Berry K., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.Download PDFEqual Employment Opportunity CommissionSep 14, 20170120161098 (E.E.O.C. Sep. 14, 2017) Copy Citation 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. 0120161098 2 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 0120161098 3 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. 0120161098 4 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 Copy with citationCopy as parenthetical citation