[Redacted], Homer S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021001368 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Homer S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2021001368 Agency No. FS-2020-00189 DECISION 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 July 2, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Material Handler, WG-6907-5, at the Agency’s Fire and Aviation Management, Southern Operations Cache, Region 5 in Ontario, California. On December 31, 2019, Complainant filed a formal EEO complaint claiming that the Agency subjected him to discrimination and harassment based on race (African-American) when, on or around October 15, 2019, Complainant learned management subjected him to a misconduct investigation. 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. 2021001368 2 After its investigation into the accepted claim, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On July 2, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community 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. See St. Mary’s Honor Center 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 the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that the Agency articulated legitimate, non-discriminatory reasons for subjecting Complainant to an investigation. Complainant’s first level supervisor (S1) testified that he contacted the Employee Labor Relations Branch (ELRB) after a co-worker (CW1) filed a harassment complaint against Complainant. S1 explained that he worked with the ELRB. 2021001368 3 However, the Harassment Assessment Review Team (HART) was contracted to complete an investigation and fact- finding into CW1’s complaint. S1 noted that Complainant was CW1’s section head and was responsible for assigning CW1 tasks. Consequently, S1 indicated that he instructed Complainant not to speak to CW1, and the ELRB recommended that S1 move Complainant to another office while the HART investigation was being conducted. Although Complainant asserted that his reassigned office had mold and make him sick,2 S1 explained that the office was checked, no mold was found, and Complainant never provided any medical documentation supporting that the office made him sick. S1 further noted that he could have moved Complainant to the Riverside office but decided not to do so, because he did not want to interfere with Complainant’s commute to work. Rather, S1 moved Complainant from the warehouse to the office part of the building. The Employee Relations Specialist (ERS) further corroborated S1’s testimony regarding steps taken to separate Complainant from CW1 even though the ERS acknowledged that it was a “known fact that [CW1] is the girlfriend of S1.” The ERS explained that it is standard procedure to move the alleged harasser, not the affected employee, from the work area. In this case, the ERS stated that CW1 filed a complaint that Complainant, her section head, was harassing her. Consequently, the proper procedure was to remove Complainant from CW1 while a harassment inquiry was conducted. As a result, the ERS indicated that he drafted the letter of separation of Complainant from CW1. Ultimately, the ERS explained that the results of the investigation indicated that CW1’s allegations against Complainant were unsubstantiated. Additionally, the Senior Employee Relations Specialist (Senior ERS) clarified that with harassment investigations, the Agency used a harassment center, HART, where managers or employees can report harassment complaints. The Senior ERS further clarified that a harassment investigation, unlike a misconduct investigation, is not a disciplinary action, and it is standard procedure to separate the alleged offenders and complainants. A copy of the October 15, 2019, Letter of Instruction indicates that Complainant was reassigned to the administrative side of the building during the period the Agency completed an investigation of misconduct. The letter further instructed Complainant not to communicate with CW1 and informed Complainant that he would report to the Detailed Assistant Cache Manager while the investigation was pending. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race. 2 Complainant further asserted that another employee (E1) (Caucasian) was assigned to a more favorable office location, only twenty feet away from the affected employee (AE), after the AE filed a harassment complaint against E1. However, the Employee Relations Specialist explained that unlike Complainant, E1 did not directly supervise the AE and was not separated to the same degree that Complainant was with CW1. 2021001368 4 Harassment To establish a claim of discriminatory environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 race. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s additional claim of discriminatory harassment as evidenced by the event at issue is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his race. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021001368 5 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. 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. 2021001368 6 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 7, 2021 Date