[Redacted], Erin M., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Jan 10, 2022

Appeal No. 2020005177 (E.E.O.C. Jan. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erin M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2020005177 Hearing No. 560-2018-00247X Agency No. RD-2017-00270 DECISION On July 18, 2020, 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 June 23, 2020 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Processor, GS- 1101-07, at the Agency’s Centralized Servicing Center in St. Louis, Missouri. On February 23, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), color (Brown), disability (physical), and in reprisal for prior protected EEO activity 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. 2020005177 2 1. On several dates since December 2016, Complainant’s Workflow Coordinator failed to assign her work on certain occasions; 2. On or about December 6, 2016 and other unspecified dates, her Workflow Coordinator assigned her work duties for which she was not informed of the correct procedures; and 3. On several unspecified dates, she was subjected to various incidents of harassment, including, but not limited to: a. On December 13, 2016, her Workflow Coordinator assigned her tasks for which she was not responsible and had not received training to complete; and b. On several unspecified dates since October 2016, her Workflow Coordinator requested access to her daily log on Complainant’s telework days. Complainant identified three management officials as responsible for the alleged discrimination: her immediate supervisor, Supervisor, Cash Payoff and Disbursement Units, GS-11, (African- American, Black, no disability (S1); the Section Head, Cash Management Section, GS-13, (Caucasian, White, no disability) (S2); and the Lead Processor, GS-8, who served as the Workflow Coordinator (African-American, Brown, no disability) (Workflow Coordinator). The Workflow Coordinator is a team lead, responsible for assigning tasks to the individual processors. Complainant averred that her allegations are primarily against the Workforce Coordinator, but also against her supervisors, S1 and S2, because they did not stop the Workflow Coordinator’s harassment. Complainant averred that she engaged in protected activity when she provided a statement in a misconduct investigation involving the Workflow Coordinator. On October 5, 2016, Complainant sustained an injury outside the workplace. She tore a ligament in her knee. She did not request a reasonable accommodation. She performed the essential function of her position without any issues. S1 allowed her to telework full time while she recuperated from her injury. Based on Complainant’s statements, her condition did not substantially limit any major life activities. At the end of January 2017, Complainant resumed her regular telework schedule, which permitted her to telework one day per week. Complainant averred that she was not being assigned work that was appropriate for her to do, and for which she had been trained. Complainant further alleged that the Workflow Coordinator attributed errors to her which were not her fault. Complainant claimed that she thought the Workforce Coordinator “had an issue with her being on a temporary increased telework schedule.” Report of Investigation, Ex. 2, p. 39, Deposition at p. 61. The record shows that, when Complainant did not receive work from the Workflow Coordinator, she received work from S1 or S2 or she assigned herself work. The Workflow Coordinator denied intentionally failing to give Complainant assignments. 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). 2020005177 3 Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the decision. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. It was undisputed that she did receive some assignments from the Workflow Coordinator and that she was able to perform her duties, without suffering any adverse action for any assignments for which she had not been adequately trained. Further, when Complainant needed more work one of her supervisors assigned her tasks or she assigned tasks to herself. Finally, the Workflow Coordinator needed daily logs from all processors to complete weekly and quarterly reports. Complainant’s computer was not connected to the network printer when she teleworked; therefore, the Workflow Coordinator asked an Information Technology employee to provide Complainant instructions to connect to the printer so she could print the daily log more often than her in-office days. We note that Complainant acknowledged that she did not believe her treatment was due to race or color discrimination and that any animosity was due to her challenging the Workflow Coordinator’s authority. Complainant failed to demonstrate that the Agency officials in this matter harbored discriminatory or retaliatory animus or that the legitimate, non-discriminatory reasons provided by the officials were pretext for unlawful discrimination or reprisal. Furthermore, the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. The evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2020005177 4 As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2020005177 5 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 January 10, 2022 Date