Virginia T.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

0120181361 (E.E.O.C. Sep. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Virginia T.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.

Appeal No. 0120181361

Agency No. FSA-2017-00831

DECISION

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 1, 2018 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 a Temporary County
Program Technician, GS-1101-05, at the Agency’s Washington Greene Office in Washington,
Pennsylvania. On September 25, 2017, Complainant filed an EEO complaint in which she alleged
that the Agency discriminated against her and subjected her to a hostile work environment in
reprisal for prior protected EEO activity2 as evidenced by multiple incidents including, inter alia:

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 withdrew race as a basis of discrimination during the investigation.
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1. On July 12, 2017, the Washington County Executive Director, her immediate
supervisor (S1), yelled at Complainant accusing her of defrauding the government and
attempted to discipline her or terminate her employment;

2. On July 13, 2017, S1 criticized Complainant’s break time location and accused her of
lying;

3. On various occasions, including July 13, 2017, S1 became enraged, confronted
Complainant at her desk, and shouted in her face;

4. On July 20, 2017, S1 berated Complainant for sending a text message in which she
informed S1 that she would be taking sick leave;

5. On various occasions, including in July 2017, S2 slandered Complainant’s name and
reputation;

6. On August 20, 2017, S1 blamed Complainant’s spouse for instigating her EEO
complaint, made personal attacks against Complainant’s spouse and suggested
Complainant end her EEO complaint;

7. On September 13, 2017, S1 and other management officials obstructed Complainant’s
efforts to obtain information through the Freedom of Information Act (FOIA);3

8. On an unspecified date, S1 criticized Complainant for taking EEO-related calls in the
office hall, demanded that Complainant provide her with EEO updates, and accused
Complainant of going through personnel files;

9. On an unspecified date, S1 accused Complainant of coming to work under the influence
of drugs as a justification for disciplining her;

10. On an unspecified date, S1 shared Complainant’s EEO concerns with other
management officials; and

11. On unspecified dates, S1 over-scrutinized Complainant’s work.

3 We are dismissing allegation (7) for failure to state a claim pursuant to EEOC Regulation 29
C.F.R. §1614.107(a)(1) due to Complainant’s lodging a collateral attack on the FOIA proceeding.
See Chastity L. v. Dep’t of the Army, EEOC Appeal No. 0120182300 (Sept. 14, 2018). The proper
forum for Complainant to have raised her challenge to actions which occurred during FOIA
process is within that process itself. Bart L. v. Dep’t of Homeland Sec., EEOC Appeal No.
0120141747 (June 30, 2016). It is inappropriate to use the EEO process to collaterally attack
actions which occurred through the FOIA process. Id. See also e.g. Wiggins v. Dep’t of Transp.,
EEOC Appeal No. 0120120609 (Mar. 21, 2012).
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On January 26, 2018, Complainant
requested a final agency decision without a hearing. In accordance with Complainant’s request,
the Agency issued its final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded
that Complainant failed to prove that it subjected her to discrimination or reprisal as alleged.

Complainant’s Previous EEO Activity: Complainant averred that she filed an EEO complaint on
May 19, 2017, in which she raised the issues of not being selected for the position of Permanent
County Program Technician and being sexually harassed by the District Director, who was her
second-level supervisor. IR 221. S1 and the Acting State Director, who was Complainant’s acting
third-level supervisor at the time, averred that Complainant had left them email messages in March
2017, indicating that she was going to file an EEO complaint against the District Director. IR 284,
321. An Administrative Specialist who served under the Acting State Director averred that he was
responsible for reviewing applications for the Permanent County Program Technician position,
which was at the GS-7 level, and that he had determined that Complainant had not met the time-
in-grade experience requirements for the position at the GS-7 level. IR 364. The selectee for the
Permanent County Program Technician position (hereinafter referred to as the “Permanent Tech”)
averred that on an unspecified date Complainant let her know that she had filed a complaint against
the State Office for not accepting her application for the position for which she, the Permanent
Tech, was hired. IR 404.

Incident (1): Complainant averred that on July 8, 2017, she left work early for a 3:00 p.m.
appointment but had forgotten to sign out. She further averred that on July 12, 2017, when she
returned, she informed S1 about her mistake and S1 immediately starting yelling and screaming at
her, accusing her of defrauding the government, and making attempts to discipline her or terminate
her employment. In addition, she averred that she had observed S1 frantically reading through
policy handbooks on her desk, and that the Permanent Tech had informed her that S1 made her,
the Permanent Tech, write a statement that Complainant had left early at 3:00 p.m. on July 8, 2017.
IR 223-25. S1 responded that she learned about Complainant’s timekeeping error from the
Permanent Tech, that Complainant had eventually told her that she had forgotten to note her early
departure on her time sheet, that she had told Complainant that she needed to record her time sheet
properly, and that she approved the corrections Complainant had made to her time sheet. She
denied that she yelled at Complainant or any of her employees. She also denied that she was going
through the policy handbooks in order to build a case for disciplining or firing Complainant. IR
284-86. The Acting State Director averred that S1 was not trying to discipline or terminate
Complainant. Rather, S1 was looking for advice or guidance on handling the situation. IR 322.
The Administrative Specialist averred that managers typically refer to the policy handbook
pertaining to leave. IR 364-65. The Permanent Tech averred that she did inform S1 about
Complainant’s timesheet situation, that she did write the statement about Complainant leaving
early on July 8, 2017, and that she did not observe S1 yelling at Complainant. IR 404-05.

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Incidents (2) and (3): Complainant averred that on July 13, 2017, S1 criticized Complainant’s
decision to take a smoking break in her car, accused Complainant of lying, and had confronted
Complainant at her desk, shouting in her face. She stated that she had told S1 that she was going
to smoke at the designated area on the premises but that because it was very hot outside, she
changed her mind and took her smoking break in her car. Complainant further stated that she was
called into S1’s office and berated by S1, who demanded to know why Complainant had lied to
her, jamming her finger right in Complainant’s face. IR 226-27, 229. S1 and the Permanent Tech
responded that the landlord had a policy that prohibited smoking on the property except at a
designated location marked by a tree, and that she had observed Complainant smoking in her car
in violation of that policy. S1 denied that she yelled at Complainant and averred that she merely
reminded Complainant what the landlord’s policy was. IR 287-90, 407-08. The Acting State
Director averred that S1 had informed her of her observation of Complainant violating the
landlord’s smoking policy and had asked for guidance on what to do. IR 323-25.

Incident (4): Complainant averred that she had sent S1 a text on July 18, 2017, in which she
informed S1 that she was ill and would not be coming to work, and that S1 did not respond to her
text. She further averred that on July 20, 2017, S1 called her and the Permanent Tech into her
office to explain her new policy of not calling in sick via text message. She also stated that when
she asked S1 what the policy was, S1 shouted at her “certainly not by text,” and started berating
her. IR 230-31. S1 averred that she had always maintained a policy of requiring her employees
to call in sick via her office phone or her cell phone, that Complainant was aware of that policy,
that she did not yell at Complainant or otherwise berate her, and that Complainant had expressed
the opinion that because she was only a temporary employee, the policy did not apply to her. IR
290-91. S1 also averred that Complainant raised her voice during their conversation, that
Complainant’s hands were shaking, and that she asked Complainant whether she wanted someone
to call 911. IR 291. The Permanent Tech averred that S1 told both her and Complainant not to
text her when they called in sick, and that this was not a new policy. IR 409.

Incidents (5) and (10): Complainant averred that S1 had had a conversation with her on July 28,
2017, in which S1 told her that she should stop complaining because she was looking silly to the
people in the State Office and other people were complaining. Complainant also averred that S1
had engaged in conversations with others in management and was sharing emails that included
confidential information regarding her EEO complaints. IR 222-23, 232, 239. S1 denied speaking
to any other management official or individual regarding Complainant’s EEO complaints. IR 292,
297. The Acting State Director averred that the Deputy Administrator for Field Operations had
forwarded her the email that Complainant had sent to the EEO counselor, spoke with her about the
contents of the email, and responded to Complainant cc’ing her. She also averred that S1 had
contacted her and informed her that Complainant was going to file an EEO complaint against her,
S1. IR 326, 332.

Incident (6): Complainant averred that on August 20, 2017, S1 initiated a conversation with her
in which S1 had blamed Complainant’s husband for instigating her EEO complaint, made negative
comments about her husband, and pressured her to drop the complaint. IR 239.
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S1 denied these allegations and responded that on numerous occasions, Complainant had told her
and the Permanent Tech about her relationship with her husband, particularly how neither her
grown children nor her parents liked him. S1 further averred, as did the Permanent Tech, that
based on what Complainant had told them, S1 had expressed concern for Complainant but that
Complainant turned the conversation around to make it look like S1 was attacking her husband.
IR 297-98, 412-13.

Incidents (8), (9), and (11): Complainant averred that on unspecified dates, S1 harassed her by
criticizing her for taking EEO calls in a corridor, demanding updates on her EEO complaint,
accusing her of going through personnel files, accusing her of coming to work under the influence
of drugs, and overly scrutinizing her work. As to the incident (8), Complainant averred that she
had to take a call from the EEO counselor in the corridor so that the official she had accused of
sexual harassment would not be within earshot of her, and that S1 berated her after she had taken
the call. IR 235. S1 denied that she asked Complainant what her call was about or why the call
had taken so long and denied yelling at Complainant. IR 292-94. The Permanent Tech averred
that she heard S1 suggest to Complainant out of concern for her privacy that she take the call in
her, S1’s office. IR 410-11. Additionally, Complainant averred that S1 demanded an update of
her EEO complaint and accusing her of going through personnel files and yelled at her. IR 236-
37. S1 denied that she demanded Complainant provide an update about her EEO complaint, and
that she figured that Complainant’s call was confidential. IR 293-93. She also averred that she
never accused Complainant of going through personnel files, although she suspected that
Complainant had done so. IR 294.

As to incident (9), Complainant averred that her doctor had given her medications that made her
feel drowsy. IR 237-38. S1 responded that she had asked Complainant if she was okay because
Complainant appeared as if she was “on something,” and that Complainant had told her that it was
because of a new medication. IR 295. The Permanent Tech averred that she did not hear S1 accuse
Complainant of being on drugs. IR 411.

Regarding incident (11), Complainant averred that S1 had screamed at her for sending out letters
to agricultural producers as she had done with a similar mailing the previous year. IR 240-241.
S1 responded that during the then-current fiscal year, the Agency did not have the budget for large
mailings, and that she had instructed Complainant to call the producers, rather than send them
letters. IR 299. The Permanent Tech averred that she did not recall S1 over-scrutinizing
Complainant’s work. IR 415.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s decision omitted or misrepresented facts.
Complainant argues that the Agency failed to examine the totality of the circumstances of her
harassment claim which would have shown a clear connection between her prior protected EEO
activity. Accordingly, Complainant requests that the Commission reverse the final decision.

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ANALYSIS AND FINDINGS

Standard of Review

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”).

Hostile Work Environment

To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she 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
statutorily protected classes; (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 employer. 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 antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). 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 Complainant's position would have found the conduct to
be hostile or abusive. Complainant must also prove that the conduct was taken because of her
membership in protected EEO classes. Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself.

Here, Complainant asserted that because of her prior protected EEO activity, S1 subjected her to
a hostile work environment. Complainant identified ten incidents of what she characterized as
retaliatory harassment. The Commission finds that the totality of the conduct at issue was
insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the
alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is
no persuasive evidence in the record that retaliatory animus played a role in any of the Agency's
actions. The record reflects that the alleged incidents were more likely the result of routine
supervision, managerial discipline, and general workplace disputes and tribulations.

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With respect to incidents (1) through (4) for example, the record supports that S1was trying to get
Complainant to follow proper procedures for requesting leave, keeping accurate time and
attendance records, and adhering to the landlord’s policy that allowed smoking only at one
designated location. Incidents (5) and (10) were nothing more than management officials
responding to the inquiries of an EEO counselor during the normal course of an informal EEO
complaint, and merely reflected efforts to resolve the matter at that stage of the process. As to
incident (6), both S1 and the Permanent Tech had heard Complainant talk about her husband in
less-than-flattering terms and had expressed their concern. With respect to incident (8), S1 and
the Permanent Tech both confirmed that S1 simply offered Complainant a space for more privacy
to take her EEO-related phone call. S1 denied demanding updates about her EEO case or accusing
Complainant of going through personnel files. The record does not support that any Agency
official attempted to interfere with Complainant’s EEO activity nor is there any evidence that any
confidential information was improperly disclosed.

Regarding incident (9), S1 affirmed that Complainant appeared intoxicated on the date in question
and she asked Complainant if she was alright. S1 added that Complainant told her she was on
newly-prescribed medication and that she would be back to normal by 11:00 a.m. There is no
evidence that S1 considered or issued discipline for this incident. Finally, incident (11) dealt with
nothing more than workplace-related issues.

Complainant has presented neither affidavits, declarations or sworn statements from witnesses
other than herself nor documents which contradict or undercut the explanations for the incidents
provided by S1, the Permanent Tech, or any of the other management officials. Likewise, she has
not identified any contradictions or inconsistencies in the evidentiary record that would cause us
to question their veracity as witnesses. The Commission therefore concludes, based upon the
totality of the circumstances, that Complainant has not presented evidence sufficient to prove that
she was subjected to a hostile work environment, as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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 5, 2019
Date