[Redacted], Colleen M., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Mar 14, 2023

Appeal No. 2021003609 (E.E.O.C. Mar. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colleen M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency. Appeal No. 2021003609 Hearing No. 490-2016-00046X Agency No. NRCS-2015-00068 DECISION On June 3, 2021, 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 May 13, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Area Administrative Support Assistant, GS-0303-8, at the Agency’s Natural Resources Conservation Service, Knoxville Area Field Office in Knoxville, Tennessee. On June 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases2 of sex (female), religion (Pentecostal), disability (unspecified physical 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. 2 Complainant’s claims of discrimination based on marital status were dismissed by the AJ. 2021003609 2 and mental disabilities), age (54), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. Since 2011, Complainant has been subjected to various incidents of harassment; 2. On October 9, 2014, Complainant was accused of making unauthorized transactions with a purchase card and she was placed on paid administrative leave, pending the outcome of an internal investigation; 3. On November 22, 2014, Complainant was notified that, despite the closure of the internal investigation, management refused to allow her to return to duty, and she has remained on paid administrative leave to date; 4. On May 26, 2015, Complainant’s request for reassignment was denied; 5. On unspecified dates, Complainant was treated disparately with respect to work assignments and issued a heavier workload than her counterparts; and 6. On unspecified dates, Complainant was treated disparately with respect to discipline, in that she was issued written counselings related to her work hours and office visits, while male employees were not. At the conclusion of 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 8, 2020 motion for a decision without a hearing and issued a decision without a hearing on May 12, 2021. Specifically, the AJ found that Complainant failed to establish that any of the actions taken by the Agency were based on her protected bases, noting Complainant mentioned favoritism and nepotism, which are not covered under EEO law, as bases of discrimination. Further, the AJ noted that the comparators identified by Complainant were not similarly situated with her as they were in different, and higher-graded, positions than she was. With regard to harassment, the AJ found that Complainant failed to establish that he actions complained of were based on her protected bases or that they were severe and/or pervasive enough to constitute harassment. 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 allege ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 U.S. 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. 2021003609 3 The evidence of the non-moving party must be believed at the 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. We further find that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to show that such articulated reasons were pretextual. For example, with regard to Complainant being placed on administrative leave and kept on such leave indefinitely, claims 2 & 3, the October 10, 2014 notice (Notice 1), signed by Complainant’s Supervisor (Supervisor 1: male, Christian, no claimed disability, 54 years) stated that the action was non-disciplinary in nature and was being taken because “our national office recently suspended your purchase card due to suspicious activity” and that Complainant had explained to Supervisor 1 that “on two occasions [her] former supervisor told [her] to use his electronic signature.” Notice 1 further stated that “an investigation would be conducted to obtain additional facts and determine whether any further action is warranted.” The November 22, 2014, notice (Notice 2), again signed by Supervisor 1, did not state that the investigation had been concluded but did state that Complainant would “not be returned to duty at this time; you will continue on administrative leave until further notice.” Supervisor 1 averred that the reason Complainant was still on administrative leave was because after issuing Notice 1 “we later found out about multiple conduct issues on the part of [Complainant] that were brought to attention [sic] from Area employees. Issues included bullying, sexual harassment, lying, and hostile work environment.” A Human Resources Specialist (Human Resources: female, Christian, no claimed disability, 54 years) similarly averred that the investigation had not been concluded at the time Notice 2 was issued but was still ongoing by the date of the EEO investigation interview, and that the Agency was considering removing Complainant. With regard to Human Resources denying her reassignment, Human Resources averred that Complainant had not made any reassignment request to her, and Complainant’s own rebuttal affidavit indicates that she did not submit any request to Human Resources for specific open positions but rather made a general inquiry about available opportunities for reassignment. With regard to Complainant being issued a heavier workload, Complainant averred that between 2012 and 2014, none of her supervisors, including Supervisor, hired anyone to share her workload, while her counterparts in other facilities were able to share their workload between two people. Supervisor 1 denied that Complainant was issued a heavier workload and averred that budgetary reasons prevented the hiring of new staff to help with the burden, but that “there were secretaries in adjacent counties that I would bring in to help Complainant as she needed it for special trainings and projects. But after a few weeks of working with Complainant and helping her, they refused to come back.” 2021003609 4 With regard to Complainant being issued written counselings, Supervisor 1 averred that he counseled Complainant about her time and attendance and her hours because she was sometimes working up to fifteen hours per day and as a non-exempt employee the Agency was liable for paying overtime if she worked more than 8 hours a day. Supervisor 1 further averred that: I would tell her I am not asking you to work this way and the Agency is not asking you to work this way. I told her she needed to work 8-4:30 and if she was working on some type of project or major audit then she could talk to me and I would work with her. Following a review of the record, we find that Complainant failed to meet her burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions are pretextual or that Agency officials harbored discriminatory animus towards her protected bases. With regard to claims 2 and 3, Complainant averred that she had done nothing wrong and that her former supervisor3, who’s card and password she had used, approved of her doing so. Complainant provided screen-shots of old text messages with him to confirm her claim. With regard to being issued a heavier workload, Complainant admitted that she was not given a heavier workload but explained instead that management failed to hire anyone to help share her work-load, which does not state a claim as management failing to hire someone to share the work is not an adverse action. With regard to receiving counselings, Complainant argues that her male colleagues were not counseled for working long hours but Supervisor 1 explained that her male colleagues are not similarly situated with her in that they were all “technical folks” at the GS-12 level who were exempt employees not entitled to overtime, while Complainant was a GS-8 non-exempt member of the administrative staff. We therefore find that Complainant was not similarly situated with her comparators. Furthermore, with regard to claims 2 and 3 and the other claims, when Complainant was asked why she believed the Agency’s actions were based on her protected bases, her sole rationale was that people outside of her protected bases were not treated as she was, which while sufficient to establish a prima facie case, is not sufficient to prove her claims by a preponderance of the evidence. We therefore agree with the AJ that Complainant failed to establish that the Agency’s actions were based on her protected bases or that the Agency was motivated by discriminatory animus or retaliatory motive. Finally, to the extent that complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory 3 The record shows that Complainant’s former supervisor left the Agency prior to the investigation. 2021003609 5 animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2021003609 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 14, 2023 Date