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

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2022002333 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashaunda G.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022002333 Agency No. FAS-2021-00469 DECISION On March 22, 2022, 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 March 8, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 a Crop Assessment Analyst, 1101, GS-13 at the Agency’s Global Market Analysis Office (GMAO) in Washington DC. On July 16, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (61), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On April 21, 2021, management issued Complainant a Notice of Proposed Suspension (NOPS) and subsequently on May 11, 2021, issued Complainant a Notice 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. 2022002333 2 of Decision on Proposed Suspension (NDPS) (without pay), effective May 24, 2021, through May 28, 2021; and 2. On several dates, Complainant was subjected to various incidents of harassment, including but not limited to: a. Beginning on an unspecified date in 2010 and continuing to the present: i. Data was changed in Complainant’s spreadsheets; ii. Complainant’s emails were deleted; and iii. Complainant was monitored via the Virtual Private Network. 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). 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. Complainant’s first-line supervisor (Supervisor-1) is the Director of the International Production Assessment Division (IPAD) within GMAO. Complainant’s second-line supervisor (Supervisor- 2) is the Senior Director of IPAD within GMAO. Two colleagues of Complainant who also share the job title of Crop Assessment Analyst, Coworker-1 and Coworker-2, are relevant to the claims. Regarding claim 1, on April 20, 2021, Supervisor-1 issued Complainant a NOPS for the charge of “conduct unbecoming”. The NOPS provided four examples of the conduct. First, on December 16, 2020, Complainant responded to an email from Supervisor-1 with accusations that Supervisor-1 had “set security and human resources personnel after [Complainant] these last two years for no cause.” Additionally, Complainant accused Supervisor-1 of pulling her through “illegal hoops.” Second, Complainant sent an email to Supervisor-1 on January 12, 2021, accusing him of: (A) bullying her; and (B) “wasting the time” of staff within the security and human resources offices on “frivolous assertations or blockings while running older employees through a continual series of hoops of endless, unsubstantiated claims, defamation, back stabs, assertations, and time-consuming deflections.” The Foreign Agricultural Service’s Compliance and Security Division investigated this accusation and released a finding on April 12, 2021, that Complainant’s allegations were unsubstantiated. Third, on February 5, 2021, Complainant emailed Coworker-1 and referred to edits from the IPAD Editing Team as “silly” and as being “a new quirk.” Fourth, on February 5, 2021, Complainant called Coworker-1 and during that discussion she accused Coworker-1 of making edits to Complainant’s submission because Coworker-1’s friend had told her to. Additionally, at the end of the phone call Complainant informed Coworker-1 that she had been recording the call. A union steward responded in writing to the NOPS on Complainant’s behalf. On May 11, 2021, Supervisor-2 issued an NDPS sustaining the charge of conduct unbecoming and the underlying four examples of misconduct. 2022002333 3 Supervisor-2 noted that Complainant’s response demonstrated a lack of understanding of the basis of the charge and Supervisor-2 stated that Complainant needed to “stop maliciously accusing [her] colleagues and supervisors of wrongdoing when [she] ha[s] no evidence to support [her] statements.” The allegations contained in Claim 2 are examples of wrongdoing Complainant has accused her colleagues and supervisors of performing that do not have an evidentiary basis in the record. Complainant contends that Supervisor-1, among at least four other non-specific individuals, have changed data in her spreadsheets and deleted her emails from her personal computer and Microsoft Outlook program. Complainant contends that such actions are done to make her appear incompetent. Complainant reports that Supervisor-1, Supervisor-2, and Coworker-2 have monitored Complainant over the Virtual Private Network. The record supports that Complainant has made such accusations as far back as 2010. The record establishes that the Agency investigated Complainant’s reports of nefarious activity occurring on her laptop, but that the relevant experts were unable to find evidence of such activity. For example, there was a prior misconduct investigation in 2012. The related investigative file contained an email from the Deputy Chief Information Officer that attributed the issues Complainant reported to expected programs that ran on the computer system. The investigation did not substantiate any third-party intervention or malicious activity. Agriculture Security Operations Center (ASOC) investigated Complainant’s reports of suspect activity in March 2018. The investigation process included providing Complainant with a loaner personal computer, scanning Complainant’s original personal computer, reimaging Complainant’s personal computer, and the return of Complainant’s computer with remote monitoring capabilities for use over a two-week period. The analysis of Complainant’s computer did not find anything supporting the suspicious activity. During the two-week monitoring period, the Cyber Security team found no suspicious activity, despite Complainant reports of ongoing suspect activity. The report concluded with the following, “[Complainant] is opening task manager and confusing legitimate Windows processes with malicious activities.” The results of the March 2018 investigation, Coworker-2’s report that Complainant was creating a hostile work environment with her accusations, and Complainant’s failure to follow instructions not to bring up unfounded allegations about colleagues provided, in part, the foundation for a Letter of Caution issued on July 24, 2019. Supervisor-1 issued a Letter of Reprimand on May 5, 2020, secondary to Complainant’s continued disruptive behavior, unsubstantiated allegations, and failure to follow instructions in March and April of 2020. Neither the Letter of Caution or Letter of Reprimand are at issue in this complaint, but served as progressive discipline for the suspension at issue. 2022002333 4 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”). 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). 2022002333 5 To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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). 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 Systems, Inc., 510 U.S. 17, 21 (1993). 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). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated a legitimate, nondiscriminatory reason for the personnel actions at issue. Specifically, the Agency cited to the charge of “conduct unbecoming” and provided four examples of such conduct in support of the suspension. After a review of the record, we find Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment action were a mere pretext for discrimination. The record includes multiple examples of Complainant accusing colleagues and supervisors of nefarious activity on her computer. The record, however, further includes evidence that the Agency investigated the suspicious activity and found that there was no substance to Complainant’s allegations. The Agency even installed monitoring software to allow a Cyber Security team to monitor Complainant’s computer and they did not observe any suspicious activity despite Complainant reporting such activity during the two-week monitoring period. The record includes two statements from information technology professionals to the effect that Complainant had been confusing legitimate or expected Windows programs with malicious activities. Despite verbal warnings, a Letter of Caution, and a Letter of Reprimand, Complainant continued to accuse others for computer processes or errors she observed. Based on the foregoing, Complainant received the five-day suspension contained in the NDPS. Regarding claim 2, we find that Complainant failed to demonstrate that she was subjected to harassment in the form of unwelcome verbal or physical conduct. Multiple investigations, however, have demonstrated that no suspicious activity, malicious activity, or third-party intervention has occurred on Complainant’s computer. The record also does not contain evidence of discriminatory animus. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2022002333 6 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). 2022002333 7 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 January 5, 2023 Date