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

Equal Employment Opportunity CommissionDec 5, 2012
0120122669 (E.E.O.C. Dec. 5, 2012)

0120122669

12-05-2012

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


Jessie Atkins,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture

(Food Safety and Inspection Service),

Agency.

Appeal No. 0120122669

Agency No. FSIS-20100-0597

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 18, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Food Inspector, GS-1863-07, and was assigned to Sanderson Farms in Moultrie, Georgia.

On June 10, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race (African-American), color (black), and in reprisal for prior EEO activity when:

1. on April 14, 2010, he was informed by his supervisor that he must call in each day to report his absences while he is on worker's compensation; and

2. on April 14, 2010, he was informed that his second-line supervisor had referred to him as a "nigger."

The record reflects that on January 16, 2007, Complainant suffered an on-the-job injury. Complainant had been on workers' compensation leave from May 31, 2007 until May 2010.

After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew his request. Consequently, the Agency issued a final decision on May 18, 2012, pursuant to 29 C.F.R. � 1614.110(b).

The Agency dismissed claim 1 on the grounds that the claim stated the same matter that was raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claim 1 raises the same matter that was raised in Agency Case No. FSIS-2007-01004.

The Agency then proceeded to address claim 2 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of harassment based on his race, color and prior protected activity. The Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, color, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

The record reflects that on April 14, 2010, Complainant's supervisor called Complainant to apologize for anything he had done to him in the past, including giving him Letters of Instruction and his attitude towards Complainant. The supervisor also informed Complainant that in 2008, Complainant's second-line supervisor told him "if [Complainant] does something wrong, or does not call in I want him written up. I want to get rid of that nigger." The record further reflects that on May 12, 2010, Complainant was issued a Notice of Proposed Termination.

Regarding claim 1, Complainant's second-line supervisor stated that Complainant's supervisor required Complainant to call in "when he first went out on sick leave. He was told to call in because it is the policy to call in if you are going to be late or out for any reason. We asked Complainant to provide us medical documentation as to his injuries, but we never received anything. Without medical documentation, Complainant was required to call in as is the policy."1

Regarding claim 2, the Agency determined that because Complainant had been on worker's compensation leave from May 31, 2007 through May 2010, he was not subjected to a racially charged work environment. The Agency further noted that according to Complainant's second-line supervisor, she acknowledged telling Complainant's supervisor to write Complainant up "if he did not call in as this is the policy. However, I did not tell [supervisor] that I wanted to get rid of that 'nigger.' I never use that word and would have not said that about Complainant."

ANALYSIS AND FINDINGS

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his race, color and prior protected activity.

Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.

Because we affirm the Agency's finding of no discrimination concerning claim 1 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. stating the same claim).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 9-18 (November 9, 1999). 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).

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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 5, 2012

__________________

Date

1 We note while the Agency did not address claim 1 on the merits, the record contains sufficient evidence for us to adjudicate Complainant's claim on the merits. We find this the most expeditious approach, as we note that the matter raised in claim 1 is contemporaneous with the matter identified in claim 2, and was part of the conversation that is the focus of claim 2.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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