Berry K., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Sep 14, 2017

0120161098 (E.E.O.C. Sep. 14, 2017)

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

Berry K.,
Complainant,

v.

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

Appeal No. 0120161098

Agency No. FSA201500236

DECISION

On January 16, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 15, 2015, 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 finding of no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a CO-07 Program
Technician (PT) at the Agency’s Effingham County Farm Agency Services facility in
Effingham, Illinois. Complainant’s first line supervisor was the County Executive Director
(RMO1). Complainant’s second line supervisor (RMO2) was the District Director.

On February 18, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when on November 18, 2014, he was issued a Letter of
Counseling (LOC). After 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). When Complainant did not request a

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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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 him to discrimination as alleged.

Specifically, the Agency found that Complainant established a prima facie case of reprisal. The
record established that Complainant had filed two prior EEO complaints, one on September 29,
2014 and the other on November 17, 2014. According to the Agency’s management, the LOC
was issued to inform Complainant about conduct issues that RMO1 was having with
Complainant. The LOC was not a disciplinary action and would not be placed in his personnel
file. Rather, the LOC would be kept in RMO’s file for a year, after which it could no longer be
used for further actions.

Agency officials stated that they were not aware of Complainant’s EEO activity when they began
to discuss preparing Complainant’s LOC. Specifically, RMO 1 and RMO 2 explain that it took
approximately six weeks to prepare the LOC for presentation to Complainant. They also stated
that when they were made aware of his EEO activity, RMO2 solicited advice from Human
Resources (HR) as to whether they should issue the LOC because he was concerned about the
appearance of retaliation. The HR representative, however, advised RMO2 that Complainant’s
EEO complaint should not deter RMO1 from taking appropriate steps if Complainant has
conduct issues. Consequently, on advice of HR, which provided a template, RMO1 prepared the
LOC. Since Complainant failed to produce any evidence or witness to refute the Agency’s
reasons, the Agency concluded that Complainant had not proven he had been subjected to
reprisal.

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 contends that he was unaware that an HR representative had
participated in the LOC decisional process and thus had not contacted him. Further, he submits
that he did not have witness testimony to corroborate his allegation of reprisal because the
investigator declined to interview the witnesses he had identified.

None of Complainant’s arguments on appeal support reversal. Complainant’s lack of knowledge
about HR’s participation in the decision to issue the LOC does not alter the fact that the evidence
establishes that the Agency’s conclusion that Complainant’s conduct was inappropriate (rude to
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coworkers, bullying, and breaking chain of command), and not his EEO complaint, motivated
management to issue the LOC. Similarly, the investigator’s decision not to interview
Complainant’s witnesses does not provide a basis for reversal. The investigator’s report
indicates that Complainant admitted that none of the witnesses knew about his LOC. There is no
evidence that similarly situated persons were treated differently. Evidence showing that RMO2
solicited HR’s advice as to whether it would be appropriate to issue the LOC because of the
potential misperception of retaliation indicates that reprisal was not a motivating factor in the
issuance of the LOC. To the extent that Complainant was aggrieved by the LOC, we find that
Complainant has not shown the issuance of the LOC was motivated by discrimination.

CONCLUSION

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

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.
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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 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

September 14, 2017
Date