Dwight F.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Jul 26, 2016

0120142694 (E.E.O.C. Jul. 26, 2016)

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

Dwight F.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.

Appeal No. 0120142694

Hearing Nos. 550-2013-00356X; 550-2013-00071X

Agency Nos. AMS-2012-00313; AMS-2012-00825

DECISION

The Commission accepts Complainant’s appeal from the Agency’s final action 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Instrument
Worker in the Fruit and Vegetable Programs, Processed Food Division, at the Agency’s
Agricultural Marketing Service facility in Fresno, California. On May 23, 2011,
Complainant’s co-workers overheard Complainant engaging in a non-emergency phone call on
his cell phone for an extensive amount of time. During the phone call, Complainant was
overheard criticizing the caller and using his affiliation with the Agency inappropriately. That
same day, Complainant was involved in an altercation with a co-worker (CW1) who had been
assigned to teach Complainant about the use of a new property database. During the
altercation, Complainant shoved a wheeled step ladder into a storeroom. CW1 reported the

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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incident to Complainant’s supervisor (S1). S1 and the Officer-in-Charge (OIC) investigated
both incidents by interviewing witnesses and reviewing video recordings. Management held an
investigative interview with Complainant, and Complainant pounded his fist on the desk and
called OIC a “liar.” Management concluded that Complainant had violated Agency policy
regarding personal cell phone usage during work hours, spoke inappropriately to a member of
the public, and engaged in misconduct when engaging with a co-worker and a supervisor. The
Acting Chief issued Complainant a seven-day suspension on August 15, 2011, which was
upheld by the Deputy Administrator.

On July 13, 2011, during the processing of the seven-day suspension, Complainant was
involved in another altercation with a co-worker (CW2). CW2 had marked and reserved a
section of sheet metal and left to retrieve his work gloves. While CW2 was absent,
Complainant attempted to claim the sheet metal for himself. When CW2 returned, another
employee witnessed Complainant initiate an altercation with CW2 to try to keep the sheet metal
for himself. The incident was reported to S1, and S1 investigated the altercation by collecting
witness statements and reviewing a video recording of the incident. Complainant was issued a
14-day suspension for misconduct as progressive discipline. Complainant’s initial seven-day
suspension had not yet been finalized; therefore, the 14-day suspension was mitigated to seven
days.

While the disciplinary matters were pending, Complainant was directed to travel to
Washington, D.C. to meet with the Acting Division Director. Complainant was issued a
government credit card to finance his travel, per diem, and lodging expenses. Complainant
met with the Acting Division Director on August 25, 2011, regarding several subjects
including Complainant’s alleged misconduct and proposed discipline. After the trip,
Complainant and the Agency’s Finance and Accounting Office were involved in a dispute over
payment and reimbursement issues. Complainant initially received letters alleging that he
owed a debt. The matter was resolved after the Agency paid the approved expenses incurred
by Complainant and Complainant paid the balance for incidental expenses not covered by the
travel authorization.

On February 24, 2012, Complainant filed a formal complaint (Agency No. AMS-2012-00313)
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (Mexican-American), age (88), and in reprisal for prior
protected EEO activity when:

1. On August 15, 2011, he received a Decision Letter suspending him for seven days,
which was proposed on June 15, 2011, and served between September 6 and
September 13, 2011;

2. On November 21, 2011, he received a Decision Letter reducing a proposed 14-day
suspension to a seven-day suspension, which was served between December 4 and
December 11, 2011; and

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3. On various dates, he was subjected to additional harassing treatment including, inter
alia, on an unspecified date after August 25, 2011, he was initially informed that he
would be responsible for the full cost ($1,300) of a trip to Washington, D.C., even
though management had directed him to take the trip; and, on October 25, 2011, he
received a letter warning him that as of October 18, 2011, he was late in paying
costs associated with the aforementioned trip, which was billed to his government
credit card, even though the bill was not due until October 28, 2011.

On June 15, 2012, Complainant was involved in an incident with another co-worker (CW3).
The incident was reported to S1 who conducted an investigation. S1 determined that
Complainant had initiated an argument with CW3, disrupted the work environment, showed
CW3 a device indicating that the altercation that they were having was being recorded, and
interfered with CW3’s ability to perform his duties. Agency policy forbids employees from
using a device of any nature to monitor or record conversations in the workplace. As a result,
S1 concluded that Complainant had engaged in improper conduct. The Acting Chief agreed
with the Human Resources Office’s recommendation and issued Complainant a 14-day
suspension based upon Complainant’s conduct and documented history of misconduct and
discipline.

A co-worker retired and S1 decided to rotate the four remaining Instrument Workers until a
replacement was appointed. The rotation began in June 2012, and Complainant was rotated to
the Shop Area from the Supply Area. Complainant complained that the rotation process
resulted in the loss of his Supply Area duties which were replaced by new Shop Area duties
when he was rotated.

On August 1, 2012 (and amended on September 24, 2012), Complainant filed a second formal
complaint (Agency No. AMS-2012-00825) alleging that the Agency discriminated against him
and subjected him to a hostile work environment on the bases of age (88) and in reprisal for
prior protected EEO activity when:

4. On September 20, 2012, he was issued a Notice of Proposed 14-day Suspension;
and

5. On June 29 and July 27, 2012, his job duties were removed and reassigned to a
younger employee.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROI-1 and ROI-2 respectively) 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 assigned to the case consolidated the cases,
granted summary judgment in favor of the Agency, and issued a decision on July 2, 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
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was no evidence that the conduct at issue was based on discriminatory or retaliatory animus.
Specifically, Complainant was issued the discipline at issue in claims (1) and (2) after engaging
in altercations, using his cell phone during work hours for inappropriate reasons, and
exhibiting violent behavior towards a co-worker and a supervisor when questioned about the
matters. Further, regarding claim (3), the record showed that the letters accusing Complainant
of owing a debt were mistaken and that the matter was resolved after the Agency paid the
approved travel expenses and Complainant paid the balance for incidental, unauthorized
expenses.

With respect to claim (4), Complainant was issued additional discipline after S1 investigated
Complainant’s altercation with CW3, and determined that Complainant had initiated the
dispute, disrupted the work environment, interfered with CW3’s work, and violated Agency
policy by indicating to CW3 that he was being recorded. As a result, Complainant was issued
the 14-day suspension as progressive discipline. Finally, as to claim (5), S1 decided to rotate
the remaining four Instrument Workers to different areas until a replacement was appointed to
replace a retiring Instrument Worker. All Instrument Workers were treated the same with
respect to the rotation plan.

The AJ concluded that Complainant failed to show that the alleged incidents were based on
discriminatory or retaliatory animus. As a result, the AJ found that Complainant had not been
subjected to discrimination or reprisal as alleged. Complainant filed an appeal prior to the
expiration of the 40-day period following his receipt of the AJ’s decision. Consequently, the
appeal is from the AJ decision, which became the Agency's final action pursuant to 29 C.F.R.
§ 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency because he presented clear and convincing evidence to substantiate his harassment
claims. Complainant claims that he was subjected to constant harassment by his co-workers
and management treated him less favorably. Complainant alleges that management officials
were not honest during the investigation and that he was disciplined for unsubstantiated
allegations. Complainant contends that in each investigation witnesses were aware of what
management wanted and officials altered videos to support their position. Accordingly,
Complainant requests that the Commission reverse the final action.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.
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Hostile Work Environment

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 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 employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
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 his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on his protected classes,
he was discriminated against and subjected to a hostile work environment as evidenced by
multiple incidents. Construing the evidence in the light most favorable to Complainant, the
Commission agrees with the AJ that Complainant has not shown he was subjected to a hostile
work environment. The record reflects that the alleged incidents were more likely the result of
managerial discipline, personality conflicts and general workplace disputes and tribulations.
The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior
so objectively offensive as to alter the conditions of the victim's employment.” Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

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 or retaliatory animus. For example, management issued Complainant the first
suspension for seven days after they determined that Complainant violated Agency policies
regarding excessive cell phone usage, angrily shoved a stepladder and spoke to CW1 in a
disrespectful manner, and angrily pounded his fist on the desk and called a management
official a liar during a meeting about his conduct. ROI-1, at 92-94, 509-11. Management
relied on witness statements and video evidence in issuing the suspension and Complainant’s
prior disciplinary history. Id. at 510-11.

Complainant was issued a second suspension for 14 days (later reduced to seven) after he was
involved in another altercation with a co-worker. ROI-1. at 94, 610-613. Once again, video
evidence and witness statements established that Complainant attempted to instigate a fight by
taunting CW2. Id. at 95. With respect to the matters related to Complainant’s travel to
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Washington D.C., the issue was resolved when Complainant paid the remaining balance of the
travel expenses for which he was responsible. Id. at 112, 952.

As to the September proposed 14-day suspension, S1 explained that Complainant was involved
in another unprofessional altercation with a co-worker and indicated to the co-worker that he
was being recorded in violation of Agency policy. ROI-2, at 151-52. Additionally,
Complainant again pulled out his cell phone and appeared to monitor his co-workers in a
manner designed to intimidate them. Id. at 170. The Acting Director considered
Complainant’s prior disciplinary history in initiating the 14-day suspension. Id. at 173.

Finally, S1 explained that Complainant’s duties changed because S1 decided to rotate the
employees to different areas to fill the void of a retired employee. ROI-2, at 150-51. S1
added that all four Instrument Workers were rotated among the Supply, Shop, and Air Stream
Areas, with the exception of the Lead Instrument Worker of the Air Stream Area because of
the need to maintain two workers there. Id. at 151.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment 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 Agency's final action, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:

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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. The requests 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 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
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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

July 26, 2016
Date