Henry S.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.Download PDFEqual Employment Opportunity CommissionDec 2, 20160120142600 (E.E.O.C. Dec. 2, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 0120142600 Hearing No. 570-2013-00222X Agency No. FSIS-2012-00334 DECISION Complainant filed an appeal from an Equal Employment Opportunity Commission Administrative Judge (AJ)’s April 29, 2014 decision, which effectively became the Agency’s final decision, finding no discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In his complaint, filed on March 12, 2012, Complainant alleged discrimination in reprisal for prior EEO activity when he was subjected to harassment when on December 28, 2011, he was given a Fully Successful performance rating for Fiscal Year 2011, which was upheld on January 10, 2012. The record indicates that at the conclusion of the investigation, Complainant requested a hearing. On April 29, 2014, the AJ, after a hearing, issued a decision finding no discrimination which effectively became the Agency’s final decision. See 29 C.F.R. § 1614.109(i). 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. 0120142600 2 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Despite Complainant’s contentions on appeal, we do not find any improper conduct on the part of the AJ during the hearing process.2 In this case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue, Complainant was employed as a Senior Compliance Specialist, AP-05 (GS-14), with the Agency’s Food Safety and Inspection Service, Compliance and Investigations Division (CID), Office of Program Evaluation, Enforcement and Review. Complainant’s supervisor (S1), Deputy Director of CID, indicated that she gave Complainant the Fully Successful rating for fiscal year 2011, at issue. Specifically, S1 stated that: in June, 2011, she was on annual leave and Complainant was acting for her; and while acting, his performance was less than satisfactory with regard to a National School Lunch Project (NSLP) which was assigned by his second level supervisor (S2), Director of CID. S2 stated that Complainant failed to complete the NSLP assignment and failed to notify S2 that he would be unable to complete the assignment until half an hour prior to the deadline. The AJ stated that Complainant testified that he felt that the NSLP assignment made no sense and was “busy work” and there was no need for some of the work requested, i.e., an agenda and checklists. For the 2011 evaluation at issue, Complainant was rated as “meets fully successful” on the elements of “mission support and personal contacts” and “exceeds fully successful” on “individual contributions to the team.” Although Complainant requested management to reconsider his evaluation, S2 indicated that he denied the request due to the reason cited above. 2 Complainant indicates on appeal that before he joined in for his scheduled hearing at issue, the AJ and the Agency’s representative talked about his new EEO complaint. We note that there is no evidence that this purported conversation affected the instant hearing process at issue. Complainant is hereby advised to raise his concerns during the Agency’s investigation and/or a hearing of his new complaint if he wishes. 0120142600 3 The AJ stated and we agree that Complainant failed to show that the Agency’s proffered reasons were pretextual. The AJ further found and we agree that the performance evaluation did not rise to the level of harassing Complainant or creating a work environment so severe or pervasive that it interfered with his job performance or was intimidating, hostile, or offensive. Also, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. We note that on appeal Complainant raises matters not related to the instant complaint at issue. Upon review, we find that the AJ’s factual findings of no discriminatory intent are supported by substantial evidence in the record. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency’s final decision finding of no discrimination is AFFIRMED because the AJ’s decision is supported by substantial evidence. 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 0120142600 4 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 December 2, 2016 Date Copy with citationCopy as parenthetical citation