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

Equal Employment Opportunity Commission

Oct 9, 2019

0120182769 (E.E.O.C. Oct. 9, 2019)

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.
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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
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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.
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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.

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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.

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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.

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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
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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