Zachary H.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Nov 14, 2018

0120171221 (E.E.O.C. Nov. 14, 2018)

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

Zachary H.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120171221

Hearing No. 480-2014-00391X

Agency No. APHIS-2013-00376

DECISION

On February 14, 2017, 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
April 17, 2017, final decision2 concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 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 Biological Science
Technician, AD-5, on a term appointment at the Agency’s work facility in Waipahu, Hawaii.

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.

2Complainant filed his appeal after the Agency responded to the AJ’s remand by stating it would
implement the AJ’s order to issue a final decision. Complainant’s appeal was premature, but given
that the Agency has since issued a final decision, we shall consider the appeal.
0120171221

2
On May 14, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and subjected him to harassment on the bases of his age (48) and in
reprisal for his prior protected EEO activity when:

1. On November 29, 2012 and December 4, 2012, Complainant was denied sick leave and
instead required to use leave without pay;

2. On April 24, 2013, Complainant was issued a Letter of Reprimand;

3. On May 22, 2013, Complainant was issued a Notice of Excused Absence, placing him
on paid administrative leave until June 9, 2013, which was the expiration of his
appointment;

4. On unspecified dates, Complainant was denied performance awards; and

5. On various dates, Complainant was subjected to additional harassing treatment, such
as:

a. On various dates, including April 7, 2012, Complainant’s Supervisor refused to
provide Complainant with written policies regarding inventory issues;

b. On August 23, 2012, Complainant’s Supervisor required Complainant to attend an
unsafe firearms class;

c. On August 24, 2012, Complainant’s Supervisor subjected Complainant to a
misconduct investigation;

d. On an unspecified date after October 26, 2012, Complainant’s Supervisor required
him to complete two inventories;

e. On December 11, 2012, Complainant was issued a Letter of Caution; and

f. On January 11, 2013, Complainant’s Supervisor changed his password without
consulting him.

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 Equal Employment
Opportunity Commission 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 management had articulated legitimate, nondiscriminatory reasons
for its actions. With regard to claim (1), Complainant requested sick leave on November 29, 2012
and December 4, 2012, but the requests were denied by Complainant’s Supervisor (S1).
0120171221

3
According to S1, in terms of Complainant’s sick leave request of November 29, 2012, Complainant
did not inform him that the leave was going to be taken and the request was submitted after
Complainant returned to work. With regard to the sick leave request of December 4, 2012, S1
stated that Complainant presented a doctor’s note from a veterinarian. Management explained that
Complainant could not use sick leave for taking pets to the veterinarian. S1 noted that Complainant
was presented the option of choosing leave without pay or annual leave and he chose leave without
pay.

In terms of claim (2), Complainant argued that he was not able to complete his training on time
due to S1’s actions. According to Complainant, S1 requested the information technician change
the password to his computer. S1 asserted that he issued a Letter of Reprimand to Complainant
based on Complainant’s failure to follow directions. The Agency noted that S1 maintained that
on January 17, 2013, he verbally reminded Complainant he was required to take Information
Security Awareness training. S1 stated that on January 24, 2013, he sent an email to Complainant
with instructions to complete the Information Security Awareness training immediately.
According to S1, on January 22, 2013, Complainant completed a different training program.

With respect to claim (3), the Agency stated that Complainant claimed he was issued the Notice
of Excused Absence for no valid reason, and that at the time he was engaged in EEO activity that
included S1. S1 asserted that he issued the Notice placing Complainant on administrative leave
until June 9, 2013, which was the expiration of his appointment. S1 stated that he issued the Notice
due to Complainant’s repeated absences for requested meetings to discuss an extension for
Complainant at the Agency. According to S1, Complainant had become increasingly agitated and
more aggressive. S1 commented that as time approached toward Complainant’s Not to Exceed
date, the initial decision was to extend Complainant for three months to allow time for remedial
action given Complainant’s behavior. S1 stated that after another missed meeting, Complainant
called him a coward and other names, which led to Complainant being placed on administrative
leave and an issuance of the Notice of Excused Absence rather than a three-month extension.

With regard to claim (4), the Agency stated that Complainant claimed that he was denied a
performance award when he was not rewarded for his activities concerning the maintenance of
trails. S1 asserted that Complainant received a performance award along with other unit
employees. S1 maintained that in August 2012, Complainant received a monetary amount for his
capture of a wild animal at the worksite. The District Supervisor asserted that performance awards
are given to employees for eliminating hazardous attractants on the premises, not for work
performed on the trails.

In terms of claim 5(a), Complainant claimed that S1 refused to provide him with written policies
concerning inventory matters. Complainant stated that S1 informed him that flashlights would be
tagged but that flashlights are less than $100.00, and the policy stated that equipment under
$100.00 did not have to be tagged unless the item was sensitive. S1 asserted that Complainant
received administrative training regarding inventory. S1 stated that he showed Complainant the
policy after Complainant requested to see the policy.

0120171221

4
With regard to claim 5(b), Complainant contended that he was harassed when he was required to
attend an unsafe firearms class. According to S1, all employees were required to attend a Wildlife
Hazard Management training class, which included firearms training. S1 acknowledged that a
firearms incident occurred and Complainant walked out. S1 stated that he subsequently halted the
training.

As for claim 5(c), Complainant charged that S1 initiated a misconduct investigation against him
by influencing two employees to write a statement against him after he had a verbal altercation
with one of S1’s friends. S1 maintained that Complainant had an argument with a coworker
concerning a uniform request denial. S1 explained that during inventory inspections, it was
determined that Complainant called the coworker an offensive term.

With respect to claim 5(d), Complainant contended that he was the only employee that had to
complete two inventories. According to S1, the inventory sheet was incomplete on the day in
question and Complainant received the other half of the inventory the following day. S1
maintained that the inventory was half done and Complainant needed to assist in the full
completion since he received half of the inventory.

With regard to claim 5(e), S1 asserted he called a staff meeting with all employees and
Complainant did not inform him that he would not be there. Complainant claimed that he
attempted to attend the meeting, but did not arrive until the meeting concluded.

In terms of claim 5(f), Complainant argued that S1 changed his password without consulting him.
According to Complainant, an information technology representative issued him a password
change permitting him to complete work. However, Complainant stated that the following day he
experienced the same login problems from the prior day. S1 asserted that a password reset was
completed, but he was unsure if Complainant requested the password reset.

The Agency concluded that Complainant failed to show that management’s reasons for its actions
were pretextual.

With regard to Complainant’s harassment claim that encompassed all allegations, the Agency
stated that Complainant failed to establish that the alleged incidents were sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence of 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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he should have been offered the opportunity to use
compensatory time rather than leave without pay for his leave requests. Complainant argues as to
claim (2) that he did the training S1 instructed him to do. Complainant maintains that at the
relevant time he was the only employee required to perform two inventories.
0120171221

5
With regard to the meeting he missed that resulted in the Letter of Caution, Complainant states
that he was working at the airfield due to bird problems and arrived at the meeting late.
Complainant accuses S1 of lying with regard to several of the matters at issue.

ANALYSIS AND FINDINGS

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). 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. To establish a prima facie case of reprisal, Complainant must show that: (1) he
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between
his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

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
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).

Here, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons
for its actions. The Agency asserted as to claim (1) that for the November 29, 2012 leave request,
Complainant did not submit the leave request for his wife’s knee surgery until after he missed the
day of work. As for the sick leave request of December 4, 2012, the Agency stated that
Complainant submitted a veterinarian’s note, but that sick leave cannot be used for pets. In terms
of claim (2), the Agency determined that Complainant did not complete the Information Security
Awareness training, but instead completed different training. With regard to claim (3), S1 stated
that Complainant called him a coward and other names, which led to Complainant being placed
on administrative leave and the issuance of the Notice of Excused Absence. With respect to claim
(4), the District Supervisor asserted that performance awards were given to employees for
eliminating hazardous attractants on the premises, not for work performed on the trails. We find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions in claims (1) – (4).

Complainant challenges the Agency’s decision regarding his leave request of November 29, 2012,
by arguing that the time he took off for his wife’s knee surgery was justified and that he sought to
apply some of his 170 hours of annual leave.
0120171221

6
However, this argument does not refute the Agency’s explanation that Complainant did not inform
S1 that he would be taking leave, and the leave request was submitted after Complainant returned
to work. With respect to his sick leave request of December 4, 2012, Complainant maintains that
he considers his pets to be family. However, this contention is not sufficient to overcome Agency
policy that does not allow for the use of sick leave for taking a pet to the veterinarian.

As for claim (2), Complainant maintains that he was not able to complete his training on time due
to S1’s actions. According to Complainant, S1 requested that the information technician change
the password to his computer. We note that Complainant also stated that he completed the
designated training, which he states was different that the Information Security Awareness
training. We find that these arguments are not persuasive as Complainant has failed to show that
the Agency’s explanation for issuing the Letter of Reprimand was pretext intended to hide
discriminatory motivation.

With regard to claim (3), Complainant claims he was issued the Notice of Excused Absence for
no valid reason. However, this argument clearly fails to challenge the Agency’s explanation that
Complainant was placed on administrative leave and issued the Notice of Excused Absence after
he engaged in agitated and aggressive behavior toward S1 and failed to attend meetings. In terms
of claim (4), Complainant claims that he merited a performance award for his activities concerning
the maintenance of trails. However, this argument fails to refute the District Supervisor’s
explanation that performance awards were issued to employees for eliminating hazardous
attractants on the worksite premises, but not for work done on the trails. We find that Complainant
has failed to establish that the Agency’s reasons for its actions were pretext intended to mask
discriminatory or retaliatory motivation.

Hostile Work Environment

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); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

In terms of the alleged incidents that comprise claim (5), S1 stated that Complainant was afforded
the opportunity to review the inventory policy after Complainant requested to see the policy. As
for the firearms incident, S1 stated that all employees had to attend a Wildlife Hazard Management
training class, which included firearms training.
0120171221

7
S1 stated that he halted the training after an incident in which two ricochets possibly occurred.
With regard to the misconduct investigation, S1 asserted that Complainant had an argument with
a coworker concerning a uniform request denial. S1 explained that during inventory inspections,
it was determined that Complainant called the coworker an offensive term. Based on the reports
of the incident, S1 requested statements from witnesses for the record. In terms of Complainant
being required to perform two inventories, S1 stated that the inventory sheet was incomplete on
the day in question and Complainant received the other half of the inventory the following day.
As for the Letter of Caution, S1 explained that he issued it after he called a staff meeting with all
employees and Complainant did not inform him that he would not be there. As for the change in
Complainant’s password, S1 denied that he did so stating that he lacked the authority or access to
change Complainant’s password. We find that the Agency has articulated legitimate,
nondiscriminatory reason for its actions in these matters.

Upon review of Complainant’s arguments regarding these alleged incidents, we find that they are
not sufficient to refute the Agency’s explanation for what occurred. Complainant has not shown
that that the alleged incidents were sufficiently severe or pervasive to establish a hostile work
environment nor has he demonstrated that the Agency’s actions as to all claims were attributable
to either his age or his prior EEO activity. We find that Complainant has not demonstrated that he
was subjected to discrimination, reprisal, or a hostile work environment.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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.
0120171221

8
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.

0120171221

9
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 14, 2018
Date