Virgil A.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

0120181876 (E.E.O.C. Sep. 19, 2019)

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

Virgil A.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120181876

Agency No. DEPT-2017-00680

DECISION

Complainant timely 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 April 2, 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., 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 decision.

ISSUES PRESENTED

Whether the Agency discriminated against and subjected Complainant to a hostile work
environment based on his race (Caucasian/Hispanic), sex (male, sexual orientation), and disability
(migraines) when management denied his telework requests, failed to forward his name to hiring
officials for vacant detail positions, and subjected him to harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an IT
Specialist/Program Manager, GS-2210-12, at the Agency’s Conflict Complaint Division in

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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Lawton, Oklahoma. Complainant’s medical conditions include severe migraines, knee problems,
lower back problems, and a military-related neck injury. Report of Investigation (ROI), at 108.
Complainant stated that he walks with a cane, and he wears sunglasses indoors to reduce his
migraines.

On January 14, 2016, Complainant’s first-line supervisor (S1) sent out a request for volunteers to
upgrade computers in the National Capital Region. ROI, at 384. On January 15, 2016,
Complainant informed S1 that she could include his name and S1 stated that she would escalate
his willingness to assist with reimaging. Id. at 396-397. On January 17, 2016, S1 submitted
Complainant’s name along with additional comments regarding her concerns of staff shortages.
Id. at 393. S1 stated that Complainant was the lead eVOIP Project Lead and she was concerned
that his participation would impact the group’s ability to meet deadlines and provide service to
customers. Id. On January 27, 2016, the Project Lead (PL) sent out an email notification to
individuals that were not selected for the project, which included Complainant. Id.at 388.

On March 28, 2016, S1 sent an email soliciting volunteers to assist with reimaging workstations
in Washington, D.C. ROI, at 143. S1 stated that requests needed to be submitted by 2 p.m. on
March 28, 2016. Id. On March 29, 2016, Complainant emailed PL asking if his name had already
been put in for consideration and PL informed Complainant that he did not receive his name as a
volunteer. Id. at 145. On April 7, 2016, PL contacted the Branch Chiefs with a list of employees
who were not selected in prior rounds and Complainant’s name was included on the list. ROI, at
391. PL requested five or six additional volunteers for remote support. Id. In response to PL,
Complainant’s Branch Chief noted that she had submitted Complainant’s name. Id. at 390.

On January 6, 2017, Complainant emailed S1 requesting to telework due to road conditions. S1
replied that she would approve Complainant’s telework for the two hours he had worked, but that
she could not approve telework for the entire day. S1 informed Complainant that he could take
leave if he felt that he could not report to the Lawton office, which Complainant utilized. ROI, at
147.

On January 6, 2017, Complainant emailed his management chain with complaints about S1
denying his telework request. ROI, at 149. Complainant added that he had documented other
instances in which he felt that S1 was targeting him and asserted that changes had been made
across the entire group that only affected him. Id.

On April 25, 2017, Complainant emailed S1 requesting telework for Friday, April 28, 2017. ROI,
at 156. Complainant stated that he planned to work on UPS configurations, eVOIP, follow-up
emails, customer support and Aglearn. Id. He added that he would be fully available for customer
support. Id. S1 stated that she was unable to approve the request because Complainant had been
on leave and out of the office three days in the prior week and would be on leave again three days
that week. Id. at 155. S1 noted that telework is a privilege and that they needed to be accessible
for customers. Id.

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On May 15, 2017, S1 issued Complainant a Counseling Memorandum regarding his leave usage.
ROI, at 361. The memorandum indicated that a leave audit was conducted for the period August
21, 2016 through April 15, 2017. Id. During the review period, Complainant had been absent 38
times for a total of 194.5 hours, which was 15.19 percent of his scheduled worktime. Id. S1 noted
that in pay periods 05 through 07, Complainant missed 83.5 hours out of 120 hours, or 69 percent
of his scheduled worktime. Id. The memorandum stated that on April 28, 2017, Complainant did
not report to work and did not obtain approval to take leave. Id. While he was not charged with
an absence without leave, S1 reiterated the expectation that leave be requested, approved, and
scheduled in advance. Id. The memorandum noted that it was not a disciplinary action and would
not be filed in Complainant’s electronic personnel folder. Id.

On May 26, 2017, Complainant’s coworker (CW1) forwarded S1 a message she had received from
a customer Complainant had been helping. ROI, at 372-373. The message stated that Complainant
had instructed the customer to contact CW1 regarding his issue. Id. Upon learning of the situation,
S1 emailed Complainant, noting that if Complainant is unable to help a customer, he should contact
a teammate and see who is available to assist the customer. S1 requested that Complainant not ask
customers to contact other IT Specialists. Id.

On May 30, 2017, Complainant submitted a telework request for May 31, 2017, and provided the
tasks that he planned to complete. ROI, at 158. Complainant once again indicated that he would
be available for customer support. Id. Citing escalating concerns in the Altus, Oklahoma service
center, S1 denied Complainant’s telework request. Id. at 405.

On August 4, 2017, Complainant assisted a customer with a voicemail to email problem. ROI, at
206-207. About one hour after speaking with Complainant, the customer emailed Complainant’s
coworker (CW2) requesting assistance with the matter. Id. CW2 informed the customer that
Complainant had resolved the issue that morning. Id. at 206. The customer emailed S1 to
complain that Complainant had not followed through and that CW1 had responded. ROI, at 205.
S1 emailed Complainant regarding his handling of the matter, stating that it was imperative to
follow-up with customers, and “not just walk out on them.” Id. S1 stated that if Complainant
needed to leave with incomplete tasks, he needed to hand them off to another team member or
notify S1 of pending actions. Id.

On August 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian/Hispanic), sex (male/sexual orientation), and disability
(migraines) when:

1. On January 6, 2017; April 25, 2017; and May 31, 2017, management denied his telework
requests;

2. Beginning in early 2016, management failed to forward his name to the hiring officials
responsible for filling vacant detail positions for which he applied; and

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3. On several dates, he was subjected to other incidents of harassment, including, but not
limited to:

a. On unspecified dates beginning in late 2016, and continuing to the present, his
supervisor criticizes him when he drives his personal vehicle to conduct site visits;
b. On December 15, 2016, his supervisor requested he utilize telework and his
personal vehicle when making a site visit;
c. On January 6, 2017, management failed to respond to his workplace harassment
complaints;
d. On May 2, 2017, his supervisor attempted to force him to turn on his office lights,
although she had knowledge that he dimmed his office lights due to migraine
headaches;
e. On May 2, 2017, his supervisor attempted to force him to keep his office door open
when speaking on the telephone to customers;
f. On May 16, 2017, management counseled him regarding his medically-related
leave;
g. On May 26, 2017, management counseled him for failing to assist a customer;
h. On June 1, 2017, his supervisor insinuated that he arrives to site visits late when he
drives his personal vehicle;
i. On August 7, 2017, his supervisor sent an email message stating he was not
properly doing his job;
j. On an unspecified date, his supervisor counseled him while he was conducting a
site visit;
k. On an unspecified date, his supervisor failed to acknowledge him or show any
empathy when he was treated in the emergency room; and
l. On an unspecified date, his supervisor counseled him for taking unscheduled leave.

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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that it
had subjected him to discrimination as alleged.

In the final agency decision (FAD), the Agency found that Complainant established a prima facie
case of discrimination based on his protected classes. However, the Agency determined that
management officials provided legitimate, nondiscriminatory reasons for their actions which
Complainant failed to persuade the Agency were pretext for discrimination.

Regarding claim 1, management officials explained that Complainant’s requests were denied
based on the business needs of the operation and the potential effect on Complainant’s customers.
S1 stated that Complainant had requested telework 75 to 80 times and his requests were denied on
just the three occasions in question.

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The Agency noted that as Complainant’s first-line supervisor, S1 had responsibility for
determining the parameters of Complainant’s work and the extent to which his work could be
achieved on telework. The Agency concluded that Complainant did not submit any evidence to
support his assertions of discrimination with respect to his telework denials.

As for claim 2, the Agency asserted that Complainant’s name was forwarded for consideration.
S1 stated that she received an email notification indicating that Complainant was not selected, but
that Complainant was later selected to support the project through Remote Support. A witness
described getting involved with the decision when he discussed Complainant’s desire to work the
detail with his managers, but his testimony did not support Complainant’s contention that his
protected classes were motivating factors in the determination.

With respect to Complainant’s harassment claims, S1 denied criticizing Complainant for using his
personal vehicle or Complainant’s arrival time and explained that managers are required to code
time in personal vehicles as telework due to insurance liability concerns. Management further
explained that Complainant was given the option of driving his own personal vehicle from his
residence to go to an office to pick up a government vehicle because it was more efficient. As for
his claim that management failed to respond to his harassment complaints, at least one responsible
management official asserted that she responded to Complainant’s email and denied knowledge of
any failure to respond.

Regarding the office lights and door incident, Agency officials explained that the matter was
resolved when the Agency granted Complainant a reasonable accommodation. S1 stated that she
was concerned about the lights being on because she wanted to ensure availability and accessibility
to customers. Management officials asserted that Complainant was counseled regarding leave
because he had used a significant amount of unscheduled leave, and management decided to issue
the counseling to address his conduct. The counseling was issued at his worksite because
management officials requested that S1 deliver the leave counseling as soon as possible in person.
S1 denied a lack of empathy and stated that she had acknowledged Complainant’s leave requests
while maintaining respect for his privacy. Complainant received counseling based on interactions
with customers when his actions were either inappropriate or he failed to communicate clearly.

As for Complainant’s allegations of hostile work environment harassment, the Agency determined
that Complainant failed to establish a prima facie case of harassment. Specifically, the Agency
found that Complainant failed to establish that the unwelcome conduct was based on his protected
classes. The Agency added that Complainant was unable to demonstrate that the conditions he
experienced affected a term or condition of his employment or had the purpose or effect of
unreasonably interfering with his work environment. The Agency was not persuaded that a
reasonable person would consider the alleged events to be harassment.

CONTENTIONS ON APPEAL

Neither party submitted any contentions in relation to Complainant’s appeal.
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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 (EEO MD-
110), 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”).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his race, sex, and disability, we find that the management officials articulated legitimate,
nondiscriminatory reasons for their actions. Regarding claim 1, the denied telework requests, S1
acknowledged that the telework requests were denied on the dates in question. ROI, at 162. S1
affirmed that she denied Complainant’s January 6, 2017 telework request because the road
conditions were clear, schools were open, school buses were running, and Complainant’s duty
station was open. ROI, at 163. S1 stated that Complainant did not provide justification for why
he needed to telework on April 25, 2017, or May 31, 2017, but that his requests were denied based
on business needs and Agency policy. Id.

As for claim 2, S1 stated that she was aware of a detail volunteer announcement, for which
Complainant volunteered in January 2016. ROI, at 165. S1 stressed that she forwarded
Complainant’s name to her supervisor and Complainant was later selected for Remote Support for
the project. Id.
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Complainant has failed to establish a nexus between the Agency’s actions and his protected
classes. Moreover, the preponderance of the evidence does not establish that the Agency’s
legitimate, nondiscriminatory reasons were pretextual.

Hostile Work Environment

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 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). 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).

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 Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

Upon review, we find the alleged incidents were not sufficiently severe or pervasive to establish a
legally hostile work environment. The Commission notes that Title VII is not a civility code.
Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming
that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
the Commission finds that Complainant failed to show that the Agency’s actions were based on
discriminatory animus.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. For example, regarding the
claims related to the use of Complainant’s personal vehicle, S1 denied having awareness of any
incident of criticizing Complainant or any other team members for driving a personal vehicle.
ROI, at 167. She stated that she shares information regarding the policies when driving personal
vehicles with the team so that they are aware of the policies. Id. at 167-168, 181. As for the office
lights and door incident, S1 stated that she discussed her concerns about having the lights off and
door closed, but once she became aware of the connection to Complainant’s migraines,
Complainant received a reasonable accommodation and the matter was resolved. Id. at 173, 175.

Regarding Complainant’s allegations of counseling with respect to leave, S1 affirmed that
Complainant received a Counseling Memorandum due to the frequency of unscheduled leave.
ROI, at 177, 185 188.
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S1 acknowledged that she emailed Complainant regarding customer service and communicating
clearly when he left a worksite and failed to follow up with a customer. Id. at 183. Likewise, S1
acknowledged that she counseled Complainant for failure to assist a customer when Complainant
received a call from a customer and instructed the customer to contact another team member. Id.
at 179-180.

Complainant has not established by the preponderance of the evidence that he was subjected to a
hostile work environment. We find that the complained of conduct did not have the purpose or
effect of unreasonably interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment. In looking at the evidence in the record, one of
Complainant’s witnesses stated that he had several conversations regarding Complainant’s feeling
that S1 had harassed Complainant. Ex. 3, at 4. The witness recalled an email where Complainant
felt that S1 was picking on Complainant. Id. However, the witness explained to Complainant that
it might not be that way. Id. In considering these statements and the evidence in its entirety, we
do not find that all the incidents, taken together, rise to the level of severe or pervasive harassment.
Accordingly, we find that the Agency did not subject Complainant to a hostile work environment
based on his protected classes.

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 decision finding that Complainant was
not discriminated against, nor harassed, as alleged.

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.
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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).
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.

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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

September 19, 2019
Date