0120090429
09-14-2010
Jerry Dunn, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Food Safety and Inspection Service), Agency.
Jerry Dunn,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120090429
Agency No. FSIS200700513
DECISION
On November 4, 2008, Complainant filed an appeal from the Agency's October 25, 2008, 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. The Commission deems the appeal timely and accepts it 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 correctly concluded that Complainant was not subjected to discrimination based on his age and sex with respect to various issues involving terms and conditions of his employment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Consumer Safety Inspector at the Agency's Gadsden Alabama Duty Station located in Attalla, Alabama. On June 1, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (61) when:
1. on February 20, 2007, he was denied one (1) hour of administrative leave, granted to others;
2. his Workplace Violence complaint was handled in a substantially different way than a Workplace Violence Complaint filed against him by a female inspector, and he was issued a notice of proposed suspension;
3. numerous comments and statements regarding his age, such as, the fact that he should retire, was an "old man", and that he should give up his position so younger workers could take his place, were made by the co-worker who made the workplace violence allegation against him;
4. his supervisor refused to sign his Time and Attendance sheet (T&A) for the week of November 27, 2005, unless he removed overtime request , and for the week of July 4, 2006, unless he claimed he was Absent Without Leave (AWOL) for July 5 and 6, 2006, when he was out on medical leave;
5. on September 13, October 12 and 14, 2006, he was denied overtime pay;
6. during August 2006, his supervisor allowed an equivalent GS-8 to have his own private office; and
7. his supervisor would assist the other GS-8 co-workers in performing line duties during staff shortages while refusing to do the same for him.
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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
Final Agency Decision (FAD)
With respect to Complainant's allegations, the FAD noted the following facts:
Issue 1: Denial of Administrative Leave
Complainant alleged that he was denied one (1) hour of administrative leave which other inspectors were granted. Complainant states that it is the policy of the Agency to allow all inspectors one (1) hour of leave on "down days," when the facility is not operating. In response, the second-level supervisor (S2) explained that it was policy to require employees to request administrative leave prior to the time they would use it. Complainant's immediate supervisor (S1)(female) also noted that Complainant's administrative leave was denied because only one (1) hour was allowed per pay period and Complainant had used his hour the previous week.
Issue 2: Different handling of Workplace Violence Complaints
The record contains a copy of a Workplace Violence Complaint which a female employee (E1) filed against Complainant on March 15, 2007. In the complaint, E1 alleged that Complainant had threatened her, on February 20, 2007, by stating that "I should shoot you[r] ass." Report of Investigation (ROI), Ex. 14, at 4. E1 also claimed that on March 9, 2007, Complainant told her to "find a spot and get in it," making her feel threatened. ROI, Ex. 14, at 4.
As a result of the complaint being filed against him, Complainant was reassigned to a relief position and scheduled to work at various facilities for the remainder of his time with the Agency. E1, on the other hand, was placed in Complainant's vacant position. These reassignment actions were described by S1 as being "common in workplace violence, conflict of interest, or sexual harassment" situations. ROI, Affidavit of S2, at 2.
An inquiry was conducted based on the complaint, in which E1 stated that the two events had occurred and Complainant denied that either had taken place. An inquiry report was sent to the Labor and Employee Relations Division (LERD) where an Employee Relations Specialist (W1) investigated the complaint. Complainant was issued a Notice of Proposed Suspension in which W1 stated that she found E1's version of the incident more credible than Complainant's because E1 had no motive to make up anything. However, Complainant alleged that the LERD did not actually communicate with him, making it difficult for them to judge his credibility. Complainant then sent a letter to the Chief of the Employee Relations Branch (W2) stating what he felt was wrong with the finding that was reached, and included an allegation that the complaint was an attempt by E1 to secure Complainant's job. Complainant received no response.
Subsequently, Complainant filed a Workplace Violence Complaint against another (male) employee (E4) on May 4, 2007. Complainant alleged that E4 had said, "I guess you were trying to get under E1's dress and she wouldn't let you." According o Complainant, he viewed this as intimidating. ROI, ex. 14, at 14.
In contrast to the response given to the complaint filed against Complainant, E4 was not removed from the facility as Complainant. Instead, S2 merely spoke with both individuals and decided that E4 was not going to be working at the facility much longer so there was no reason to move him. E4's immediate supervisor (S3) stated in the report that it was "one man's word against the other," and recommended "that this matter be considered closed." ROI, Ex. 14, at 16. W1 stated that she was not aware of this complaint as nothing came through her office. She also stated that when a Workplace Violence Complaint is filed it has to go through the LERD, which did not occur in this instance.
Issue 3: Harassing Age-Based Comments
According to Complainant, E1, when she visited the workplace as a relief inspector, would always make comments about his age and ask when he was going to retire. Complainant indicated that she told him that he should retire so that a younger person could apply for his position, called him an "old fart," made comments about his bald head, and stated that he should retire while he could still see and walk. The Agency noted the fact that Complainant indicated that he never told anyone about E1's conduct, but that another employee heard the remarks. The Agency maintained that it was unable to locate that employee.
Issue 4: S1's Refusal to Sign Complainant's Time and Attendance
Complainant stated that S1 refused to sign his Time and Attendance (T&A) for the week of November 27, 2005, unless he removed the indication that he had worked overtime. Complainant sent an email to S2 concerning the incident and was assured by S2 that he would be paid for the work he performed. Afterward, S2 told S1 to sign the T&A. According to Complainant, S1, from that day on, continued t harass, intimidate and discriminate against him.
Complainant stated that he had been in the hospital during July 5, and 6, 2006 and that his wife had called the manager of the day shift to inform him of this on each of those days. Complainant also produced supporting medical documentation on July 9, 2006, when he returned to work. Upon his return, Complainant learned that S1, who was absent, had left a letter telling the acting supervisor to deny Complainant's T&A unless he took Absent Without Leave (AWOL) for the period that he was out. S1, in a July 7, 2006 memorandum to Complainant had accused him of not calling in and speaking to a supervisor and failing to furnish medical documentation. After speaking to S2, Complainant was allowed to take sick leave. According to Complainant, he advised S2 that S1 was abusing her authority, being unfair and harassing him for some reason.
For the week of November 27, 2005, S1 explained that Complainant had done unscheduled work and was requesting overtime. S1 stated that unscheduled overtime was not allowed at the facility. She refused to sign the T&A, and told Complainant he needed to fix his T&A, which he did. Afterward, S1 signed the T&A.
Issue 5: Denial of Overtime Pay
Complainant alleged that on several occasions the other inspector on his shift took leave and either S1 or an inspector from another facility covered the shift. Complainant contends that he should have been allowed to work the shift and that the Agency therefore denied him overtime pay by not assigning him to the shift. He also indicated that on October 13 and 14, 2006, the other GS-8, inspector was absent and scheduled for overtime duties, but that he was not asked to perform that overtime. Therefore, the plant was allowed to operate without an inspector. Although S2 and the district office were notified, Complainant stated that they refused to take action. According to Complainant, his supervisors' negligence resulted in him being denied 12.25 hours of overtime.
In response, S1 and S2 both stated that the policy at the facility is to allow the inspectors to find their own replacements when on leave. Inspectors were required to post the shifts for which they will be on leave and then find a suitable replacement. S1 stated that management had no involvement unless the replacement was unacceptable.
Issue 6: Allowing Another GS-8 the Use of a Private Office
Complainant alleged that a GS-8 on his shift was given a key to an office and that Complainant was not. Complainant also stated that the existence of the office was kept secret from him by S1. S1 stated in her affidavit that the office was open to all inspectors and that the key to the office was located in a public area. She noted that the office could therefore be accessed at any time.
Issue 7: S1 Helping Other Inspectors on the Line
Complainant alleged that S1 helped other inspectors on line duty when he was absent, but that S1 failed to aid him in these duties when other inspectors were absent. S1 stated that she helped all of the inspectors on the line.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to fully weigh evidence that was revealed by the investigation. Specifically, Complainant contends that there were many discrepancies in the record that he pointed out during the investigation, but which were not addressed in the FAD. Complainant also contends that the Agency failed to question witnesses on his behalf, because, according to the Agency, they could not be located even though the witnesses were federal employees.
The Agency makes no arguments in opposition to the appeal.
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. (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").
Harassment
To establish a claim of harassment an employee must show that: (1) he or she belongs to a statutorily protected class; (2) he or she 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 their 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 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). 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 at 6 (March 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Issue (3)
Complainant alleges that he was subjected to age-based harassing comments by E1. Although there is no evidence in the record to support Complainant's contention that this occurred, we note that Complainant did name a witness who he claimed could verify his contentions concerning the age-based harassing comments. The Agency failed to obtain a statement from this witness, claiming that she could not be located despite the fact that she is federal employee. Because of the Agency's failure to produce this witness, we will find, for purposes of this decision, that Complainant was subjected to unwelcome, age-based comments by E1 because of his age. However, even if we were to assume that the comments were sufficiently severe or pervasive to have altered the conditions of Complainant's employment and create an abusive working environment, Complainant's testimony in his affidavit is that he never reported E1's age based remarks to his supervisors.1 In addition, both S1 and S2 stated that they were unaware of any comments made about Complainant's age. Complainant has therefore failed to establish that there is a basis for imputing liability to the Agency and his harassment claim concerning issue (3) must fail.
With regard to Complainant's interactions with S1, for the most part, we find that these matters constituted nothing more than isolated, routine supervisory interactions. Therefore, we find no persuasive evidence that Complainant was harassed by S1 because of his age or sex.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, that is, that a prohibited consideration was a factor in the adverse employment action. 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination based on sex and age, Complainant may show: (1) that he is a member of a protected group; (2) that he was subjected to an adverse employment action; and (3) that he was treated less favorably than other similarly situated employees outside of his protected groups. We note that it is not necessary for Complainant to rely strictly on comparative evidence in order to establish an inference of discriminatory motivation necessary to support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Although Complainant is a member of two protected classes due to his sex and age, and he experienced several adverse employment actions, we find that he failed to show that he was treated differently than any similarly situated younger and/or female employee nor do we find any other evidence that creates an inference of sex or age discrimination. In so finding, we note that we do not have the benefit of an AJ's findings after a hearing, as Complainant chose a FAD instead, we can only evaluate the facts based on the weight of the evidence presented to us in the record.2 Therefore, we find no discrimination with regard to issues (1), (2), (4), (5), (6) and (7).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
__9/14/10________________
Date
1 Complainant asserts only that he reported retaliatory harassment (unrelated to EEO activity) to management.
2 With respect to issue (2), we specifically find that Complainant and E1 are not similarly situated with regard to their respective complaints. Without reaching a determination as to whether the allegations against Complainant were true, the fact remains that an allegation that Complainant threatened to shoot E1 is certainly not the same as his complaint that E4 made a crass comment to him about his conduct towards E1.
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0120090429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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