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

Equal Employment Opportunity Commission

Sep 23, 2020

2019004195 (E.E.O.C. Sep. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celeste P.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency. Appeal No. 2019004195 Agency No. NRCS-2018-00587 DECISION On May 22, 2019, 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 25, 2019 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. 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 Conservation Technician, GS-0457-05, at the Agency’s Salem Field Office in Salem, Illinois. Complainant began working with the Agency on January 8, 2018 and was still a probationary employee at the time she resigned on May 11, 2018. Complainant claimed that she is a very independent worker due to possessing a master’s degree and previously worked beyond the GS-5 level for other federal agencies, but she accepted the instant position to work closer to home. Complainant contended that her immediate supervisor (S1) gave her a lot of training and work, but “as I worked for him, he started becoming more controlling.” 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. 2019004195 2 According to Complainant, S1 said he did not have time to keep track of Complainant’s projects but then slowly “began controlling everything I did from what I did on my 15-minute breaks to deciding which projects I could work on and if I could finish them or not.” Complainant alleged that because Human Resources confirmed that she had 12 months of experience at the GS-5 level and a master’s degree, she should have been promoted in April 2018. She said that she told S1 that Human Resources told her that she could be promoted immediately and that she would have financial difficulty with student loans if she remained at the GS-5 level. However, S1 denied her a promotion and said that she would need several job approval authorities. Complainant believed S1 used the promotion potential as a means of controlling her. S1 affirmed that Complainant told him she wanted to be promoted to the GS-7 level almost immediately. S1 discussed the matter with Complainant’s second-level supervisor (S2) and determined that Complainant had been selected as a GS-5/6/7, so going from Step 5 to Step 7 was unprecedented. S2 felt that Complainant could be promoted in six to nine months under ideal circumstances and sought to make sure Complainant had the training she needed. S2 asserted that he discussed Complainant’s compensation with her before she accepted the position. Complainant had made it clear to S2 that she felt she should be at the GS-9 or GS-11 position, and that the GS-5 position was beneath her. S2 explained the Agency was offering a GS- 5 Technician position because Complainant had no Technician experience. “I told her outright that she should not accept the position we were offering her if she was not interested. I got my answer when she entered on duty.” A Supervisory Staffing Specialist familiar with Complainant’s situation said that Complainant would not have been legally eligible for promotion for at least three months. A female coworker (CW1) was a Soil Technician in an adjacent county and took a downgrade to accept the position in Louisville for personal reasons. She discussed a re-promotion with S1 and says she worked hard at demonstrating her abilities to do higher level work. S1 sent in the request to re-promote her but could not make it work. By comparison, CW1 believed Complainant was “green” and “not so aware of the kinds of conservation practice information that would allow her to be promoted.” Another coworker (CW2) provided an affidavit in which he described Complainant as a typical new employee, but that he noticed Complainant was “not prepared for the type of work she was going to have, and I think she had her sights set higher than her current position. I don’t think her position was what she wanted.” CW2 thought Complainant “felt she was overqualified for her position because of her Master’s Degree. . . . that was the source of a lot of tensions between her and [S1]”. CW2 noticed Complainant was constantly job searching and knew she wanted to leave. Complainant alleged that S1 became increasingly aggressive toward her and threatened to fire her several times. Complainant said that she had gone for a brief walk during her 15-minute break and S1 asked where she had been. She also was not allowed to look for work on government computers, even on breaks or lunch. 2019004195 3 S1 told her that it would be better to quit than be fired, and that she was a waste of time and resources. Complainant claimed that Human Resources told her that S1 was trying to get her fired. CW1 attested that she found Complainant to be “rather pessimistic” and would perform work “rather begrudgingly.” CW1 ended up telling S1 not to send Complainant over to work with CW1 since she spent her time complaining about things. According to CW1, Complainant felt the work was beneath her. CW1 was aware that Complainant was applying for other positions; it was obvious. CW1 attested that “[a]s a person of the same sex as [Complainant], I never felt I was treated any differently than anyone else. I never felt threatened myself, that because I was a woman, I was going to have to work harder.” If anything, S1 was “not a lax supervisor” and was trying to meet office goals. Complainant described an event in which she and S1 went to the Jefferson office to work on March 7, 2018. At the Jefferson office, employees are expected to announce their presence by stating, “it’s me,” so that “employees in the back office don’t have to come out and check to see if it is a client.” Complainant had gone to use the restroom and failed to utter the phrase on her return. In response, Complainant claimed that S1 repeatedly asked her why she failed to say the phrase and refused to accept that she forgot. S1 insisted he would not have reprimanded Complainant for this kind of issue. “If anything was said by someone, it was probably in a joking manner and not as a serious complaint.” Complainant claimed that S1 “snapped at her and scolded her for completing a work assignment” on March 15, 2018. Specifically, she had been working with another employee at the Mount Vernon office the previous week and “just thought it would be ok to go back down and finish them on a Friday.” Complainant believed S1’s demeanor betrayed his initial instructions to Complainant that “when [she] was first hired, . . . [S1 said] he did not have time to keep track of me.” S1 explained that Complainant’s decision to return to Mount Vernon created issues because her duty station was in Salem, and she could not pick and choose her location without S1’s concurrence. Complainant “was not given a free reign to travel between our offices. Her duty station was Salem. It was assumed that she would be there every day unless alternate arrangements had been made.” S1 denied raising his voice or snapping at Complainant, and considered the issue resolved. Complainant claimed that she applied for a position with another component within the Agency, who then contacted S1 for a reference check on March 19, 2018. Complainant alleged S1 misrepresented her employment history and said that he did not know Complainant well enough to give a good reference. S1 said the reference was not untruthful or negative and that he did not have access to employment information that the other component would not already have had. Complainant described a situation on March 21, 2018, in which she was coming back from her lunch break and walked into the kitchen. S1 “quickly ran to the door that exited into the hallway and shut the door.” Complainant asserted S1 prevented her from leaving the kitchen, and then reprimanded her for listening to music on YouTube and for leaving her security card in the computer during lunch. 2019004195 4 Complainant objected that others were allowed to listen to music on their radios, but she was not allowed to listen to music on YouTube. Complainant contended that S1 “would never body block a male colleague.” S1 described the situation differently. Prior to their meeting, he had been speaking with another employee when he saw Complainant’s computer screen streaming YouTube with her access card in place. He was in the kitchen when Complainant entered and closed the door. In speaking with Complainant about YouTube, he explained the security and bandwidth issues. Complainant was using noise-suppression headphones, and he explained that she could use them for training but should refrain from using them otherwise since they limited the access of other team members and clients. Complainant could, however, stream music from her phone if she wanted. S1 did not believe Complainant was particularly upset by his comments. S2 concurred stating that he believed this to be an issue involving misuse of government resources and the proper use of her government computer. Complainant alleged that on March 28, 2018, S1 verbally reprimanded her because the other component contacted S1 seeking an employment reference. Subsequently, S1 told her not to apply for a government credit card because she wanted to leave her job. S1 said he knew she wanted to leave because he was contacted by another component within the Agency for an employment reference. Complainant did not apply for the credit card. S1 admitted telling Complainant that he had been contacted by the other component and that he gave a reference. He tried to communicate to Complainant that the Agency was investing time and effort into training her, which had value. S1 denied telling Complainant she could not get a credit card. S2 added that S1 said he gave Complainant a good reference but was reluctant to do so because of the short time Complainant had worked for him. On April 10, 2018, Complainant accepted a transfer to the other Agency component. Complainant’s transfer, however, fell through and the other component rescinded its offer. S1 stated that a Human Resources Specialist informed him that the other component had rescinded the job offer due to a time-in-grade issue. An Administrative Specialist (AS) relayed the information about the rescinded job offer to S1 and S2. On April 18, 2018, Complainant alleged that S1 told Complainant that “the whole thing” with the other component was “a waste of time and resources [and that] it distracted me from my work and they were working on firing me.” Complainant contended that the fact S1 learned that the other component was rescinding its job offer to Complainant constituted a violation of her privacy. Complainant claimed that S1 slammed his fist on the desk, threatened to fire her, and stated it would be good if she quit. S1 denied telling Complainant that he wanted to fire her. Rather, he spoke with Human Resources to ascertain what his options would be with Complainant if she did not succeed in this position. Human Resources said he needed to document what happened with her training and their efforts to help Complainant progress. S1 admitted speaking with Complainant in private in a conference room, and that it was an uncomfortable conversation, but denied raising his voice or slamming the table. S1 admitted telling Complainant that, “in a general sense . . . it’s better to quit a job than to be fired,” but denied threatening to fire her. 2019004195 5 S1 noted that any termination action would involve documentation and concurrence from higher management. S1 said “the real focus” of this meeting was to let Complainant know that management knew Complainant’s job offer with the other component had been rescinded and that Complainant needed to be upfront about what she wanted to do. Complainant’s desire for an exit created tension among her coworkers, since they were involved in training Complainant and were uncertain what to do. Complainant contended that S1 violated her privacy several times by speaking with her coworkers in an effort to obtain negative feedback about her. Complainant believed S1 obtained negative feedback that Complainant did not consider to be sufficient grounds for termination. Specifically, Complainant had turned down the volume on a radio, but a coworker preferred it louder. Complainant and the coworker also disagreed on whether a set of window blinds should be open or closed. Further, she opened a window without asking other employees. On April 23, 2018, Complainant claimed that she had a meeting with S1 and S2 to discuss the threats of being fired, S1’s bad reference, S1 violating her privacy, and other matters. After the meeting, Complainant was assembling files using a copier paper box, and had the box lid on the floor besides her desk. Complainant alleged that S1 picked up the lid and slammed it on her desk telling her to keep it with the box. Complainant claimed that she felt threatened. S1 said that it looked like the lid had fallen off her desk. He picked it up, offered it to her, and suggested that she put it under the box to keep it out of the way. S1 denied that the event constituted harassment; rather, he was trying to be helpful. Complainant asserted that, on April 27, 2018, she repeatedly asked that S1 be removed from her supervisory chain. S2 stated that Complainant never made a formal request. Rather, he relocated his engineers to work with Complainant to help her get training. Moreover, Complainant did not provide specific examples, but S2 acknowledged that Complainant and S1 did not get along. On May 9, 2018, Complainant asserted that, when she arrived in the office, S1 asked her if she had received his email. Because she was out of the office, she had not. S1 got angry and said that he would be talking to S2 about her. Complainant interpreted the comment as a threat. Complainant said that she complained to S2 and to an EEO counselor, but the situation did not improve. Toward the end of her employment, she took it as a sign that she was going to be fired when S1 abruptly rescheduled an upcoming training project. As a result, she was forced to resign. Complainant argued that she was being discriminated against because she was the only woman in the office, which meant “[i]t was like walking with a target on my back.” Complainant noted that there was a male intern who left the office, but he was never threatened or subjected to harassment. On May 11, 2018, Complainant resigned her employment. S1 stated that he does not know why Complainant resigned except that she did not feel that the position was working out for her. When he arrived at the office that day, he found Complainant’s computer access card cut up and her keys. 2019004195 6 S1 further denied harassing Complainant and believed that Complainant “made some choices that in the end made it difficult for her to succeed in the position.” S1 stated that his intent was to get her accelerated training so she could advance to the next grade level more quickly, but it was clear that Complainant did not intend to stay. S1 spoke to Complainant and learned she had applied for 60 different positions. S1 spoke with S2 because he was concerned that the Agency was investing time and money in Complainant when it now appeared she might leave. S2 decided that Complainant should complete her training. S2 denied receiving a complaint from Complainant that she was being harassed based on her sex. On June 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of sex (female) when: 1. On May 11, 2018, Complainant was forced to resign from her position due to ongoing harassment by her first-line supervisor (S1); 2. In April 2018, Complainant was denied a promotion; and 3. On several dates, Complainant was subjected to various incidents of harassment, including but not limited to: a. on May 9, 2018, S1 raised his voice, attempted to intimidate Complainant, and threatened to reschedule her required training; b. since April 27, 2018, management has failed to respond to her request to be removed from S1’s authority; c. on April 23, 2018, S1 lashed out at her, slammed a box lid on her desk, and aggressively told her to keep the lid on the box while angrily shaking his head at her; d. on April 18, 2018, S1 slammed his fist on the desk, threatened to fire Complainant, and said it would be good if she quit; told her if this was a private organization, she would have been fired, used personal information that he acquired from Human Resources to make false accusations about her to her coworkers, and told her that her debt hardships were from severe psychological issues; e. on April 10, 2018, after S1 was informed Complainant was offered another job, S1 told Complainant that is the reason he wanted her fired; f. on March 28, 2018, S1 verbally reprimanded her because a potential employer contacted him for an employment reference on her; g. on March 21, 2018, S1 blocked the door as she tried to exit the kitchen and verbally reprimanded her; h. on March 19, 2018, S1 misrepresented Complainant’s employment history during an employment reference check; i. on March 15, 2018, S1 snapped at her and scolded her for completing a work assignment; and j. on March 7, 2018, S1 became hostile with her because she failed to use the office password when she returned from an office assignment. 2019004195 7 At the conclusion of 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 as alleged. Specifically, the Agency concluded Complainant failed to establish that she was constructively discharged from employment because she did not show that her working environment was so intolerable a reasonable person would have felt compelled to resign. The Agency also found Complainant did not show she was subjected to discrimination when she was not promoted because she was not qualified for a promotion and had not satisfied the requirements to be promoted. Turning to Complainant’s hostile work environment allegations, the Agency concluded that even if Complainant’s allegations were true, the incidents did not rise to the level of a discriminatorily hostile work environment. As a result, the Agency found that Complainant was not subjected to discrimination, a hostile work environment, or a constructive discharge. 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”). Disparate Treatment - Claim - 2 To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she 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. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2019004195 8 Complainant alleges she was discriminated against when she was not promoted immediately upon onboarding. The Agency, through S1, S2, Human Resources professionals, and CW1, explains that under no circumstances would Complainant be promoted within the first three months of employment. Further, Complainant did not have job-specific experience, which meant she needed to demonstrate she was competent in the skills and abilities of a Soil Conservation Technician to warrant a promotion. As the Agency has articulated legitimate, nondiscriminatory reasons, our analysis proceeds directly to the third step of the McDonnell Douglas Corp. v. Green analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. 411. U.S. 792 (1973); U.S Postal Serv. Bd. Of Gov’rs v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find Complainant has failed to carry her burden. Her rebuttal consists largely of speculation and self-serving conclusions. Without more, we cannot find that she has shown, by a preponderance of the evidence, that she was not promoted due to discriminatory animus. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; and (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 to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we conclude that Complainant has not shown the alleged incidents were sufficiently severe or pervasive to establish a hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Although Complainant advances several allegations against S1, these allegations are not supported by the record, and are in fact contradicted by Complainant’s coworkers. 2019004195 9 Even assuming that the alleged conduct occurred as alleged and was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Thus, Complainant has not shown that she was subjected to a discriminatory hostile work environment. Constructive Discharge The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As stated above, we find that Complainant has not shown that the Agency's actions were motivated by discriminatory animus, thus we find that Complainant cannot establish the necessary elements to prove constructive discharge. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2019004195 10 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. The court has the sole discretion to grant or deny these types of requests. 2019004195 11 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 23, 2020 Date