Norbert K.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

May 9, 2018

0120162141 (E.E.O.C. May. 9, 2018)

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

Norbert K.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120162141

Hearing No. 451-2013-00053X

Agency No. FSIS-2012-00456

DECISION

On June 15, 2016, 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
May 10, 2016, final order 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. Our review is de novo. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Consumer Safety
Inspector, GS-1862-07, at a Tyson Foods plant located in Seguin, Texas, which falls under the
Agency’s Dallas District Office. On June 22, 2012, Complainant filed an EEO complaint wherein
he claimed that the Agency discriminated against him on the basis of his race (Caucasian)2 when

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.
2 We note that Complainant claims that non-selection is attributable to the Agency’s desire to
promote Hispanic employees. Normally we would consider this a claim of national origin
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on March 23, 2012, he learned that he had not been selected for the position of Consumer Safety
Inspector, GS-08.3

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). Complainant timely requested a hearing. The AJ held a hearing on March 30, 2016, and
issued a decision on April 27, 2016.

The AJ found that no discrimination occurred. The record reflects that there were twelve
applicants for the Consumer Safety Inspector position, two on the non-competitive list and ten on
the best qualified list. The selecting official stated that her selection was based on training, higher
education, and supervisors’ recommendations. According to the selecting official, Complainant
was her leading candidate due to his college degree and Food Safety Regulatory Training (FSRE),
until she spoke to his Supervisor. The selecting official considered the selectee a good candidate
as well based on his experience and training, but that he lacked a college degree. The selecting
official asserted that the Supervisor was critical of Complainant in several areas. The selecting
official noted that the Supervisor stated that Complainant had been reported for harassing an
employee and been counseled about eating in the Tyson lunchroom. The Supervisor also told the
selecting official that Complainant’s non-compliance reports were unacceptable and he did not
believe Complainant could work without supervision or oversight. According to the selecting
official, the Supervisor recommended another candidate for the position, but that unlike the
selectee, she had not been trained for the position.

The selecting official asserted that after receiving such an unfavorable review of Complainant, she
decided to consult another official who had intermittently supervised Complainant. The selecting
official stated that this official (hereinafter referred to as S2) told her that Complainant was
educated and intelligent but that he had concerns about Complainant’s emotional intelligence as
he had interpersonal deficiencies in that he does not work well with others. S2 also noted that
Complainant had been counseled due to a fixation he had on a female plant employee.

The AJ observed that S2 testified that Complainant was capable of doing a good job but that he
did not seem to handle stress well. S2 further stated that he received a complaint from a Tyson
employee that Complainant was stalking her and staring at her inappropriately and another
complaint that Complainant threw a chicken screen at an employee. According to S2, Complainant
did not talk to him for six months after he denied Complainant’s untimely leave request, which
resulted in Complainant losing “use it or lose it” leave. S2 acknowledged that Complainant was
technically proficient as he could write a good noncompliance report and was skillful at detecting
disease in the carcasses he was responsible for inspecting.

discrimination. However, in light of the fact that this matter has been analyzed as a claim of race
discrimination up to this point, we shall address this complaint as a claim of race discrimination.
3 Complainant initially also claimed age discrimination but he subsequently withdrew this basis at
the hearing.
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Complainant asserted that he was significantly more qualified for the position than the selectee.
Complainant noted that he has a Bachelor’s Degree in Forestry and Wildlife Biology, six or seven
merit awards, and that he had been a Consumer Safety Inspector since 2007. Complainant stated
that he had performed the floor duties of the Consumer Safety Inspector position at issue during
the period between August 2008 and January 2009. Complainant testified that he had been with
the Agency longer than the selectee and that he had FSRE food safety training, including red meat
training that the selectee lacked. According to Complainant, the selectee was Hispanic and lacked
a college education, and previously Complainant had sought other positions where the selected
candidate was Hispanic. Complainant maintained that in 2008-09, his Supervisor at that time told
him that the Agency was making its selections based on the need for more Hispanics and that he
had not been selected because of the quotas.

The AJ observed that Complainant testified that it was his Supervisor at the time of the relevant
selection that discriminated against him rather than the selecting official. Complainant stated that
the Supervisor did not like him very much in part due to the friendship he had with a Tyson plant
employee. Complainant also referenced an incident where he had written on a blackboard that he
would be taking leave the next day rather than filling out a leave request, which Complainant
claimed had frequently been the unofficial way of requesting leave. Complainant testified that the
Supervisor issued him an AWOL, but ultimately was required by higher level management to
remove the AWOL. Another point of disagreement cited by Complainant was when his Supervisor
instructed him not to write a noncompliance report on bat feces that was located on the outside
dock of the Tyson plant. Complainant stated that he nevertheless circumvented the chain of
command and submitted a noncompliance report to the Agency’s district office. The AJ noted that
Complainant acknowledged that the Supervisor informed all employees at a meeting not to write
noncompliance reports.

The AJ stated that Complainant regularly ate his lunch in the Tyson plant cafeteria with a female
Tyson employee until at some point the Tyson employee complained to the Tyson human resource
department that she no longer wanted to eat lunch with Complainant. Subsequently,
Complainant’s Supervisor at that time counseled him against eating lunch with the Tyson
employee. Complainant maintained that he was never informed the Tyson employee had
complained about him and he asserted that no disciplinary action was taken against him.

The AJ observed that the Union President at the time of the non-selection testified that when he
asked the Supervisor about Complainant obtaining the position, the Supervisor stated there was no
chance Complainant would get the position. The Union President stated that the previous Union
President told him the Agency wanted to hire more Hispanics, but that he had nothing to confirm
this opinion. The AJ noted that the Union President testified that other than gossip, he had nothing
to substantiate that the Agency had a quota for hiring Hispanics. The AJ observed that a former
Consumer Safety Inspector at Complainant’s facility testified that many of Complainant’s
coworkers made fun of him behind his back and perhaps that is why Complainant kept to himself.
This witness stated that after Complainant had been told not to eat lunch with the Tyson employee,
the Supervisor started socializing with the same employee.

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The AJ stated that Complainant’s former Supervisor denied in his testimony that he informed
Complainant that the Agency had a quota for hiring Hispanics. This witness stated that
Complainant was upset about a non-selection in 2008 or 2009, and that he told him that many
factors are involved in the selection and that applicants are just numbers in a selection group.
According to this witness, Complainant had low communication skills.

The AJ observed that Complainant’s Supervisor testified that communication skills are important
for the GS-8 position because of the need to communicate with supervisors and other GS-8
employees. The AJ stated that the Supervisor asserted that Complainant did his job, but they did
not work well together. The Supervisor maintained that Complainant would avoid him and he
would have to search for him. According to the Supervisor, Complainant became even more
distant from him after he discussed with him not eating lunch with the Tyson employee. The AJ
noted that the Supervisor testified that Complainant would stare him down when he would see him
talking to this Tyson employee. The Supervisor further testified that Agency employees
complained that Complainant would talk to himself and look at them in a strange way.

The AJ found that the reasons presented by the Agency for Complainant’s non-selection were
credible. The AJ discerned that Complainant resented his Supervisor because he had tried to place
him on AWOL and they had some association with the same Tyson employee. The AJ noted that
Complainant acknowledged in his testimony that his Supervisor’s animus against him was based
on habits with Tyson employees. The AJ found that the negative remarks about Complainant made
by the Supervisor to the selecting official were based on other factors not related to Complainant’s
race. The AJ found that Complainant failed to demonstrate that the Agency’s articulated reasons
for its selection decision were pretext.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was more qualified for the position than the selectee.
Complainant argues that he had greater experience with the Agency; had been to the Food Safety
Inspection Service school; was red meat trained; and had taken the FSRE training. Complainant
states that he has a Bachelor’s degree and 43 hours toward a second degree in contrast to the
selectee who has no college hours. Complainant asserts that he performed the duties of a
Consumer Safety Inspector off and on from 2007 to the present, including on a continuous basis
from August 2007 through early 2008. According to Complainant, he received a very positive
interim appraisal for his performance in that position. Complainant maintains that he was praised
for his ability to write clear and concise noncompliance reports and his ability to be
nonconfrontational with plant personnel especially when presenting them with noncompliance
reports, as well as his ability to get along with coworkers.

Complainant points out that he was ranked first for the position at issue on the applicant listing
report prepared by Human Resources, as well as first by the selecting official based on his
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application and resume. Complainant states that the selectee was ranked tenth on the applicant
listing report. Complainant maintains it is evident that the Agency’s stated reasons for its selection
are pretext given that his qualifications are observably superior to those of the selectee.
Complainant states that the reasons relied upon by the Agency were the recommendations from
his supervisors, yet that reason is negated by the animus held toward him by his Supervisor at the
time of the selection. Complainant points out that he had been rated “Superior” on each
performance appraisal between 2008 and 2011 prior to being under the authority of the Supervisor,
but that the Supervisor rated him “Fully Successful” on October 25, 2011, the most recent
evaluation before the relevant selection. Complainant argues that the Supervisor falsely accused
him of being AWOL and having an inappropriate relationship with a Tyson female employee.
Complainant maintains that his Supervisor was furious with him for going above his authority to
complain about the bat feces. Complainant notes that the Union President testified that the
Supervisor told him prior to the relevant selection that Complainant would never get a promotion
while he was there.

Complainant contends that both Supervisors fabricated information about him lacking
interpersonal skills. Complainant states that S2 remarked in a September 2009 appraisal that he
works harmoniously with others and promotes a positive work environment, positively affecting
other inspectors. Complainant also accuses the Supervisor of providing false information to the
selecting official that he did not take appropriate regulatory and documentary enforcement actions,
and did not write noncompliance reports as needed due to a lack of backbone, and that those
noncompliance reports he did write were unacceptable. Complainant points out that he defied his
Supervisor’s order concerning the bat feces. Complainant notes that in the September 2009
evaluation, S2 wrote that he identifies noncompliance issues and writes clear, concise and accurate
noncompliance reports. Finally, Complainant argues that it appears no one recommended the
selectee for the position. Complainant notes that S2 testified that he did not provide any
information about the selectee and that his Supervisor recommended another non-Caucasian
candidate who was completely unqualified.

In response, the Agency asserts that although Complainant charges the Supervisor with having
animus against him based on the overturned AWOL charge and going above the Supervisor’s head
regarding the bat issue, neither of these reasons constitute illegal animus under Title VII. The
Agency also reiterates that a complaint led to the counseling of Complainant concerning having
lunch with the female Tyson employee. The Agency argues that Complainant did not contend
there was improper animus on the part of S2 or another prior Supervisor who testified about his
interpersonal problems. As for Complainant’s performance appraisals, the Agency maintains that
they indicate Complainant’s performance deteriorated over the years.

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).
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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, at § VI.B. (Aug. 5, 2015).

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
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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination
with regard to his non-selection for the position of Consumer Safety Inspector, GS-8. The Agency
stated that Complainant was not chosen for the position based on information provided to the
selecting official from Complainant’s Supervisors. The selecting official indicated that
Complainant was initially her leading choice for the position, but that she no longer held this
perspective after learning of Complainant’s interpersonal difficulties with those Supervisors and
the counseling he received concerning the Tyson female employee. We find that the Agency has
articulated legitimate, nondiscriminatory reasons for Complainant’s non-selection.

Complainant attempts to establish pretext by arguing that his Supervisor held an animus against
him and therefore fabricated deficiencies concerning his interpersonal skills and work product to
prevent him from being selected. Complainant also argues that his qualifications for the position
were observably superior to those of the selectee, thus warranting a finding of pretext. Upon
review of the record, we discern clear friction between Complainant and his Supervisor. Their
difficulties appeared to begin no later than the AWOL incident and continued with the bat feces
episode and their apparent interest in the same Tyson female employee. It is evident that the
Supervisor’s negative recommendation of Complainant to the selecting official was derived in
large part from the personal enmity that had developed between them. However, personal dislike
and exaggerated or fabricated information that in this instance are not conveyed based on
Complainant’s race do not fall within the purview of Title VII. Further, it was clearly reasonable
for the selecting official to be concerned about Complainant’s interpersonal relationships at work
in light of his apparent efforts to avoid his Supervisor and not speak to S2 for six months.
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The situation with the Tyson female employee also posed a potential problem given that the
Agency and Tyson shared the facility.

In terms of Complainant’s qualifications for the position, it is apparent that Complainant had strong
technical skills. He had been credited for the quality of his noncompliance reports and it was noted
that he was skillful at detecting disease in the carcasses he was responsible for inspecting.
Complainant had a college education, relevant training, and had on occasion filled the position at
issue on a temporary basis. We find though that these abilities were justifiably negated to a large
extent by the concerns relating to his ability to work with other people. Although the selectee was
not as experienced in certain areas as Complainant and he lacked a college education, the selecting
official was not informed of any significant deficiencies as to the selectee’s social skills or any
other aspect of his work performance. Complainant claims that the hiring of the Hispanic selectee
exemplified the Agency’s ongoing intent to promote more Hispanic employees. Upon review of
the record, we discern that this was not a factor in the selection at issue. There was no testimony
to corroborate Complainant’s belief that a quota system in favor of Hispanics was in effect. We
find that the AJ properly found that Complainant failed to establish that the Agency’s stated
reasons for his non-selection were pretext intended to hide discriminatory motivation based on his
race.

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 order, because the EEOC AJ’s decision was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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
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(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.

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.

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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

May 9, 2018
Date