Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0120110486 (E.E.O.C. Feb. 25, 2015)

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

Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120110486

Agency No. FSIS-2009-00719

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
September 30, 2010 final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Systems
Accountant in the Agency’s Financial and Accounting Systems Management Branch, Financial
Management Division, Office of Management of the Food and Safety Inspection Service in
Beltsville, Maryland. On September 22, 2009, Complainant filed an EEO complaint alleging
that the Agency discriminated against her and subjected her to a hostile work environment on
the bases of race (African-American) and color (Black) when:

1. On June 5, 2009, management issued her a Letter of Instruction;

2. In June 2009, management spoke negatively about her to an incoming
supervisor, resulting in her work being reassigned to other employees;

3. On May 22, 2009, the Deputy Director questioned her about her time and
attendance reporting;

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4. On May 14, 2009, the Director denied her request to go on a detail assignment
but would allow her colleagues to do so; and

5. In April 2009, management continued to utilize her as acting team leader when
her temporary promotion had ended, when she expressed her unwillingness to
continue without compensation.1

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge. Complainant requested a FAD. In accordance with Complainant's request, the Agency
issued a FAD, pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), Complainant claimed that she was issued
a Letter of Instruction criticizing her for failure to provide adequate training to team members
regarding the takeover of her duties when she left for a detail assignment. In addition,
Complainant alleged that the Letter reprimanded her for failure to complete the MTI log.2

The
Director affirmed that he issued the Letter of Instruction because management made numerous
requests of Complainant to conduct training for co-workers, and when she finally complied,
the training was inadequate. Further, the Director explained that the MTI log was once
Complainant’s responsibility and that Complainant did not train her successors in a way that
would allow them to take over the function and her other duties. The Director noted that the
MTI log was needed for review during an outside audit of the Division.
With respect to claim (2), Complainant claimed that management spoke negatively about her to
an incoming supervisor which resulted in her work being reassigned to other employees.
Specifically, Complainant alleged that the Director told the incoming Branch Chief that
Complainant was not a team player and was unwilling to help others. The Director
acknowledged that he told the Branch Chief about Complainant’s reluctance to share technical
information so that the Branch Chief would be aware of some of the challenges she would be
facing. The Director denied telling the Branch Chief that Complainant was not a team player
or saying anything untrue about Complainant.

1 Complainant raised three additional claims regarding a mid-year performance evaluation,
ignored requests for two-way performance feedback, and the Director yelling and screaming at
her in front of her peers. The Agency dismissed these claims for untimely EEO Counselor
contact. The Commission finds no basis to disturb the Agency’s dismissal; however, the
Commission will consider them as background evidence in support of Complainant’s overall
hostile work environment claim.

2 The “MTI log” is not defined or explained in the record; however, it appears to be an
accounting record.
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Regarding claim (3), Complainant alleged that the Deputy Director inappropriately questioned
her about her time and attendance reporting. Complainant claimed that she submitted a request
for 8 hours of annual leave, and the Deputy Director informed her that she had come in late;
that her time sheet did not show 80 hours; and, that she had to make up the time before she
could take any leave. Complainant alleged that she met with the Deputy Director and another
supervisor was present. The Director noted that employees were not reporting their time
accurately and a new system was initiated for everyone. The Director confirmed that the
Deputy Director checked the timesheets of her subordinates and met with those who continued
to report their time inaccurately. The Deputy Director acknowledged meeting with
Complainant and that another supervisor was present. The Deputy Director stated that she was
reviewing the sign-in sheet and there was a question as to whether Complainant’s hours totaled
80 for the pay period. The Deputy Director affirmed that during the meeting, Complainant
showed her that her hours were correct, and the meeting ended. The Deputy Director asserted
that she has another supervisor present during meetings in which the subject matter may be
upsetting to the employee, and that she did the same thing with other employees.

As to claim (4), Complainant alleged that the Director denied her request to compete for the
Branch Chief position as a detail assignment until August 2009, while other co-workers were
allowed to go on detail assignments. Complainant further claimed that in April or May 2009,
management removed certain duties from her, and that she was no longer the functional
administrator, but she was told that she still had to do training for other employees on how to
perform her then-current job functions. The Director denied that Complainant’s request was
denied. The Director stated that Complainant requested to go on a detail assignment and start
immediately. The Director asserted that Complainant possessed exclusive knowledge of some
operations and she needed to train others to perform those tasks before leaving for the detail.
The Director maintained that Complainant was allowed to leave for her detail once she
completed the training of the employees who would take over those functions of which only
Complainant had knowledge. The Director asserted that after many delays, Complainant
finally provided the requested training to the other employees.

With respect to her duties, the Deputy Director stated that as the acting Branch Chief, she
shadowed employees in observation of what they did, so she could shift the duties to the
employee who would take over most of Complainant's functions while she was on detail. The
Deputy Director asserted that Complainant completed work related to payroll in July, but never
finished the cost allocation project. The Deputy Director affirmed that management met with
Complainant on July 27, 2009, for a status update. During the meeting, Complainant stated
that she had completed the training and payroll project, and could complete that cost allocation
project in two weeks. Complainant requested August 16, 2009, as the start date of her detail.
The Deputy Director confirmed that management agreed to let Complainant go on the detail,
even though she never finished the cost allocation project.

Finally, as to claim (5), Complainant alleged that management continued to use her as an
acting team leader when her temporary promotion ended. Complainant stated that she
performed her old duties as well of those of Branch Chief without compensation for the higher
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paying position for about four months. The Director explained that Complainant did act as
Branch Chief from about August 2008 until December 2008, and she was paid at the GS-14
level during that period. He asserted that he had contacted the Human Resources Office to
post a competitive detail for the position, and thought it had been done. The Director stated
that it was an administrative error and was not a deliberate act by anyone. The Director
asserted that he did not learn of the error until Complainant asked to be removed from the
position in April 2009, and he was quite upset that she had not been properly compensated.
The Director stated that there was nothing he could do at that point, except possibly offer some
type of monetary or another award as substitute compensation. The Director was uncertain as
to whether anything was ever done to compensate her.

The Agency concluded that Complainant failed to show that the alleged incidents were
sufficiently severe or pervasive to establish a hostile work environment. Further, the Agency
determined that Complainant failed to show that management’s reasons for its actions were
pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. Complainant filed the instant appeal
without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her protected classes, she was subjected to a hostile
work environment. Complainant has cited several incidents where Agency management took
actions which seemed adverse or disruptive to her including, inter alia, being issued a Letter of
Instruction; negative comments to an incoming supervisor; time and attendance reporting
questions; denial of an immediate detail assignment request; and uncompensated team leader
duties. The Commission finds, however, that Complainant has not shown that she was
subjected to a discriminatory hostile work environment.

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Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that any of the alleged incidents were based on
discriminatory animus. In particular, with respect to the Letter of Instruction, the Director
confirmed that he issued it based on Complainant’s delay in providing training to other
employees prior to leaving for her detail assignment. ROI, at 39. The Director added that
once Complainant finally provided the training, the employees complained that it was
inadequate. Id. The Director maintained that the MTI log was once one of Complainant’s
duties; however, she failed to properly train anyone to take it over. Id. at 39-40. Regarding
negative comments to incoming management, the Director denied telling the incoming Branch
Chief that Complainant was not a team player; rather, he stated that he informed the incoming
Branch Chief about Complainant’s reluctance to share technical information so that the Branch
Chief could be aware of what challenges she faced. Id. at 39. The Deputy Director also
denied making any negative remarks to the incoming Branch Chief. Id

. at 45.
With respect to the time and attendance issue, the Deputy Director confirmed that she met with
Complainant regarding her timesheet because there was some question as to whether her work
hours totaled 80 hours. ROI, at 45. The Deputy Director acknowledged that she had another
supervisor sit in during the meeting because she often had another supervisor present whenever
she felt an employee may become upset over the subject under discussion. Id. Complainant
showed her that she worked 80 hours, and the meeting ended. Id

.
Regarding the detail assignment, the Director maintained that management approved
Complainant’s request to go on a detail assignment; however, Complainant wanted to be
released immediately. ROI, at 38. The Director stated that Complainant had operational
knowledge that no one else had; therefore, management informed Complainant that she could
go on the detail after training others on her duties. Id. After many delays, Complainant
provided the training and was allowed to go on the detail assignment. The Director noted that
the employees complained that the training was of no value and they did not learn enough to
take over the job. Id. Thus, the Director emphasized that management did not deny
Complainant the detail opportunity; rather they tried to ensure that there were no holes in their
operations before she left. Id

.
Finally, as to not being compensated for the team leader duties, the Director confirmed that
this was simply an administrative error. ROI, at 37-38. The Deputy Director added that
Agency rules prohibit the Agency from paying an employee at a higher rate for a detail longer
than 120 days unless it is through a competitive process. Id. at 43. The Deputy Director
noted that it was not unusual, however, for an employee to continue in acting position after a
120-day detail expires and not get paid at the higher grade. Id

.
In support of her claim that the alleged incidents were based on her protected classes,
Complainant alleged that the Deputy Director made “racial remarks” in the past including
“Black people can’t swim” and “you people are always changing your hair.” The Deputy
Director denied making any negative racial comments. The Deputy Director noted that she
once told a story about her African-American Army bunkmate braiding the Deputy Director’s
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hair during basic training. ROI, at 47-48. The Deputy Director maintained that she meant the
story as compliment and never intended to insult anyone. Id

.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that Complainant failed to present any evidence that discriminatory animus
motivated the incidents at issue. Finally, to the extent that Complainant is alleging disparate
treatment with respect to any of these claims, the Commission finds that she has not shown that
the Agency’s reasons for its actions were a pretext for unlawful discrimination. Accordingly,
the Commission finds that Complainant was not subjected to discrimination or a hostile work
environment as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 25, 2015