Murray C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Nov 27, 2019

0120182096 (E.E.O.C. Nov. 27, 2019)

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

Murray C.,1
Complainant,

v.

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

Appeal No. 0120182096

Agency No. FSA-2014-00487

DECISION

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 May 10, 2018, 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

At the time of events giving rise to this complaint, Complainant worked as a GS-12 Farm Loan
Manager within the Agency’s Service Center in Crowley, Louisiana. Complainant has been in
this position since 2005 and worked for the Agency since 1991. In this position, Complainant
mainly assists the Farm Loan Manager in administering farm loan programs in the Agency Service
Center serving one or more Counties. Complainant was directly supervised by the District Director
(S1), and his second level supervisor was the Administrative Officer (AO).

On June 3, 2014, Complainant filed an EEO complaint in which he alleged that the Agency
subjected him to harassment and discrimination based on his race (African-American) and color
(black) 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 17, 2014, he learned that he was the only local Manager without a master
key to the Crowley County office; and

2. In March 2014, the County Executive Director (CED) called him “lazy.”

The Agency initially accepted claim 1 for investigation and dismissed claim 2 on the basis it failed
to state a claim. In a decision dated February 6, 2015, the Agency found that Complainant failed
to prove that he was subjected to unlawful discrimination regarding this matter and incorporated
its dismissal of claim 1 in its decision. On May 18, 2017, in EEOC Appeal No. 0120151332, the
Commission reversed the Agency’s dismissal of claim 1. The Commission determined that the
Agency improperly treated matters in Complainant’s complaint in a piecemeal manner, and when
his complaint is properly viewed as a whole, claims 1 and 2 state a viable hostile work environment
claim. Therefore, the Commission vacated the Agency’s final decision and remanded the matter
for further processing.

The Investigation

During the investigation of the complaint, Complainant stated that after he was locked out of the
Crowley County office, he found out about March 17, 2014 that every other Federal Service
manager had a “key concept” except him after he asked for a master key. Complainant stated that
he had never previously asked for a master key to the Crowley County office because he did not
know that master keys existed. Complainant further stated that he was not sure if managers needed
master keys to the Crowley County office, but he was excluded from this privilege as part of a
“racial clique.” He stated that his exclusion was demeaning and subjugating, and forced him to
go through another manager to have doors opened. Complainant also stated that management took
keys from other managers and rekeyed the entire office after he filed an EEO complaint, and CED
is now the only person with a master key.

Complainant stated that was demoralized and lost the respect of his staff because he was denied a
master key to offices. He stated that he did not “feel like a full manager,” and his staff goes to
CED before coming to him because they know that CED and the District Director “hold the
power.” Complainant stated that he had not been denied access to the Crowley County office, but
there are certain areas and files to which he did not have access without a master key, such as
closets and safes.

Additionally, Complainant stated that around the same time that he asked for a master key, he
asked CED to pull a form from the Farm Programs side, which is her job, but CED refused and
told him that he could do it himself. Complainant further stated that he then told CED that he
wanted the form, and she began ranting and raving at him, yelling and screaming. Complainant
stated that CED told him that he told him that he could get the form himself and that he was just
“lazy.” He stated that when CED called him lazy, he told her that he understood why she had done
so and that the comment was “not nice.” Complainant stated that the entire office and Agency
customers witnessed the incident, and he has never heard CED call any other employee lazy.
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Complainant stated that calling African Americans is a “well-known and common remark that
white people have used through the years to stereotype black people.” Report of Investigation
(ROI), p. 112. He stated that CED called him lazy to try to control him into doing what she wanted
him to do and into doing CED’s job. Complainant stated that CED’s use of the word “lazy” was
equivalent to using the “n-word” given the circumstances.

Regarding claim 1, AO (Caucasian) stated that the key register for the period December 1, 2012
to December 31, 2012, indicates that there was a master key that opened the outer doors of the
building and different master keys that opened doors to the rooms inside the building. AO stated
that the register showed that Complainant had a master key to the building’s outer doors and key
that opened the office inside the Service Center. AO further stated that Complainant did not
receive a maser key to all inner offices because he was not responsible for that master key, unlike
CED. She stated that there was supposed to be one master key, for which CED is responsible, and
the key is supposed to be kept in a sealed enveloped in a locked safe or cabinet to be used only in
emergencies. AO stated that Agency policy provides that the County Executive Director is
responsible for dealing with maintenance issues and space issues or concerns regarding the lease
of the building. AO further stated all managers do not have a master key.

AO stated that the prior CED apparently issued different master keys and other keys to various
employees, and after Complainant asked for a master key in 2014, she and CED became aware
that different master keys were in the possession of so many employees. AO stated that she then
advised CED to have all the locks inside the building rekeyed, ensuring that only one inner-door
master key was available, as required by Agency policy. She stated that all previously-issued
master keys were collected and destroyed.

CED stated that she did not know how keys were handed out in the past, but when she became
supervisor in February 2014, management did away with all master keys except one. She stated
that she learned that she was the “keeper of the keys” in March 2014. CED stated that previously,
there were apparently many master keys issued, but AO’s directive said that master keys could
only be used in emergencies and kept in a locked cabinet. CED further stated that according to
the key control register, the previous CED, the District Conservationist, the District Director, and
a manager in the Soil and Water division previously had been issued master keys.

Regarding claim 2, CED (Caucasian) stated that she recalled being very upset with Complainant
because he yelled at her across the room in front of customers while saying she needed to do her
job. CED further stated that she then responded, “This, from the man sitting there reading the
paper?” CED stated that she did not recall calling Complainant “lazy,” but it was probably alluded
to from her comment. She stated that when she later realized Complainant was still upset with
her, she asked him about it and told him she meant no offense. CED stated that Complainant
accepted her apology and said they would speak of it no more. CED stated that if she used the
word “lazy,” she certainly did not mean it as a racial slur. “I believe that if white men can be
‘lazy,’ then black men can be ‘lazy,” too, without race entering into it.” ROI, p. 167.

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AO stated that she did not hear the conversation in which CED called Complainant “lazy,” but she
learned about it in an email from Complainant. AO stated that “[p]erhaps in jest, [CED] referred
to him as ‘lazy’ in some context when they were bantering back and forth.” ROI, p. 9. AO stated
that she understood that when CED became aware that Complainant was offended, CED
apologized because offending him was not her intent. AO further stated that to her knowledge,
Complainant’s race or color were not factors in CED’s remark.

Final Agency Decision

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 unlawful harassment or discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant notes that AO acknowledges that she was not present when CED made
the “lazy” remark, but nevertheless AO maintains that CED made the “in jest” or “in banter.”
Complainant contends that AO’s assertion is contradicted by CED’s claim that she made the
remark because Complainant was yelling at her first. Complainant maintains that AO is “taking
sides” and “making false statements” to side with another Caucasian employee (CED) against an
African-American employee (Complainant). Complainant further contends that witnesses who
deny that he was called lazy are attempting to cover up for their friend and boss, and it is difficult
for him as the only African-American employee in the office. Additionally, Complainant
maintains that AO told CED to lie to him about the key situation, and CED did as she was
instructed. Complainant further contends that he was denied the privilege of having supervisory
keys because of his race, and AO would rather take keys from everyone to deny him the privilege
of having keys.

STANDARD OF REVIEW

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”).

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ANALYSIS AND FINDINGS

Harassment

In order to establish a claim of hostile-environment 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).

In this case, Complainant contends that he believes he was denied a master key for inner offices
because of his race and color. He contends that evidence of a racial motive is found in the fact
that he is the only African-American employee in his office and was the only manager without a
master key to inner offices. However, the record reveals that the keys were distributed by the
previous County Executive Director. There is no evidence that the previous County Executive
Director exhibited racial animus or bias, such as evidence that he made racial slurs/comments or
otherwise engaged in discriminatory practices. As such, it is likely that Complainant did not
receive a master key because he never asked for one, his particular job duties, or because of a
genuine oversight. Moreover, we note that once Complainant informed management that other
managers had master keys, the Agency confiscated those keys and changed office locks.
Complainant contends that it would have been more equitable to give him a key instead of taking
keys away from others, but it is undisputed that Agency policy provided that only one management
official should have a master key. Further, there is no evidence that Complainant needed a master
key to inner areas to do his job.

Regarding the “lazy” remark, CED stated that she did not recall calling Complainant “lazy,” but
she alluded to it when Complainant yelled at her across the room in front of customers while saying
she needed to do her job. Although the word “lazy” can reflect racial animus in some
circumstances, we do not find that this is a situation wherein the use of the word reflected such
animus because it was not accompanied by any racial language or context. See Richardson v.
Dep't of Homeland Security, EEOC Appeal No. 0120070003 (May 22, 2008) (use of the words
“lazy,” “moron,” “dumb,” and ““incompetent” to describe Complainant could not be viewed as
generic insults in light of confirmed use of the racist term “black bitch”). In this case, CED
apparently used the term in response to Complainant’s request for her to perform a work task that
she did not want to perform. In this context, we discern no racial intent in CED’s conduct.
Consequently, we find that Complainant did not prove that he was subjected to unlawful
harassment.

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CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision finding 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 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 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

November 27, 2019
Date