Jay C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120172473 (E.E.O.C. Oct. 18, 2018)

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

Jay C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120172473

Agency No. FS201600923

DECISION

On July 6, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 8, 2017, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Cook, WG-7404-06,
at the Agency’s Cass Job Corps Civilian Conservation Center (Cass JCCC) facility in Ozark,
Arkansas. From January 25, 2016 to August 18, 2016, Complainant managed student workers.
Complainant claimed that the students were “loud, belligerent, disruptive, insubordinate, and
physically intimidating” and harassed him over an eight-month period. Complainant claimed that
he raised the matter with management officials, but the students would later resume their bad
behavior after his second-level supervisor (S2) spoke with them. Complainant contended that
management failed to provide him adequate support.

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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Complainant alleged that on several occasions, students approached him while he worked on the
serving line to ask to which race he belonged. Complainant reasoned that it was difficult to
determine his ethnicity because of his appearance and he would respond that he belonged to the
human race. Complainant stated that he disregarded these questions, but they got “under his skin”
sometimes.

On April 6, 2016, Complainant was witnessed being aggressive and using profanity toward a
student and yelling at him. Several student witnesses observed the behavior and provided
statements. The altercation escalated and Complainant was observed getting in the student’s face,
getting chest-to-chest, and yelling at the student. On June 16, 2016, the Center Director issued
Complainant a Letter of Expectation regarding the incident informing Complainant his conduct
violated Agency Employee Standards of Conduct and warning Complainant that if failed to adhere
to the letter’s expectations/instructions, he could be disciplined up to and including removal. On
July 28, 2016, Complainant was involved in another incident with a student in which witnesses
reported that Complainant yelled at and attempted to physically remove a student from the dining
hall.

On August 12, 2016, the Center Director placed Complainant on administrative leave pending the
completion of an inquiry into the allegations of his inappropriate behavior towards the students.
On August 18, 2016, the Center Director issued Complainant a Notice of Termination During
Probation Period based on his conduct towards the students.

On November 25, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), religion (Muslim), and age
(63) when:

1. On August 18, 2016, Complainant was terminated from his position effective August 19,
2016; and

2. On unspecified dates, Complainant was subjected to various acts of harassment, including
but not limited to:

a. He was charged with managing insubordinate students without a substantial
disciplinary process and without adequate support from management; and

b. He was subjected to racist inquiries regarding his ethnicity from students and staff.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission 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 the Agency subjected him to discrimination as alleged.
Complainant filed the instant appeal without submitting any arguments or contentions in support.

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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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In this instance, we find that assuming arguendo, Complainant established a prima facie case of
discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for
Complainant’s termination. Specifically, the Agency explained that Complainant was removed
from his position due to two incidents of misconduct involving Cass JCC students. The evidence
of record indicates that on April 6, 2016, Complainant was involved in an altercation with a Cass
JCCC student. Following the April 2016 incident, Complainant received a “Letter of
Expectations” in lieu of termination, which stated that Complainant was observed by multiple
witnesses being aggressive toward a student and yelling at him. The letter repeated the Agency’s
stance on inappropriate or threatening language and warned Complainant that failure to adhere to
the expectations could subject him to disciplinary action up to and including removal. In addition
to the letter, management counseled Complainant on ways to interact with the Cass JCCC students.

On or about July 28, 2016, Complainant was involved in another altercation with a student worker.
The Agency found that officials questioned witnesses and obtained statements at odds with
Complainant’s account of the incident. Specifically, numerous witnesses reported that they
observed Complainant yelling and confronting a student worker. After official Agency approval
and a review by the National Review and Assessment Team, Complainant received a termination
letter on August 18, 2016, with an effective date of August 19, 2016.
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Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant did not 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. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of
discriminatory animus. Complainant failed to carry this burden. Upon review of the record, we
find insufficient evidence to establish that the Agency was motivated by discriminatory animus
and that Complainant has not shown the Agency’s reasons for its actions to be pretext for
discrimination.

Hostile Work Environment

To establish a claim of harassment a 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 class; (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 987 (11th Cir. 1982).

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 his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

The Commission notes again that Complainant chose not to request 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, management officials subjected him to
a hostile work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment. The Commission finds that Complainant failed to show that the
alleged conduct actually occurred. The Commission notes that Complainant presented no
corroborating evidence demonstrating that he was subjected to any inappropriate conduct.

Even assuming that Complainant established that the incidents occurred as alleged, the alleged
incidents were not sufficiently severe or pervasive to establish a legally hostile work environment.
The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
objectively offensive as to alter the conditions of the victim’s employment.”
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Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Furthermore, there is no
evidence that Complainant reported the alleged conduct to any management official. Management
officials confirmed that Complainant did not report any of the alleged harassing conduct to them.
Regarding Complainant’s claim that he was charged with managing insubordinate students without
support from management, management officials confirmed that Complainant did not follow the
behavior management systems the Agency had in place to deal with student misconduct allegations
and attempted to discipline the students without management assistance. Management officials
denied that Complainant reported any of the incidents to them. Thus, the Commission concludes
that Complainant has not demonstrated that he was subjected to a discriminatory hostile work
environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
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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

October 18, 2018
Date