0120080730
08-25-2009
Christopher L. Jacobs, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety Inspection Service), Agency.
Christopher L. Jacobs,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety Inspection Service),
Agency.
Appeal No. 0120080730
Agency No. FSIS-2007-00003
DECISION
On November 26, 2007, complainant filed an appeal from the agency's
November 19, 2007 final decision concerning his 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected
to harassment on the basis of national origin and in reprisal for prior
EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a food inspector at the Food Safety Inspection Service facility in
Lumber Bridge, North Carolina.
On February 6, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of sexual orientation (gay),
race (American Indian) and in reprisal for prior protected EEO activity
under Title VII when:
1. On September 22, 2006, the agency issued complainant a proposed
termination letter;
2. Complainant's supervisor blamed him for an Office of Inspector General
(OIC) investigation;
3. Complainant's supervisor continued to document him;
4. Complainant's supervisor set and changed policies pertaining to
complainant;
5. Complainant's supervisor asked three inspectors to write statements
against him; and,
6. Complainant's supervisor asked inspectors to monitor his work on the
line.
In an investigative affidavit, complainant's supervisor stated that
complainant was issued a proposed termination letter because while she
was on leave in July and August 2006, the relief veterinarian on the
second shift (RSVMO) and the veterinarian (V) on the first shift both
observed and documented complainant not wearing safety glasses on more
than one occasion. The supervisor stated although she recommended that
disciplinary action be taken against complainant to the District Office,
the Labor and Employees Relations Division made the decision to issue the
proposed termination letter through the District Office. The supervisor
stated that a letter directing inspectors to wear protective eyewear was
issued on October 19, 2005. She stated that when complainant did not
follow instructions to wear safety glasses, she first verbally counseled
him on October 21, 2005 and issued him written instructions in October
and November 2005. She stated that complainant had also been issued a
Letter of Caution regarding his failure to wear safety glasses.
Complainant's supervisor further stated that she did not blame
complainant for the OIG investigation that occurred in April 2006.
The supervisor stated that the investigation was initiated by the Southern
Council President, not complainant. She further stated that contrary
to complainant's assertion, she did not tell anyone that someone was
telling lies on her and that the person telling the lies would be sent
away instead of her.
The supervisor also stated that she issued complainant a letter of
disciplinary action in August 2006 and a letter of instruction dated
November 14, 2006 because complainant was not on the line at the start
of his shift. She stated that as misconduct or performance issues occur
with complainant and other inspectors, she will continue to document
them in accordance with her supervisory duties.
The supervisor further stated that she did not issue or change policies
because policies are set at the national or district level. She stated
that the plant implemented the policy that required employees to wear
protective eyewear. The supervisor stated that in December 2005 or
January 2006, the District Office instructed supervisors to inform
inspectors on the correct procedure for requesting time off because
of inconsistencies in how relief inspectors were scheduled to work
on Saturdays. She stated that according to the Labor Management
Agreement, Article 23, Section 1, inspectors must have a good reason
to be absent from work and the name of a willing relief inspector.
The supervisor stated that if there was a good reason for the absence,
the supervisor would then submit the request to the District Office, which
would make the decision whether it would pay the extra cost associated
with relief employees. She stated that in January 2006, she "wrote up"
complainant for failing to come to work on a Saturday although he had
been instructed to do so. The supervisor stated that earlier that week,
she told complainant that if he wanted to have that Saturday off, he
needed to submit a written request. She stated that on that Friday, she
gave complainant a letter instructing him to report to work on Saturday
because complainant did not submit a written request to be absent
Regarding claim 5, the supervisor stated that she never asked any
inspector to write a statement against complainant, but two veterinarians
gave her letters that stated that they observed complainant engaging in
misconduct while she was on leave in late July and early August 2006.
The supervisor stated that based on the veterinarians' letters, she issued
complainant a letter recommending disciplinary action on August 11, 2006.
She further stated that she received statements regarding complainant's
misconduct from three inspectors, but she did not ask them to write these
statements. Regarding claim 6, the supervisor stated that she never
asked inspectors to monitor other employees, and any disciplinary letter
she wrote was based on what she observed, not what others observed.
RSVMO stated that from July 31, 2006 through August 06, 2006, he acted as
the relief supervisory Medical Officer on the second shift. RSVMO stated
that he received an email from V and the District Manager reminding him
that all inspectors are required to wear safety glasses in accordance with
agency policy. RSVMO stated that he observed complainant not wearing the
safety glasses on July 31, 2006, August 01, 2006 and August 02, 2006.
RSVMO stated that he called complainant into the office on August 02,
2006 and told him that the plant had a policy on wearing safety glasses
and that complainant had been previously instructed by his supervisor to
follow the guidelines. RSVMO stated that based on the emails he received
from complainant's supervisor reminding him of the plant policy regarding
safety glasses and the District Manager's email asking him to observe
everyone who was not wearing their safety glasses, he thought he should
document the information from his meeting with complainant and pass it
along to his supervisor.
V stated that inspectors came to her and informed her that they observed
complainant not wearing his safety glasses. V stated that she told the
inspectors to document what they had seen. V stated that she observed
complainant not wearing his safety glasses and wrote a letter regarding
her observations that was included in complainant's proposed termination
letter.
V stated that according to the District Office's policy, an inspector
had to cite a "good reason" when requesting Saturdays off because the
plant had to justify the expense the agency would incur by having to
pay the relief inspector mileage and other costs. V stated that a
relief inspector cannot waive his right to be reimbursed for expenses.
V further stated the policy on requesting Saturdays off was not changed
but was finally enforced by the agency because of confusion regarding
complainant.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC 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 he was subjected to unlawful harassment or discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant submitted a copy of a one-page statement in which
he alleged that Lumber Bridge management "trivialized" inspectors'
leave by requiring inspectors to give a "good reason" for requesting
Saturdays off. Complainant further stated that as long as inspectors
have volunteer replacement employees to cover their Saturday shifts,
management should approve employees' requests for Saturdays off.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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 establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) 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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
As an initial matter, we note that the instant complaint (Agency No
FSIS-2007-000003) partly concerns an allegation of sexual orientation
discrimination, and complainant's companion complaint (Agency
No. FSIS-2006-00224) solely concerns sexual orientation discrimination.
To the extent that complainant is appealing his sexual orientation
claims to the Commission, we dismiss the sexual orientation claims
because sexual orientation discrimination is not within the purview of
the Commission. See Yost v. United States Postal Service, EEOC Request
No. 05970940 (October 6, 1997). Nonetheless, we note that Executive
Order 13987 (May 28, 1998) requires federal agencies to establish
an internal redress procedure for complaints of sexual orientation
discrimination by civilian employees. Such complaints are investigated
by the Office of Special Counsel. See 5 U.S.C. � 1214, et seq; Office
of Special Counsel Results of Legal Review of Discrimination Statute,
http://www.osc.gov/documents/press/2004/ pr04_03.htm (April 8, 2004).
With respect to complainant's claim that he was subjected to retaliatory
and racial harassment, we find that complainant failed to establish
a prima facie case of harassment because he did not prove that the
alleged actions occurred because of his race or prior protected EEO
activity. In so finding, we determine that the agency provided legitimate,
non-discriminatory reasons for each alleged action, as detailed above,
but complainant failed to prove that these explanations were pretext for
unlawful discrimination. We note that although complainant ostensibly
challenges the agency's leave policies as violating a union contract and
"trivializing" inspectors' leave, he has not shown that the agency's
actions were related to his race or EEO activity. We further note
that the agency's explanations are corroborated by multiple management
officials, co-workers, and documentary evidence. Consequently, we find
that the agency properly found that complainant was not subjected to
discrimination or harassment on the bases of reprisal or race.
CONCLUSION
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 harassment or discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court.
Filing a request for an attorney with the Court does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____08/25/09_____________
Date
2
0120080730
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080730