[Redacted], Murray C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Feb 28, 2023

Appeal No. 2022000129 (E.E.O.C. Feb. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Murray C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2022000129 Hearing No. 460-2021-00013X Agency No. FPAC-2020-00553 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 14, 2012, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-12, Farm Loan Manager, at the Agency’s Farm Production and Conservation Business, in Crowley, Louisiana. The record indicates that the Agency framed Complainant’s complaint, filed on March 25, 2020, as alleging discrimination and harassment based on race (African American), color (dark skin), and in reprisal for prior EEO activity when: 1. On January 13, 2020, he did not receive his pay for pay period 26. 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. 2022000129 2 2. He learned his leave request for December 27, 2019, and December 30, 2019, was denied. 3. He was subjected to various incidents of harassment including but not limited to: a. On October 5, 2018, November 7, 2018, January 28, 2019, May 9 and 21, 2019, October 21 and 24, 2019, January 23, 2020, February 6, 2020, April 13 and 23, 2020, July 14, 2020, and August 17, 2020, management did not respond to his emails. b. On or about March 13, 2018, February 6 and 7, 2019, December 18, 26, 29 and 30, 2019, January 13, 14, 16, 23, and 27, 2020, and December 28, 2020, his timekeeper deleted his leave requests, validated and certified his timesheets, and blamed him for not following instructions from management. c. On October 24, 2019, February 6, 2020, and April 6, 2021, during a Farm Loan meeting, his supervisor forced him to give up his seat and chose another person to sit in his seat; and management ignored him when he reported the incident. d. On September 6 and 10, 2018, October 5, 2018, January 28, 2019, August 7, 2019, April 23, 2020, August 26, 2020, September 3 and 4, 2020, and December 28, 2020, management belittled, chastised, punished, undermined his authority, and ridiculed him in front of staff. e. On June 12 and 15, 2020, July 8, 9, 10 and 15, 2020, September 3 and 30, 2020, October 14 and 16, 2020, and December 28, 2020, management overlooked him for an award. f. On May 9 and 20, 2019, and November 5, 2019, he complained about being discriminated against, but his supervisor ignored his complaint. g. On November 5, 7, and 13, 2018, February 6, 2020, April 13 and 25, 2021, his supervisor threatened him with violence and stuck his finger on his face, and then bragged to others, but management did nothing about it. h. On November 5, 7, and 13, 2018, management denied his request for a meeting. i. On October 5, 2018, November 7, 2018, January 28, 2019, April 12, 2019, May 9 and 21, 2019, August 1, 2019, October 21 and 24, 2019, January 23 and 31, 2020, February 6, 2020, April 13 and 23, 2020, July 14, 2020, and August 17, 2020, management withheld information/knowledge that left him professionally disadvantaged. Complainant has not challenged the Agency’s framing of his complaint. 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 EEOC Administrative Judge (AJ). 29 C.F.R. § 1614.108(f). Complainant requested a hearing. The Agency filed a Motion for Decision without a Hearing. Complainant did not submit a response. The AJ issued a decision without holding a hearing, finding no discrimination. 2022000129 3 Regarding claims 1, 2, 3b, and 3d, Complainant’s first level supervisor (S1), GS-13, District Director, indicated that during the holidays in December 2019, his office employees, including Complainant, agreed on days each would work to ensure there would be someone in the Federal Loan Program office to cover its customer service. Originally, Complainant requested leave for December 23 and 24, 2019, which S1 approved. On December 19, 2019, federal employees were informed that they would receive off on December 24, 2019. Complainant then asked S1 to change his leave to December 27 and 30, 2019, and change the status to pending which S1 did. On December 26, 2019, Complainant sent S1 an email indicating that there would be no one covering the office on December 27 and 30, 2019, because of changes to leave. S1 replied to Complainant indicating that the office needed to have at least one Farm Loan Program presence to cover customer calls/requests and Complainant could take leave as long as someone was covering the office. Complainant acknowledged that S1 never confirmed or denied the leave, and thus, he worked on December 27, 2019. On December 29, 2019, S1 emailed Complainant approving the leave request for December 27 and 30, 2019, but indicated that he did not have to use the leave and S1 would not have computer access for the rest of the pay period. S1 noted that he occasionally approved leave requests after the fact if the circumstances did not make preapproval feasible. Complainant did not read S1’s email until he came to work on December 30, 2019. Complainant worked on that day. Complainant was not charged for leave on December 27 and 30, 2019. S1 indicated that Complainant’s pay for pay period 26 was delayed because he could not validate Complainant’s timecard. Although he was instructed by S1, Complainant refused to remove the two unused leave requests for December 27 and 30, 2019, from his timecard entry which conflicted with his working on the same dates. Complainant indicated that he did not remove his unused leave requests because he wanted S1 to deny the leave requests. Once the master timekeeper made a correction by removing Complainant’s leave requests at issue and validated Complainant’s timecard on January 22, 2020, S1 certified it immediately and Complainant was paid for that pay period. S1 denied he belittled, undermined, ridiculed Complainant in front of staff. Complainant acknowledged that there was no witness to the incident. Regarding claims 3a, 3f, and 3h, S1 and Complainant’s second level supervisor (S2), GS-15, State Executive Director, indicated that management responded to all work-related emails. Neither S1 nor S2 had any knowledge of Complainant reporting a discrimination claim in 2018. S2 indicated that on one occasion, S1 mentioned to him that they might need to have a meeting with Complainant, and he told S1 they could do so if needed. S2 stated that he relied on the management team to manage its employees’ administrative matters and thus, he encouraged S1 to continue working with Complainant. S2 stated that he spoke with Complainant and told him that they could have a meeting if he wanted. 2022000129 4 Regarding claim 3c, S1 stated that there was a meeting with county office employees and the meeting room was set up in a manner that the back table was reserved for state office personnel so they could open their computers to support the county employees. S1 indicated that this seating arrangement had been in place as long as he remembered. Thus, when Complainant laid his folder down at that back table, S1 asked him to find another seat as that table was reserved for state office personnel. S1 asked at least two other employees who sat on the back table to do the same. Regarding claim 3e, Complainant indicated that he volunteered to go work in Florida and Puerto Rico and work double duty, but he did not get an award. S1 stated that he was not involved with making a decision regarding employees’ awards; rather a panel from the State office (not S1) made decisions on which employees were awarded. Regarding claim 3g, S1 stated that Complainant had been accusing him of being prejudiced and racist since 2016. And, on one occasion, stated S1, Complainant accused him of being prejudiced and racist again and at that moment, he lost his temper and put his finger near Complainant’s face and told Complainant it was not true and to never accuse him again of such. S1 stated that he never touched Complainant. Regarding claim 3i, Complainant indicated that he was not given information during meetings of issues that might be upcoming in order to make him aware ahead of time. S1 indicated that he never held any information back. Specifically, S1 indicated that he sent emails on guidance, and all were included. S1 noted that it was possible that when addressing an issue on a case with a loan officer he might have emailed advice to that loan officer with no intent to leave someone out. Complainant also indicated that S1 picked and chose application files and S1 took files from him and gave it to one of his subordinates. S1 indicated that on one occasion, S1 assigned an application file to one of Complainant’s subordinates because S1 believed Complainant was not working on the application file properly. The Agency’s final order implemented the AJ’s decision. Complainant appealed from the Agency’s final order and did not file an appeal brief. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2022000129 5 In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined, and we find that the Agency articulated, legitimate, non- discriminatory reasons for its actions as were set forth in detail above. We also find no evidence of pretext. Complainant has simply not provided any evidence that raises a genuine issue of material fact that his protected bases played any role in any of the actions in dispute. 2022000129 6 Harassment To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant 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 Complainant’s 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 Agency. 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); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). 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). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission has held that routine work assignments, instructions, admonishments, and addressing performance deficiencies do not rise to the level of harassment because they are common workplace occurrences. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014); Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). We note that anti-discrimination statues are not civility codes designed to protect against the “ordinary tribulations” of the workplace. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 23 U.S. at 81. Upon review, we find that Complainant failed to make such showing here. After a review of the record, regarding his claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. It appears that Complainant did not agree with S1’s business decisions and he did not work well with S1. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2022000129 7 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. 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). 2022000129 8 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 February 28, 2023 Date