[Redacted], Jared F., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022002324 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jared F.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022002324 Hearing No. 531-2021-00275X Agency No. RD-2020-00753 DECISION On March 24, 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 February 7, 2022, final decision2 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0301-15 Economic & Community Development Policy and Outreach Coordinator, Rural Development (RD), at the Agency’s Headquarters in Washington, D.C. Report of Investigation (ROI) at 674- 94. Prior to the time of events giving rise to this complaint, Complainant’s job functions were realigned from the RD Office of Outreach to the RD Office of External Affairs (OEA). ROI at 189. On October 18, 2020, Complainant received notification that he was being reassigned to the RD Innovation Center. ROI at 210. 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 In his appellate brief, Complainant states that he received the final decision on March 21, 2022. 2022002324 2 Complainant initiated contact with an EEO counselor on May 29, 2020. On August 2, 2020, Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity (current EEO activity) when: 1. On October 18, 2020, management reassigned his position to the RD Innovation Center, contrary to Section 14218 of the Food, Conservation and Energy Act of 2008, 7 U.S.C. § 6941a, which requires his position to be located within the RD Mission Area; 2. On July 27, 2020, he learned management included duties and responsibilities related to processing, editing, and reviewing project announcements in the Congressional Announcement Tracking System (CATS) in his performance evaluation; 3. On April 23, 2020, management removed from his position Office of Outreach duties identified by Section 14218 of the 2008 Food, Conservation and Energy Act of 2008 and forced him to perform OEA functions only; 4. On several dates, he was subjected to harassment, including, but not limited to: a. On April 14, 2020, management issued him a memorandum, which followed an October 2019 letter than required him to sign in and out by daily email to his supervisor; b. Beginning on an unspecified date in December 2018 and continuing through October 2019, his supervisors participated in intimidating acts, surveillance monitoring, and sent a series of emails that required him to perform actions contrary to Agency rules; c. On an unspecified date in January 2019, on or around the end of the federal government shutdown, he discovered his belongings were moved from his single-occupant office to a group office space on the fourth floor of the South Building; d. On an unspecified date in July 2019, his supervisor instructed him to move his desk to another office location in the South Building, which was his fourth relocation in seven months; and e. On October 15, 2019, his supervisor accused him of not being on annual leave from September 30 through October 8, 2019, and instructed him to relocate his desk to vacant space in room 4168 in the South Building.3 At the conclusion of 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). Complainant timely requested a hearing but subsequently withdrew his request. 3 Complainant also alleged discrimination and harassment based on political affiliation. Discrimination based on political affiliation is not within the Commission’s jurisdiction and will not be addressed in this decision. See Terrell G. v. Dep’t of Agric., EEOC Appeal No. 0120140544 (May 13, 2016). 2022002324 3 In a November 3, 2021, order dismissing the hearing request, the AJ stated that the Agency had stipulated to the addition of five documents to the record and ordered the Agency to issue an immediate final decision based on the investigative record and the five supplemental documents agreed to by the parties. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant established a prima facie case of discrimination based on race but failed to establish a prima facie case of discrimination based on reprisal. However, the Agency assumed for the purposes of the decision that Complainant established a prima facie case. The Agency found that management articulated legitimate, nondiscriminatory reasons for its actions. Management’s legitimate, nondiscriminatory reason for reassigning Complainant to the RD Innovation Center as alleged in claim 1 was that his outreach duties were more aligned with the Innovation Center, which was responsible for partnership and outreach work. The Agency found that the legitimate, nondiscriminatory reasons for claims 2 and 3 were that the Office of Outreach no longer existed after the RD reorganization that the CATS project announcements were a core duty of the OEA, Complainant’s new assignment after the reorganization. The Agency found that Complainant failed to establish that the legitimate, nondiscriminatory explanations were pretextual. The Agency also found that Complainant failed to establish a prima facie case of harassment as alleged in claim 4. The Agency determined that Complainant did not establish that he was subjected to harassment based on his protected classes. The Agency also determined that the instances of alleged harassment were insufficiently severe or pervasive to constitute a hostile working environment. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency violated the AJ’s order to issue a final decision within 60 days. Complainant also argues that the Agency’s final decision failed to consider the five supplemental documents that were made part of the record during the hearing stage. According to Complainant, ignoring these five exhibits allowed the Agency to misrepresent material facts, misrepresent his evidence of pretext, misrepresent employees as similarly situated who were not similarly situated to Complainant, and ignore evidence related to reprisal. Complainant asserts that his position is the Coordinator for Chronically Underserved Rural Areas, not the Economic and Community Development Policy and Outreach Coordinator position addressed in the final decision. According to Complainant, the Coordinator for Chronically Underserved Rural Areas was established in Section 14218 of the Food, Conservation and Energy Act of 2008, 7 U.S.C. § 6941a (“2008 Farm Bill”). Complainant contends that, according to statute and the legislative history, this position is required to be located within a Rural Development mission area, under “the political umbrella within RD.” 2022002324 4 Complainant argues that moving his position from the Office of Advocacy to the RD Office of External Affairs and to the RD Innovation Center was contrary to law. Complainant also asserts that the Office of Outreach continued to exist after the RD reorganization. According to Complainant, the position of a White Faith-Based and Community Initiatives Coordinator (Coworker) was not required to be under the RD political umbrella, so Coworker was not similarly situated. Complainant further argues that the final decision did not consider whether there was constructive knowledge of his protected EEO activity. Complainant requests that the Commission find he was subjected to discrimination and order relief. In response to Complainant’s appeal, the Agency contends that its final decision correctly determined that Complainant was not subjected to discrimination based on race and/or reprisal. ANALYSIS AND FINDINGS 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 Chap. 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”). As a preliminary matter, we address the timeliness of the final decision. On November 3, 2021, the AJ dismissed Complainant’s hearing request, and the AJ sent an electronic copy of the order by email to the Agency’s representative. Pursuant to 29 C.F.R. § 1614.110(b), the Agency was required to issue a final decision within 60 days of receipt of the AJ’s order. The Agency issued the final decision on February 7, 2022, 96 days after the issuance AJ’s order. Upon review, we find that the Agency’s delay in issuing the final decision did not prejudice Complainant and that this amount of time did not result in an unconscionable delay in justice or adversely affect the integrity of the EEO process as a whole. Accordingly, we decline to impose a sanction for the Agency’s untimely issuance of the final decision. Supplemental Record On appeal, Complainant contends that the Agency did not consider the supplemental documents added to the record during the hearing stage in the final decision. Upon review, the Agency’s final decision did not explicitly address the five supplemental exhibits to the record. We will summarize these documents and consider them in our decision. Exhibit 1 is 10 pages long and contains two sections of the Federal Register dated November 29, 2018, and October 15, 2020. These sections are final rules in which the Office of the Secretary revises delegations of authority. 2022002324 5 Exhibit 1 also contains a printout of U.S. Code § 6941a, “Coordinator for Chronically Underserved Rural Areas.” Finally, Exhibit 1 contains 2021 USDA Explanatory Notes including the purpose statement of the Agency’s Office of Partnerships and Public Engagement (OPPE). The OPPE purpose statement describes the Office of Advocacy and Outreach (OAO) as the largest mission area within OPPE and states that OAO was established as an office under the Food, Conservation and Energy Act of 2008. Exhibit 2 contains nine pages of legislative history, including House Report 110-256 for Part 1 of the Farm, Nutrition, and Bioenergy Act of 2007, House Conference Report 110-627 for the Food, Conservation, and Energy Act of 2008, and Committee Reports. These documents address the relocation of the Agency’s Office of Outreach and the establishment of a Coordinator for Chronically Underserved Rural Areas, to be located in the Office of Outreach. The mission of the Coordinator is described as directing Agency resources to high need, high poverty rural areas. Exhibit 3 is 12 pages long and contains a Request for Personnel Action assigning Complainant to a position effective July 31, 2011, and a copy of his Economic and Community Development Policy and Outreach Coordinator position description, which states that, per section 14218 of the 2008 Farm Bill, the incumbent serves as the Coordinator for Chronically Underserved Rural Areas. The exhibit also contains a copy of Complainant’s business card, which does not list a position title but indicates that he works in the Under Secretary’s Office. Finally, the exhibit contains a November 1, 2019, email from a Human Resources Branch Chief asking for a copy of Complainant’s performance plan and performance rating from 2011-2013, and stating that the recipients of the email may have an archived copy because Complainant “has been under the political umbrella.” Exhibit 4 is five pages long. This exhibit contains a November 21, 2017, memorandum concerning the establishment of the new Office of External Affairs, which states that staff assigned to the Office of Outreach and Community Engagement would be realigned either to the OEA or to the Innovation Center. There is a notification of personnel action showing Complainant was realigned to the OEA effective November 26, 2017. Exhibit 4 also contains excerpts from policies concerning Realignment and Mass Transfer and Transfer of Function. Finally, Exhibit 5 is eight pages long and includes printouts from the Electronic Code of Federal Regulations as well as what appears to be the same printout of U.S. Code § 6941a, “Coordinator for Chronically Underserved Rural Areas” as in Exhibit 1. The printout of Title 7, Part 2, Subpart C, § 2.17 of the Electronic Code of Federal Regulations states that it is current as of March 11, 2020. The text concerns delegations of authority by the Secretary to the Assistant to the Secretary for Rural Development, and Section 2.17(a)(29) delegates authority to “Implement section 14218 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. § 6941a).” 2022002324 6 Discrimination and Harassment Based on Race and/or Reprisal Complainant alleged that he was subjected to unlawful discrimination and harassment based on race and reprisal. 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). He must generally establish a prima facie case by demonstrating that he 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 Vet. Aff., 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. Aff. 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) 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 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). Reprisal claims are considered with a broad view of coverage. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); see also, Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. To ultimately prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington, 548 U.S. at 57; EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). 2022002324 7 Considering Complainant’s disparate treatment claims, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 2 and 3, the Agency’s legitimate, nondiscriminatory reasons for assigning Complainant OEA duties and for including duties and responsibilities related to processing, editing, and reviewing project announcements in CATS in his performance plan were that Complainant was realigned to the OEA after the RD reorganization, the Office of Outreach ceased to exist, the outreach duties that Complainant wished to perform were outside of the mission of the OEA, and the CATS project announcements were essential functions of the OEA. The Agency’s legitimate, nondiscriminatory reasons for reassigning Complainant to the RD Innovation Center as alleged in claim 1 is that Complainant informed management that he only wanted to perform outreach work and that all partnership and outreach work was now housed in the Partnerships and Outreach Division of the new RD Innovation Center. Accordingly, we consider whether Complainant established by the preponderance of the evidence in the record that the Agency’s legitimate, nondiscriminatory reasons were pretextual. As evidence of pretext, Complainant contends that the Office of Outreach did not cease to exist after 2017. Although the 2021 USDA Explanatory Notes in supplemental exhibit 1 describe the Office of Advocacy and Outreach, it is not clear whether this is the same Office of Outreach to which Complainant was assigned prior to the 2017 realignment to the OEA. Moreover, the November 21, 2017, memorandum in supplemental exhibit 4 states that staff assigned to the Office of Outreach and Community Engagement would be realigned to the OEA or the Innovation Center. As further evidence of pretext, Complainant alleges that assigning him OEA duties such as reviewing project announcements in CATS and reassigning him to the OEA and then to the Innovation Center was contrary to the 2008 Farm Bill and the Agency’s regulations, which stated that his position should be located in the RD mission area. Complainant also asserts that Coworker, a White employee who was similarly reassigned and assigned OEA duties including CATS project announcements, is not a proper comparator because her position was not specifically described in these legal and regulatory authorities or the legislative history. However, determining whether the 2008 Farm Bill and/or the Agency’s regulations require Complainant’s position to be located in the RD mission area is outside of the Commission’s jurisdiction. The question is whether the preponderance of the evidence establishes that the Agency’s asserted legitimate, nondiscriminatory reasons are a pretext for discrimination based on race and/or reprisal, and the record establishes that Coworker, who is not a member of Complainant’s protected class, was similarly realigned to the OEA, worked under the same OEA supervisor, was assigned OEA duties, and was reassigned to the Innovation Center. Upon review, we do not find that Complainant has established by preponderant evidence that the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination based on race and/or reprisal. In claim 4, Complainant alleged that he was subjected to discriminatory harassment when his supervisors intimidated him, subjected him to surveillance monitoring, sent him emails requiring him to perform actions that he asserted were contrary to Agency rules, his belongings were moved from a single-occupant office to a group office, he was instructed to relocate for four times in seven months, when his supervisor accused him of not being at work or on approved 2022002324 8 leave, and when management required him to sign in and out each day by emailing his supervisor. We find that Complainant has not established that the alleged harassment was based on his membership in any protected class. The preponderance of the evidence in the record establishes that the alleged intimidation, surveillance monitoring, and directives to perform actions that violated Agency rules amounted to ordinary supervisory oversight. Complainant’s belongings were moved out of his single-occupant office to the group office because the OEA was consolidating employees to be co-located in the same area, because non-supervisory employees were not entitled to individual offices, and because Complainant was on leave and did not move his belongings prior to the extended government shutdown from December 2018 through January 2019. Complainant was asked to relocate multiple times in seven months because initially only temporary space was available and, on at least one occasion, Complainant did not move to his assigned desk location. Complainant’s supervisor asked Complainant if he had been at work from September 30 through October 8, 2019, and thereafter asked him to sign in and out each day with an email after coworkers complained they could not find Complainant in his assigned work location. Upon review, we find that Complainant has not established that he was subjected to harassment based on race and/or reprisal as alleged. CONCLUSION 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. 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). 2022002324 9 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. 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. 2022002324 10 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 26, 2023 Date