[Redacted], Jeannie T., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2022000210 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022000210 Agency No. FPAC-2021-00036 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 15, 2021, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a National Volunteer Program Manager, GS-12, at the Agency’s Farm Production and Conservation Business Center in Washington, DC. On December 3, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on sex (female) and in reprisal for prior protected EEO activity under when: 1. On or around October 2, 2020, management notified Complainant that her duties would be reduced, and Complainant’s responsibilities as the National Program Manager would be removed; 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. 2022000210 2 2. On several dates, Complainant was subjected to various incidents of harassment, including but not limited to: a. On September 28, 2020, Complainant’s male colleague made an inappropriate sexual comment towards her during a live video meeting; and b. On September 30, 2020, Complainant’s supervisor failed to act after she notified him of the inappropriate sexual comment towards her, and subsequently indicated to Complainant that filing an Administrative Grievance would be a distraction in the workplace. 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 EEOC Administrative Judge. Complainant requested a final Agency decision pursuant to 29 C.F.R. § 1614.110(b). On or about August 10, 2021, Complainant received a signed decision that appeared to be the Agency’s final action in this matter. That decision concluded Complainant had been subjected to discrimination and sexual harassment but included no discussion of remedies. After receiving the Agency’s decision finding discrimination, Complainant informed the Agency that it had improperly failed to award any relief. On September 15, 2021, the Agency issued two decisions, one rescinding its first decision finding discrimination and the other addressing the merits of the complaint and finding no discrimination. Both of the September 15, 2021 decisions were sent to Complainant without signature. The Agency’s rescission indicated that an EEO specialist had written an initial draft decision for review with a finding of discrimination. Upon review, it was determined the facts did not support that conclusion, and the draft was returned to an EEO specialist who then rewrote the decision to find no discrimination. However, according to the Agency, an administrative error occurred that resulted in the initial draft decision being issued to Complainant on August 10, 2021, instead of the correct final decision finding no discrimination. The September 15, 2021 decision on the merits concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. During this appeal, the Agency submitted copies of both September 15, 2021, decisions that were signed and dated. In its revised final decision, the Agency outlined the factual background of Complainant’s claims. On September 28, 2020, Complainant was on a video meeting to test new software. During that meeting, the contractor demonstrating the software indicated he would impersonate Complainant’s account for the purposes of the demonstration. Complainant’s male coworker (CW1) replied, “Yeah but I’m sure you don’t look as good as she does.” Following CW1’s comment, several individuals on the call laughed loudly and another contractor said, “Oh, I sure hope not.” One of the team members in Complainant’s program, Executive Program Manager (CW2), spoke after the laughter had subsided but did not respond to CW1’s comment. The next day, Complainant reported the comment to CW2 and said it constituted sexual harassment. Complainant also emailed CW1 to tell him his remark had made her uncomfortable and violated Agency policy. 2022000210 3 CW1 agreed his remark was unprofessional, and he apologized. CW1 offered to remove himself from a committee in which he worked with Complainant, but she replied that she accepted his apology and that the issue was resolved. After Complainant had reported her concerns of sexual harassment to CW2, CW2 informed Complainant’s supervisor, Section Chief, who immediately called Complainant and left her a voicemail. Section Chief averred that he also called his own supervisor to make him aware of Complainant’s allegation. Section Chief later spoke with Complainant by phone the next morning on September 30, 2020, where, according to the supervisor, he explained Complainant’s options. Section Chief admitted he told Complainant that “it is always good to manage the case at the lowest level possible,” but said he informed her of other options and sent her an email that contained contact information and links to filing a complaint and seeking employee assistance. Complainant, however, stated that her supervisor told her that filing such a claim would be a “distraction.” The supervisor denied saying this. Complainant averred that two days later, on October 2, 2020, her supervisor called an impromptu meeting, with CW2 also present. Complainant stated that her supervisor informed her that CW2 would provide program leadership going forward and that Complainant’s duties would be “operational.” Complainant averred that during this meeting her supervisor described her new duties as being akin to that of the program coordinator to whom Complainant provided daily supervision. Specifically, Complainant stated that the duties taken away from her as National Program Manager and given to CW2 included: developing and managing the program budget, providing leadership oversight to the program, directing the program at the national level, and setting work priorities and objectives for the national program. The next week, on October 8, 2020, Complainant emailed the supervisor, summarizing her understanding of the October 2 meeting, including that “[CW2] has executive management authority of program and will perform all leadership functions. My role will be operational.” The email also listed the duties mentioned above that were previously assigned to Complainant but now fell under CW2’s position. In response to the email, her supervisor said, “Yes, I’m asking you and [other program team member] to run things through [CW2] as Executive Program Manager. In turn, [CW2] is tasked with keeping you, [other program team member], and me informed.” The Agency found that, regarding claim 1, Complainant’s supervisor had articulated legitimate, nondiscriminatory reasons for his actions. Complainant’s supervisor denied that Complainant’s duties were reduced or her responsibilities as National Program Manager were removed. The supervisor indicated that Complainant continued to be introduced as “National Program Manager.” He also averred that Complainant continued to conduct national meetings and had developed a steering committee with high-level executives. The supervisor explained that the only changes he made involved how the program team communicated with him. He sought to coordinate the three members’ communications to him because he had been receiving multiple different versions of documents from the team members, which caused delays. In rebutting the supervisor’s affidavit, Complainant pointed to the fact that in responding to the email she sent him summarizing her understanding of her reduced duties, his response said “Yes” and did not indicate that Complainant had misunderstood. 2022000210 4 The supervisor insisted that he was only asking for everyone on the team to coordinate prior to sending him final documents for approval. The Agency found Complainant did not rebut the supervisor’s reasons as pretextual. Regarding claim 2, the Agency found that the remark by CW1 constituted harassment but that there was no basis for imputing liability to the Agency because Complainant’s supervisor addressed Complainant’s concerns once the issue was brought to his attention and provided her with all of her options on how she could proceed. The Agency therefore found that, based on the above, Complainant failed to show that the Agency’s actions were motivated by discrimination or reprisal or that she was subjected to a hostile work environment. 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”). As an initial matter, we address the two Agency decisions issued in this case. Based on our review of the record, we find that the totality of the circumstances shows that the initial Agency decision finding discrimination, dated August 10, 2021, was sent in error and was never meant to be a final decision (as evidenced by the fact that it did not address the issue of relief or award any remedies). We also find that the Agency’s subsequent rescission and revised final decision were properly issued and constitute the Agency’s final action in this matter. Complainant argues on appeal that the first decision finding discrimination is binding on the Agency and should be the operative final decision in this case. First, Complainant contends that the Agency’s subsequent rescission and final decision finding no discrimination did not contain the necessary elements of final Agency decisions because they were issued to her unsigned. Complainant therefore argues that because the first decision contained a signature while the rescission and new decision did not, the rescission is invalid, and the first decision should be deemed official and binding on the Agency. We note, however, that on appeal the Agency provided copies of the rescission and new decision that were both signed by the same individual who signed the first decision (which found discrimination) and contained the proper date stamp. 2022000210 5 Second, Complainant argues our prior cases have held that when an agency makes a finding of discrimination, it is bound by that finding. See Rousseau v. Dep’t of Educ., EEOC Appeal No. 01920410 (January 21, 1992); Davis v. Dep’t of Just., EEOC Request No. 05931205 (Sept. 1, 1994). Complainant’s reliance on these cases is misplaced, however. These opinions, and later cases citing them, involved circumstances where the agency decision finding discrimination had already been appealed by complainant and/or was under the Commission’s jurisdiction at the time the agency sought to rescind its finding of discrimination. See, e.g., Angelo P. v. Dep’t of Homeland Sec., EEOC Request No. 2021003833 (May 2, 2022) (citing Brewer v. Dep’t of the Interior, EEOC Appeal No. 01972835 (Feb. 22, 2000)). Our prior cases, therefore, sought to prevent agencies from relitigating their own findings of discrimination on appeal. Here, Complainant did not file an appeal with the Commission until after the Agency had rescinded its prior decision finding discrimination and had issued a revised final decision finding no discrimination. Because we have found that the first Agency decision finding discrimination was issued due to a clerical error and that the rescission and revised decision were valid, we next address Complainant’s claims on the merits. To prevail in a disparate treatment claim such as claim 1, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that Complainant 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency’s explanation was pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis: the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC 2022000210 6 Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding Complainant’s claim that some of her duties were reduced or removed, the record does not contradict the supervisor’s contention that Complainant’s duties were not meaningfully changed. While Complainant points to the email she received from the supervisor as an indication that several of her responsibilities as National Program Manager were given to CW2, the email in fact only mentions Complainant and another coworker “run[ning] things through [CW2],” and does not indicate that Complainant’s role would be diminished. Further, Complainant has not provided any evidence showing that she had little responsibilities at work, that she was rarely assigned tasks, or was left out of decision-making processes/conversations; nor does she dispute the supervisor’s statement that she continued to conduct national meetings and had developed a steering committee of high-level executives. We therefore find that Complainant has failed to show by a preponderance of the evidence that the supervisor’s explanation was pretext for discrimination or reprisal. To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant 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 Complainant’s 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that even if the one comment made by CW1 occurred as alleged, which the Agency appears to concede, it was not sufficiently severe or pervasive to constitute a claim of harassment. A single comment referencing Complainant’s appearance, without more, does not rise to the level of a hostile work environment. 2022000210 7 Complainant’s claim of harassment must therefore fail. See, e.g., Delphia F. v. Dep’t of the Interior, EEOC Appeal No. 2020000137 (Feb. 9, 2021) (Commission found claim that a supervisor referred to complainant as “my dear” during a meeting was insufficiently severe or pervasive); Owen M. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120161409 (May 3, 2018) (Commission found claim that an acting supervisor said “suck my dick” to complainant twice during a conversation was insufficiently severe or pervasive to establish sexual harassment or a hostile work environment). EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. at 81. Although constructive discharge was not an accepted claim in the complaint, we note that in its final decision the Agency in a footnote stated that Complainant alleged she was forced to leave her position due to harassment and discrimination and indicated it would address the question of whether management had constructively discharged Complainant. The Agency ultimately found no discrimination on the entire complaint. Because we also find no discrimination, we find that Complainant cannot establish discriminatory constructive discharge. Lastly, we address the portion of claim 2b that alleges Complainant’s supervisor indicated to her that filing a grievance would be a distraction in the workplace. Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant was told that filing an EEO suit was the wrong way to go about getting a promotion). Here, the supervisor denied saying that filing a claim would be a distraction, but he admitted he told her that it is best to resolve cases at the lowest level and stated he provided information about filing a complaint. Even in light of the supervisor’s admission, we find that the supervisor’s behavior was not reasonably likely to deter Complainant from participating in the EEO process and therefore does not constitute a per se violation. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination or retaliation as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination or retaliation is AFFIRMED. 2022000210 8 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). 2022000210 9 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 20, 2023 Date