Harry E., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Oct 5, 2017

0120152895 (E.E.O.C. Oct. 5, 2017)

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

Harry E.,
Complainant,

v.

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

Appeal No. 0120152895

Agency No. FSA201400926

DECISION

On August 7, 2015, 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
June 29, 2015, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination and harassment based on sex 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 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 (FSA) facility in
Effingham, Illinois. Complainant’s immediate supervisor was the County Executive Director
(RMO1). Complainant’s second line supervisor (RMO2) was the District Director. The Farm
Loan Manager (RMO3) occasionally served as Complainant’s first-line supervisor in S1’s
absence. Complainant named all three managers as Responsible Management Officials
regarding his complaint.

In September 2014, RMO1 had six PTs under his supervision: one male (Complainant) and five
females. The record shows that the PTs consider RMO1’s personality to be difficult. According

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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to one female PT (W1), RMO1 has conflicts with his subordinates if they do not “accept his
opinion and follow his instructions without question.” Another female PT (W3) stated that some
conflicts and large workloads exist because RMO1 creates or changes policies that create more
work for the PT. W1 said that RMO1 makes these policy adjustments without consulting the
PTs overseeing the programs, the county committee, or the existing policies. W1 also observed
that both Complainant and RMO1 use “elevated voices” when discussing matters and that the
office environment is often “tense” because of confrontations between RMO1, Complainant, and
other employees due to RMO1’s micromanagement of staff and Complainant’s personality.
Other PTs also confirmed that Complainant and RMO1 had “heated discussions” in which both
used “elevated voices” and that the work environment is “tense.” Another PT said that she
believed RMO1 used a “high tone of voice” to impress upon Complainant that RMO1 had “the
final say” on the matter. The PTs stated that RMO1 is a micromanager and that the office
environment is “tense” because of RMO1’s management style. The female PTs also stated that
RMO1 favors Complainant over them such as when it comes to taking time off from work and
when suggestions are made about prioritizing programs.

On November 16, 2014, Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination and harassment on the basis of sex (male) when:

1. on unspecified dates, he was treated disparately with respect to workload
assignments; and
2. on several dates, he was subjected to various acts of harassment, including,
but not limited to:
a. on September 24, 2014, he was not allowed to attend a county committee
(COC) meeting to make a presentation;
b. on September 25, 2014, he was yelled at and "chewed out" for requesting
meeting notes from the State Executive Director (SED);
c. on unspecified dates, he was excluded from county committee and office
staff meetings;
d. on unspecified dates, his supervisor did not subject his work to the peer
review process established in the office.

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
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.

Regarding Claim 1, the Agency found that Complainant’s workload may increase because he
voluntarily assists other PTs or rechecks their work even when it has not been assigned to him.
Complainant acknowledged that he volunteers to help his coworkers with their assignments. The
record shows that certain assignments produced a heavier workload sometimes due to delays and
disputes. Complainant did not produce any evidence of discriminatory animus as the motive for
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the assignments. During the investigation, Complainant alleged that RMO1 had begun to treat
the female PTs in the same manner that he had treated Complainant.

Regarding Claim 2a, Complainant charges that RMO1 did not permit Complainant to attend the
COC meeting on September 24, 2014, but allowed the female PTs to attend. RMO1 explained
that he did not permit Complainant to attend the meeting because the agenda items Complainant
submitted prior to the meeting indicated that he had no agenda items that needed to be presented.
RMO1 also stated that he did not permit Complainant to attend the meeting because at prior
meetings, Complainant had “stepped out of line by routinely arguing and challenging [RMO1’s]
authority on policy issues in front of the committee[.]” Complainant does not refute RMO1’s
contention that he did not have anything to present at the meeting or that he was disruptive at
prior meetings; rather, he maintains that he should have been in attendance since it was an
important meeting.

Regarding Claim 2b, Complainant alleged that on September 25, 2014, he was yelled at and
“chewed out” by RMO1 for requesting meeting notes from SED. RMOl stated that Complainant
had sent an email to the State Office complaining that he had been denied access to the executive
session COC minutes to which PTs are not given access. RMO1 stated that SED and RM02 were
upset by Complainant's email. RMOl stated that he met with Complainant regarding the matter
and spoke to him in a strong, but firm tone because he wanted to impress upon him that he was
unhappy with his conduct. RMO1 stated that he did not yell or scream at Complainant but rather
tried to make clear that he was the supervisor. RM02 confirmed that he and RMOl met with
Complainant regarding the matter. RMO2 stated that he advised the Complainant that he should
have asked RMOl for the information instead of sending an email request to SED. RM02 also
noted that RMOl did not raise his voice during the meeting and RMO1’s behavior was not
hostile or threatening.

Regarding Claim 2c, Complainant alleges that RMO1 improperly excluded Complainant from
the various meetings. RMOl denied excluding Complainant from staff meetings. RMO1
explained that he attempts to have staff meetings when all the PT's are present, but at times he
has targeted discussions with a few PTs.

Regarding Claim 2d, Complainant stated in his complaint that on unspecified dates, RMO1
harassed him by not subjecting his work to the peer review process established in the office.
During the investigation, however, Complainant clarified that “[h]e does not believe that not
subjecting his work to peer review was an act of harassment. The harassment comes from
[RMO1] making statements saying that [Complainant] gets upset with the process because
[Complainant] does not like his work being criticized by other PTs.” RMO1 explained that there
is a peer review system where PTs review each other’s work. RMO1 stated that he did not
submit Complainant’s work to the process because the other PTs did not wish to review
Complainant's work because they are afraid that if they find errors, Complainant will not react
well and is not respectful towards the reviewer. One PT said that she had tried to assist
Complainant with the workload only to be criticized and to have him re-review the work himself.

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The Agency ruled that Complainant did not establish a prima facie case with respect to Claims
2a-d (harassment) because none of the challenged acts were so severe or pervasive as to alter his
work environment.

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”).

The Commission finds that the Agency has presented legitimate, nondiscriminatory reasons for
the actions at issue in this complaint which Complainant has failed to show were a pretext for
discrimination. To the contrary, the female PTs believed that Complainant was treated more
favorably than the women in the workplace with respect to leave requests and program
assignments. We note regarding the September meeting, two female PTs were also excluded
from the meeting. Furthermore, some PTs stated that Complainant and a female PT were
excluded from the meeting because RMO1 did not want Complainant and the female PT sharing
their opinions (which differed from RMO1’s opinion) at the meeting.

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
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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

October 5, 2017
Date