[Redacted], Levi S., 1 Complainant,v.Kevin Shea, Acting Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020004834 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Levi S.,1 Complainant, v. Kevin Shea, Acting Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020004834 Hearing No. 420-2019-00368X Agency No. FSIS-2018-00856 DECISION On July 17, 2020, 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 April 29, 2020, 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.2 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 Emails dated in June 2020, indicate that the Agency was unable to mail its final order to Complainant due to the coronavirus pandemic and sought permission to email it to him. On July 17, 2020, Complainant submitted an appeal of the AJ’s decision, noting that he had not received a final order from the Agency. On December 1, 2020, Complainant submitted a statement explaining that he did not receive the Agency’s emails asking for permission to email him the final order until September 8, 2020, when he returned to work following a period of leave; he never received a final order from the Agency; and he first saw the final order when it was uploaded on November 30, 2020. He also asked that we accept his complaint as timely. In consideration of these circumstances, we exercise our discretion to find that Complainant’s appeal was timely. See 29 C.F.R. § 1614.604(c). 2020004834 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Consumer Safety Inspector, GS-1862-08, at the Koch Foods Plant facility in Jackson, Mississippi. On November 5, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (African-American), sex (male), color (black), and reprisal for prior protected EEO activity when: 1. On or about July 9, 2018, the District Manager informed him that, if he continued to pursue legal action against the Plant, he would be reassigned to another plant due to a conflict of interest; and 2. On or about July 9, 2018, the District Manager denied him a copy of the investigation report related to the allegations made against him.3 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Regarding his alleged basis of reprisal, Complainant attested that he had several prior complaints over several years; he alleged the District Manager was aware of his prior EEO activity. The District Manager, Labor and Employee Relations (LERD) Specialist, and the Deputy Assistant Administrator, denied knowledge of Complainant’s prior EEO activity. Complainant attested that, prior to the instant complaint, he was accused of workplace sexual harassment and subjected to an investigation that, ultimately, found no evidence that he sexually harassed anyone. He attested that he requested a copy of the investigative report, as he was considering filing a lawsuit against the company. He attested that the District Manager refused to give him a copy of the investigative file and stated that, if Complainant were to file a lawsuit, he would be reassigned to another facility because it would create a conflict of interest to inspect products from this facility while involved in a lawsuit against them. Regarding the instant complaint, Complainant alleged that the Agency did not reassign a Caucasian woman who filed a lawsuit against the company where she did inspections. The District Manager attested that the investigation regarding the sexual harassment allegations against Complainant found that Complainant was telling the truth and possible disciplinary actions against him were canceled. He attested that, when Complainant asked him for a copy of the investigative file, he sent him copies of the complaints and informed him that he did not have a copy of the investigative file, as he was not privy to it. 3 Upon accepting the claim, the Agency identified Complainant’s alleged bases as race (Hispanic), color (dark), sex (male), and reprisal for prior EEO activity; the Agency only identified claim (1). During the interview, Complainant clarified that he identified his race was African-American and his color was black and attested as to claim (2). 2020004834 3 He attested that he contacted a LERD Specialist who said that Complainant could not have a copy of the investigative file and should inform Complainant that, while it was his right to pursue a lawsuit against the plant, but because of a conflict of interest that such a lawsuit would raise, he would probably have to be moved to another plant. The LERD Specialist attested that she provided advice and guidance to the District Manager regarding the matter at issue. She attested that, to the best of her recollection, the District Manager contacted her for guidance as to whether he could release an internal report of investigation (ROI) requested by Complainant. She attested that he informed her that the investigation resulted in no findings/unsubstantiated evidence and Complainant received no discipline based on the results. She attested that she informed the District Manager that he could release the complaint to Complainant but not the ROI, as that is usually done initially and in accordance with the Labor Management Agreement (LMA), Article 32, Section 6. The LERD Specialist explained that it is Agency policy to not release the internal ROI results unless the findings require disciplinary action, in which case it is released to the employee as part of the evidence file. She also explained that the complaints can be released to the employee, in accordance with LMA Article 32, Section 6. The LERD Specialist also attested that the District Manager inquired as to whether it would be appropriate for an employee to remain in the plant if they filed a lawsuit against the plant. She attested that she informed the District Manager that it could pose a conflict of interest for an employee to work at a plant that he or she is suing. She attested that she referred the District Manager to the Agency’s Standards of Ethical Conduct and the LMA, Article 29, Section 2. The Deputy Assistant Administrator attested that the Agency conveyed to Complainant that the Agency’s reasoning and position was that there could be a potential impartiality issue and the Agency may exercise its authority under Agency Directive 4735.9 to reassign him. He explained that the Agency takes conflicts of interest very seriously, and even the perception of conflicts of interest is taken seriously. LMA Article 32, Section 6, Written Allegations or Charges by Industry, provides, in part, that, if a determination is made to conduct a review of a situation, the employee against whom the complaint is directed will be provided a copy of the complaint. LMA, Article 29, Section 2, Conflict of Interest, in part, requires employees to make known to their supervisor the nature of any situations presenting conflicts of interest and provides that employees who knowingly engage in such are subject to disciplinary and/or adverse action. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 27, 2020, motion for a decision without a hearing and issued a decision without a hearing on April 24, 2020. 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. 2020004834 4 The instant appeal followed. On appeal, Complainant asserts that the AJ erred by failing to consider all the facts of the case and not holding a hearing. He asserts that he is entitled to a hearing and should be given an opportunity to cross examine the Agency’s witnesses. He also requests that we issue a judgment in his favor. In response, the Agency argues that a decision without a hearing was warranted and Complainant failed to establish his claim of discrimination, noting that he failed to show that the Agency’s legitimate non-discriminatory reasons for its actions were pretext for discrimination. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Complainant has alleged the Agency subjected him to harassment, noting two instances. To establish a claim of hostile 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); 2020004834 5 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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 race, color, sex, and/or prior EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's harassment allegations can generally be described as disagreements with managerial decisions and/or policy. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See e.g., Azucena A. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181293 (July 9, 2019) (finding that a complainant's allegations relating to disagreements about managerial decisions, without evidence of an unlawful animus, did not amount to unlawful harassment); see also Morton P. v. Dep't of Agriculture, EEOC Appeal No. 2019002486 (December 26, 2019). Here, the responsible management officials explained that, when Complainant asked the District Manager for the ROI and informed him that he was considering a lawsuit against the plant, the District Manager acted in accordance with guidance from the Agency’s LERD Specialist, as well as Agency policy. Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the allegation that Complainant's race, color, sex, or prior EEO activity played any role in the incidents at issue. Thus, Complainant's allegations, even if true, are insufficient to support a claim of discriminatory harassment. 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. 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. 2020004834 6 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. 2020004834 7 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 February 22, 2021 Date