Wilbert R.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 8, 2019

0120171395 (E.E.O.C. Mar. 8, 2019)

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.
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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.
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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.
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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.

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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.
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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