0120061274
05-09-2008
Thu Thi Beebe, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Thu Thi Beebe,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200612741
Hearing No. 280-2005-00056X
Agency No. FSIS- 2004-040409
DECISION
Complainant filed an appeal2 concerning her 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a "When Actually Employed" or WAE Food Inspector (Slaughter) at the
Tyson Foods Plant #1362 facility in Noel, Missouri. On February 13,
2004, complainant was working the day shift. Another inspector, E1,
was assigned to the second (night) shift. Complainant waited for
E1 to relieve her so that she could go home. Complainant alleged that
when E1 arrived he asked complainant if she wanted "to get off." From
the manner in which he spoke to her, complainant was offended and did
not respond to him. Complainant alleged that E1 did not move to allow
complainant to leave the inspection stand where she was, nor did he start
the inspection process. Instead, complainant alleged, E1 continued to
stare at complainant while the processing line was running. Ultimately,
complainant was forced to stop the processing line. She started to
leave, but E1 blocked her way according to complainant. Complainant
alleged that she tried again to leave the inspection stand and this
time, E1 turned towards her and rubbed his abdomen against her breast.
Complainant was further offended and felt very uncomfortable with E1's
actions. Complainant contacted an EEO Counselor and initiated the EEO
process on February 19, 2004.
On April 22, 2004, complainant filed an EEO complaint alleging that she
was subjected to sexual harassment when:
1. On February 13, 2004, a co-worker rubbed against complainant's
breast when she attempted to move around him to leave her work station;
and the co-worker used "dirty language" (not specified) and tried to
get her to talk to him.
Complainant amended her complaint to add that she was discriminated
against on the bases of race (Vietnamese), disability (heart condition),
and in reprisal for EEO activity when:
2. The agency failed to take actions to stop the harassment.
3. In February 2004, complainant was listed on the employee call
list as "do not call."
Complainant requested a hearing before an EEOC Administrative Judge
(AJ), but then withdrew her request for a hearing. On September 6, 2006,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency found that complainant was not subjected
to sexual harassment and that the incidents she described were
insufficiently severe or pervasive to rise to the level of sexual
harassment or harassment based on complainant's race or in retaliation
for protected activity. The agency further found that complainant did
not prove that she was subjected to disparate treatment on the basis of
her sex, race, or disability in claims 1, 2, or 3. The agency found
that management's decision to not call complainant for work after she
complained about E1's actions (claim 3) was retaliatory.3
The agency's final decision provided complainant with the following
relief:
1) The Complainant is entitled to back pay for the time period that
she was not allowed to work which began on May 28 through October 29,
2004, when her physician restricted her ability to work. The Complainant's
health condition began prior to the events in this complaint, and
therefore, is not covered in the awarded relief. The Agency, within
thirty (30) days of receipt of this decision, shall provide documentation
regarding the number of hours that the Complainant would have worked
for this time period. This should include documentation of the number
of hours the Complainant worked beginning December 1, 2003 through May
28, 2004, as well as the number of hours worked by other intermittent
employees from May 28 through October 29, 2004[,] at her duty station.
2) Complainant shall be awarded compensatory damages, if any.
Complainant shall submit a claim for compensatory damages to the Office
of Civil Rights, Complaints Adjudication Division, 1400 Independence
Avenue, SW, Washington, D.C. 20250-9440 and to the Agency within sixty
(60) days of receipt of this decision. A copy of the guidelines for
submission of evidence relating to compensatory damages is attached.
The Agency will have thirty (30) days to submit rebuttal evidence to
the Complainant and the Office of Civil Rights. A separate decision on
compensatory damages will be issued.
3) The case is referred pursuant to USDA's Accountability Policy and
Procedures, Dep't Reg. 4300-10, for a determination of the appropriate
disciplinary or other corrective action, if any.
4) The Agency is ordered to post copies of the attached notice at
the Tyson Foods Plant 1362 in Noel, Missouri. Copies of the notice,
after being signed by the Agency's duly authorized representative, shall
be posted by the Agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the USDA, Chief, Equal Opportunity and Compliance Division,
Office of Civil Rights, 1400 Independence Avenue, SW, Washington,
DC 20250-9430, within ten (10) calendar days of the expiration of the
posting period.
5) The Complainant has not notified the Agency of representation
by counsel. Therefore, no attorney's fees are awarded in this matter.
6) A report of the corrective actions taken shall be furnished to
USDA, Office of Civil Rights, Chief Complaints Adjudication Division,
1400 Independence Avenue, SW, Washington, D.C. 20250-9440, within sixty
(60) days of the receipt of this decision.
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 EEOC Management
Directive 110, 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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment.
To establish a prima facie case of a hostile work environment,
a complainant must show that: (1) she is a member of a statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In order to establish a prima facie case of sexual harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that she is a member of a statutorily protected
class; (2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that
the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982). The harasser's 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).
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
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we concur with the agency's determination that
complainant was not subjected to sexual harassment. We find that the
single incident of February 13, 2004, was not so severe as to alter the
terms and conditions of complainant's employment. We further find no
discrimination on any of the claims in the complaint occurred with respect
to complainant's race or claimed disability.4 Nor do we find that claim
2 was motivated by retaliation. Furthermore, nothing in the record shows
that similarly situated employees not in complainant's protected classes
were treated better than complainant under similar circumstances.
Regarding the agency's finding of retaliation in claim 3, we shall restate
the agency's order as slightly modified. We note that the record shows
that complainant was not permitted to work after May 27, 2004, and thus
back pay should begin on May 28, 2004. Additional relief of providing
EEO training to the responsible management officials shall be included
in the remedy.
Accordingly, we AFFIRM the agency's final decision finding retaliation
with respect to claim 3 and finding no discrimination on all other
claims and bases in the complaint. The agency shall comply with the
Order herein.
ORDER
The agency shall take the following actions to the extent that it has
not already done so:
1. Within 60 days of the date this decision becomes final, the agency
shall provide complainant with appropriate back pay, with interest, from
May 28, 2004, through October 29, 2004. The back pay shall be computed in
the manner prescribed by 5 C.F.R. � 550.805. The agency shall determine
the appropriate amount of back pay, with interest, and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than 60 days after
the date this decision becomes final. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due, and
shall provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to complainant for the undisputed amount
within 60 days of the date the agency determines the amount it believes
to be due. Complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
2. Within 30 days of the date this decision becomes final, inform
complainant in writing that she may submit additional evidence in support
of her request for compensatory damages. The agency shall issue a
decision on compensatory damages within 90 days of the date this decision
becomes final.
3. Within 180 days of the date this decision becomes final, the agency
shall train all responsible management officials, if still employed by
the agency, concerning the identification, prevention, and correction
of discrimination on the basis of retaliation.
4. Within 180 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against all
responsible management officials if still employed by the agency.
The agency shall report its decision to the Compliance Officer
referenced herein. If the agency decides to take disciplinary actions
it shall identify the actions taken. If the agency decides not to take
disciplinary actions, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency, then the agency shall furnish documentation of
the departure date(s).
5. The agency shall submit a report of compliance, as provided in
the statement entitled "Implementation of the Commission's Decision."
The report shall include documentation indicating that the corrective
action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at the Tyson Foods Plant #1362 in Noel,
Missouri, copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 9, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
2 Complainant's appeal was filed in December 2005. Subsequently,
complainant submitted the agency's final decision and a statement in
support of her appeal in September 2006.
3 The record indicates that E1 was terminated from the agency in
September 2004.
4 We do not address in this decision whether complainant is an individual
with a disability.
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0120061274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061274