Ezequiel P.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120180173 (E.E.O.C. Apr. 16, 2019)

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

Ezequiel P.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120180173

Hearing No. 461-2017-00069X

Agency No. OCFO-CF-2016-01070

DECISION

On October 6, 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
October 4, 2017 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.

BACKGROUND

Complainant worked as an EEO Specialist, GS-260-13, at the Agency’s National Finance Center
(NFC) in New Orleans, Louisiana. On November 3, 2016, Complainant filed an EEO complaint
in which he alleged that between June and September 2016, various management officials
subjected him to a hostile work environment in reprisal for his prior protected EEO activity.
Complainant identified the following incidents2 as comprising his claim:

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.

2 For purposes of clarity, we have rephrased and renumbered the incidents.
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1. Since June 1, 2016, the EEO Manager, Complainant’s immediate supervisor (S1), the
Director of the National Finance Center, his second-line supervisor until June 1, 2016 (S2a)
the Deputy Director of the National Finance Center, his second-line supervisor until
December 25, 2016 (S2b), and the Deputy Chief Financial Officer (DCFO) refused to
conduct an independent harassment investigation of Complainant’s hostile work
environment claim;

2. On August 25, 2016, S1 gave Complainant’s subordinate instructions related to processing
an investigation which was part of his, Complainant’s job duties;

3. On September 1, 2016, S1 took annual leave and assigned him to act in her absence to
attend a meeting, despite Complainant having been previously granted administrative leave
on that same day, even though the meeting was subsequently cancelled;

4. On September 5, 2016, the DCFO refused to provide Complainant with information for the
EEOC 462 Report and instructed him to obtain the information from Human Resources;

5. On September 8, 2016, S2b offered him a previously rejected reassignment;

6. On September 14, 2016, S1 and S2b circumvented Complainant and completed the
compliance report on a case without his knowledge that had been assigned to him as
Compliance Manager;

7. On September 22, 2016, S1 allowed staff not to share a settlement agreement with him
which interfered with his ability to perform his duties; and

8. On unspecified dates in September 2016, Complainant was notified by a contractor from
Human Resources that they were directed by S1 to perform a desk audit of his position.3

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant timely requested a hearing but on
July 18, 2017, withdrew his request. Consequently, 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 reprisal as alleged.

Incident (1): Complainant averred that since June 1, 2016, he had been demanding that S1, S2a,
and S2b conduct an independent investigation into claims of harassment that he contended arose

3 The Agency dismissed two additional claims pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO counselor contact. Complainant raised no challenges to the dismissed claims on appeal;
therefore, these claims will not be addressed further in this decision. The Commission will,
however, consider these claims as background evidence in support of Complainant's overall hostile
work environment claim.
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due to the filing of both the instant complaint and a prior EEO complaint in which he had named
S1 and his second-line supervisor at the time. IR 128, 133-34. When asked why he believed that
he had been retaliated against in connection with what he characterized as an ongoing refusal to
investigate his harassment claim by S1, S2a, S2b, and the DCFO, Complainant replied that they,
“wanted to send a chilling effect for their failure to follow EEOC or Agency policy.” He further
stated that an independent and unbiased investigation into his disclosures would have adversely
affected their eligibility to receive performance awards. IR 135.

S1 responded that she had no knowledge of this allegation. IR 181. According to S2b, S1 reported
directly to S2a until S2a abruptly departed from the Agency on June 2, 2016, at which time he,
S2b, became Complainant’s second-line supervisor. S2b averred that he did not have any
communication with Complainant regarding his request for an independent investigation into his
harassment claims and was not aware that Complainant had asked any other management official
for an independent harassment investigation of S1. IR 202.

Incident (2): Complainant averred that on August 25, 2016, S1 bypassed him and directly gave
one of his subordinates instructions for processing an investigation, thereby excluding him from
the established chain of command. He averred that he was the liaison with the Civil Rights Conflict
Management at the Agency’s headquarters and as such, was the contact person for contract EEO
investigators. He further averred that on the date in question, the subordinate had contacted S1 in
order to verify the identity of a contractor, and that the subordinate was given help from S1’s EEO
Assistant. IR 136-37. When asked why he believed that this action constituted reprisal on the part
of S1, Complainant stated that this was an action that S1 had taken to punish and harass him
because of his prior and current EEO complaints against her. IR 128.

S1 averred that Complainant’s subordinate employee did request her assistance in validating the
identity of an EEO contract investigator and that she had asked her assistant to contact the
Department to verify that individual’s identity. IR 183.

Incident (3): Complainant averred that on September 1, 2016, after S1 had approved his request
for four hours of administrative leave to work on his EEO complaints, she notified him that while
she was on leave, he would have to act as EEO Manager and would be required to attend a meeting
in her stead during the time he had scheduled leave. He further averred that the meeting he was
directed to attend had been cancelled at the last minute. IR 141-42. When asked why he believed
that being asked to fill in as an acting manager constituted reprisal for prior EEO activity,
Complainant stated that S1 had knowledge of his prior complaints and had approved his request
for leave without telling him that he would have to act as supervisor. IR 142.

S1 responded that she had approved four hours on the date in question not for administrative leave,
but for telework. She averred that she tapped Complainant to serve as Acting EEO Manager
because it was his turn and admitted that she had forgotten about his plans to work on his EEO
complaint. IR 186-87.

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Incident (4): Complainant averred that on September 5, 2016, the DCFO refused to provide him
with information that he needed to complete the EEO 462 report and instead told him to obtain the
information from the Human Resources Office. He stated that when he attempted to confirm the
name of S1’s immediate supervisor at the time with the DCFO, the DCFO dismissed him in a very
abrasive manner without providing him with the information he needed to complete the 462
Report. IR 143. When asked why he considered the DCFO’s response to be an act of reprisal,
Complainant responded that the DCFO had full knowledge of his EEO activity and had treated
him differently by refusing to return his calls or speak with him. IR 144.

The Administrative Officer who acted as the intermediary between Complainant and the DCFO
acknowledged having received a telephone call from Complainant asking to speak with the DCFO
on behalf of the EEO Manager in order to confirm the identity of the EEO Manager’s immediate
supervisor. She further averred that she forwarded the information request to the DCFO, he replied
that he did not know and suggested that Complainant contact S2b. IR 248-49.

Incident (5): Complainant averred that on September 8, 2016, S2b had offered him a reassignment
he had previously rejected. He stated S2b had informed him of a reassignment into the Customer
Services Division and led him to believe that the reassignment was involuntary. He expressed his
belief that S2b had wanted to remove him from the Civil Rights Conflict Management Office. IR
144-45. He averred that he rejected the offer because it was not in keeping with EEOC’s anti-
harassment guidelines and that he had previously rejected it when offered by S1. IR 144-45. When
asked why he characterized the reassignment offer as an act of reprisal, he stated that the DCFO,
S1, and S2b had full knowledge of his EEO activity and had been participating in what he called
an “alliance of reprisal.” IR 146.

S2b averred that while he had no knowledge of the incident that occurred on September 8, 2016,
he acknowledged that on January 18, 2016, he met with Complainant who at that time shared his
concerns about S1 creating a hostile environment for him. S2b further averred that as a way to
address Complainant’s concerns, he offered Complainant the opportunity to be reassigned to
another work area doing some form of customer service duties away from S1 until his concerns
were resolved, and that on February 22, 2016, Complainant sent him an email declining the
reassignment offer. IR 188, 209. S1 averred that she had no knowledge of a reassignment offer
on September 8, 2016. IR 188.

Incident (6): Complainant averred that on September 14, 2016, S1 and S2b completed compliance
reports that had been assigned to him as Compliance Manager and that he was working on. He
stated that they did so without his knowledge. Complainant stated that he was the only official
authorized to complete compliance reports and that the report in question involved two case
numbers. IR 130. He further stated that S1 had told him that the two cases had been assigned to
another specialist. IR 131. In addition, he stated that he first became aware that the reports had
been completed without his knowledge when the aggrieved party visited his office stating that she
had received the Agency’s response to her breach of settlement claim via email. IR 131.
Complainant averred that his initial view was that there was a breach of settlement agreement and
that this was the reason why S2b had taken the case away from him. IR 131-32.
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S1 averred that although she had assigned Complainant compliance duties several years earlier,
those duties were not formally a part of his position description and that there was only a record
of one of the cases Complainant referenced that were in the Agency’s complaint-tracking system,
“iComplaints.” IR 179. Both S1 and S2b averred that S2b was not involved in the completion of
the reports in question. IR 180, 199-200. When asked why she completed the compliance reports
instead of Complainant, she replied that she did so herself after finding that Complainant was
unable to complete the response. IR 180-81. When the investigator asked Complainant why he
considered S1’s action an act of reprisal, he averred that S1’s taking the task of completing the
compliance report occurred after he had filed his previous EEO complaint. IR 132.

Incident (7): Complainant averred that on September 22, 2016, S1 encouraged her staff not to
share documentation pertaining to a settlement agreement, which interfered with his ability to carry
out his responsibilities. He stated that it was normal practice for him to be provided with copies
of settlement agreements as the Compliance Manager and that S1 had refused to ask or instruct
staff to provide him with a copy of the agreement even after he asked her for assistance in obtaining
it. IR 138-39. When asked to explain why he believed S1’s alleged withholding of settlement
agreement documents was an act of reprisal, he stated that S1 caused him to miss crucial
compliance deadlines, thereby enabling her to justify her harassment of him. IR 140.

S1 averred that she assigned Complainant the duties of Compliance Officer and that as such, he
received copies of settlement agreements to ensure that the terms are carried out and provides
proof of their execution to the Civil Rights office at the Department. IR 184. S1 further averred
that she was on leave between September 20 and 23, 2016, and speculated that there my have been
settlement agreements that had not yet been updated in the iComplaints tracking system. S1 denied
that she ever notified or insinuated to staff not to provide copies of settlement agreements to
Complainant, and averred that she directed her staff to input settlement agreements into
iComplaints, of which Complainant had access. IR 185.

Incident (8): Complainant averred that on unspecified dates in September 2016, he was notified
by contractors from the Human Resources office that S1 had directed them to perform a desk audit
of his EEO Specialist position. IR 147. When asked why he believed that the desk audit was an
act of reprisal on the part of S1, he replied that it was specifically because of his EEO activity. IR
149.

S1 responded that she had requested desk audits because the position description of the EEO
Specialist was outdated due to the transfer of the EEO investigative function from the Agency to
the Civil Rights office in the Department. IR 188-89. S2b averred that a desk audit was required
in order to determine whether the classification of Complainant’s position needed to be changed
in light of the loss of a significant number of its functions. IR 215.

Complainant filed the instant appeal without submitting any arguments or contentions in support.

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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”).

Hostile Work Environment

To establish a claim of harassment 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prove his harassment claim, Complainant must establish that he 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 incidents comprising his harassment claim occurred because of his statutorily protected classes.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

Here, Complainant asserted that based on his having engaged in prior protected EEO activity, S1,
S2a, S2b, and the DCFO subjected him to a hostile work environment. Complainant alleged
several incidents of what he believed to be retaliatory harassment, including: not initiating an
internal harassment investigation; not providing him with information, resources, and assistance
needed to do is job; trying to reassign him out of the office; and threatening to downgrade his
position by means of a desk audit. The Commission finds that the totality of the conduct at issue
was insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment or dissuade a reasonable person from exercising his EEO rights, there is no
persuasive evidence in the record that retaliatory animus played a role in the actions of S1, S2a,
S2b, or the DCFO. The record reflects that the alleged incidents were more likely the result of
routine supervision, managerial discipline, and general workplace disputes and tribulations.
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As to incident (1), S1 and S2b both stated that they were unaware of Complainant’s demand for
an internal investigation of his harassment claims. Concerning incident (2), S1 stated that she was
merely responding to a subordinate employee’s request for information verifying the identity of a
contract EEO investigator. Regarding incident (3), S1 stated that she asked Complainant to serve
as acting EEO Manager when his turn to act came up.4 With respect to incident (4), the DCFO
referred Complainant to S2b so that he, Complainant, could obtain the information he needed to
complete the 462 report. As to the remaining incidents, S1, S2b, and the DCFO gave reasons for
each action they took that were based upon the Agency’s legitimate business needs at the time.

The Commission concludes that, based on the totality of the circumstances, Complainant has not
shown that he was subjected to a retaliatory hostile work environment. The antidiscrimination
statutes are not civility codes. Rather, they forbid “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). Moreover, to the extent Complainant claims that he was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not proffered any
evidence from which a reasonable fact finder could conclude that the Agency's explanation for its
actions was pretext for reprisal. Beyond his vague and generalized assertions that their actions
were retaliatory, Complainant presented neither affidavits, declarations, or unsworn statements
from witnesses other than himself nor documents that contradict the explanations from S1, S2b,
and the DCFO regarding their actions or which undermine their veracity. As such, we find that
Complainant did not establish he was subjected to reprisal or a hostile work environment as
alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

4 Commission regulations entitle an employee to a reasonable amount of official time to prepare
the complaint or respond to Agency requests for information. 29 C.F.R. § 1614.605(b). We note
that Complainant referred to the leave in this claim as “administrative leave” and did not
specifically allege a denial of official time pursuant to 29 C.F.R. § 1614.605(b). Nonetheless, to
the extent that Complainant is alleging a denial of official time, the record indicates that
Complainant was allowed to take leave the following business day. IR 186. In this case,
Complainant has not produced evidence that the official time needed to work on his EEO
complaint had to occur on the date in question, and that it was not reasonable to ask him to take
the time the next day instead. Therefore, we find no persuasive evidence that Complainant was
improperly denied official time to pursue his EEO complaint.
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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.
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.
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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

April 16, 2019
Date