Adalberto P.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

2019001331 (E.E.O.C. Nov. 5, 2019)

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

Adalberto P.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 2019001331

Agency No. APHIS201800162

DECISION

On November 6, 2018, 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
September 17, 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Biological
Technician (Trapper), G-05, at the Agency’s Wildlife Services facility in Barrigada, Guam.

On December 29, 2017, Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination and harassment on the basis of national origin (Mexican) and age when:

1. On October 5, 2017, he was issued an unfavorable rating on his Annual
Performance Evaluation;
2. On October 4, 2017, he was denied an opportunity to work on the Aerial Delivery
System (ADS) project; and

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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3. He was subjected to various incidents of harassment, including but not limited to
when:
a. On January 5, 2018, a management official sent him an unsolicited text
message and asked him a serious of questions about his active EEO complaint
and gave him literature regarding the EEO process;
b. On December 13 and 18, 2017, he received questionable unsolicited text
messages from a manager and the manager informed him that the managers
were “working on something against him;”
c. On October 4, 2017 and other dates, his supervisor told him he was getting
“too old” and “too slow” for the ADS project and they “needed people who
were faster” than him to serve on the project; and
d. On October 2, 2015, he was issued a Letter of Instruction.2

The Agency accepted the complaint and conducted an investigation which revealed the following
pertinent facts:

Complainant alleged that, on October 5, 2017, he was given a performance evaluation and rated
as “minimally successful” by two managers who were not his supervisors. Management attested
that, while Complainant was originally rated as “minimally successful,” Complainant
successfully made his case for a higher rating, and his rating was changed to “fully successful.”

With respect to the ADS project, Complainant attested that a manager called him into the office
one day and asked him why he was behind on his data entry when he was not behind on it.
Complainant attested that he asked the manager if he was no longer on the ADS project and the
manager told him that he was too slow, he was getting too old, and they needed people that are
faster.

Management explained that the ADS project is a special research project that is conducted
intermittently. There is a core team of employees that work on it and three alternates.
Complainant is an alternate. Complainant worked on the project from April 2, 2017 through July
21, 2017, which was the end of the project. Management explained that Complainant asked to
work on the ADS project in October and was told, “probably not,” because the Team Lead gave
a negative report on Complainant’s performance. Management explained that the work on the
ADS is research, the work needs to be precise and measurable, and the Team Lead reported that
Complainant had difficulty with those tasks. Management informed Complainant that they would
rely on the other alternates in the future because Complainant slowed down the team.

The Team Lead attested that Complainant had difficulty performing some of the tasks given to
him, he would not follow directions, and many times his work and to be corrected. The Team
Lead attested that he was looking for someone who could work independently and had more
enthusiasm about the work. He attested that he told Complainant that, if there was an opening, he
needed to ask to work on the project.

2 Complainant alleged discrimination based on race, which he described as Mexican.
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He also attested that he reported that Complainant did not have the drive and willingness to do
the field work or data entry and he slowed down the process. However, he indicated that he
would use Complainant as a back-up because he is already familiar with the work and he would
not have to train someone new.

The State Director attested that Complainant was added to the ADS rotation for the summer of
2018, but Complainant asked to be removed from the team because of his EEO complaint.
Complainant was told he had to fulfill his duties and work his rotation.

Complainant denied having difficulty performing his tasks and not following directions. He also
attested that he did not receive any correspondence or counseling regarding the alleged
performance deficiencies.

As noted above, Complainant alleged that a supervisor texted him on December 13 and 18, 2017
and January 5, 2018 and gave him literature on directives and a list of EEO contacts, where the
“counseling and resolution” staff’s numbers were highlighted. Complainant also attested that the
supervisor asked him about his complaint. The supervisor denied knowledge of these allegations.

Copies of text messages from the supervisor are of record. A message from the supervisor dated
December 13, 2017 states, “Lmk when is a good time I can meet you.” A message from the
supervisor dated December 18, 2017 states, “Are you still here at the office?” In response,
Complainant sent a message on December 18, 2017, stating, “Yes,” to which the supervisor
replied, “I’ll walk down.” A message from the supervisor dated January 5, 2018 states, “You
still here?”

A Letter of Instruction, from a supervisor, dated October 9, 2015, indicates that there was
increasing concern regarding Complainant’s ability to follow instructions concerning the
performance of his assigned duties, specifically with regard to the maintenance of government
equipment and animal care. The Letter details an incident on October 2, 2015, when
Complainant left the office to perform his assigned duties and returned in approximately one
hour. Complainant recorded that he performed work on all of his assigned properties, but, upon
inspection, his assigned BTS trap-line had not been serviced and the equipment was in bad
repair, to include poor animal care. On October 5, 2015, management inspected the trap-line
again and found no corrective action had been taken. The Letter notes that the traps were rusted
and in poor working order, animals were not provided with adequate food and water, and, in
some cases, animals were found dead. Management met with Complainant about these issues on
October 6, 2015, and the Letter indicates that Complainant admitted that he did not properly
service the substation and entered inaccurate information. The Letter provides notice that any
continued failure to follow instructions could result in a recommendation for disciplinary action.
The Letter outlines instructions for Complainant’s performance of duties.

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

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that his complaint included allegations of discrimination and
harassment on the bases of age and race, and not just age as indicated in the Agency’s final
decision. He reiterates his contentions and clarifies his testimony. He submits a copy of another
text message from a supervisor, dated December 13, 2017, stating, “I know you are off. I like to
talk to you.” He also submits copies of emails and correspondence relating to the processing of
his complaint and his performance of duties.

In response, the Agency argues that Complainant’s appeal is untimely and should be dismissed
accordingly.3 Alternatively, the Agency argues that the Letter of Instruction was untimely raised,
and that claim must be dismissed. The Agency also discusses the record and argues that
Complainant has not met his burden to establishing a prima facie case of discrimination or
discredit the Agency’s reasons for its actions as pretext for discrimination.

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 Chapter 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 Claims

Complainant has alleged that the Agency treated him disparately in giving him an unfavorable
performance rating and denying him the opportunity to work on the ADS project. A claim of
disparate treatment is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).

3 The Agency notes that Complainant indicated he received the FAD on October 8, 2018 and his
appeal was to be filed no later than November 7, 2018. The record shows Complainant submitted
his appeal on November 6, 2018, prior to the November 7, 2018 deadline.
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For a 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. See McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then
shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex.
Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that, with respect to his performance evaluation, it was
subsequently changed, after he made his case for a “fully successful” rating, as opposed to the
“minimally successful” rating he was initially given. With respect to the ADS project, the
Agency explained that Complainant was not denied the opportunity to participate but was
selected for the program. Although Complainant has alleged discrimination, he has not
established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons
articulated by the Agency were a pretext for unlawful discrimination on any basis or motivated
by some unlawful discriminatory animus with respect to these claims.

Harassment Claim

Complainant has alleged the Agency subjected him to harassment, noting several alleged
instances. In considering whether the alleged actions, whether individually or collectively,
constitute harassment, the Commission notes that, in Harris v. Forklift Systems, the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that
harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant's employment See EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of
harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, in assessing whether the complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the totality of the
circumstances, considering, inter alia, the nature and frequency of offensive encounters and the
span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
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However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and conditions of employment.” The
Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a
reasonable person would find [the work environment to be] hostile or abusive, and . . . that the
victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

Complainant’s harassment allegations include instances that can generally be described as
relating to managerial decisions, such as the assignment of employees to projects and whether he
should receive a letter of instruction relating to performance observations. Without evidence of
an unlawful motive, we have found that similar disputes do not amount to unlawful harassment.
See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record
established that the issues between the complainant and the supervisor were because of
personality conflicts and fundamental disagreements over how work should be done and how
employees should be supervised, and there is no indication that the supervisor was motivated by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes,
trivial slights and petty annoyances between a supervisor and a complainant do not rise to the
level of harassment).

Additionally, with respect to the text messages, statements and other forms of communication
that Complainant found displeasing, we find this also is insufficiently severe or pervasive to have
altered the conditions of Complainant’s employment. See Phillips v. Dep’t of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally
attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed
with the time the complainant entered into a sign in log, were found to be insufficient to state a
harassment claim). Although Complainant asserts that the Agency acted discriminately, there is
insufficient evidence to support the allegation that Complainant’s national origin or age played
any role in the incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to
support a claim of discriminatory harassment.

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.

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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.
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.
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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

November 5, 2019
Date