Michel M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180319 (E.E.O.C. Apr. 26, 2019)

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

Michel M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120180319

Agency No. GIPSA-2017-00328

DECISION

On October 25, 2017, 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 21, 2017 final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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. Our review is de novo.
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 an Agricultural
Commodity Grader, GS-09, at the Agency’s Grain Inspection, Packers, and Stockyard
Administration, Federal Grain Inspection Service in Portland, Oregon.

On February 23, 2017, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his disability (back condition) and age (51) when:

1. On January 24, 2017, Complainant learned his January 4, 2017, approved sick leave
was changed to Absence Without Leave (AWOL) by his Second-level Supervisor (S2);
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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2. On May 13, 2017, as a result of continuous harassment by management, Complainant
resigned from his position with the Agency after he was presented with a Letter of
Caution, which advised him that his leave restriction would continue.

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). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove
that it subjected him to discrimination as alleged.

Complainant stated he has held his Agricultural Commodity Grader position for three years.
Complainant asserted his back condition affected his ability to move, but he was able to perform
his duties. With regard to claim (1), Complainant alleged that on January 10, 2017, S2 requested
that he provide a doctor’s note for his sick leave absence taken on January 5, 2017. Complainant
stated that he had requested the sick leave on January 4, 2017. Complainant was on Leave
Restriction and indicated that he understood that a doctor’s note was required for unexpected sick
leave, not scheduled sick leave. According to Complainant, he requested the doctor’s note from
the Department of Veterans Affairs on January 12, 2017 but did not receive the note until January
23, 2017. Complainant stated he submitted the note to S2 on January 23, 2017. Complainant
argued that he was unaware of anyone else who was placed on AWOL after going to a doctor’s
appointment.

S2 asserted that he changed Complainant’s sick leave to AWOL because Complainant was on
Leave Restriction. S2 maintained that upon return to work, Complainant was required to provide
medical documentation pursuant to his Leave Restriction. According to S2, Complainant was
afforded more than 15 days to submit documentation, and he was issued the AWOL on the 19th
day after his leave.

With respect to claim (2), Complainant stated that he resigned his position on May 13, 2017, after
working under Leave Restriction for one year against any published Agency policy. According to
Complainant, S2 issued him a Letter of Caution on May 9, 2017, and he concluded that S2 would
not let it go, and the only way to end the harassment was to quit. Complainant asserted that on
multiple occasions he informed the Field Office Manager that he was being subjected to
harassment. S2 stated that he issued Complainant the Letter of Caution based on Complainant’s
failure to provide documentation for unscheduled leave as explained in the Leave Restriction letter.

In the decision, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Regarding claim (1), the Agency observed that Complainant admitted he
did not furnish S2 with a doctor’s note for at least 19 days after his absence. Complainant’s Leave
Restriction notice stated that he was required to provide a doctor’s note for all sick leave requests,
regardless of the length of time of the absence. Complainant failed to show that management’s
reasons for its actions were pretextual.
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As for claim (2), the Agency determined that the matters at issue were insufficiently severe or
pervasive to establish a hostile work environment. The Agency noted that Complainant claimed
he was harassed when management issued numerous Leave Restrictions. According to the
Agency, Complainant was issued Leave Restriction letters on August 13, 2015, September 13,
2016, and January 30, 2017. Complainant failed to show that the letters were issued based on
discriminatory animus. Accordingly, the Agency found that Complainant had not been subjected
to a hostile work environment. In light of its determination that Complainant failed to show that
he was subjected to a hostile work environment, the Agency found that Complainant’s constructive
discharge also failed. As a result, the Agency found that Complainant had not been subjected to
discrimination, a hostile work environment, or a constructive discharge as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management did not follow sick leave restriction procedures
and therefore the Leave Restriction was harassment, and the AWOL was unwarranted.
Complainant states that he was not counseled regarding sick leave restriction procedures and he
previously had two instances of pre-approved sick leave for medical appointments, and no doctor’s
note was requested. According to Complainant, when a doctor’s note was requested on January
10, 2017, he requested a note from his physician, and submitted the note on January 24, 2017,
within the 15-day requirement for submission. Complainant points out that after he contacted
Human Resources, the AWOL was reversed, and he was issued the Letter of Caution.
Accordingly, Complainant requests that the Commission reverse the final decision.

ANALYSIS AND FINDINGS

Disparate Treatment

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). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency 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
Prods., 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).
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Here, the Agency has articulated legitimate, non-discriminatory reasons for its actions. The
Agency explained that Complainant’s approved sick leave was changed to AWOL because
Complainant was on Leave Restriction and upon return to work, Complainant was required to
provide medical documentation pursuant to his Leave Restriction. S2 stated that Complainant was
provided more than 15 days to submit documentation, and he was issued AWOL on the 19th day
after his leave.

Complainant attempts to establish pretext by arguing that he was not counseled on sick leave
restriction procedures, that he submitted the requested medical documentation fourteen days after
receiving the request for the documentation on January 10, 2017, and that the AWOL was
subsequently rescinded. The September 13, 2016 Leave Restriction stated that a medical
certificate must be provided upon Complainant’s return to duty. There is no evidence supporting
Complainant’s contention that this requirement did not apply to pre-approved sick leave requests.
We find that Complainant has not provided sufficient evidence to establish that the Agency’s
explanation for the issuance of the AWOL was pretext intended to mask discriminatory
motivation.

Hostile Work Environment

To establish this claim, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on his statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Upon review of the alleged acts of harassment, the Leave Restrictions letters and the Letter of
Caution, we discern no discriminatory motivation on the part of the Agency. Further, we find that
whether considered individual or cumulatively, the incidents alleged by Complainant were not
sufficiently severe or pervasive to constitute a hostile work environment. Accordingly, we find
that Complainant has not established that he was subjected to discrimination or a hostile work
environment as alleged.

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Finally, to the extent that Complainant alleges that he was forced to resign because of the Agency's
discrimination, the Commission notes that the central question in a constructive discharge case is
whether the employer, through its unlawful discriminatory behavior, made the employee's working
conditions so difficult that any reasonable person in the employee's position would feel compelled
to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As
stated above, the Commission finds that Complainant has not demonstrated that the Agency's
actions were motivated by discriminatory animus. Thus, the Commission finds that Complainant
cannot establish the necessary elements to prove constructive discharge.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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.
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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 (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 26, 2019
Date