0120092913
10-29-2009
George E. Washington, III, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
George E. Washington, III,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092913
Agency No. FS-2003-01603
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 3, 2009 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.
During the period at issue, complainant was employed as an Engineering
Technician, GS-7, at the agency's Forest Service, Engineering Department,
Deschutes National Forest, in Bend, Oregon.
On July 8, 2003, complainant filed the instant formal complaint. Therein,
complainant alleged that he was subjected to harassment and a hostile
work environment on the bases of race (Black) and in reprisal for prior
EEO activity when:
(1) his work was routinely scrutinized and changed by his supervisor,
particularly the Snoop Timber Sale Road Project;
(2) his supervisor addresses him in a demeaning manner; and
(3) on April 14, 2003, he received a Letter of Instruction regarding
his inappropriate conduct and performance.
Following the investigation of the complaint, 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 on June 3,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its June 3, 2009 final decision, the agency found no discrimination.
The agency found that complainant did not establish a prima facie case
of race and reprisal discrimination. The agency further found that even
assuming complainant established a prima facie case of race and reprisal
discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext
for discrimination.
Regarding the harassment claim, the agency found that the evidence in the
record did not establish that complainant was subjected to harassment
based on race or retaliation. Specifically, the agency found that the
alleged harassment was insufficiently severe or pervasive so as to create
a hostile work environment.
With respect to claim (1), complainant's immediate supervisor (S1) stated
that he reviews complainant's work "in detail as I do other project
engineering team members, and I require corrections/edits/changes to
assure accuracy and workability of plans. My position requires me to
supervise the preparation of final plans, specs, cost estimates and
contract packets. I have monitored [complainant's] work for two years.
As I discovered more mistakes, I began to more closely monitor his work."
In regard to complainant's contention that S1 changed the directions
he gave complainant, S1 stated "I do not purposely change directions to
[complainant]. In some cases when projects are developed, refined and
reviewed, changes are inevitable. Other changes are simply necessary
to correct mistakes. There is little communication from [complainant]
to clarify instructions."
S1 stated that in regard to the changes to the Snoop Timber Sale project,
he instructed complainant to make the necessary corrections to the
sale "on about nine different occasions, in order for the project to be
accurate, clear and acceptable for final technical adequacy and District
Ranger's approval signature. The Snoop sale was assigned to him and
it was his responsibility to prepare it as per FS manual, handbook,
and policy direction."
Regarding claim (2), S1 denied addressing complainant in a demeaning
manner. S1 stated that on May 20, 2003, during a field review and after
the tenth revision of the Jack Canyon road closure project, he asked
complainant about several discrepancies in his work. S1 stated that
complainant "appeared agitated and told me I was not listening to him.
In an effort to demonstrate I was listening, I asked [complainant] again
to describe and draw the type D dip. He said I was 'brow beating' and
'harassing' him and he was going back to the office." S1 stated that
he asked complainant to settle down without success.
With respect to complainant's allegation that during a May 5, 2003
discussion concerning a project, S1 told him "you need to get back here
and sit down," S1 stated that he wrote down complainant's response to his
questions concerning the haul route. S1 stated that after he wrote down
complainant's response, complainant "stood up and said he was not going
to talk to me any more and demanded union representation. I advised him
that it was not a good idea to walk out of a meeting (knowing that it
would be a second time he had abruptly walked out of a meeting). No, I
do not believe my advisement to [complainant] was said in a demeaning way.
He ignored me and left the meeting."
The Civil Engineering Technician (T1) stated that he and complainant are
members of the same project engineering team. T1 further stated that he
had overheard complainant in an argument with S1 "in our office area.
I have witnessed conversations between [complainant] and [S1] in which
[complainant] has appeared to me to have been evasive and uncooperative
in answering [S1's] questions. This has occurred several times within
the last year, concerning work updates on [complainant's] projects."
Regarding claim (3), S1 stated that he was the deciding official to issue
complainant a letter of instruction dated April 14, 2003. Specifically,
S1 stated that on February 20, 2003, during a discussion of the road
maintenance deposits schedule for the Snoop Timber Sale, complainant's
manner and tone were "unacceptable and inappropriate." S1 stated that
when he explained to complainant that Road 43 was a country road not a
forest service road, complainant's tone "was rude and abrasive when he
said, 'it's just semantics, that's all it is.' I disagreed because the
issue was not at all about semantics. The issue was [complainant's]
mistakes. He became very defensive (sharp and spiteful) and upset
and proceeded to tell me 'Timber' told him to haul that way (I don't
believe [a named employee] told him the way to haul). He adamantly
argued with me, claiming he was not responsible (he was assigned the
sale on 12/12/01). [Complainant] inferred (boastfully) that I was now
responsible by saying something like 'it is your sale now, not mine,'
and he took no ownership in it. He was angry (loud) at me because I
was correcting his mistakes, and requiring him to change his work."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See 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);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, after a review of
the record in its entirety, including consideration of all statements 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 (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
October 29, 2009
__________________
Date
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0120092913
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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