Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Sep 18, 2015

01-2013-0270-0500 (E.E.O.C. Sep. 18, 2015)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120130270

Hearing No. 480-2010-00446X

Agency No. APHIS-2009-00405

DECISION

On October 17, 2012, Complainant filed an appeal from the Agency’s October 5, 2012 final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Plant Health Safeguard Specialist at the Agency’s Plant Protection
and Quarantine facility in Kahului, Hawaii. On June 5, 2009, Complainant filed an EEO
complaint in which he alleged that a Quarantine Officer who served as his immediate
supervisor (S1), the Port Director, his second-line supervisor (S2), the State Plant Health
Director, his third-line supervisor (S3) and a Human Resources Specialist responsible for
processing requests for reasonable accommodation from employees with disabilities (HRS-RA)
discriminated against him on the bases of disability (depression) and retaliated against him for
prior protected EEO activity by subjecting him to various disciplinary actions and reprimands,
harassing him, and denying his request for reasonable accommodation between April 2008 and
June 2009.

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At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently, 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.

Complainant initially alleged that HRS-RA denied his request for a reasonable accommodation
between April 2008 and April 2009. He requested that he be allowed to work the late shift,
IR 147-52. HRS-RA testified that Complaint first made his request in December of 2006, and
that after extensive correspondence concerning the need for medical documentation, she denied
his request, but ultimately approved it on March 25, 2009, after receiving the necessary
documentation in January. IR 153-54, 205, 215, 232, 250-323.

Complainant next alleged that S2 tried to have him terminated in October 2008, and succeeded
in having him suspended in June 2009. IR 133-40, 507-19. In a letter dated October 20, 2008,
S2 stated that he was proposing Complainant’s removal on charges of absence without leave
(AWOL) and failure to follow supervisory instructions. S2 identified numerous occurrences to
support the charge, including failure to report for assignments and document his absences.
After Complainant filed a grievance, S3 reduced the removal to a 14-day suspension to be
served over two pay periods in June 2009, so that Complainant would not incur a financial
hardship. IR 203-04, 210-11, 227-29, 243-44, 389-506, 520-29.

Third, Complainant alleged that on January 8, 2009, S1 banned Complainant from coming into
the facility on his days off. IR 158-59. S1 and S2 testified that a policy prohibiting the use of
government property for non-government business was in effect that applied to all employees,
not just Complainant. IR 219-20, 224. S2 also emphasized that the ban did not apply to EEO
complaints, but that employees would have to request official time to work on such complaints
in accordance with EEO regulations. IR 235.

Finally, Complainant alleged that in February and March of 2009, and on various unspecified
dates, S1 and S2 subjected him to constant accusations, warnings, charges, and threats. He
averred that on February 7, 2009, S1 warned him not to sit down to eat a snack 15 minutes
into his shift. IR 155-57. S1 responded that Complainant had just started his shift and should
have been on roving duty or at his desk. IR 218-219. S2 testified that no disciplinary action
was taken against Complainant in connection with this incident. IR 235. Complainant also
averred that in March of 2009, he was reprimanded and charged with AWOL in connection
with an error on his time and attendance sheet. IR 141-46. S1 responded that he merely
advised Complainant of the error and had asked him to correct it. S2 again averred that no
charges were brought against Complainant in March 2009, for AWOL or any other infraction.
IR 213-14, 230. Last, Complainant averred that S1 and S2 had accused him of tampering with
the air conditioner, soiling a chair, leaving candy wrappers on the desk, and misusing a
government vehicle. IR 160-61, 164. S2 testified that on the morning of December 3, 2008,
he entered the Alien Species Action Plan Office and found food particles and candy wrappers
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on the floor, a soiled chair, and an open air conditioner duct cover. He also stated that he had
a supervisor talk to Complainant about the mess, but took no disciplinary action against him.
IR 237. S1 testified that he had counseled Complainant for misusing a government vehicle on
a single occasion, when Complainant used the car to go pay a personal bill, but had determined
that no further disciplinary action was necessary. IR 220-21.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s actions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for those
actions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Since Complainant is alleging both disparate treatment and harassment, he must prove, by a
preponderance of the evidence, that either S1, S2, S3, or HRS-RA was motivated by unlawful
considerations of his depression or previous EEO activity in connection with the incidents
described in his complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

Complainant can satisfy his burden by presenting evidence of discriminatory statements or past
personal treatment attributable to those individuals, comparative or statistical data showing
differences in treatment across disability lines, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. If he fails to establish discriminatory intent
on the part of at least one of the responding management officials, the Commission would not
need to inquire as to whether the incidents complained of constitute acts of harassment or
separate acts of discrimination under disparate treatment theory.

Here, the Agency articulated legitimate and nondiscriminatory reasons for each of the actions
taken by S1, S2, S3, and HRS-RA vis-à-vis Complainant. With respect to Complainant’s
request to work the late shift as a reasonable accommodation, the testimony of HRS-RA
together with the documented email correspondence between herself and Complainant
establishes that HRS-RA had approved Complainant’s request after receiving the necessary
supporting medical documentation. The termination that had been proposed in October 2008,
was likewise thoroughly documented by contemporaneously prepared memoranda and emails,
and was ultimately reduced to a two-week suspension which Complainant was allowed to serve
in a manner that would not cause him to incur a financial hardship. As to the ban on coming
into the office, the ban only applied to employees who were coming in on their off days to
engage in non-government business. It was not, as Complainant contended, a complete ban on
entering the office for any purpose. As to the remaining incidents, Complainant was merely
being asked to comport himself in accordance with the workplace rules and policies that were
in effect at the time, and that he was neither accused nor charged with any disciplinary
infractions.

While Complainant asserts that the actions taken by S1, S2, S3, and HRS-RA were motivated
by unlawful considerations of his depression and prior EEO activity, he has not presented any
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sworn statements from other witnesses or documents that contradict the explanations provided
by those officials or which call their veracity into question. Indeed, when asked by the
investigator why he believed that the incidents were discriminatory or retaliatory, Complainant
either did not know or had given conclusory answers such as, “because I was treated
differently from others,” or “because I made prior complaints against him.” IR 135, 137,
139-42, 145-46, 153-54, 157-59, 164. We therefore find, as did the Agency, that Complainant
has not shown that he had been subjected to discrimination or discriminatory harassment in
connection with the incidents comprising his claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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
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).

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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 Complainants 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

September 18, 2015
Date