Complainant had established a prima facie case, she failed to
demonstrate that the Agency’s reasons for its actions were a pretext for discrimination.

With respect to Complainant’s hostile work environment claims, the Agency found that, when
taken alone or together, a reasonable person would not find the incidents complained of by
Complainant to be sufficiently severe or pervasive. The Agency noted that the provisions of Title
VII were not intended to mediate and resolve every office dispute or personality conflict found in
the workplace. It found that the actions alleged by Complainant were more closely related to the
daily, office variety disputes found in many workplaces, which did not meet the legal requirements
of severe or pervasive treatment.

Finally, the Agency decided that Complainant failed to establish a prima facie case of reprisal for
any of the issues in her complaint. The Agency decided that Complainant failed to establish a
causal connection between her protected conduct (in 1997 or 1998) and the alleged adverse actions
in 2014 and 2015. Further, the Agency observed that even if Complainant had established a prima
facie case, Complainant failed to produce any evidence to establish that the reasons proffered by
the Agency were pretexual.

Taking each complaint and claim in turn, the Agency expounded as follows:

FS-2015-00198

With respect to Claim 1, in which Complainant challenged her receipt of a Superior performance
rating on her FY 2014 performance appraisal as discriminatory and retaliatory, the Agency
explained that the Superior rating Complainant received was based on the elements of her position
description and supplemental standards on which she had provided input. RMO3 stated that in
order for an employee to receive a Superior, the employee must exceed expectations in at least one
element, but to receive an Outstanding, the employee must exceed expectations in all elements.
Record evidence indicated that Complainant exceeded expectation in only one element and
Complainant proffered no evidence indicating that her evaluation was incorrect.

As to Claim 2 that Complainant’s supervisor denied Complainant’s request for a laptop because
of her age, Complainant explained that she made a verbal request to RMO1 for a new laptop, and
that RMO1 told her that there was no money in the budget for it. Complainant stated that she was
the only employee who did not have a laptop, and that District Ranger (DR) ultimately purchased
a laptop for her since RMO1 refused to do so. RMO1 stated that nearly every permanent, full-
time employee had either a PC or laptop and that if an employee needs replacement equipment, he
or she must submit a written request to that effect, which Complainant did not do. She also stated
that DR's purchase of a laptop for Complainant was a discretionary decision by him and the
funding for it came from his budget. In corroboration, DR explained that Complainant had assisted
him with a significant amount of backlogged billing and that he purchased her a new laptop as a
show of gratitude. DR stated that he had no knowledge of Complainant having requested a laptop
from RMO1 or that the request had been denied.
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The Agency found that there was insufficient evidence to establish any nexus between
Complainant's EEO activity and the delay in her receipt of a laptop. Further, the Agency found
that Complainant did not offer any evidence demonstrating that the Agency’s reason for
Complainant’s delayed receipt of a laptop was a pretext for age discrimination or reprisal for her
prior EEO activity.

Regarding Claim 3, where Complainant claimed that RMO1 required her to work above or below
her GS-7 position, Complainant explained that RMO1 required her to scan hundreds of documents
so that they could be accessed by employees who were not in Complainant's office. Complainant
stated that she performed this task for several years in addition to her other duties. Complainant
further asserted that her position description was inaccurate. She explained that she was placed in
her current position because of a settlement agreement and that, although she performed
Communication Site Inventory forms and verifications before RMO1 was hired, this was not her
job and it was above her pay grade. Complainant stated that she asked RMO1 to relieve her of
these duties as well as the below grade duties such as making copies, filing, cleaning up permit
files, and revising billing work completed by another employee but RMO1 refused.

RMO1 countered that, as Complainant’s supervisor, the duties to which she assigned Complainant
were within the description of her Legal Documents Examiner position. She stated that the
scanning of the documents was included in Complainant’s supplemental standards. She also
explained that a desk audit was conducted in December 2011, at Complainant's request, and it was
determined that Complainant was properly classified at her current grade level, but it was
recommended that her series be changed. RMO1 stated that Complainant refused to have her series
changed. Additionally, RMO2 stated that he was contacted by RMO3 seeking advice on how to
handle a situation regarding Complainant who did not want to scan documents because she deemed
it to be "beneath her." RMO2 said he advised RMO3 that the issue was caused by a personality
conflict, that Complainant was responsible for doing the work, and that RMO3 should contact the
Performance Branch for assistance in formulating performance standards for Complainant and
explaining the Agency Employee's Responsibilities and Conduct Policy to Complainant. The
Agency found that the record was devoid of any evidence to show that the Agency operated with
a discriminatory animus when it made decisions about which work assignments to give her.

With respect to Claim 4a-e, the Agency found that these alleged incidents were insufficient to
constitute a hostile work environment and the record was devoid of any evidence to establish that
the allegations of harassment were true.

Regarding claim 4a, Complainant alleged that RMO1 sent her emails which had a harassing and
unprofessional tone. She further claimed that RMO1 “barks” orders to her which causes a hostile
work environment. She stated that after she filed her current EEO complaint, RMO1 began
emailing her and referencing her performance appraisal elements and scrutinizing her scanning
assignments. Complainant also stated that RMO1 became angry with her and rarely communicates
with her. She added that she never addressed her concerns with RMO1 for fear of further verbal
abuse and retaliation. In rebuttal, RMO1 denied that she ever communicated with the Complainant
in an unprofessional manner.
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She stated that as Complainant’s supervisor, it is her responsibility to review Complainant’s work
and if she needed any clarification, she sought answers from Complainant. RMO1 explained that
if she had unresolved issues with Complainant, she relied on her supervisor, RMO3, to address
Complainant. In corroboration, RMO3 noted that throughout 2014, Complainant had forwarded
RMO1’s emails to her and expressed concern about their tone. RMO3 said that she found the
emails to be professional and had suggested to Complainant that she and RMO1 discuss their issues
with the Civil Rights Specialist. Complainant declined to take this step. Further, Forest Supervisor
(FS-1), GS-15 stated that he received an email from the Complainant in December 2014, stating
that she was being subjected to a hostile work environment and had no other choice but to file an
EEO complaint. He averred that he took the complaint seriously and contacted Human Resources
Services (HRS) for an evaluation of the Complainant's claims. FS-1 said that HRS determined that
the matter appeared to be a personality conflict between Complainant and RMO1 rather than an
EEO issue, so conflict resolution was recommended. FS-1 further noted that he reviewed the
emails which Complainant claimed to be hostile and he found them to be professional and not
harassing in any way.

With respect to 4b, Complainant alleges that she has an adult son with a heart condition at home,
and she informed RMO1 that she might need to obtain a work at home agreement. Complainant
stated that she proposed an adjustment to her schedule to work four days each week, 10 hours per
day, but RMO1 stated that this would be difficult to implement. She claimed that RMO1 never
offered to help or find a solution for her. Complainant admitted that she never submitted a formal
request for a telework schedule and acknowledged that there are employees under RMO1's
supervision who have telework agreements. RM01 denied discouraging Complainant from
teleworking, and in fact, had approved Complainant to telework on several occasions. She said she
does not recall Complainant submitting a request to change her ad hoc telework agreement. FS-1
stated that he had no knowledge of RMO1 discouraging Complainant from teleworking. He stated
that the Agency's telework policy requires that for an employee to be approved for a telework
schedule, the supervisor and requesting employee discuss the nature of the work and the supervisor
determines if the employee's assigned duties can be effectively accomplished remotely. FS-1
explained that once suitability has been determined, a telework agreement form is completed. He
said that the decision to approve or deny a telework schedule is done on a case by case basis.

Regarding Claim 4c, Complainant alleged that after she threatened to file an EEO complaint, her
supervisor said: "That would not be good for you." She clarified that after she filed an EEO
complaint against RMO1, she asked RMO1 for assistance with a coworker with whom she was
having problems but RMO1 became angry and started yelling at her. Complainant stated that she
reported her complaints of harassment to RMO3 but nothing happened. RMO1 said that she had
no knowledge of this alleged incident and does not recall Complainant ever threatening to file an
EEO complaint. Additionally, she denied making the comment to Complainant that filing an EEO
complaint would not be good for her.

The Agency decided that Complainant had not shown that she was subjected to unwelcome
personal slurs or other denigrating or insulting verbal or physical conduct, or that the harassment
she complained of was based on her protected class.
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Furthermore, the Agency found that Complainant failed to adduce evidence to demonstrate that
the alleged harassment was sufficiently severe or pervasive to alter her employment and create a
hostile or abusive work environment, even if Complainant's allegations regarding harassment were
true.

FS-2015-00350

With respect to Claim 5a-d, Complainant alleged that her supervisor laughed in her face, failed to
acknowledge her after she made a comment, ignored her presence on two separate occasions,
became angry and yelled at her after she raised concerns about her workload, and accused her of
being fixated on a coworker. The Agency noted that RMO1 denied these allegations, but the
Agency determined that even if true, the alleged incidents were not sufficiently severe or pervasive
to create a hostile work environment in violation of Title VII or the ADEA. The Agency noted that
the record was devoid of any corroborating witness testimony or other evidence to substantiate
that the allegations were true. The Agency found that even if the allegations were true,
Complainant's allegations are not the type of harassment that Title VII was intended to address
because the Title VII provisions were not intended to mediate and resolve every office dispute or
personality conflict found in the workplace.

In sum, the Agency concluded that Complainant’s evidence regarding the allegations in
Complaints FS-2015-00198 and FS-2015-00350 was insufficient to establish that discrimination
had occurred with respect to the issues in these complaints.

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”).

On appeal, Complainant argues at the outset that she did not request a decision from the Agency.
She said the Agency told her that the EEO process would continue and that she would not have to
do anything despite the paperwork she had received. In pressing this argument on appeal,
Complainant does not ask for a hearing. Instead, she complains that the Agency disregarded her
statement of facts and relied solely on management’s statements, which she claims are untrue, in
reaching its decision. The record shows that the Agency informed Complainant of her right to
request a hearing before an AJ, and that if she did not make such a request in a timely manner, the
Agency would issue a decision.

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Complainant has produced no evidence, beyond her unsubstantiated assertion, that the Agency
instructed her that she did not have to take any further action. Therefore, having received no
hearing request, the Commission finds that the Agency properly issued a decision on these
complaints.

On the merits of this appeal, we find that Complainant failed to show by a preponderance of the
evidence that the Agency’s conduct was based on her age or prior EEO activity. Indeed, with
respect to certain allegations in Complaint FS-2015-00198, Complainant does not dispute the
Agency’s assertion that she only exceeded expectations in one element and therefore did not
qualify for an Outstanding rating or that she never submitted a written request for a laptop or to
telework as required by Agency policy. Complainant also did not dispute the Agency’s assertion
that she declined to have her job series changed or to see a Civil Rights Specialist to discuss the
issues between her and RMO1. Further, we find that Complainant’s harassment allegations and
evidence fail to rise to the level of severity or pervasiveness to create a hostile work environment
in violation of Title VII or the ADEA. Instead, we find that a personality conflict between
Complainant and her supervisor was at the heart of their negative interactions. However, as the
Agency noted, Title VII was not meant to “insulate [employees] from either the normal day-to-
day dissatisfactions and annoyances commonly arising in any workplace or from the sometimes
unpleasantness of a surly, strict or even personally insufferable and demanding supervisor.”
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). Regarding claim 4(d), we find that
Complainant did not show by a preponderance of the evidence that the alleged remark was ever
made. Regarding claim 4(e), Complainant explains that a coworker has been attempting to
supervise her. We find that Complainant has failed to allege any actions on the part of the coworker
that are harassing and she has failed to show any actions by the coworker were motivated by
discrimination. Therefore, on these facts, we find that Complainant was not subjected to unlawful
discrimination.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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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. 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.

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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

May 23, 2018
Date