Joseph D.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0120151918 (E.E.O.C. Apr. 20, 2017)

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

Joseph D.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120151918

Agency No. AMS201400647

DECISION

On May 8, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 7, 2015, 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. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-13 Budget
Analyst at the Agency’s Specialty Crops Inspection Division (SCID) in Washington, D.C.
Previously, Complainant had been a Management Analyst with supervisory responsibilities in
the Fresh Products Division. In 2012, the Agency reorganized and combined two divisions to
create SCID. On October 7, 2012, Complainant’s job title and duties changed.

On July 30, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), age (52), and in reprisal for
prior protected EEO activity when:

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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1. On or about November 15, 2012, Complainant's position was reclassified from a
Management Analyst to a Budget Analyst.
2. On or about November 25, 2012, Complainant's first line supervisor (S1),
commenced an investigation of Complainant for an alleged incident with a coworker
and later discussed the matter in the presence of Complainant's coworkers who did
not have a need to know about the investigation or the alleged incident.
3. On or about January 16, 2013, Complainant was issued a letter of reprimand.
4. On or about February 26, 2013, Complainant learned that S1 had discussed
Complainant's personnel matters during a Fund Review meeting with individuals
who did not have a need to know.
5. On or about December 19, 2013, S1 removed Complainant's Budget Analyst Team
Leader duties and issued Complainant a revised position description.
6. On or about April 10, 2014, S1 removed Complainant's work assignment of
receiving Federal State Cooperative Agreement checks and reassigned them to
another office.

The Agency issued a letter accepting for investigation Complainant’s claims 2, 4, and 6. The
Agency dismissed claims 1, 3, and 5 for untimely EEO Counselor contact finding the claims
involved discrete acts which occurred more than 45 days before Complainant contacted an
EEO counselor on May 27, 2014. However, the Agency stated that the incidents would be
considered as background evidence in determining whether a hostile work environment existed.

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). 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.

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 no legal error in the Agency’s decision.

We agree with the Agency that the dismissed claims constituted discrete actions that occurred
more than 45 days prior to Complainant’s initial contact with an EEO Counselor and were
properly dismissed as untimely pursuant to 29 C.F.R. §1614.107(a)(2). Moreover,
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Complainant’s claim 1 regarding the reclassification of his job title was raised in a prior EEO
complaint and addressed in EEOC Appeal No. 0120150743. Finally, to the extent that the
discrete acts presented evidence of an ongoing hostile work environment, the Agency indicated
that it would consider them as background evidence in determining whether a hostile work
environment existed. This decision shall also consider the dismissed claims as background
evidence to the hostile work environment claim.

The Agency properly found no discrimination with respect to claim 2. Assuming Complainant
established a prima facie case, the Agency articulated a legitimate, nondiscriminatory reason
for asking Complainant’s coworkers about an incident between Complainant and a female
coworker. S1 received a complaint about inappropriate comments by Complainant from a
female coworker. In accordance with his supervisory obligations and Agency policy, S1
attempted to obtain corroborative evidence about the incident. In so doing, he sent emails to
Complainant and those employees that the female coworker identified as being present in the
class where the comments allegedly were made. Managers who handled employee relations and
complaints were copied on the emails. Ultimately, no one corroborated the female coworker’s
allegation beyond one coworker’s recollection that Complainant said something “smart” to her.
Consequently, the Agency dropped the investigation and no action was taken against
Complainant. There is no evidence showing that the Agency’s reason was a pretext for
discrimination.

With respect to claim 4 that, on or about February 26, 2013, S1 discussed Complainant's
personnel matters during a Fund Review meeting, the Agency determined that based on
evidence in the record no one recalled a discussion about Complainant’s personnel matters at
this meeting. Rather, the discussion centered on Complainant’s failure to prepare a financial
report that he was supposed to present at the meeting. The purpose of the Fund Review
meetings was to discuss budgetary issues of the Divisions. Complainant was to provide a
briefing on the status of their budget. Witnesses stated that Complainant’s responses to
inquiries about the budget were inappropriate or inadequate. There is no evidence showing
that the incident occurred as alleged by Complainant or that any action during the Fund Review
meeting was motivated by discrimination.

We find that the Agency correctly found no discrimination as to claim 6 that on or about April
10, 2014, S1 removed Complainant's work assignment of receiving Federal State Cooperative
Agreement checks and reassigned them to another office. Evidence in the record established
that S1 transferred the processing of checks to another office because the performance of this
work was primarily handled by administrative staff at grades lower than Complainant.
Additionally, Complainant had been the only individual handling the Federal State checks, and
S1 changed Complainant’s duties to improve financial accountability. Complainant failed to
show that the removal of a work assignment from Complainant was motivated by
discrimination.

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
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work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore,
the Commission finds that Complainant has not established that he was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

We AFFIRM the agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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).

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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

April 20, 2017
Date