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

Equal Employment Opportunity Commission

Dec 20, 2018

0120172323 (E.E.O.C. Dec. 20, 2018)

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

Neil M.,1
Complainant,

v.

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

Appeal No. 0120172323

Agency No. FS-2016-00910

DECISION

On June 23, 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 5, 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. 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 Forestry Technician,
GS-0462-04, at the Agency’s Okanogan-Wenatchee National Forest, Naches Ranger District in
Naches, Washington.

On August 12, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (Mexican-
American) and national origin (Hispanic) when:

1. Beginning July 2015, and ongoing, he was subjected to various acts of harassment
(non-sexual), including but not limited to:

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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a. On or about August 8, 2016, his second-level supervisor (S2) publicly belittled
and bullied him, accused him of assigning himself to fire duty, minimalized his
performance, and subsequently yelled at him and threatened to terminate him;

b. Beginning in July 2015 and continuing, S2 repeatedly ignored his complaints
that a coworker harassed him by making derogatory comments and hate speech,
i.e. referring to Hispanics as “dirty and disgusting people” and stating that “the
Mexicans are responsible for all the trash and broken items in the forest;”

c. In 2015, S2 accused him of falsifying his timesheets and threatened to terminate
him;

d. In October 2015, S2 yelled at him in the presence of others, accused him of
driving inappropriately while on duty, and threatened to terminate him;

e. On an unspecified date, S2 accused him of yelling at a high ranking official and
denied him the opportunity to refute the accusation;

f. On unspecified dates, S2 ignored insults and crude jokes by coworkers about
Hispanic people, i.e. calling them a “bunch of Mexicans,” or stating “No
Beaners!”, and assigned Complainant and other coworkers to clean up a spray
painted swastika; and

g. On an unspecified date, S2 used “fake ghetto slang” to address him stating,
“What’s up home food?”

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). 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).

With respect to claim 1(a), Complainant alleged that he volunteered to work at a fire in August
2016, which his first-level supervisor (S1) approved. Complainant stated that he remained at the
fire site for approximately five days until his second-level supervisor (S2) held a meeting and
pulled Complainant from the fire. ROI, at 82-83. Complainant alleged that he informed S1 that
he felt harassed and S1 advised him to file an EEO complaint if he felt harassed. Id. at 83.
Complainant stated that he believed that he was treated in a discriminatory manner because of the
social environment of Yakima County. Id. at 83-84.

As to claim 1(b), Complainant averred that at the beginning of his employment, he was assigned
to ride with a coworker (C1). ROI, at 84. Complainant reported that C1 began making derogatory
comments and jokes about Hispanic people. Id.
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Complainant stated that in addition to requesting that C1 cease the derogatory comments,
Complainant informed management officials about the incident. Id. According to Complainant,
management officials indicated that they would speak with the coworker, but Complainant
remained on assignment with the coworker. Id. He further alleged that there was a work climate
that allowed and tolerated stereotypical comments or jokes about Hispanic people. Id.

Concerning claim 1(c), Complainant alleged that S2 approached him and accused him of
submitting a false timesheet. ROI, at 86. Complainant explained that he submitted a handwritten
timesheet and S1 erred when inputting the time. Id. Complainant reported that this was an
example of the work climate in the office, which he believed promoted the idea that Hispanic
people are “lazy and not trustworthy.” Id. at 87.

In terms of claim 1(d), Complainant asserted that he was sitting in a truck with a coworker when
S2 arrived on the scene and began yelling at him regarding a report of Complainant unsafely
driving. ROI, at 87. Complainant advised S2 that he did not know what he was talking about. Id.
However, Complainant spoke with S1 who confirmed that a report was made about someone
driving in an unsafe manner. Id. at 88. Complainant stated that S2 later apologized to him, stating
that Complainant received the brunt of his reaction to the complaint because Complainant was the
first person that S2 saw. Id. Complainant alleged that S2 assumed that he was the unsafe driver
due to a negative attitude toward Hispanic people. Id.

Regarding claim 1(e), Complainant stated that he observed someone with unleashed dogs at the
pond, which was a violation of the campground rules. ROI, at 89. Complainant alleged that he
raised his voice because he was on the other side of the pond and he was trying to get her attention.
Id. Complainant reported that he learned that she was the Agency’s Wildlife Biologist (WB) after
speaking with her. Id. He added that he discussed the rules with her and thought that was the end
of the issue. Id. However, S2 later counseled him on acting in an unprofessional manner due to a
report from WB. Id. Complainant asserted that he believed S2 thought it was necessary to
discipline him because of WB’s role in the Agency. Id. at 90.

With respect to claim 1(f), Complainant acknowledged that part of his job involves removing
graffiti. ROI, at 91. He stated that on the date in question, he received several calls to remove a
large forest sign with graffiti, but he was never informed that the graffiti contained racist remarks
about Hispanic people and a swastika. Id. Complainant asserted that he spoke with S1 about the
assignment and S1 told him that no harm was intended. Id. However, Complainant maintained
that his race and national origin played a role in the graffiti assignment because someone could
have warned him about the contents of the graffiti. Id. at 92.

Regarding claim 1(g), Complainant alleged that he was preparing to leave for the day, when he
encountered S2. ROI, at 92. According to Complainant, S2 walked by him and stated, “what’s
up home food?” which Complainant reported to his supervisor. Id. at 93.

In its FAD, the Agency determined that the alleged incidents, taken together and assumed to be
true, were insufficient to establish a hostile work environment.
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The Agency reasoned that Complainant’s allegations were insufficiently severe or pervasive to
establish a hostile work environment. Likewise, Complainant failed to show that the purported
harassment had the purpose or effect of unreasonably interfering with his work environment and/or
creating an intimidating, hostile, or offensive work environment. Further, even assuming it was
severe and pervasive, Complainant failed to show that the alleged incidents occurred due to his
national origin or race. The Agency determined that most of the alleged incidents pertained to
Complainant taking exception to receiving counseling or instruction from supervisors. Finally,
the Agency noted that when Complainant reported incidents of alleged use of derogatory language
by C1, management immediately responded and counseled C1. Accordingly, the Agency found
that Complainant was not subjected to a hostile work environment as alleged.

Complainant submitted the instant appeal without submitting any arguments or contentions in
support.

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”).

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 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).

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.

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An agency is liable for harassment by a coworker or other non-supervisor when it knows or should
have known of the conduct, unless the Agency can show that it took immediate and corrective
action. Whether the Agency’s action is appropriate depends upon “the severity and persistence of
the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air
Force, EEOC Appeal No. 05920194 (July 8, 1992); Owens v. Dep’t of Transp., EEOC Appeal No.
0590824 (Sept. 5, 1996). Appropriate agency corrective action is reasonably calculated to stop the
harassment. Parker v. Dep’t of the Navy, EEOC Appeal No. 0120100303 (Jul. 20, 2012).

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 including belittling and disrespectful comments about his
performance and derogatory comments about Hispanics. The Commission finds that Complainant
has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile
work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency’s
actions were based on discriminatory animus. 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.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

With respect to claim 1(a), S1 asserted that S2 called a meeting for all recreation personnel to
determine who would work the fire because they wanted to reduce the personnel supporting the
fire. ROI, at 139. Similarly, S2 affirmed that he called an All-Hands meeting to discuss the
potential of downsizing the level of fire support at the fire site. Id. at 104. He explained that he
instructed the entire recreation department to obtain approval from him prior to volunteering for a
fire assignment. Id. S1 averred that Complainant, along with several other employees, was not
originally assigned to the fire. Id. at 139. According to S1, each employee was questioned on
what they were doing and when it was Complainant’s time to report his duties, S2 told
Complainant that he needed to return to his recreation duties, and that “anyone could do the fire
job he was doing.” S1 stressed that Complainant was removed from fire duty, but not replaced
because of the scaling back of personnel. Id.

S2 reported that he conducted a separate meeting with Complainant following the All-Hands
meeting to discuss multiple reports concerning Complainant’s conduct toward his coworkers and
the public. ROI, at 104-05, 121. S1 affirmed that a follow-up meeting occurred after the All-
Hands meeting in which S2 discussed Complainant’s attitude and brought up several incidents that
had occurred in the prior two years. Id. at 139. S1 stressed that he informed Complainant that
Complainant had been involved in several incidents in the prior two years and because it was
becoming a pattern, additional substantiated incidents would result in termination. Id. at 105, 121.
S2 asserted that each time he had to discuss an incident with Complainant, he remained calm and
allowed Complainant to respond to the allegations. Id. at 104. S2 stated that he might have raised
his voice to get his point across, but denied yelling, harassing, or belittling Complainant. Id. at
106. He added that he treated Complainant with respect and encouragement since Complainant
started with the Agency. Id. at 120.
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S2 claimed that any minimalization of Complainant’s performance during the meeting occurred
with respect to how Complainant interacted with the public. Id. at 140.

Regarding claim 1(b), S1 affirmed that Complainant told him about the derogatory comments from
C1, but denied ignoring additional complaints. ROI, at 141. S2 averred that upon S1 telling him
that a male employee had made derogatory racial remarks in Complainant’s presence, he instructed
S1 to counsel the offending employee and informed S1 that the comments would not be tolerated.
Id. at 106. S1 stressed that he counseled the offending employee over the phone and warned him
that continued misbehavior would lead to dismissal. Id. at 141. S1 stated that he was not aware
of additional instances of derogatory comments from Complainant’s coworkers. Id.

As to claim 1(c), S2 affirmed that he questioned Complainant about his timecard for a day that he
saw him leave early and informed Complainant that it appeared that he had been untruthful on his
timesheet, which was unacceptable. ROI, at 106-07. S2 stated that he questioned S1 about
Complainant’s timesheet and S1 confirmed that the timesheet was legitimate. Id. at 107. S2
stressed that when he spoke with Complainant about the timesheet, Complainant explained that he
made a mistake and he accepted the explanation. Id. S2 denied threatening Complainant and
noted that the timesheet received approval following corrections. Id. A District Ranger recalled
receiving an email from S2 regarding concerns about Complainant’s timesheet, but indicated that
S1 confirmed that the timesheet was legitimate. Id. at 152.

Regarding claim 1(d), one of Complainant’s coworkers reported that she overheard Complainant
speaking loudly, laughing, and telling other employees how fast Complainant and his partner had
driven that evening. ROI, at 166. She stated that she could not confirm which party was the driver,
but that she reported to S1 and S2 all that she heard Complainant report about excessive speed. Id.
The coworker added that she felt it was important to report the incident because of public safety
and her concerns regarding Complainant’s judgment while driving. Id.at 167. S1 and S2 indicated
that they had received multiple complaints about recreational staff members driving too fast. Id.
at 108, 121, 143. As a result, S2 informed recreation staff members that additional complaints
would result in their removal from the fire. Id. He stated that he spoke sternly to Complainant
because it was not the first complaint and S1 reported that Complainant told him that he had a
heated discussion with S2. Id. However, S2 denied issuing threats.

As for claim 1(e), S1 acknowledged that WB reported to him that Complainant yelled at her across
a pond about having her dogs unleashed, which he reported to S2. ROI, at 144. S2 affirmed that
he received a complaint from WB, stating that Complainant was loud and rude until he realized
who she was. Id. 109, 122. According to WB’s account, Complainant yelled at her across a pond
to remove her dogs from the pond and their conversation became calmer and more civilized once
she identified who she was. Id. at 161. She explained that she informed S2 on the following day
and told him that Complainant could have just walked around the pond to speak with her instead
of yelling at her across the pond. Id. S2 stated that he discussed the incident with Complainant
and accepted his explanation that he was addressing WB’s dogs being off-leash. Id. at 109, 122.
He stressed that Complainant acknowledged that he could get loud and S2 counseled Complainant
about always conducting himself in a professional manner. Id.
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Moving to claim 1(f), S1 explained that a large sign was vandalized with painted graffiti and his
staff was responsible for cleaning up all reported graffiti within 24 hours. ROI, at 145. S1 stressed
that a Ranger attempted to clean the graffiti, but the sign required removal. Id. He stated that he
asked five or six staff members to remove the graffiti, but that he did not assign a particular person.
Id. Both S2 and the District Ranger confirmed that the task of removing graffiti was within
Complainant’s normal duties. Id. at 110, 154. Management officials denied knowledge of any
further instances of “insults and crude jokes by co-workers about Hispanic people.” Id. 110, 145,
154.

Complainant failed to provide corroborating evidence that the events alleged in claim 1(g)
occurred as alleged. Specifically, S2 denied ever using the terminology and stressed that he did
not understand what the phrase meant. ROI, at 112. Likewise, S1 denied knowledge of the
incident. Id. at 147. Therefore, we find that Complainant failed to show by a preponderance of
the evidence that the remark in question was made.

The record is clear that the bulk of Complainant’s allegations arise from contentious interpersonal
interactions between Complainant and his coworkers and management officials; however, 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.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The record simply does not show that the conduct at
issue was based on animus towards Complainant's protected classes. Regarding the co-worker
comments alleged in claim 1(b), as discussed above, even assuming that Complainant had
demonstrated that these comments amounted to a discriminatory hostile work environment,
management took prompt and effective corrective action upon Complainant’s report of the
offensive conduct. The record reveals that management immediately counseled C1 regarding the
inappropriate comments and warned him that any continued misbehavior could result in his
termination. The record does not support Complainant's claim that any similar conduct recurred.

As a result, the Commission finds that Complainant has not established that he was subjected to a
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.

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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.
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.
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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 20, 2018
Date