0120112689
07-30-2012
Robert A. Casarez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Robert A. Casarez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120112689
Agency No. FS201000081
DECISION
On April 26, 2011, Complainant filed an appeal from the Agency's March 28, 2011, final decision (FAD) 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 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Fire Fighter Apprentice at the Agency's Stanislaus National Forest facility in Mi Wuk1 Village, California.
On January 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Mexican), national origin (Mexican American), and disability (dyslexia)2 when:
1. between June 20, 2009 and October 31, 2009, Complainant was subjected to harassment;
2. for September 4, 2009, and October 27-31, 2009, Complainant was not paid because his second level supervisor (S2: White, national origin unspecified, no claimed disability) did not input his hours; and
3. on October 31, 2009, Complainant was terminated from his position as a Firefighter Apprentice.
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 EEOC Administrative Judge (AJ) or an immediate final agency decision (FAD).
The Agency issued a FAD without a hearing.3 The Agency found that Complainant was not a qualified individual with a disability, but that, assuming arguendo that he was a qualified individual with a disability, he failed to establish that management was aware of his disability. With regard to the termination, the Agency found that the responsible management officials articulated legitimate nondiscriminatory reasons for the termination. Specifically, they stated that he was terminated for poor performance, inability or unwillingness to be instructed, and general safety concerns. The Agency concluded that Complainant failed to establish that such reasons were a pretext for discrimination. With regard to the allegations of harassment, the Agency found that Complainant failed to show any nexus between the alleged actions of management and co-workers, and Complainant's protected bases.
The instant appeal from Complainant followed. Neither party makes any argument on appeal.
ANALYSIS AND FINDINGS
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. (November 9, 1999) (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").
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
In order to establish a prima facie case, a complainant may show that he is a member of a protected class, that he was subjected to adverse treatment, and that he was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975).
With regard to Complainant not being paid, Complainant testified that on two occasions S2 did not submit his hours and that on the first occasion, in September 2009, he went to the payroll office and after explaining that he had worked, he was paid on time, but on the second occasion, in October 2009, he did not get paid until a month later. See Report of Investigation (ROI), Exhibit 9, p. 15. Complainant maintains that no one else had their pay delayed in this manner, see id., and has therefore established a prima facie case. The burden next shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its action. Burdine, 450 U.S. at 253 (1981). S2 met this burden by essentially denying that she intentionally withheld Complainant's hours when she testified that
I submit everyone's hours and if someone shows up on the missing list I get a phone call from [payroll] and as a [sic] apprentice one of the jobs is that you report your own time and I was nice enough to do it for him. If [Complainant] worked those days and hours I turned them in it is not my authority to deprive anyone of a paycheck.
ROI, Exhibit 15, p. 19.
The burden thus returns to Complainant to establish that the Agency's articulated reason is a pretext. In his rebuttal testimony Complainant merely repeated his allegation that S2 intentionally discriminated by not submitting his time card, but offers nothing more. See ROI, Exhibit 9a, p. 3. We note that a coworker (CW1: Caucasian, Eastern European, no claimed disability) testified that he and others has also experienced not getting paid, saying "usually it is just clerical errors. I have experienced it, and my crewmembers have experienced it. There is a lot of opportunity for problems, or documents to disappear. While I worked with [S2] she was always diligent in getting the crew paid." ROI, Exhibit 16, p. 9. While Complainant may believe that S2 intentionally withheld his timecard from payroll, his suspicions are not proof, and he has offered nothing to substantiate his claims. Therefore, following a review of the record we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason is a pretext for discrimination.
With regard to his removal, the Agency articulates a legitimate nondiscriminatory reason for the action in the October 31, 2009 removal notice, signed by the Forest Supervisor (FS: Caucasian, Polish, no claimed disability). The notice states that Complainant was being removed because "Your repeated instances of poor performance, and your unsafe acts, all lead
me to conclude that you are not suitable to be a wildland firefighter. ROI, Exhibit 9b, p. 10. The notice further stated
Between May 22 and September 30, 2009 several supervisors and work leaders reported that your interest, initiative, and motivation were not at the level required to function safely as a Wildland Fire Apprentice. This combination of elements has resulted in your inability to learn basic, essential safety functions required. Your module leaders provided 18 opportunities to increase your skill level with the intent of increasing the safety of you and your co-workers. On September 3, 2009 you were returned from a fire assignment as a firefighter assigned to a water tender with the responsibility of abating dust on a heavy helibase. The water tender operator was concerned that two near misses with aircraft had occurred due to your inattentiveness and requested a replacement capable of "remaining awake and watching for incoming aircraft." [Various management officials] all counseled you regarding your apparent lack of interest related to your position. Firefighters need to be extremely alert to and aware of their surroundings. A lapse in alertness can get either the firefighter or his fellow crewmembers hurt or killed.
Id.
FS further denied that the removal was based on Complainant's race, national origin, or disability. See ROI, Exhibit 10, p. 5.
Complainant, in rebuttal testified that, with regard to the September 3 incident
I was looking over the mountain for heavy helicopters coming to fuel up. A private plane came in from another direction, and I did not see that plane. The water tender almost wet the plane - we were only about 20 or 30 feet from wetting the plane. . . .. I got the blame for the whole incident. I should have gotten training for [sic] helicopter base before being assigned to the helicopter base. Such training is needed to even work at a helicopter base. I was only at the helicopter base because the engine had left without me because I was on a day off, and spent an extra day because my grandfather had just had a stroke.
ROI, Exhibit 9, p. 16.
Complainant did not specifically address the charges of other "repeated instances of poor performance" other than to deny his performance was poor. Correspondence from the union to management concerning Complainant's possible termination states "in my conversation with [Complainant], he is aware of his deficiencies summarized in the documentation but also feels he has shown an increase in skill, knowledge and efficiency in other training sessions and tested skills," ROI, Exhibit 9b, p. 8, and also that "although there were eighteen training sessions provided, [Complainant felt that] there was a lack of mentoring and constructive oversight by his Captain to correct training errors." Id., p.7.
Following a review of the record, we again find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for his termination is a pretext for discrimination. Even assuming Complainant did not receive sufficient training to work at a helicopter base, the record shows Complainant's overall performance was poor despite having received eighteen training sessions. Furthermore, given that the September 3 incident endangered aircraft, we find that the Agency's decision to terminate Complainant is not so unreasonable as to indicate that discrimination was more likely than not the cause.
Harassment
Complainant alleges numerous incidents of demeaning jokes about Complainant having bad breath or shopping at the 99 cent store, insulting comments including that Complainant's girlfriend was stupid for being with him and that he was worthless and good for nothing, that his locker was too messy, or that he could not keep up with his coworkers on hikes, and warnings that he might be fired or that he was not capable of doing the job. In considering whether any of these actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Complainant alleges incidents on or about July 19, 2009 and October 10, 2009, when S2 instructed him to get up in front of his coworkers and spell words without the benefit of a dictionary, in an effort to embarrass him for his learning disability. In addition, Complainant alleges that although he does not speak with an accent, various coworkers would make fun of the way they imagined a Mexican would speak, imitating the character Speedy Gonzalez. In response, S2 denied any knowledge of Complainant's disability and testified that:
During lunch we were all sitting around [and Complainant] was bragging about how fast he could run [sic] how he did this and that in college, what a good speller he was and while we were all sitting down (no one stood up during this and got in front of the group we were eating lunch) I said 'OK, spell aluminum' and he did, after that [three coworkers] grabbed the dictionary and amongst themselves were spelling words. I was standing at the door and I overheard some of what they were saying. They were talking inappropriately and I told them to knock it off and lunch is over so put the dictionary away. I never asked him to look up anything
Report of Investigation (ROI), Exhibit 15, p. 10.
With regard to the Speedy Gonzalez allegation, S2 denied any knowledge of the character. See id. Two of Complainant's coworkers, CW1 and CW2 (Hispanic, Mexican, no claimed disability) corroborated S2's testimony. See ROI, Exhibits 16, p. 8 & 17, p. 4. Another coworker (CW3: White & Hispanic, Native American German and Mexican, no claimed disability) testified
I recall looking up words in the dictionary. I don't recall making fun of him. We got along. We were pretty good friends and hung around together on the weekends. I acknowledge I would make some imitations of a "Speedy Gonzalez" character. I recall doing that when we were playing volleyball. I made a comment, but it was not directed at [Complainant]. I recall [S2] told me to knock that stuff off. I told her I wasn't being disrespectful to anyone. But she said that could be taken that way, and I should quit doing that.
ROI, Exhibit 21, p.2.
Following a review of the record we find that Complainant has not met his burden of establishing that he was subjected to harassment based on his race, national origin and/or his disability. We note that, with the exception of the spelling incident and the Speedy Gonzalez incident, Complainant has not shown that any of the incidents either were based on or involved his protected bases. With regard to the Speedy Gonzales incident, CW3 testified that he was told to stop, and Complainant has not claimed that the incidents continued after that. With regard to the spelling incident, there is conflicting testimony about whether or not Complainant was singled out or whether he voluntarily joined coworkers in trying to spell words from a dictionary. In any event, these two incidents are insufficiently severe or pervasive to alter the conditions of Complainant's work environment and create a hostile work environment based on race, national origin, or disability.
With regard to the removal and the delay in receiving his final pay check, we find under the standards set forth in Harris that any claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that complainant failed to establish that such actions were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
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
July 30, 2012
__________________
Date
1 The Report of Investigation states that the name can be spelled either Mi Wok Village or Mi Wuk Village.
2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
3 The record does not indicate affirmatively that Complainant did not request a hearing, but we note that, on appeal, Complainant has not alleged that he requested a hearing but was denied one, nor has he requested that the case be remanded for a hearing.
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0120112689
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112689