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

Equal Employment Opportunity Commission

Sep 21, 2022

Appeal No. 2021003785 (E.E.O.C. Sep. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott D.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency. Appeal No. 2021003785 Hearing No. 430-2019-00586X Agency No. NRCS-2019-00168 DECISION On June 17, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 2021 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as an Area Resource Conservationist, GS-0401-12, for Area 2 in Warrenton, North Carolina. On March 26, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 1. On October 19, 2018, management issued him a Letter of Reassignment, effective November 25, 2018; and 2. On an unspecified date, management issued him a Letter of Reprimand. 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. 2021003785 2 Complainant’s first-level supervisor (S1-A) when he was an Area Resource Conservationist was the Assistant State Conservationist of Field Operations for Area 2 in North Carolina. Complainant was subsequently reassigned, and his first-level supervisor (S1-B) was the State Resource Conservationist for North Carolina. His second-level supervisor (S2) was the State Conservationist. S2 affirmed that he contacted Complainant in August or September 2018 about reassigning him to the State Grazing Specialist position. On October 4, 2018, S2 asked him if he made a decision about the reassignment, and Complainant responded that he did not want to be reassigned. Complainant alleged that during this second conversation, he indicated that S2 was treating S1-A unfairly in a dispute between S1-A and another employee. Complainant received an email October 19, 2018, that effective November 25, 2018, he would be reassigned to the position of Natural Resource Specialist (Grazing Specialist), GS-12, at the Warrenton, North Carolina Field Office. Complainant’s grade and pay did not change, nor did his commute area. S2 explained the Agency had a need to fill the position of State Grazing Specialist which had been vacant for two years. In 2018, North Carolina sent almost four million dollars back to Washington, D.C., and S2 believed this funding could have been used in North Carolina and thought the state was missing out on opportunities. He saw the grazing opportunity as an opportunity where they probably could have spent additional funding had the Agency had the right people promoting the program. S2 said the Agency could not advertise the State Grazing Specialist position during this time because the national office did not deem the position a “customer-facing” position. S2 said he chose Complainant to fill the position because he was one of the most senior employees that S2 felt could perform the position and thought the position would be an opportunity for Complainant. S2 emailed his supervisor, the Acting Regional Conservationist, Southeast Region to approve Complainant’s reassignment, which S2 believed would allow the Agency to tap into an area of farming in North Carolina that was long overdue for their services. He explained that the grazing specialist position had remained vacant for two years and as a result, interest from farmers in the program had subsided. S2 justified his selection of Complainant for the position writing: With [Complainant’s] experience, background, knowledge, skills, and abilities, he brings a wealth of know-how and has the ability to lead NC-NRCS in the right direction when it comes to leadership in this area of farming. NC-NRCS has a very inexperienced staff in the field. [Complainant] has demonstrated that he can provide much needed training from a broader perspective. He has served in various capacities such as a soil conservationist, district conservationist, and an area resource conservationist. He will be an asset to the agency at the state level where the agency needs him the most. 2021003785 3 In response to receiving the directed reassignment, Complainant sent S2 an email on October 19, 2018, stating S2’s “retaliation has gone too far. You and your accomplice should be ashamed.” S2 responded to Complainant’s email, stating he did not understand what Complainant meant by retaliation; however, that type of email would not be tolerated, and he would be working with the Employee Relations staff to address the matter. S2 consulted with an Employee and Labor Relations Specialist regarding issuing Complainant a Letter of Warning. On October 26, 2018, S2 issued Complainant a Letter of Warning based on Complainant’s inappropriate, disrespectful, and discourteous conduct. S2 explained a Letter of Warning was designed to put an employee on notice that some type of conduct or behavior is inappropriate, but it was not a form of discipline and did not go into Complainant’s personnel file. On November 14, 2018, Complainant sent S2 an email indicating that he participated as a witness in S1-A’s EEO complaint. Complainant attempted to contest the reassignment believing he was not qualified for the position. In an email to Complainant, a Human Resources Specialist explained to Complainant that after a Human Resources leadership review, Complainant was found to be qualified for the position. Specifically, the email referred to an award Complainant received in 2016, in part, for the training he provided to field staff on developing grazing plans. She explained Complainant’s 2016 Award Justification, stated Complainant used his knowledge in performing state-wide leadership, technical guidance and training on grazing. The documents also showed Complainant had the skills and abilities to maintain a working relationship with other agencies and organization. Additionally, Complainant was instrumental in working on a team that had the grazing requirement. Complainant requested the documents Human Resources used to reach this decision and requested they reconsider the reassignment because Complainant believed he was not qualified for the State Grazing Specialist position. Complainant’s reassignment became effective on January 6, 2019. Complainant alleged he was being set up to fail as reprisal because he was unqualified for the position. S1-B provided Complainant with training and resources in his new position, and rated him “Fully Successful” as the State Grazing Specialist for Fiscal Year (FY) 2019. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to reprisal as alleged. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 2021003785 4 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by retaliatory animus. Here, however, Complainant has failed to establish such a dispute. As described above, the Agency provided several legitimate, non- retaliatory reasons for reassigning Complainant to the State Grazing position, including: that it was a position S2 could only fill internally; Complainant was the ideal choice to fill the vacancy and S2 felt Complainant was one of the smartest employees with the most experience across the state for the position; it was an area overdue for the Agency’s services; and the Agency returned money that S2 believed North Carolina was missing out on opportunities and could have used that funding. Despite Complainant’s assertions, the Agency found him to be qualified for the position as evidenced by his FY2019 “Fully Successful” rating as the State Grazing Specialist. As to the Letter of Reprimand, there is no evidence in the record that Complainant was issued a Letter of Reprimand. Instead, Complainant was issued a Letter of Warning on October 26, 2018, which was not a disciplinary action. S2 issued the letter based on Complainant’s response, which S2 found inappropriate, disrespectful, and discourteous. S2 consulted with the Agency’s Employee and Labor Relations staff on how to proceed after he received the email. Additionally, there is no evidence in the record that S2 knew Complainant provided a witness affidavit in S1-A’s EEO complaint until Complainant informed him via email on November 14, 2018, after S2 issued the Letter of Reprimand (and the management directed reassignment). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021003785 5 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. 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). 2021003785 6 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 September 21, 2022 Date