[Redacted], Corazon P., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022002690 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corazon P.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency. Appeal No. 2022002690 Hearing No. 440-2019-00257X Agency No. AMS-2018-00956 DECISION On April 15, 2022, 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 March 21, 2022, final order 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. At the time of events giving rise to this complaint, Complainant worked as a MA-5105-16 Senior Auditor in the Agency’s Dairy Program, Federal Milk Market #30 in Lisle, Illinois. On December 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when: 1. On September 5, 2018, management issued her a Letter of Reprimand; 2. On several dates, she was subjected to various incidents of harassment, including, but not limited to: a. Beginning on August 24, 2018, and continuing to the present: i. Her supervisor (“Supervisor”) sent her numerous emails and inquired about her daily tasks therein; 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. 2 2022002690 ii. Supervisor threatened her with disciplinary action and alleged she failed to respond to her emails; iii. Supervisor required that she be copied on all emails from Complainant to her coworkers; and b. On unspecified dates, management enforced time and attendance (T&A) regulations strictly upon her, and regularly granted her coworkers flexibility with their T&A. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment, and Complainant filed a response to the Agency’s motion. The AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision without a hearing in favor of the Agency. Concerning the Letter of Reprimand, the AJ found that Complainant failed to establish a prima facie case of discrimination because she failed to identify a similarly situated individual outside her protected class who was treated more favorably than she was, noting that it was undisputed that Complainant failed to follow Supervisor’s instructions regarding use of leave. Assuming Complainant could establish a prima facie case, the AJ determined that Complainant failed to establish that the Agency’s legitimate, nondiscriminatory reasons for issuing the reprimand were discriminatory. The AJ found that Complainant failed to establish that the alleged harassment was sufficiently severe or pervasive to constitute a hostile work environment. The AJ also concluded that there was no evidence that the alleged harassment was based on her protected class. According to the AJ, a hearing was not warranted because Complainant did not raise a genuine issue of material fact as to the existence of discriminatory intent. For example, the AJ determined that Supervisor’s emails were not excessive and involved legitimate workplace concerns, that Supervisor sent similar emails to Complainant’s coworkers, and that Supervisor asked Complainant to copy her on certain emails to outside entities for situational awareness. The AJ found that a hearing was not warranted and concluded that Complainant failed to establish that she was subjected to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In support of her appeal, Complainant contends that she identified a Caucasian male coworker (Coworker-1) as a similarly situated individual who was treated more favorably than she was. Complainant argues that she also can establish a prima facie case of a hostile work environment, noting that neither Coworker-1 nor a white female coworker (Coworker-2) were subjected to the same harassment by Supervisor. Complainant requests that the matter be remanded for a hearing. 3 2022002690 In response to Complainant’s appeal, the Agency requests that its final order be affirmed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 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 the 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. 4 2022002690 Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Complainant asserts that she was subjected to disparate treatment when she was issued a Letter of Reprimand for failing to follow leave procedures. We find that the Agency provided a legitimate, nondiscriminatory reason for issuing the Letter of Reprimand. It is undisputed that Complainant did not submit a leave request for June 21-22, 2018, that she called to request leave after the start of her workday on June 21, 2018, and that she reported her August 9, 2018, absence to a coworker rather than to Supervisor or to management. Complainant contends that Coworker-1 was not reprimanded for calling in to request leave the day of an absence or for failing to submit a leave request in advance. However, there is no evidence in the record that Coworker-1 engaged in similar conduct by calling in to request leave the day of a non-emergency absence or by reporting an absence to a coworker rather than to his supervisor. Moreover, Complainant’s assertion that Coworker-1 failed to submit a leave request in advance of his July 5, 2018, absence is contradicted by an approved leave request for July 5-6, 2018, signed by Supervisor on July 3, 2018. Agency Motion for Summary Judgment at Ex. 2. A reasonable finder of fact could not find that Complainant established pretext for discrimination. Regarding Complainant’s harassment claim, we agree that Complainant failed to identify a genuine issue of material fact that the alleged harassment was based on her membership in any protected class. Complainant alleged that she was harassed when Supervisor sent her frequent emails requesting status updates and when Supervisor asked to be copied on outgoing emails to certain outside entities. The record contains emails from Supervisor to both Coworker-1 and Coworker-2 requesting work-related status updates. Although Complainant alleged that she received more emails from Supervisor, the preponderance of the evidence in the record shows that Coworker-1 and Coworker-2 were more responsive to Supervisor’s emails and regularly copied Supervisor on emails, so Supervisor did not need to follow up with Coworker-1 and Coworker-2 as she did with Complainant, who sometimes would not respond to emails from Supervisor for more than 24 hours and did not regularly copy Supervisor on emails to certain outside entities. Complainant cites an August 27, 2018, email from an Assistant Market Administrator to the Market Administrator as evidence of discrimination because the Assistant Market Administrator stated, “I am concerned whether [Supervisor] is sending similar messages to [Coworker-1] and [Coworker-2] asking about the status of their work.” Complainant Response to Motion for Summary Judgment at Ex. D. However, the Assistant Market Administrator also noted in the email that Supervisor had a legitimate need for updates from Complainant and that Complainant’s productivity level was not acceptable. Moreover, the record contains emails from Supervisor requesting status updates from Coworker-1 and Coworker-2. Accordingly, a reasonable finder of fact could not find that Complainant established that she was subjected to a hostile work environment. 5 2022002690 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 6 2022002690 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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 March 2, 2023 Date