Gerard M.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0120150320 (E.E.O.C. Mar. 17, 2017)

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

Gerard M.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120150320

Agency No. FSIS-2014-00011

DECISION

The Commission accepts Complainant’s appeal from the September 29, 2014, final Agency
decision (FAD) 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Front-Line
Supervisor in the Agency’s Raleigh District in Morgantown, West Virginia. Complainant
alleged that from October 2012 through March 2013, the District Manager (DM) would
interrogate him and question his management skills. Complainant claimed that DM started to
act as his immediate supervisor and expected him to take regulatory actions beyond the scope
of his responsibility.

On February 21, 2013, Complainant alleged that DM visited his assignment on short notice,
asked him numerous questions in an interrogative manner, and accused him of failure to plan
and set priorities. More specifically, Complainant claimed that DM asked him when he had

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.
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last visited a particular plant and why he did not visit it more frequently. During the visit,
Complainant recalled that DM asked him many questions about his work plans, his records,
and his filing system in a speedy, intimidating and sarcastic manner. DM decided to visit the
plant the next day, but Complainant was not working that day. On February 26, 2013,
Complainant inspected the plant and later called DM. During the call, Complainant alleged
that DM got angry with him for not going out with the inspector during a pre-op inspection in
the slaughter floor; instructed him in a disrespectful manner to go out for re-inspection at the
kill floor; and then he hung up the phone on Complainant. Complainant claimed that DM
decided to suspend the plant after the phone call and questioned Complainant’s priorities.

In March 2013, DM received a complaint from Complainant’s co-worker (CW1) that
Complainant had physically threatened and grabbed a plant owner. DM called the plant owner
and he confirmed the incident occurred as reported. DM notified the Labor and Employee
Relations Division and the matter was assigned to the Internal Control Staff for an
investigation. While the investigation was pending, DM instructed Complainant to work from
home and to refrain from communicating with his staff. While working from home,
Complainant claimed that he was assigned menial tasks that had little to do with this position,
which later negatively affected his performance appraisal.

On September 6, 2013, the Labor and Employee Relations Division issued Complainant a
Notice of Proposed Suspension without pay for three days. The Notice stated that evidence
gathered during the investigation revealed that Complainant had physically grabbed the arm of
a plant owner, threatened the plant owner by stating that he would pull the plant’s grant for
inspection, and engaged in perceived threatening conduct toward CW1. Complainant
responded to the Notice on October 4, 2013. On December 17, 2013, the Labor and
Employee Relations Division issued a Decision on Proposed Suspension finding that the three-
day suspension was fully warranted.

On September 17, 2013, Complainant was issued a letter proposing to reassign him from West
Virginia to Syracuse, New York. DM believed that Complainant’s regulatory authority had
been compromised in the West Virginia circuit. Complainant claimed that DM spoke to him
the next day during a teleconference in an intimidating manner, but that he rejected the
reassignment. Complainant alleged that DM challenged him to find a new position if he was
not satisfied with the proposed reassignment. DM looked for another position for
Complainant, and when he was unable to find one, his supervisor created a position for him
that allowed him to stay in West Virginia.

On January 29, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (Arab), national origin (Middle
Eastern/Egyptian), religion (Islam), color (brown), age (57), and in reprisal for prior protected
EEO as evidenced by multiple incidents including, inter alia, he was directed to work from
home, refrain from communicating with his staff, and given menial and infrequent
assignments; he was issued a Notice of Proposed Suspension, and later, a decision on the
proposal, suspending him for three days; he received a “disciplinary action” letter reassigning
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him from a duty station in Morgantown, West Virginia, to one in Syracuse, New York; the
District Manager subjected his work to a heightened level of scrutiny and threatened him with
removal; the District Manager hung up the telephone on him after angrily directing him to join
an inspector on the kill floor for a re-inspection; the District Manager made accusations and
interrogated him in an abusive manner about conditions at a plant; the District Manager spoke
to him in an intimidating manner during a teleconference and challenged him to find a new
position if he was not satisfied with a proposed reassignment; and the District Manager
intentionally misconstrued and/or confused their conversations.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that the alleged incidents were insufficiently
severe or pervasive to establish a hostile work environment. Further, the Agency found that
there was no evidence that the conduct at issue was based on discriminatory or retaliatory
animus. In particular, DM denied that he subjected Complainant’s work to heightened
scrutiny. Further, DM stated that he gave Complainant notice before visiting and that he had
questions about a specific plant. DM added that asking Complainant questions was within his
managerial authority. DM noted that Complainant was unaware of the conditions of a plant
because he had not recently toured it. Complainant admitted that he had not toured it recently
and felt he did not need to because he was familiar with it. DM affirmed that Complainant
needed to tell him the conditions so he would be able to make a critical decision.

DM stated that Complainant was directed to work at home because of an allegation of
workplace violence. DM added that Complainant was on administrative leave while the
allegation was investigated. The Deputy District Manager (DDM) noted that Complainant was
provided with as many substantive tasks as possible. The allegation of workplace violence was
investigated by an employee that was not directly related to Complainant’s office and had not
previously known Complainant. The investigation determined that the allegation was
supported by the evidence. As a result, Complainant was issued a three-day suspension for
engaging in workplace violence.

With respect to the proposed directed reassignment, DM and DDM both stated that
Complainant was not being disciplined. Both affirmed that Complainant agreed that he needed
to be reassigned. DM asserted that he believed that Complainant had compromised his

2 The Agency dismissed two additional claims regarding a denial of a request for government-
issued vehicle and the closing of his field office, pursuant to 29 C.F.R. § 1614.107(a)(2) as
untimely raised with an EEO counselor. Complainant raised no challenges to this dismissal on
appeal. The Commission will consider the claims as background evidence in support of
Complainant’s hostile work environment claim.
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regulatory authority and that Syracuse, New York was the only option for reassignment. DM
added that when Complainant rejected the position, they agreed that an alternate solution
needed to be found.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the FAD violated his constitutional rights because it was
based on a flawed investigation. Complainant claims that management officials provided false
statements in their affidavits. Complainant challenges the Agency’s reasons for his suspension
and further argues that he was not provided a fair opportunity to respond to the Notice of
Proposed Suspension. Complainant contends that he conducted his duties with absolute
professionalism and never abused or insulted anyone. Finally, Complainant argues that the
discipline should have been lessened due to his prior experience, work performance, and good
service record. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
processing and investigation of his complaint. Complainant claims on appeal that the
investigator assigned to investigate his complaint made several errors, and that the
investigation was inadequate and one-sided. Upon review of the entire record, the
Commission is not persuaded that the investigation into Complainant’s complaint was
incomplete or improper. Complainant failed to request a hearing, a process which would have
afforded him the opportunity to conduct discovery and to cure alleged defects in the record.
Thus, despite the above referenced arguments, the Commission determines that the
investigation was properly and adequately conducted.

Hostile Work Environment

To establish a claim of harassment Complainant must show that: (1) he belongs to a 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
his 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).
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Therefore, to prove his harassment claim, Complainant must establish that he 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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his protected classes, he was subjected to a hostile work
environment based on several incidents where Agency officials took actions that seemed
adverse or disruptive to him. The Commission concludes that the conduct alleged 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 discriminatory or
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. For example, DM affirmed that he received a
complaint from CW1 that Complainant had physically threatened and grabbed a plant owner.
ROI, at 145. CW1 felt fearful for her job security and feared retaliation. Id. DM stated that
he confirmed the incident with the plant owner. Id. The matter was investigated by an outside
unit and Complainant was directed to work from home and to refrain from communicating with
his staff pending the investigation. Id. at 145-46. DM acknowledged that management could
not provide Complainant a full workload during the investigation as the majority of his duties
could only be accomplished in the field. Id. at 146. DDM added that Complainant was not
given menial assignments; rather, he was given important projects. Id. at 162. Following the
investigation, the Labor and Employee Relations Division determined that the allegations of
unprofessional conduct and perceived intimidating conduct were supported and issued
Complainant a Notice of Proposed Suspension for three days. Id. at 465-71. Complainant
responded to the Notice; however, the Labor and Employee Relations Division ultimately
upheld the suspension. Id. at 488-90.

DM asserted that he decided to reassign Complainant because he was concerned that
Complainant’s regulatory authority had been compromised and of possible retaliation if
Complainant continued in the West Virginia circuit. ROI, at 149. DM denied speaking to
Complainant in an intimidating manner during their phone conversation. Id. at 155.
Complainant rejected the reassignment, and DM’s supervisor directed DM to look for another
job for Complainant. Id. at 149. DM was unable to find a suitable position; therefore, DM’s
supervisor created one for Complainant that allowed him to remain in West Virginia, but
without responsibilities in the West Virginia circuit. Id.

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With regard to his claims that DM subjected his work to heightened scrutiny, DM stated that
he visited Complainant in February 2013, to set up a work unit meeting and to visit a plant to
address management concerns. ROI, at 152. DM confirmed that he asked questions about
Complainant’s assignment to gain information on conditions in the circuit. Id. DM visited the
plant while Complainant was unavailable, but visited again when Complainant was there. Id.
DM informed Complainant that he was closing the office Complainant worked in because there
was no need for Front Line Supervisors to work in an office. Id. Further, DM discussed
Complainant’s priorities, specific issues at the plant, and how to resolve other issues. Id.
Later, DM told Complainant that he needed to visit the plant at issue to perform an assessment
as DM needed to pursue regulatory options. Id. at 153. DM added that Complainant was
unaware of the conditions at the plant and he directed Complainant to verify DM’s findings.
Id. DM stressed that he did not raise his voice at Complainant or hang up on him; rather, he
was firm because they were taking a significant action against the plant and he needed to obtain
real time information. Id. DM noted that he did not threaten to remove Complainant, and that
he could not take that action. Id. at 153-54.

Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
articulated reasons were a pretext for discrimination or reprisal. As a result, the Commission
finds that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged.

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 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:

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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
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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

March 17, 2017
Date