Melodee M.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Jan 24, 2017

0120142984 (E.E.O.C. Jan. 24, 2017)

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

Melodee M.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.

Appeal No. 0120142984

Hearing No. 490-2010-00147X

Agency No. AMS-2009-01251

DECISION

On August 22, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 21, 2014, final order 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a seasonal employee and
worked as a supervisory Line Leader in the Agency’s Agricultural Marketing Service, Cotton
and Tobacco Program, in Memphis, Tennessee. Her duties included operating machines
designed to evaluate the physical properties of cotton crop samples. On November 7, 2009,
Complainant filed an EEO complaint alleging that the Agency discriminated against her.
Complainant amended the complaint four times. The final amended complaint alleges that the

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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Agency discriminated against Complainant on the bases of race (African-American), sex
(female), disability (back), age (64), and in reprisal for prior protected EEO activity when:

1. after June 24, 2009, she was laid off;
2. on or about June 24, 2009, management denied her the opportunity to continue
working, after eight days, because she could not keep up with her younger
colleagues;
3. in August 2009, she continued to perform as an Operator while management
allowed her to attend supervisory training and continued using Performance
Standards and an SF-50 that reflect duties as a Line-Leader;
4. in October 2009, management failed to timely submit her claim for a reasonable
accommodation, while knowing her history of back injuries;
5. on October 7, 2009, management failed to address her allegation of assault in a
Workplace Violence incident, refused her request for a copy of the Break Room
video, refused her request for her representative to be present in the meeting,
and re-interviewed and coerced witnesses to “change their story”;
6. on October 8, 2009, she was intimidated and told by management that she
would not be allowed to return to work if she could not perform her duties as an
Operator and denied her request to return to Line-Leader as a reasonable
accommodation;
7. on October 13, 2009, management refused to accept her doctor's excuse in an
attempt not to report her injury as an Occupational Health Hazard under OSHA
requirements;
8. on or before October 20, 2009, management threatened to place her on
probation; thereby, refusing to adhere to the reasonable accommodation policy;
9. on or about October 23, 2009, management gave her an oral warning and
threatened to put her on probation;
10. on or about October 26, 2009, management stated that she could be referred to a
Reasonable Accommodation Specialist in order to continue work as an Operator;
however, delayed counsel and referral while knowing her history of back
injuries;
11. on October 29, 30, and November 2, 2009, she called in to request sick leave
and management abruptly acknowledged her request and hung up in her ear;
12. in October and November 2009, she was set up to fail when management
assigned her to use “raggedy” machines that were well known to malfunction in
order to carry out her assignments;
13. in October 2009, management denied her the use of annual leave until after the
peak season;
14. since December 1, 2009, management has refused to provide her copies of
incident reports; thereby, interfering with her reasonable accommodation
request;
15. on December 17, 2009, she was laid off as an Operator;
16. as of December 29, 2009, upper management has failed to act on the Workplace
Violence incident;
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17. as of January 24, 2010, management has delayed processing her reasonable
accommodation request;
18. on an unspecified date, management failed to provide her with any official
documentation that led to her demotion;
19. on an unspecified date, she was not afforded the same opportunity to perform
the Service of the Futures as other colleagues;
20. on an unspecified date, management made contradictory statements and gave
conflicting explanations to her, in contrast to the June 9, 2009, letter of
employment; thereby, denying her a clear understanding of the letter;
21. on an unspecified date, management denied her the advantages of working her
traditional work schedule; however, it granted the work schedule to another
colleague;
22. on an unspecified date, she was not given the required time to successfully
perform her duties as an Operator;
23. on an unspecified date, management berated her and used racial statements
during a meeting while in the presence of a colleague;
24. on January 28, 2010, her second-line supervisor issued her a letter and
pressured her to sign a CA-1 and CA-20 workplace injury forms;
25. as of January 29, 2010, the Reasonable Accommodations Representative has not
been diligent in processing her reasonable accommodation request;
26. on February 9, 2010, she was again laid off;
27. as of March 5, 2010, she had not received a reasonable accommodation; and
28. on March 23, 2010, she was again laid off.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing. The AJ issued a detailed 38-page decision
without a hearing on July 1, 2014. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged. Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a
court’s function is not to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the
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summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s
favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
“material” if it has the potential to affect the outcome of the case. For the reasons discussed
below, we find that this case does not present genuine issues of material fact requiring a
hearing.

Harassment

It is well-settled that harassment based on an individual's statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily
protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome
conduct related to her membership in those classes or her prior EEO activity; (3) the
harassment complained of was based on those classes or that activity; (4) the harassment had
the purpose or effect of unreasonably interfering with her 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In this case, Complainant is apparently contending that all of the incidents described in the
complaint comprise elements of a pattern of hostile workplace harassment. These incidents
include, for example, threats of disciplinary action (Claim 8); making conflicting statements
(Claim 20); and failing to provide adequate time to perform a task (Claim 22). In our view,
with the exceptions noted below, the incidents that Complainant characterizes as evidence of
harassment involve nothing more than routine work assignments, instructions, and
admonishments, which are neither severe nor pervasive enough to engender a hostile work
environment. See Eckenrode v. United States Postal Service, EEOC Appeal No. 0120113930
(November 6, 2012); Quinones v. Department of Homeland Security, EEOC Appeal No.
01A53109 (March 31, 2006). We therefore agree with the AJ that the evidence fails to
demonstrate the existence of a hostile work environment.
We have previously found that routine work assignments, instructions, and admonishments do
not rise to the level of harassment because they are common workplace occurrences. See Gray
v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is
reasonably established that the common workplace occurrence was somehow abusive or
offensive, and was taken in order to harass Complainant on the basis of any of her protected
classes, we do not find such common workplace occurrences sufficiently severe or pervasive to
rise to the level of a hostile work environment or harassment as Complainant alleges. See
Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014).
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Here, the alleged discriminatory acts are not so severe or pervasive as to alter the conditions of
Complainant's employment.
Three of the incidents, alleged generally in Claim 23, cannot properly be described as routine.
They involve statements by a supervisor (S1) which Complainant characterizes as racist or
sexist. None of the statements were directed at Complainant. In the first incident, an African
American coworker of Complainant complained to S1 about the temporary nature of his job.
In response, S1 stated “This [is] better than being in jail.” Complainant interpreted this
statement as implying that unemployed African Americans inevitably end up in jail. ROI at
182. In the second incident, after investigating the rude behavior of a female coworker, S1
commented: “You know women. Sometimes their hormones rise up.” In the third incident,
S1 asked an African American co-worker if she planned to “gag” herself to provide an excuse
for her to leave work. Complainant interpreted this to mean that S1 believed that “black
people will do anything to go home and not work.” ROI at 183.
These incidents, although reflecting distasteful attitudes, do not provide sufficient basis to
establish legally hostile work environment harassment. The first and third incidents did not
involve the use of any racially offensive language, although Complainant believed them to be
racially motivated because the comments were directed at African American individuals.
Complainant’s subjective belief is insufficient to establish actionable harassment if the actions
are not objectively racially offensive. Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). The remaining incident, although it involved the invocation of a sexist stereotype, was
insufficiently severe or pervasive to establish a pattern of harassment.
Reasonable Accommodation (Claims 4, 6, 8, 10)

An agency is required to make reasonable accommodations to the known physical and mental
limitations of an otherwise qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Reasonable
accommodation includes modifications to the manner in which a position is customarily
performed in order to enable a qualified individual with a disability to perform the essential job
functions. See EEOC's Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Number 915.002 (as revised Oct. 17,
2002). The Rehabilitation Act prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630.1.

We concur with the AJ’s finding that Complainant's reasonable accommodation request was
appropriately processed by the responsible Agency officials. There is nothing in the record to
indicate that the delay in the instant matter was unwarranted. Upon a complainant's request for
reasonable accommodation, an employer may require that documentation about the disability
and the functional limitations come from an appropriate health care or rehabilitation
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professional. See EEOC's Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Number 915.002, Question 6, (as revised
Oct. 17, 2002). When an employee's disability or need for an accommodation is not known or
obvious, an employer may ask an employee for reasonable documentation about his or her
disability, limitations, and accommodation requirements. See Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act, (July 27, 2000) (web version) at 14.

The record evidence shows that Complainant did not request a reasonable accommodation until
October 20, 2009. Complainant was granted the reasonable accommodation she requested in
March 2010. The record reflects that the delay in the instant matter resulted, in large part,
because the Agency was waiting on appropriate requested documentation from Complainant.
ROI at 544. The delay in granting Complainant’s request was reasonable in light of the
Agency’s need to obtain supporting medical documentation. There is no evidence to support a
contrary conclusion. Complainant was ultimately offered a reassignment, which she accepted.
Based on the record, Complainant cannot establish that the Agency failed to provide her with a
reasonable accommodation, or that there was an unreasonable delay in providing the
accommodation.

Laid Off from Position (Claims 1, 15, 26, 28)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14,
1995).

The complaint alleges that Complainant was repeatedly laid off from her position as Line
Leader during the period in question. The Agency explains that layoffs resulted when reduced
cotton crop production required less testing of cotton samples. Layoffs were determined on the
basis of productivity. On each occasion when Complainant was laid off, it was because she
ranked among the least productive employees. ROI at 528. This is a legitimate,
nondiscriminatory reason for the Agency’s actions. Complainant has adduced no evidence,
other than unsupported speculation, that would support a finding that the Agency’s explanation
is a pretext designed to conceal discriminatory animus.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein,2 we AFFIRM the Agency’s final order implementing the AJ’s
decision without a hearing finding that Complainant was not discriminated against as alleged.

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).

2 Certain of the claims raised in the amended complaint were not separately addressed herein,
those claims and supporting arguments having been fully discussed in the AJ decision.
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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

January 24, 2017
Date