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

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2022003972 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jody L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022003972 Agency No. FAS-2022-00220 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 July 13, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an International Trade Specialist, GS-13, at the Agency’s Foreign Agricultural Service (FAS), Office of Global Programs, in Washington, DC. On March 4, 2022, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on race (African-American), sex (female), and in reprisal for prior protected EEO activity when: 1. On March 17, 2022, management removed her from serving as the primary point of contact for the Fiscal Year (FY) 2022 Seafood Expo Global (SEG) trade show portfolio; 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. 2022003972 2 2. On February 2, 2022, management prohibited her from attending a mission- critical SEG trade show and a Salon International de L’alimentation market; 3. On January 11, 2022, management added unfavorable language and requirements to her performance elements; 4. On October 12, 2021, management provided a performance appraisal write-up that was not representative of the work she performed, and which downplayed her professional contributions; 5. On several dates, she was subjected to various incidents of harassment, including, but not limited to: a. On February 15, 2022, regarding the clearance of SEG show documents, management attempted to cover up wrongful activity, misrepresented her work and character regarding the SEG show, and tried to sabotage her work for the show; and b. On December 15, 2021, during a Trade Show staff meeting, management addressed her with disrespectful language and an abusive tone in front of her colleagues. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In its final decision, the Agency concluded that for claims 1 through 4, management had articulated legitimate, nondiscriminatory reasons that Complainant failed to rebut as pretextual. Regarding claim 1, Complainant’s second-level supervisor (S2), Senior Director of Trade Missions and Shows, removed Complainant as the primary contact for the FY 2022 SEG trade show portfolio because she refused to conduct meetings for the trade show without recording them, despite Agency regulations that prohibit recording video conferences unless every attendee agrees to be recorded. After being asked multiple times to engage in the trade show planning without recording the video conferences, Complainant refused, so S2 removed her as the point of contact. Regarding claim 2, Complainant’s trip request was initially denied because of Agency policy due to the COVID-19 pandemic that all international travel must be mission-critical to be approved. S2 emailed Complainant explaining the necessary criteria for the Agency to classify her trip as mission-critical, including Complainant creating a plan to conduct certain assessments during the trip and estimating the budget for the trip. Complainant never responded to the email or provided the requested information. Regarding claim 3, Complainant felt that her immediate supervisor (S1), Director of Trade Missions and Shows, and S2 had added restrictive language and requirements to her performance standards and believed she was the only employee targeted. However, S2 averred that the language was changed for all FAS employees. 2022003972 3 Complainant subsequently requested that S1 and S2 change some of the language in her performance elements, and they agreed to accept all of Complainant’s proposed changes. Complainant was the only employee under S1 and S2 to request changes to the language of the performance elements. Regarding claim 4, Complainant asserted that she provided S1, her reviewing official, with a one-page write-up of her accomplishments but that S1 nonetheless downplayed her contributions in her FY 2021 performance evaluation. S1 allowed Complainant to propose edits to her final performance review, and he accepted several of her edits. He rejected some of Complainant’s proposed edits because they included accomplishments from prior fiscal years and were therefore not relevant to her performance evaluation for FY 2021. Regarding claim 5, the Agency analyzed the complained-of incidents as well as claims 1 through 4 under the harassment framework. As to claim 5a, Complainant attempted to submit a contribution related to the SEG show to an FAS-wide publication called Notes to the Field, which first had to be reviewed and approved by S1 or S2. S1 gave Complainant edits to her submission and directed her not to include an attachment she had added. Complainant then submitted the message to Notes to the Field without S1’s edits and included the attachment S1 had asked her to remove. As to claim 5b, Complainant claimed that during a staff meeting, S1’s “tone and language was abusive” and that he dismissed her recommendations in front of the other staff. S1 averred that he had no recollection of that meeting and that it was not in his Outlook calendar, likely because the trade show staff meetings tend to be cancelled in December due to trade shows not being scheduled close to the holidays. Two other witnesses claimed that they never witnessed S1 being disrespectful to Complainant, and one of these witnesses averred that Complainant had been rude to S1 during a staff meeting. Based on the above, in addition to its conclusion that Complainant had failed to rebut management’s explanations for claims 1 through 4 as pretextual, the Agency found that the alleged conduct was not based on Complainant’s protected characteristics. The Agency also concluded that even crediting all of Complainant’s allegations as true, they were not sufficiently severe or pervasive to create 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”). 2022003972 4 After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination or retaliation. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination or reprisal. Complainant was removed as the point of contact for the SEG trade show due to her refusal to conduct meetings without recording them; her travel request was denied when the Agency deemed it was not mission-critical, and Complainant did not respond to S2’s suggestions for approval; the language in the performance elements were changed for all FAS employees, and Complainant’s requested edits for her performance standards were accepted; and Complainant’s performance appraisal was accurate, and S1 rejected accomplishments Complainant reported when they were from prior fiscal years. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to claims 1 through 4. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As to claim 5, we find that Complainant failed to show the Agency subjected her to harassment. The record fails to establish that the complained-of incidents occurred as alleged or were based on Complainant’s protected characteristics. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2022003972 5 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). 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. 2022003972 6 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 December 6, 2022 Date