Wilbert R.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionMar 8, 20190120171395 (E.E.O.C. Mar. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbert R.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120171395 Agency No. FS201600415 DECISION On March 8, 2017, 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 February 10, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED Whether the Agency’s final decision (FAD) correctly found that Complainant failed to establish that he was subjected to discrimination and harassment based on his race when: (1) on February 12, 2016, he was issued a Notification of Detail letter removing him from his Social Services Assistant position without prior notice; (2) on unspecified dates, he was not given a job description when he was reassigned; (3) ongoing, management authorized a misconduct investigation against him without credible evidence; he was not afforded the same due process for his complaints against Caucasian colleagues’ attacks and Caucasian staff were not penalized for their offenses; and (4) on several dates, he was subjected to various incidents of harassment, including but not limited to: 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. 0120171395 2 a) in November 2015, management refused to meet with him and ignored the severity of his complaint when his Caucasian coworkers threatened him and stated that “he would be assassinated like [Dr.] Martin Luther King Jr.;”2 b) on an unspecified date, management ignored his complaint when a colleague took a “swing at him;” c) on unspecified dates, staff and students slandered his name and made false allegations against him, while his complaints against Caucasian staff members were ignored and they were subsequently promoted to other positions; d) on an unspecified date, a Caucasian coworker was asked to help “set him up” for sexual harassment; e) on unspecified dates, Caucasian staff members treated him differently, made several derogatory comments and taunted him saying if he’d gotten sick or hurt, they would not assist him, told him that he does not belong here and told him not to leave the Center; and f) on unspecified dates, when he was reassigned, he was told not to leave the building and that his food would be brought to him. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Services Assistant, GS-5/7 at the Agency’s U.S. Department of Agriculture, Forest Services, Job Corps facility in Golconda, Illinois. On June 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) as set forth above. Management explained that Complainant was transferred due to overwhelming evidence in the form of statements from students and employees that Complainant had engaged in questionable behavior which could be construed as sexual harassment thereby prompting management to immediately relocate him to the warehouse while they conducted an investigation to protect the best interest of the Agency; and that there was no discriminatory animus based on Complainant’s race as alleged. Regarding claim 2, Complainant’s assertion that he was not provided an updated job description when he was reassigned to the warehouse, Agency officials indicated that Complainant retained his same job description and title, and that he was assigned “duties as needed” while he was working in the warehouse. His position never changed. Complainant, in rebuttal, maintained that he should have been credit for the time as if he had been placed on a detail. Finally, with respect to claim 3, the Agency indicated that it was in the process of addressing his allegations against his coworkers when he filed the complaint in the present matter; With regard to Complainant’s harassment allegation, claim 4, management acknowledged being aware of the comment referencing Doctor King and that the matter was being addressed; management maintained that it had no information regarding a co-worker taking a swing at him; management also maintained that it was not aware of his claim that Caucasian staff and students slandered, threatened him by making false accusations and tried to set him up, nor was it aware 2 According to Complainant, the employee stated that he would leave the Center like Martin Luther King, Jr. 0120171395 3 that Caucasian staff members allegedly treated him differently, made several derogatory comments and taunted him saying if he’d gotten sick or hurt, they would not assist him, told him that he does not belong here and told him not to leave the Center;3 and Complainant’s supervisor indicated that when Complainant was first reassigned to the warehouse, he requested to go to the cafeteria for lunch. She stated that she consulted with senior management to see if Complainant’s request was permissible and was told that lunch would be ordered for Complainant. She emphasizes that such steps were taken to protect Complainant as the misconduct investigation had just begun. She did not recall telling Complainant not to leave the building. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not provide an appeal statement or brief on appeal. The Agency asserts, among other things, that the FAD is well reasoned and correctly applies the facts to the law and should not be disturbed. 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, 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 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. v. Waters, 438 U.S. 567, 576 (1978). 3 According to the Agency, although he promised to provide evidence to support his contentions that the allegations against him were false and his claims of mistreatment, Complaint never did so. 0120171395 4 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions with regard to claims 1, 2 and 3 as set forth above. We find no persuasive evidence of pretext here, nor has Complainant offered any such evidence. In an effort to show pretext, Complainant contends that he received less favorable treatment because management took immediate action against him for alleged misconduct while the negative behavior of his Caucasian coworkers went unchecked. However, the unrebutted assertion of management is that they were in the process of investigating Complainant’s claims when he filed his EEO complaint in this case. Moreover, management officials cited the serious and egregious nature of the allegations against Complainant that created a sense of urgency to relocate him. Unlike Complainant’s assertions, which were largely unsubstantiated. Regarding Complainant’s harassment allegation, we find that while the coworker’s statements which Complainant took to mean that he would be harmed was unacceptable in the workplace, management assert, and the evidence shows, that other than mere insinuations, Complainant provided no documentation in support of his allegations even though he promised to do so. Moreover, none of the incidents as described by Complainant demonstrates the type kind of severe or pervasive conduct that would constitute unlawful harassment based on race or that was so severe or pervasive that the terms and conditions of Complainant’s employment would be negatively impacted. 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 because the preponderance of the evidence in the record does not establish that discrimination occurred. 0120171395 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120171395 6 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 08, 2019 Date Copy with citationCopy as parenthetical citation