[Redacted], Bart L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2020001144 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020001144 Hearing No. 560-2018-00042X Agency No. FSIS-2017-00264 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 25, 2019, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment and discrimination based on his disability and in reprisal for his protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Inspector for the Agency at the Tyson Foods facility in Noel, Missouri. 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. 2020001144 2 On January 6, 2017, Complainant contacted an EEO counselor. Informal efforts to resolve his concerns were unsuccessful. Subsequently, on March 31, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of disability (physical) and reprisal for protected EEO activity (instant complaint) when: 1. on November 30, 2016, Supervisory Public Health Veterinarian (RMO21) issued Complainant a Letter of Reprimand (LOR); 2. on October 24, 2016, the Supervisory Public Health Veterinarian (RMO2) denied his request to have representation present during a disciplinary meeting with his supervisor; 3. on several dates, Complainant was subjected to harassment, including but not limited to the following events: a. on October 12, 2016, management changed Complainant’s Leave Without Pay (LWOP) days to Absent Without Leave (AWOL). b. on October 24, 2016, Supervisory Public Health Veterinarian (RMO3) informed Complainant that he was being disciplined because of his medical condition, and that the District Office thinks he was faking his injury; and, when the supervisor called Complainant’s doctor, who confirmed his injury, his supervisor threw the phone at him and said, “you’re still faking it;” and c. on January 23, 2017, the Frontline Supervisor (RMO4), when introducing him to a new supervisor, publicly addressed his current EEO complaint; The Agency accepted the claims for investigation. The investigative record reflects the following pertinent matters relating to the subject claim. Claim 1 Complainant asserted that on November 30, 2016, RMO1 (no disability or EEO activity) issued Complainant a Letter of Reprimand (LOR). RMO1 stated that the Labor and Employee Relations Division (LERD) issued Complainant the LOR when he failed to follow the Agency’s call-in procedures for attendance matters. Specifically, RMO1 stated that Complainant was Absent Without Leave (AWOL) on October 19, 2016, which prompted the LOR. LERD stated that he drafted and signed the LOR based on Complainant’s AWOL, noting that it was the lowest form of discipline possible. 2 Responsible Management Official (RMO). 2020001144 3 Claim 2 On October 24, 2016, Complainant asserted that RMO2 (no disability or EEO activity) denied his request to have representation during a disciplinary meeting. RMO2 asserted that there was no disciplinary meeting and that Complainant was provided with a Letter of Instruction on that date. Claim 3 Complainant alleged that he was subjected to harassment. In support of his claim, Complainant indicated that, on or about October 9, 2016, he went on three weeks of leave for a torn hamstring. On October 12 and 13, 2016, Complainant was charged with Absent Without Leave for not following the call-in procedures. Complainant later requested sick leave for October 13 and 14, 2016. The request was initially denied due to insufficient medical documentation, and later partially granted for October 13 and 14, once documentation was submitted. On or about October 24, 2016, RMO3) (no disability or EEO activity) charged Complainant as a No-Show for October 12, 2016. Complainant asserted that he was being disciplined because of his medical condition, and that management accused him of faking his injury. RMO3 denied the incident and asserted that Complainant was never disciplined due to his injury nor was he accused of faking it. RMO1 asserted that the October 12, 2016 AWOL charge was due to Complainant’s failure to follow call-in procedures. On January 23, 2017, and several other occasions, Complainant asserted that RMO4 (no disability or EEO activity) harassed him about his EEO complaint in front of RMO2. RMO4 acknowledged that he had asked Complainant about his EEO complaint, with RMO2 present, but that there was no negative intent behind the interaction. RMO4 asserted that he misinterpreted Complainant’s prior statement and that RMO4 did not know everything. As such, RMO4 indicated that this was an invitation to engage with Complainant. RMO4 noted that once he realized the interaction was unwanted, he stopped. RMO2 stated that he could no recall any interactions regarding discussions of Complainant’s EEO complaint. Final Agency Decision At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. On May 20, 2020, the AJ remanded the matter for a final Agency decision (FAD). Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination or retaliation as alleged. 2020001144 4 CONTENTIONS ON APPEAL Complainant did not provide any appellate arguments. The Agency asserts that Complainant’s appeal should be dismissed based on his failure to serve a copy to the Agency. In the alternative, the Agency asserts that its final decision appropriately determined that the Agency did not discriminate or retaliate against Complainant. STANDARD OF REVIEW 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 (EEO MD-110), 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”). ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the agency has met its burden, the 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 Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 2020001144 5 For his claim of reprisal, Complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions such as reprimands and time and attendance issues, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). In this matter, assuming, arguendo, that Complainant established a prima facie case of discrimination based on his disability3 and EEO activity, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The record demonstrates that the actions alleged as discriminatory and retaliatory were nothing more than routine workday interactions. Here, Complainant was issued disciplinary actions for repeatedly failing to abide by Agency protocols regarding call-in procedures, as demonstrated in claims 1, 2, and 3(b) and 3(c). Based on the record, there is no evidence to demonstrate that management’s actions were motivated by discriminatory or retaliatory animus. Hostile Work Environment 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 a protected basis - in this case, his disability and EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). In claim 3, Complainant asserted that he was subjected to a variety of harassment at work, particularly by RMO3 and RMO4. 3 We presume, for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2020001144 6 In reviewing the claims under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), we find that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s disability and/or reprisal played any role in the Agency’s actions. 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 finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020001144 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 June 17, 2021 Date