0120102187
08-23-2012
Terry M. Brand, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Terry M. Brand,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120102187
Agency No. FSIS200900309
DECISION
On April 27, 2010, Complainant filed an appeal from the Agency's April 13, 2010 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. 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
At the time of events giving rise to this complaint, Complainant was a long tenured Food Inspector at the Agency's Raleigh, North Carolina Field Office. He worked on the slaughter/evisceration line. The Food Safety & Inspection Service uses Good Manufacturing Practices (GMPs) to ensure food safety. Included among the many GMPs are prohibitions against wearing most jewelry, including watches, and eating, drinking or chewing gum in the production area.
In January 2009, Complainant's first line supervisor was S1, a veterinarian. S1 performed relief duties, going to plants where management needed her to fill in. By all accounts, S1 had poor communication skills. Although it is not entirely clear as to what instigated trouble between S1 and Complainant, their working relationship was not good. On January 12, 2009, S1 asked Complainant to remove his watch and earring while working. She followed up with a Letter of Caution for violating the GMPs. A few days later, she admonished Complainant for chewing gum and told him to stop. According to S1, Complainant was chewing in an exaggerated way in an attempt to taunt her. According to Complainant, S1 was deliberately targeting him and speaking to him in a nasty and belittling manner. Complainant's reaction was to leave his place on the production line for approximately 45 minutes while he went to call the District Manager. This resulted in production being completely halted for several minutes until another inspector could be found to replace Complainant. Consequently, the next day, Complainant received another Letter of Caution for the gum chewing and was placed in AWOL status for the time period he remained off the line. Ultimately, he was issued a suspension for this conduct.
On March 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when:
1. he was issued Letters of Caution;
2. he was placed in AWOL Status;
3. he was suspended without pay; and
4. S1 told him "n - - - - - s need to know their place."
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency noted that Complainant did not dispute he was wearing a watch and chewing gum or that doing so violated the GMPs. Complainant did not dispute that he left the production line. The Agency concluded that even assuming a prima facie case of discrimination, the Agency had legitimate, nondiscriminatory reasons for disciplining Complainant, and Complainant had no evidence to support a finding of pretext. With regard to the alleged comment from S1, the decision noted that management immediately investigated to determine if such a comment had been made. S1 denied it, and no one could corroborate Complainant's claim that S1 made the comment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We have determined that Complainant is alleging S1 harassed him by disciplining him for infractions that other supervisors overlooked and by otherwise behaving in a manner that created a hostile work environment. To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, his race or his prior protected activity. Only if Complainant establishes both of those elements, does the question of the Agency's vicarious liability for harassment by a supervisor present itself.
Upon review of the record, we find the evidence insufficient to support a finding that S1's actions towards Complainant were motivated by his protected bases. First and foremost, we address the alleged use of the "N" word. This is a case of "he said, she said." Complainant did not exercise his right to have a hearing, and as a result, there are no credibility determinations, made by a neutral fact finder who observed testimony, available. S1 denied making the statement, and no witness corroborated Complainant's claim that she did so. While there is testimony in the record that S1 used foul language like "shit" and "piss" and was reported to management for doing so, we cannot conclude from that alone that she, more likely than not, used racial epithets. We also cannot credit the affidavit of Complainant's co-worker because it is internally inconsistent. The co-worker attests that he never heard S1 use the "N" word and then later states that he did but not in Complainant's presence. Complainant bears the burden to prove, by a preponderance of the evidence, that the comment at issue was made. When the evidence is at best in equipoise, he fails to meet that burden.
S1 targeted several individuals for discipline including White and Hispanic employees. She also left other employees alone, including at least one Black female. S1 made her intention to enforce the rules known and those who did not comply received letters of caution, regardless of their race or protected activity. Further, evidence in the record suggests that Complainant may have escalated the conflict unnecessarily.
For the reasons set forth above, we conclude that Complainant failed to prove S1's actions were based on his protected status. Thus his claim of harassment fails and precludes a finding that he was subjected to disparate treatment. The Agency's final decision is AFFIRMED.
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:
August 23, 2012
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
4
0120102187
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013