Josephine S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.Download PDFEqual Employment Opportunity CommissionOct 9, 20190120182769 (E.E.O.C. Oct. 9, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josephine S.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 0120182769 Hearing No. 461-2018-00003x Agency No. OCFO201700613 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 15, 2018 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Financial Management Assistant, 503, GS 7 at the Agency’s Office of Chief Financial Officer ("OCFO"), Payroll Processing Branch in New Orleans, Louisiana. On June 12, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to harassment (nonsexual) based on race (black), color (brown), and age (born 1960) when: 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. 0120182769 2 1. on March 23, 2017, management denied Complainant’s request to use Administrative Leave/Annual Leave, and Complainant was sent home permanently; 2. on March 23, 2017, management denied Complainant reimbursement for per diem, overtime, and mileage; 3. on March 23, 2017, management instructed Complainant to check out of a hotel and instructed her not to return to the Alternate Work Site (“AWS”); 4. on March 23, 2017, Complainant learned she was replaced by another employee at the AWS; 5. on March 22, 2017, Complainant’s request to use annual leave for March 24, 2017, and March 27, 2017 was denied; 6. on several dates, Complainant was subjected to various incidents of harassment, including but not limited to: a. on March 21, 2017, management demeaned Complainant in the presence of several employees; and b. on March 21, 2017, management denied Complainant access to the transportation van that was acquired to transport employees from the Residence Inn Hotel to the AWS. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant timely requested a hearing but subsequently withdrew her request. On August 15, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment – Claims 1 -5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a 0120182769 3 factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency articulated legitimate non-discriminatory reasons for its actions. Regarding claim 1, Complainant testified that a tornado struck her office building and her home on February 7, 2017 and she was deployed to Bossier City, Louisiana on February 18, 2017 on a Temporary Duty Assignment (“TDY”). Complainant further testified that she needed to return to her home in New Orleans, Louisiana, to attend to personal business related to the tornado damage to her home. However, Complainant’s second level supervisor (“S2”) denied her March 2017 request for Administrative Leave. S2 stated that Complainant was placed on Administrative Leave from February 8 – 10, 2017, and Complainant began teleworking on February 13, 2017 when she received a government laptop on February 11, 2017. S2 explained that Complainant was staying in a hotel and was able to telework from her hotel. However, S2 stated that Complainant informed her on February 13 and 14, 2017 that she would have to vacate her hotel because the NBA All Star game was scheduled for that weekend and Complainant’s hotel had no vacancies. Because another employee wanted to leave the TDY location to return to New Orleans and telework from home and because Complainant needed a hotel, S2 explained that she offered, and Complainant agreed, to switch places with the employee and deploy to the TDY location in Bossier City on February 20, 2017.2 2 S2 further testified that Complainant had declined to be on the Agency’s deployment list as early as January 2017 and as a result, Complainant was not designated staff deployed immediately after the February 2017 tornado. 0120182769 4 Subsequently, on March 21, 2017, S2 testified that Complainant requested to return to New Orleans for personal matters but that Complainant did not initially indicate the type of leave she intended to use. S2 explained that she did not approve Complainant’s request because it was a payroll processing week and S2 needed Complainant to help process the payroll through Saturday, March 25, 2017. S2 further explained that she offered Complainant the option of leaving Saturday as soon as her work as completed and taking Annual Leave the following week. But, Complainant then requested Administrative Leave from Saturday through Wednesday. S2 explained, however, that in accordance with her conversation with Human Resources, employees who had been deployed or who were telework-ready were not eligible for Administrative Leave. Therefore, S2 stated that she could only accommodate Complainant’s request to return to New Orleans for personal reasons if Complainant submitted a request for Annual Leave and if Complainant teleworked on the days she was not on Annual Leave. Because Complainant had been deployed to the TDY, S2 stated Complainant requested, and S2 approved, one week of Annual Leave. S2 further stated that Complainant did not return to work on April 3, 2017. Complainant submitted a physician’s note on April 4, 2017 indicating that she could not return to work until May 1, 2017, and S2 ultimately approved Complainant’s sick leave request. Complainant’s third level supervisor (“S3”) testified that the Agency did not grant employees Administrative Leave to take care of damage to their home. S3 explained that Administrative Leave was only granted for a short period immediately after the tornado. Regarding claim 2, Complainant clarified in her affidavit that she was supposed to be on a TDY assignment until May 31, 2017 and the Agency was required to provide her a per diem from the time her TDY was canceled until her TDY was originally scheduled to end on May 31, 2017. S2 testified that Complainant was not informed of a date when her deployment was scheduled to end. S2 explained that Complainant’s entitlement for TDY terminated when she requested to return home on annual leave. Specifically, S2 explained that Complainant did not provide S2 with a set period Complainant expected to be away. Therefore, S2 sent Complainant home on annual leave. S2 stated that Complainant was not on the deployment list and did not have a right to return to TDY, and Agency policy dictates that employees do not receive a per diem while on annual leave because an employee’s TDY benefits terminate when they are on annual leave. S2 further clarified that Complainant was paid overtime for the overtime hours she voluntarily worked. S2 also stated that Complainant was reimbursed for mileage when she reported to Bossier City and she was reimbursed for mileage when she returned home to New Orleans. S2 explained that she was unaware that Complainant left her car in Bossier City for repairs until Complainant filed her EEO complaint. However, S2 explained that the car repair expense was not covered by the travel policy because it was a personal issue. S3 explained that once Complainant requested to go home and telework, Complainant was no longer in deployment status and was not entitled to a per diem. 0120182769 5 Regarding claim 3, S2 explained that per TDY policy, employees are required to check out of the hotel if they leave to return home for more than two days. As previously discussed, S2 stated that Complainant initially requested to return home for one week. S2 further explained that she did not give Complainant the option of returning to the TDY location because Complainant indicated that she wanted to return to her home in New Orleans. Regarding claim 4, S2 explained that she replaced Complainant with another employee on April 3, 2017 because Complainant requested to return home and S2 tried to accommodate Complainant. S3 stated that it was customary for employees to leave to go home for a week or a couple of days, and if needed, management would find a replacement employee while the employee was away. Regarding claim 5, S2 explained that she could not approve Complainant’s leave request from March 24 – 28, 2017 because this week fell in the middle of a pay week. Instead, S2 stated that she asked if Complainant could leave on March 25, 2017 instead of March 24, 2017, to which Complainant agreed. S2 further stated that she was already short-staffed that week and Complainant’s potential absence on March 24, 2017 would have created a hardship due to the lack of coverage. S2 also explained that she “rarely” allowed employees to take time off during pay week. S3 explained that March 24, 2017 was a “mission critical day” and a leave request for this day would likely be denied because staff had to work on payroll. However, S3 explained that staff could take leave the following week. S3 stated that during pay week, staff works on getting the payroll out for 650,000 employees. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, color, and age. Harassment/Hostile Work Environment – Claim 6 To establish a claim of harassment, Complainant must show that: (1) she is a member of the 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; (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. Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. 0120182769 6 In other words, 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, her race, color, and age. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Regarding claim 6, Complainant argues that S2 demeaned her in the presence of the other employees when S2 denied Complainant access to the transportation van. S2 denied confronting Complainant during the period at issue. S2 explained that the van was used to transport employees without personal vehicles to and from the hotel to the TDY location. S2 further explained that Complainant was already being paid to drive her vehicle to and from the hotel to the TDY location. S2 stated that there were three vans and after Complainant tried to ride in the smaller, seven passenger van, for the third time, an employee complained that they were “too cramped up” and asked S2 to speak to Complainant. S2 explained that she informed Complainant that she could ride a larger van if she did not have any transportation. S2 further explained that Complainant agreed to drive her own car, but Complainant told S2 once they arrived to work that S2 had “embarrassed her.” S2 stated that she apologized to Complainant and Complainant accused S2 of “getting loud.” S2 explained that she spoke to Complainant in her “normal speaking voice” and she instructed Complainant not to have an attitude about the situation. We find that considering these allegations, even if true, Complainant has not shown evidence that considerations of his race, color, or age motivated management’s actions toward Complainant. S2 testified that she requested that Complainant refrain from using the transportation van because Complainant had her own vehicle and was being paid to drive it to and from the hotel to the TDY location. S2 further testified that Complainant’s three attempts at riding the van caused crowding problems within the van. S2 also denied raising her voice when she instructed Complainant not to ride the transportation van. These incidents Complainant alleges are not sufficiently severe or pervasive as to constitute hostile work environment/harassment under Commission regulation. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. 0120182769 7 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 0120182769 8 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 October 9, 2019 Date Copy with citationCopy as parenthetical citation