Thaddeus G.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120142925 (E.E.O.C. Mar. 11, 2016)

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

Thaddeus G.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120142925

Hearing No. 551-2011-00089X

Agency No. FSIS-2010-00383

DECISION

The Commission accepts Complainant’s appeal from the Agency’s July 7, 2014 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. 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Food Inspector at
the Agency’s Foster Farms facility in Kelso, Washington. Complainant is color blind and has
difficulty differentiating between shades of red and green. An ophthalmologist recommended
that Complainant wear rose-colored glasses at work to help him distinguish colors.
Complainant was hired by the Agency in August 2009. Complainant underwent training in
poultry, pork, and red meat inspection. Complainant began working at a poultry processing
plant in October 2009, under the supervision of a Supervisory Veterinarian Medical Officer
(S1). S1 subsequently allowed Complainant to work without direct, one-on-one supervision.
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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After 90 days, Complainant received an evaluation of “satisfactory.” In January 2010, a new
Supervisory Veterinarian Medical Officer (S2) rotated in and replaced S1 at the poultry plant.

On one occasion, Complainant brought in food for everyone during a lunch break. S2 asked
Complainant what type of food it was and Complainant explained that it was Libyan.
Complainant told S2 that his parents were from Libya and that he was Muslim. S2 declined to
share in the lunch. One week later, co-workers were discussing the Christmas “shoe bomber”
incident. Complainant testified that co-workers joked about putting pigs on the planes to
prevent planes from blowing them up. Additionally, Complainant claimed that S2 joined in by
saying they should be miniature pigs so they fit on the planes better. Complainant interpreted
this comment as S2 stereotyping all Muslims as terrorists and believed that S2 had blacklisted
him.

A few days later, S2 came down to the inspection line and stopped the line multiple times to
re-examine poultry that Complainant had cleared. Complainant believed that S2 was
intentionally trying to make him look bad. While S2 subjected Complainant to scrutiny, she
also scrutinized Complainant’s co-workers. Complainant believed that S2 scrutinized a co-
worker only “to protect her action” against him. On one occasion S2 confronted Complainant
about his travel voucher for his training in Arkansas in front of his-coworkers. Complainant
had never prepared a government travel voucher and was unsure how to fix the problem.
Management later issued Complainant a Letter of Instruction about not completing the travel
voucher in a timely manner.

In mid-January 2010, Complainant asked his front-line manager (M1) if there was another
location to which he could transfer with different work, where his color blindness would not be
a factor. Complainant subsequently was assigned to a meat inspection plant in February 2010,
under the Supervisory Public Health Veterinarian (S3). On February 2, 2010, S3 wrote
Complainant up for mistakes on his timesheet and for not being “all there” the previous day.
On another occasion, S3 wrote him up for his failure to distinguish hair, excrement, and other
items.

On February 5, 2010, S3 wrote an email to M1 stating that Complainant was having “trouble
seeing things (not just color, but that probably adds to his difficulties). This is unfortunate
because he is doing well on head and viscera [intestinal area] inspection.” On February 9,
2010, S3 informed Complainant about several of his performance deficiencies in performing
final inspections. On or about February 16, 2010, S2 and the Supervisory Consumer Safety
Inspector (S4) met with Complainant and informed him that they were terminating his
employment effective March 24, 2010.

On November 12, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of
religion (Islam) and disability as evidenced by multiple incidents including, inter alia, he was
subjected to heightened scrutiny; he was threatened with discipline; some of his duties were
removed; he received negative comments about his religion and color blindness; his

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employment was terminated; and management failed to provide reasonable accommodation for
his disability.2

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.
The AJ held a hearing on November 28, 2012; December 19, 2012; and December 21, 2012,
and issued a decision on June 4, 2014.

In his decision, the AJ initially determined that the alleged incidents were not sufficiently
severe or pervasive to establish a hostile work environment. Further, the AJ found that there
was no evidence that the alleged conduct was based on his religion or disability. The AJ noted
that the one comment by a co-worker about “pigs on a plane” was a single, stray comment and
was not directly aimed at Complainant as an insult or a slur. Complainant did not complain to
management about co-worker harassment; therefore, he failed to put the Agency on notice
where it would have to take remedial action against the co-worker. Further, Complainant did
not prove that S2 was present or that she joined in the banter about “miniature” pigs. With
regard to his disability, the AJ found that everyone knew that Complainant wore rose-colored
glasses, but there was no teasing or taunting about the glasses or Complainant’s condition. S2
criticized several employees and did not single out Complainant for criticism in front of others.

Next, the AJ determined that Complainant failed to establish a prima facie case of disability
discrimination. Specifically, the AJ found that Complainant failed to show he was qualified to
perform the essential functions of the inspector position with or without an accommodation.
Complainant’s inability to differentiate between shades of red and green interfered with
detecting the difference between blood and bile and observing other contamination. The rose-
colored glasses and additional training did not help him become qualified. As a result, the AJ
concluded that Complainant had not been subjected to disability-based discrimination. The AJ
found, however, that Complainant had established a prima facie case of discrimination based
on his religion.

The AJ then found that the Agency had articulated legitimate, nondiscriminatory reasons for its
actions. S2 informed M1 of her perceptions of Complainant’s performance problems caused
by his vision limitations. M1 consulted with the human resources and labor relations
departments and directed that Complainant receive more training by a different supervisor.
The Agency then sent Complainant to do meat inspections with S3. S3 observed the same
problems, gave notice to Complainant, and reported them to M1. M1 then recommended that
Complainant’s employment be terminated.

2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. Complainant raised no challenges to this dismissal before the AJ or on appeal;
therefore, the Commission will not address the claim in this decision.

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Agency management maintained that they subjected Complainant to heightened scrutiny
because he made errors in his inspections. Management issued warnings to Complainant
regarding a time and attendance issue and for failing to timely submit a travel voucher. S2
kept him out of the room with an on ongoing meeting because he was early for the meeting he
was supposed to attend. Management based its termination on his inability to differentiate
between clean and contaminated poultry and meat products.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued he had passed the 90-day training period and everything was fine until S2
began to subject him to heightened scrutiny in January 2010. Complainant contended that she
disrespected him and did not treat him the same as her “favorites.” Further, Complainant
claimed that he was performing the essential functions of the job, and that when S2 found out
he was Muslim, her attitude changed. Additionally, Complainant alleged S3 was merely
following S2’s direction.

The AJ determined that S3’s evaluations and recommendations to M1 independently confirmed
S2’s recommendation to terminate Complainant. Further, Complainant did not show that S3
knew of his religion or that he had any bias. Contrary to Complainant’s theory, S3 was under
M1’s chain of command, not S2’s. Complainant acknowledged that S3 gave him notice about
his inability to “distinguish hair and excrement and stuff like that.” Complainant did not
overcome S3’s finding. In addition, S2’s position required her to scrutinize the work product
of the inspectors and trainees, and she treated Complainant the same as she had others. The
AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision.
Complainant filed the instant appeal without submitting any arguments or contentions in
support.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). 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

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it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

An Agency is required to make reasonable accommodation to the known physical and mental
limitations of an otherwise qualified individual with a disability unless the Agency can show
that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to
establish that he was denied a reasonable accommodation, Complainant must show that: (1) he
is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide a reasonable accommodation. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No.
915.002 (Oct. 17, 2002) (“Enforcement Guidance”).

The Commission finds that substantial record evidence supports the AJ’s finding that
Complainant was not a qualified individual with a disability since he was not able to perform
the essential functions of his position with or without accommodation. The record establishes
that Complainant was unable to differentiate between shades of red and green which prevented
him from detecting the differences between contaminants. Complainant utilized rose-colored
glasses to assist him in inspecting and making dispositions of carcasses, but he still could not
make accurate dispositions when inspecting red meat or poultry carcasses. Complainant did
not identify any other accommodations that would have enabled him to perform the essential
functions of his position. In addition, Complainant did not identify a vacant funded position
into which he could have been reassigned during this time, and there is no evidence of one in
the record. Complainant has an evidentiary burden to establish that it is more likely than not
that there were vacancies during the relevant time period into which he could have been
reassigned. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002).
Accordingly, the Commission concurs with the AJ's finding that the Agency did not deny
Complainant reasonable accommodation in violation of the Rehabilitation Act.

Hostile Work Environment

The Commission notes that 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 classes; (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

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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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant asserted that based on his protected classes, management subjected him to a
hostile work environment. Complainant alleged several incidents of what he believed to be
discriminatory and retaliatory harassment. The Commission finds that substantial record
evidence supports the AJ's determination 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.3 The record reflects that the alleged incidents were more likely the
result of routine supervision, managerial discipline, personality conflicts, and general
workplace disputes and tribulations. Accordingly, the Commission finds that Complainant was
not subjected to a discriminatory hostile work environment as alleged.

Disparate Treatment

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).
Upon review, the Commission finds substantial evidence supports the AJ's decision.
Assuming arguendo that Complainant established a prima facie case of discrimination,
3 The Commission further finds that substantial record evidence supports the AJ’s finding that
the “pigs” comment was a single, isolated remark and that there was no evidence that the
remarks were directed at Complainant. The Commission has long held that a single incident
will generally not be regarded as discriminatory harassment unless it is on the order of a racial
slur or otherwise extremely severe. See Quinones v. Dep’t of Homeland Sec., EEOC Appeal
No. 01A53109 (Mar. 31, 2006).

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substantial record evidence shows that Agency officials articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Complainant was issued counseling
statements for errors he had made in his time and attendance sheet and for failing to timely
submit a travel voucher. Finally, M1 decided to terminate Complainant’s employment based
on S2 and S3’s reports of Complainant’s performance deficiencies, including his inability to
make accurate dispositions when inspecting poultry and red meat carcasses.

The Commission finds that there is substantial evidence in the record to support that
Complainant did not establish that the Agency’s explanation for its actions was a pretext for
discrimination. The record and facts gleaned at the hearing fail to disclose any evidence
purporting to show the Agency's actions were pretext for discriminatory animus. Thus, after
reviewing the record and considering arguments on appeal, the Commission finds that the AJ
made reasonable credibility determinations, which are not contradicted by objective evidence,
and his factual findings are supported by substantial evidence. Therefore, the Commission
finds that Complainant has not established that he was subjected to discrimination as alleged.

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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. In the absence of a

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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 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. 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

March 11, 2016
Date