Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

May 22, 2014

0120120616 (E.E.O.C. May. 22, 2014)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120120616

Hearing No. 551-2011-00080X

Agency No. ARHIS-2010-00580

DECISION
On October 28, 2011, Complainant filed an appeal from the Agency’s September 26, 2011
final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967,
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 order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Plant Pathologist,
GS-0434-12, at the Agency’s work facility in Seattle, Washington. On April 12, 2010,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against and harassed her on the bases of her national origin (Flemish), sex (female), age (57),
and in reprisal for her prior protected EEO activity when on May 3, 2010, she received a
Letter of Decision issuing a Fourteen-Day Suspension.

Complainant also claimed discrimination with regard to the following incidents:

2. Her Supervisor failed to communicate with her in a professional manner.

3. Her Supervisor refused to afford her the autonomy and authority to perform her job.

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4. The Supervisor assigned Complainant work that was inconsistent with her official
position description and then failed to provide clear guidance on how to perform the
work.

In a partial dismissal dated November 24, 2010, the Agency dismissed claims (2-4) pursuant to
29 C.F.R. § 1614.107(a)(4) on the grounds that Complainant raised the same issues through
the Agency’s negotiated grievance process, which permits allegations of discrimination.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment
and issued a decision on September 12, 2011.

A. AJ’s Findings of Fact

The AJ stated that on December 18, 2008, the Director informed employees of the requirement
for a Self Contained Breathing Apparatus (SCBA) certification. On February 24, 2009, the
Director issued a letter explaining mask fit testing requirements and medical clearance prior to
using the SCBA respirator. On February 25, 2009, Complainant’s Supervisor sent an e-mail
to Complainant and three other employees regarding SCBA certification, wherein she
requested written documentation of the steps that had been completed toward meeting all
requirements for fumigation duties, and written documentation of what steps still needed to be
completed, why they have not been done and the exact date they will be completed. According
to the Supervisor, the requirements of the employees’ positions included monitoring
fumigations and that all employees performing those duties were required to have medical
clearance and SCBA certification. Complainant was well aware of this requirement.

On March 18, 2009, Complainant was issued a Letter of Reprimand for failure to follow
direction based on her not completing either of the alternatives specified in the February 25,
2009 e-mail. On June 10, 2009, Complainant was issued a Notice of Proposed Suspension for
improper conduct – failing to follow instructions because she had not made an appointment
with her physician. Complainant served a five-day suspension in September 2009.

On February 10, 2010, the Supervisor instructed Complainant to schedule the first available
appointment for her SCBA mask fit test and stated that accommodations would be made in her
work schedule as needed. On February 22, 2010, Complainant informed her Supervisor that
her test date was scheduled for March 4, 2010. On March 5, 2010, Complainant notified her
Supervisor that she postponed the scheduled mask fit test due to the high volume of cargo on
hold and urgent pathology interceptions that had been arriving. Complainant did not inform
her Supervisor that she was canceling the appointment prior to doing so. On March 8, 2010,
the Supervisor directed Complainant to reschedule the mask fit test. Complainant responded
that the new appointment was scheduled for March 9, 2010. Complainant subsequently
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informed her Supervisor that the masks did not fit her well at the test. Complainant stated that
she would make another appointment after obtaining an appropriate mask.

On March 12, 2010, Complainant informed her Supervisor that she had contacted a mask sales
representative and left a message. On March 18, 2010, the Supervisor directed Complainant to
speak with another mask sales representative. On March 24, 2010, Complainant informed her
Supervisor that she had an appointment for the mask fit test. On March 29, 2010,
Complainant was issued a Notice of Suspension for fourteen days for failure to follow
instructions. On April 7, 2010, Complainant informed her Supervisor that she still did not
have a mask. On May 3, 2010, Complainant was issued a Letter of Decision for a fourteen-
day suspension. By the end of May 2010, Complainant completed all of the mandatory steps
to use the SCBA.

B. AJ’s Conclusions of Law

The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ noted that the Agency stated that Complainant was issued the fourteen-day suspension
due to her failure to follow instructions to complete SCBA certification and mask fit testing.
The AJ stated that Complainant did not obtain SCBA certification until more than a year after
the initial directive. The AJ observed that Complainant failed to follow instructions and
without informing or consulting with her Supervisor, she elected to postpone her mask fit test
in favor of completing other tasks she considered more urgent. According to the AJ, the
Agency also relied on Complainant’s prior history of failing to follow supervisory orders
regarding SCBA certification to justify the fourteen-day suspension. The AJ concluded that
Complainant failed to prove the discipline was a pretext for discrimination.

The AJ further found that Complainant failed to prove she was a victim of harassment.
According to the AJ, Complainant was afforded numerous opportunities to complete the steps
required to become SCBA certified and fitted for a mask, yet she consistently failed to do so.
The AJ stated that in order to rectify Complainant’s conduct, her Supervisor repeatedly
reminded Complainant of the SCBA requirement through email, and subsequently took
disciplinary steps such as issuing a letter of reprimand and a five-day suspension. The AJ
reasoned that Complainant’s failure to comply with the Agency’s directive for more than a
year, thereby forcing the Agency to repeatedly remind her to fulfill a necessary job
requirement, did not convert a lawful instruction into a hostile work environment. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
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Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.
Initially, we observe no argument challenging the Agency’s dismissal of claims (2-4) on the
grounds that these issues were previously raised in a negotiated grievance process that permits
allegations of discrimination. Therefore, we shall not further address these claims.

We shall assume arguendo that Complainant has set forth a prima facie case of discrimination
under the alleged bases with regard to the fourteen-day suspension. The Agency explained that
Complainant was issued the suspension due to her failure to comply with her Supervisor’s
instructions regarding the mask fit appointment. The Agency stated that Complainant’s prior
disciplinary history of failing to comply with the directive to secure medical clearance for use
of the SCBA respirator was taken into account in issuing the fourteen-day suspension. We find
that the Agency articulated legitimate, nondiscriminatory reasons for the fourteen-day
suspension.

Complainant presents several contentions in an attempt to establish pretext. With regard to her
argument that the AJ did not read or consider her Opposition to the Agency’s Motion for
Summary Judgment, we observe that the AJ stated in her decision that she received the
Opposition on August 30, 2011. The AJ stated that she carefully scrutinized the Motions. It
was not incumbent upon the AJ to explicitly refer to Complainant’s Opposition. We are
satisfied that the AJ addressed this matter in a professional manner that included reading and
taking into account the arguments and evidence presented by Complainant in her Opposition.

Complainant maintains that the AJ misinterpreted the basis for the fourteen-day suspension.
According to Complainant, the Letter of Decision was based on the erroneous conclusion that
she failed to comply with her Supervisor’s instruction of February 10, 2010, that she schedule
the first available appointment for her SCBA mask fit test. Complainant argues that the AJ
mistakenly interpreted the Letter of Decision’s justification of the issuance of the fourteen-day
suspension as being based on the one year and three-month period from when the original
directive for SCBA certification was issued to when the suspension occurred. A reading of the
Letter of Decision reveals that Complainant is clearly in error. The letter of decision makes
specific reference to the fact that the Director considered Complainant’s previous behavior and
past disciplinary record, including the letter of reprimand issued on March 18, 2009, for
failure to follow instructions, and the five-day suspension issued on September 1, 2009, due to
Complainant’s continued failure to follow instructions concerning obtaining the required
medical certification for the SCBA. The Director stated that despite being placed on clear
notice through past discipline that her behavior was inappropriate and would not be tolerated,
Complainant again failed to follow instructions. Thus, it is clear that the AJ correctly
characterized the fourteen-day suspension as emanating from the one year and three-month
period that Complainant went before completing the SCBA process.

In terms of Complainant’s argument that she in fact complied with the February 10, 2010,
instruction to schedule the first available appointment for her SCBA mask fit test, we find that
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her position is not tenable. It is evident that although Complainant scheduled an appointment
for March 4, 2010, she nevertheless postponed the appointment without informing or
consulting in advance with her Supervisor. Although Complainant rescheduled the
appointment for March 9, 2010, because she stated that she had urgent work to attend to
instead, does not negate the fact that she acted contrary to supervisory instruction.

Complainant further claims that reprisal is evident by virtue of the Director’s statements as to
her awareness of Complainant’s prior EEO activity. Complainant notes that the Director stated
that she was unaware of Complainant’s prior EEO activity until May 4, 2010, one day after the
issuance of the fourteen-day suspension. However, Complainant points to a March 10, 2010,
e-mail from the Supervisor to the Director wherein she references Complainant’s prior EEO
complaint. Complainant also mentions that the Director testified at her deposition that she
spoke to the EEO Counselor at some point before the May 3, 2010 issuance of the fourteen-
day suspension. We observe that the Director maintained in her deposition that she did not
consider contacting an EEO Counselor being engaged in EEO activity. This statement does
not speak well of the Director’s understanding of the EEO process; however, it does not
establish that she had retaliatory intent when she signed off on the fourteen-day suspension.
The record offers ample support for the Agency’s decision to take this disciplinary action
against Complainant. We find that Complainant has not established that the Agency’s
explanation for the fourteen-day suspension was pretext intended to mask discriminatory intent.

With regard to Complainant’s claim of harassment, it is evident that the Supervisor was
prompted to send numerous e-mails to Complainant about the SCBA requirement because
Complainant was generally not acting expeditiously or effectively over an extended period of
time in meeting her professional obligation. The disciplinary actions, including the fourteen-
day suspension, stemmed from Complainant failing to sufficiently comply with her
Supervisor’s instructions. We discern no evidence of harassment in the measures taken by the
Supervisor or the Director.

CONCLUSION
The Agency’s determination in its final order that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 22, 2014