Bell G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181633 (E.E.O.C. Sep. 24, 2019)

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

Bell G.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120181633

Agency No. FS201400545

DECISION

On April 21, 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
March 28, 2018, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Contracting
Officer (SCO). GS-1102-13 at the Agency’s Tongass National Forest (TNF) Service in Region 10
facility in Juneau, Alaska. According to the Workforce Profile for the TNF Region 10, there were
363 employees and Complainant was the only African American employee and Black woman.
Her first-level supervisor was the Regional Acquisition Management Director (RAMD).
Complainant named RAMD as the Responsible Management Official (RMO) in this matter.

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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On August 22, 2014, Complainant filed an EEO complaint2 and amended it on September 24,
2014, alleging that the Agency discriminated against her on the bases of race (African-American),
sex (female), and age (53) when:

1. On July 28, 2014, management refused to extend her temporary telework
agreement and required her to return to her permanent duty station no later than
August 25, 2014;
2. On June 16, 2014, her supervisor reduced her work schedule to a part-time
basis, but did not alter or decrease her workload or assignments;
3. On an unspecified date, her supervisor required that she be segregated from her
coworkers upon her return to her permanent duty station; and
4. On several dates, she was subjected to various acts of harassment, including but
not limited to:
a. On November 19, 2013, her supervisor failed to clarify her workload
assignments;
b. On December 10, 2013, she learned her supervisor shared information
concerning her hardship situation with her coworkers;
c. In April 2014, her supervisor repeatedly changed her work assignments and
gave her new projects;
d. On April 23, 2014, after a review of her hardship situation, she was instructed
to return to her permanent duty station in Alaska on June 9, 2014;
e. On May 19, 2014, her coworker called her by her first name, despite prior
instructions not to do so;
f. On May 28, 2014, her supervisor attempted to engage her in gossip; and
g. On June 16, 2014, she learned her supervisor shared her personal address
with a coworker.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently
withdrew her request.3 Consequently, 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
her to discrimination as alleged.

With respect to the disparate treatment claims set forth in Claims 1-3, the Agency found that
Complainant had established a prima facie case of race, sex, and age discrimination.

2 Complainant’s complaint also alleged reprisal. The Agency dismissed the reprisal claims
because none alleged that Complainant’s activity involved EEO or other protected activity.
Complainant has not challenged this dismissal on appeal and we shall not address the dismissal of
the basis of reprisal.

3 No hearing number was assigned to the case.
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However, the Agency also found that management articulated legitimate, nondiscriminatory
reasons for its actions that Complainant failed to prove were pretextual.

Specifically, with respect to Claim 1, Complainant alleged that RMO refused to extend
Complainant’s telework agreement and required her to return to her duty station in Alaska no later
than August 2014. The Agency noted that RMO stated that she did not extend Complainant’s
telework agreement because Complainant’s hardship request to work permanently from
Lakewood, Colorado had been denied, Complainant’s absence created an adverse effect in the
office, and Complainant was needed onsite to perform her duties in Alaska. The Agency noted that
Complainant did not offer any evidence disputing these reasons, the facts showed that the workload
had grown during Complainant’s absence, and Complainant did not produce any evidence
establishing that management’s actions were motivated by discriminatory animus. Thus, the
Agency concluded that the refusal to extend Complainant’s telework agreement was not due to
discrimination.

Regarding Claim 2, Complainant alleged that RMO reduced her work schedule to a part-time basis,
but did not alter or decrease her workload or assignments. The Agency considered Complainant’s
explanation that prior to June 2014, RMO1 allowed her to telework 8 hours a day and to work
overtime if needed, but afterwards, RMO1 reduced her work hours to 4 hours a day forcing
Complainant to use her annual and sick leave to make up the difference in pay. The Agency also
noted that Complainant asserted that, despite her decreased hours, her workload remained the same
and that she believed she was treated differently because she was the only African American in
the entire region, and some of the employees had problems working with a minority. In weighing
Complainant’s allegations, the Agency considered RMO’s statement that she offered Complainant
the option of taking leave or working part-time remotely if the conditions of her hardship were not
resolved by June 9, 2014, and that Complainant had chosen to work part-time remotely. The
Agency noted that RMO asserted, and paperwork in the record confirmed, that Complainant’s
position remained full time but her workload was eventually reduced to be commensurate to her
part-time hours. The Agency decided that since Complainant did not refute RMO’s explanation or
produce evidence of discriminatory animus, her discrimination claim failed.

As for Claim 3, where Complainant alleged that RMO segregated her from her coworkers, the
Agency considered RMO’s statement that she placed Complainant in a private office away from
her coworkers because Complainant had expressed concern that her coworkers may react
negatively to her return to the office. The Agency found that providing Complainant with a private
office did not constitute discriminatory separation from her peers since Complainant did not allege
that she was excluded from work events, trainings, or other activities conducted within the office.

Lastly, the Agency found that Complainant’s harassment claims articulated in 4a-4g did not
establish a discriminatory hostile work environment. The Agency found that Complainant failed
to prove these actions were motivated by her membership in the protected classes or that the
alleged actions unreasonably interfered with her work performance or created a hostile work
environment. This appeal followed. No brief was submitted by Complainant.

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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, 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”).

We find that many of the allegations raised by Complainant challenged management’s business
decisions in its handling of her hardship request, telework agreement, workload, work
assignments, office placement, and employee interaction. Whether or not the Agency’s decisions
were poor or unwise, we find that Complainant failed to show by a preponderance of the evidence
that discrimination motivated the Agency’s actions. Further, we note that while there is evidence
in the record that confirms employees in Complainant’s region did not want to work with
Complainant, there is no evidence to support Complainant’s contention that the discord was
because of her race, sex, or age. To the contrary, according to the union representative’s statement
in the record, the employees had complained that they did not want to work with Complainant
because she had bullied and mistreated them.

In sum, we find that management articulated legitimate, nondiscriminatory reasons for its actions,
and were responsive to Complainant’s concerns by reducing Complainant’s workload to
correspond to her reduced hours and apologizing for sharing her personal information with staff.
We also find that Complainant failed to prove management’s actions were a mask for
discrimination or constituted harassment in violation of Title VII or the ADEA since there was no
evidence that they were motivated by her protected classes and because RMO's actions were not
severe or pervasive enough to create a hostile work environment. Accordingly, we find that the
preponderance of the evidence does not support Complainant’s claim of unlawful discrimination.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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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

September 24, 2019
Date