0120142010
01-09-2017
Billie S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Billie S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120142010
Hearing No. 560-2013-00055X
Agency No. FSIS201200440
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 15, 2014 final decision concerning his equal employment opportunity (EEO) complaint.2 On May 3, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., on the bases of national origin (Hispanic), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on February 28, 2012, he was issued a Letter of Decision for a Proposed Suspension, which subsequently suspended him without pay for 14 days from March 18 through March 31, 2012.
At the time of events giving rise to this complaint, Complainant worked as a Food Inspector at the Agency's Lone Star Beef Processing Plant, Dallas District Office facility in San Angelo, Texas. Assuming that Complainant established a prima facie case of discrimination on the bases of national origin, disability and reprisal, we find that the Agency articulated legitimate non-discriminatory reasons for the proposed suspension. Complainant's Supervisor (S1) testified that it was documented that Complainant had to frequently use the restroom. While she did not request any additional medical information, Complainant was permitted to leave the "kill floor" to go to the restroom. Before leaving the kill floor, however, Complainant was required to inform another inspector on the floor. In the present case, Complainant was issued the proposed suspension and subsequently suspended for leaving the kill floor without authorization. Complainant had been repeatedly warned about leaving the floor without authorization, and had received a Letter of Counseling three days before the incident at issue here.
Complainant was required to advise another inspector when he was leaving the kill floor because his absence from the area (even for 5 minutes) could cause a disruption on the floor, and walking around the kill floor was generally a safety hazard. Management, therefore, in order to ensure coverage required prior notification. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant has not articulated any, and we find no evidence of an unlawful motivation here.
With respect to Complainant's contention that he was subject to a hostile work environment with respect to any of the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. 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 animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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.
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
__1/9/17________________
Date
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 initially filed an appeal from an EEOC Administrative Judge's decision to dismiss his hearing request as a sanction for his inability to follow the AJ's Orders and to remand the matter for a final agency decision. We do not find that the Administrative Judge's decision to dismiss Complainant's hearing request represented an abuse of discretion.
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