Liz M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Dec 14, 2017

0120160077 (E.E.O.C. Dec. 14, 2017)

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

Liz M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120160077

Hearing No. 420-2015-00123X

Agency No. FSIS-2014-00656

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s August 26, 2015 final decision concerning her 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked for the Agency as a
Food Inspector assigned to the Pilgrim’s Pride Plant and Koch Food Plant in Chattanooga,
Tennessee. Complainant entered duty with the Agency in February 2008, as an intermittent
Inspector and became a full-time Inspector in July 2008. In 2011 and 2012, Complainant was
stationed in Canton, Georgia. Complainant was reassigned to Chattanooga in February 2013.

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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In December 2011, Complainant and a co-worker (CW-1) were involved in an altercation. Both
came to the relief supervisor (RS-1) to request a Form 4735-4 to report each other’s conduct.
CW-1 complained that Complainant bumped her and Complainant complained that CW-1 had
been staring at her across the production line. Neither completed the forms and instead agreed to
stop the behavior. RS-1 issued both employees identical Letters of Information noting the
incident.

On July 17, 2012, Complainant rang the bell to be relieved off the line. Complainant entered her
supervisor’s (S1-1) office and, in a raised tone, said “I’m going home! I am going to call my
lawyer! I am tired of the threats!” S1-1 attempted to calm Complainant down and ascertain what
Complainant was upset about. Complainant continued to yell, claimed that people were
bumping into her and she was tired of it, and stated that she was going to call her lawyer. S1-1
caught up with Complainant and informed her that if she felt she was in imminent danger she
should call 911 or if not, she needed to complete a Form 4735-4 to report the incident.
Complainant then claimed that S1-1 had bumped her too. S1-1 denied bumping Complainant
and returned to the office believing that Complainant was attempting to provoke her. S1-1
issued Complainant a Letter of Caution for her improper conduct.

Complainant was reassigned to Chattanooga in 2013. Complainant stated that she was delayed
reporting to Chattanooga because of recovery from surgery. Complainant claimed that, in May
2013, a supervisor (S3) told her “I dread you coming [here] because of the rumors I have heard
about you.” Complainant believed she could not earn the trust of S3.

In February 2014, Complainant alleged that she shared with her supervisor (S1-2) that she was
considering retirement because of her medical condition. Complainant claimed that S1-2 shared
this information with S3, who announced it to everyone on first shift.

On March 8, 2014, Complainant claimed that she told S3 that, because of weakness in her hand,
she spilled a hot liquid drink on her midsection and leg which resulted in second-degree burns.
Complainant alleged that S3 opened a webpage on human anatomy and stated “I guess your
bikini days are over” and laughed. Complainant claimed that S3 added “If it was a little more to
the right, you would have been messed up.” Complainant reported the alleged comments, and
S1-2 investigated the incident. S3 denied making the remarks and stated that he pulled up a
website about the layers of skin and how burns healed. S3 was counseled about the incident and
informed that he would be further disciplined if he made any similar comments.

Beginning in March 2014, Complainant and a co-worker (CW-2) were involved in several
incidents. Complainant believed that CW-2 was harassing her by bumping her and sitting next to
her in the locker room while talking on her cell phone. On May 29, 2014, Complainant claimed
that she was talking to the Union President when CW-2 overheard a derogatory comment that
she thought was about her. Complainant and CW-2 engaged in a heated verbal argument.
Complainant eventually called the police to the plant because she believed the co-worker was
acting aggressively toward her. Complainant had previously complained to management about
CW-2’s conduct toward her and claimed that CW-2 was stalking her after they showed up to the
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same private location coincidentally. Complainant’s fourth-level supervisor (S4) investigated
Complainant’s concerns about CW-2 and determined that Complainant’s allegations against
CW-2 were unfounded. S4 investigated other complaints from and about Complainant and
determined that Complainant was the instigator in the incidents. Following the May 29, 2014
incident, management reassigned Complainant temporarily to a detail assignment while the
matter was investigated and to allow a “cooling down” period. Complainant did not actually
report to the temporary location, and she went out on medical leave.

In April 2014, Complainant claimed that she heard from co-workers that S3 stated that he did not
know why Complainant did not report to work. Complainant alleged that S3 used her absence as
a reason to deny requests for leave made by other co-workers. On June 9, 2014, Complainant
alleged that her fourth-level supervisor (S4) denied her leave request. Complainant had
requested 96 hours of leave without pay (LWOP) from June 5, 2014 through June 20, 2014.

In June 2014, Complainant alleged that S1-2 accused her of absenteeism and that S1-2 was
happy to get rid of her. Complainant claimed that management officials accused her of
experiencing an emotional breakdown, harassing another employee, and that co-workers were
afraid of her. Complainant claimed that management attempted to deny her the union
representative of her choice at a meeting on June 9, 2014. The Union President attended the
meeting in place of a Union Representative who worked approximately 100 miles away.

Complainant began working the night shift at the Koch Foods Plant in Chattanooga in June 2014.
Complainant claimed that her supervisor there (S1-3) told her he refused to sign a statement
about her because he did not want to judge her based on what he had been told by others. On
October 16, 2014, Complainant was detailed to a nearby plant to address a staffing emergency.
On October 17, 2014, Complainant was involved in an altercation with another inspector in
which Complainant chased and yelled at the inspector after she did not speak to Complainant.
The inspector filed a Form 4735-4 indicating that she was intimidated by Complainant.
Complainant did not return to work following the incident.

On September 23, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), sex (female), disability, and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, she was reassigned to a new location as a
temporary travel detail assignment after a conflict with a co-worker; her request for leave was
denied; she was issued a Letter of Information; she was issued a Letter of Caution; her supervisor
told her “I dread you coming [here] because of the rumors I have heard about you” and then
failed to assist her acclimation to the plant; management divulged her confidential information to
co-workers; her supervisor made inappropriate comments after learning about her injuries from
an accident; management was indifferent to her concerns about harassment; management blamed
her for the leave denial of her co-workers; and management accused her of absenteeism, of
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suffering an emotional breakdown, of harassing another employee, labeled her a troublemaker,
and attempted to coerce a new supervisor to make a statement against her.2

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant initially requested a hearing, but subsequently withdrew her request.
Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the alleged conduct was based on Complainant’s protected classes. More
specifically, as to the Letter of Instruction, RS-1 stated that she issued one to both employees
involved in the incident to document it based on the seriousness of their allegations. The Letter
was not intended to be punitive. With respect to the Letter of Caution, S1-1 affirmed that
Complainant made allegations about her co-workers, but never provided credible information to
support her allegations. As to her claim that S1-2 publicly divulged her plans to retire, S1-2
denied disclosing that information. S3 stated that he learned from S1-2 that Complainant was
considering retirement, but denied that he shared the information with anyone. S3 affirmed that
he is responsible for staffing positions and that S1-2 was simply giving him notice about a
potential staffing need.

With regard to her reassignment to another facility in May 2014, S4 stated that Complainant was
transferred following her altercation with another employee to allow investigation into the
incident. S4 affirmed that he was unable to transfer Complainant to another shift at the plant
because she had previous workplace harassment claims against her co-workers on the other
shifts. As to the denial of her leave request in June 2014, S4 asserted that Complainant had a
history of leave abuse and had submitted insufficient medical information to qualify for LWOP.
The Agency noted that record evidence showed that Complainant’s medical documentation did
not include a handwritten signature from her doctor nor an explanation for why Complainant
could not work. The Agency concluded that Complainant’s remaining claims were overstated
and uncorroborated.

Finally, as to Complainant’s sexual harassment claim, Complainant alleged that S3 made the
comment “your bikini days are over” after she told him about an accident she had with a hot
beverage. S3 denied making the remark. The Agency determined that Complainant’s allegation
was uncorroborated. Even assuming S3 made the comment, the Agency concluded that it was an
isolated incident and not sufficiently severe so as to constitute sexual harassment. The Agency
noted that S3 was nonetheless counseled that such a comment was inappropriate and could lead
to discipline if he made any similar comments in the future.

2 The Agency dismissed several additional claims because they were raised in previous
complaints. Complainant raised no challenges to the Agency’s dismissals on appeal; therefore,
they will not be addressed in this decision.
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The Agency concluded that Complainant failed to show that the conduct alleged was based on
her protected classes. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the record shows that she was subjected to harassment,
racial injustice, and misuse of authority. Complainant argues that the record shows that her
accusations are not false. Complainant claims that once she spoke up against the racism she
suffered, others began to attack her. Complainant states that management officials lied and
provided false statements. Complainant asserts that management officials displayed a lack of
consideration for her emotional and mental state and that they had gotten away with everything
they committed against her. Accordingly, Complainant requests that the Commission reverse the
FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment – Non-Sexual Harassment

To establish a claim of harassment a complainant must show that: (1) she belongs to a 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. 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).

Therefore, 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission notes that Complainant chose to withdraw her request for a hearing; therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her protected classes, management officials and co-workers
subjected her to a hostile work environment. Complainant alleged several incidents of what she
believed to be discriminatory and retaliatory harassment. The Commission finds that
Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to
create a hostile work environment.

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Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. For example, RS-1 stated that she issued the non-punitive Letter of Instruction after
Complainant and a co-worker both complained about each other’s conduct. ROI, at 135. RS-1
affirmed that she was only in the plant for a short period of time and decided to issue it based on
the seriousness of the dual complaints and to ensure that S1-1 had a record of what happened.
Id. Further, RS-1 confirmed that both employees handled the situation appropriately by
resolving the problem between themselves. Id.

With respect to the Letter of Caution, S1-1 stated that she issued it to Complainant to emphasize
that her provocative behavior would not be tolerated. ROI, at 127. S1-1 asserted that
Complainant had raised her voice at her in the supervisor’s office and loudly accused her and co-
workers of bumping into and threatening her on July 17, 2012. Id. at 272. S1-1 believed that
Complainant’s behavior was inappropriate and an attempt to provoke her. Id. at 127, 272-73.
S1-1 believed that Complainant was emotionally bullying and intimidating her co-workers. Id.
at 128. As a result, S1-1 issued the Letter of Caution. With regard to her claim that management
revealed her confidential information, S3 stated that he learned that Complainant was
considering retirement from the Inspector-in-Charge on the third shift as a heads up about a
potential staffing need. Id. at 147. S3 affirmed that he is responsible for staffing approximately
50 positions and it takes months to fill vacant positions. Id. S3 stressed that he did not share this
information with anyone. Id.

As to her reassignment, S4 stated that he decided to reassign Complainant temporarily based on
her conflicts with CW-2 and several co-workers to allow a cooling-off period and while other
options were assessed. ROI, at 233-34. With regard to her leave denial, S4 stated that he denied
Complainant’s request for 96 hours of LWOP in July 2014 because it was not supported by
sufficient medical documentation. Id. at 235. S4 noted that Complainant had had a significant
number of LWOP and absence without leave (AWOL) occurrences at the time and disciplinary
action was considered. Id.

Hostile Work Environment - Sexual Harassment

Finally, with respect to Complainant’s sexual harassment claim, to establish a case of sexual
harassment creating a hostile work environment, Complainant must show, by a preponderance of
the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome
sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or
condition of employment, either unreasonably interfering with the work environment 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 Serv., EEOC Appeal No. 01965238 (Oct. 16,
1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems,
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Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

The Commission notes again that it does not have the benefit of an Administrative Judge’s
credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts
based on the weight of the evidence presented. The Commission finds that Complainant has not
established, by a preponderance of the evidence, that she was subjected to sexual harassment.
More specifically, the Commission finds Complainant failed to show that the alleged sexual
conversations and comments occurred. Complainant failed to offer any corroborating evidence
to support her contentions that she was subjected to any verbal conduct of a sexual nature.
Complainant claimed that S3 made the inappropriate comment “I guess your bikini days are
over,” during a conversation about second-degree burns Complainant experienced. S3 denied
making the comment and stated that he only pulled up information from a website about the
healing properties of skin. ROI, at 147. S1-2 investigated the incident, but could not find any
corroboration that S3 made the comment. Id. at 264-65. Nonetheless, S3 was counseled that if
he made any similar comments he could be disciplined. Id. at 237.

Complainant additionally alleged that sometime in 2011, she was having a conversation with
several co-workers about various “nips and tucks and breast augmentation” procedures she
would undergo if she won the lottery and that S1-1 stated to Complainant that she was “pretty
healthy up there.” ROI, at 71. Complainant believed that S1-1 also wished to build a sexual
relationship with her. Id. at 70. S1-1 denied that any of the incidents occurred as Complainant
alleged and noted that she does not socialize or share details of her personal life with the
employees she supervises. Id. at 129.

The Commission finds that even assuming the incidents occurred as alleged, the alleged conduct
was not sufficiently severe or pervasive to establish an intimidating, hostile, or offensive work
environment. As a result, the Commission finds that Complainant has not established that she
was subjected to sexual harassment or a hostile work environment as alleged.

Furthermore, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency’s reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that
Complainant has not established that she was subjected to discrimination, reprisal, or a hostile
work environment as to all claims alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to 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).

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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 (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
thetime 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

December 14, 2017
Date