Jamar F.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0120150085 (E.E.O.C. Apr. 5, 2017)

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

Jamar F.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120150085

Agency No. FS-2013-00656

DECISION

On October 8, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 4, 2014, 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. For the following
reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Forestry Technician (Fire Engine Operator), GS-7, located in Douglas, Arizona.2

On May 15, 2013, Lead Forestry Technician A, who worked for Complainant, alleged in a
write up provided to the Acting District Ranger (Person B) that he has been subjected to over
two years of angry “blow ups,” derogatory language, and threats by Complainant.3

On May 20, 2013, the Forest Supervisor requested an administrative misconduct investigation
into the allegations raised against Complainant. The request noted the May 15, 2013 claims

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 Complainant’s position is also referred to as Supervisory Technician Engine Captain.
3 Person B stated that he became the District Ranger on July 28, 2013. He stated he had been
detailed as Acting District Ranger from March 24, 2013, through June 15, 2013.
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raised by Lead Forestry Technician A (Forestry Technician A) and also noted that over the
past two years, there have been other reports of unruly and quick-tempered behavior brought
to management’s attention by District employees. An investigation was conducted between
May and June 2013.

On May 21, 2013, a Letter of Direction was issued to Complainant informing him that his
duties were temporarily reassigned to Forestry Technician (Fire Prevention) while the Agency
conducted a management investigation into serious misconduct allegations. Complainant was
directed to conduct Forestry Technician (Fire Prevention) activities as assigned, with no
supervisory duties.

On November 18, 2013, Complainant was notified of a proposal to suspend him for 10
calendar days for Conduct Unbecoming a Federal Supervisor. The proposed suspension listed
Specification 1 noting that on March 2 and 3, 2013, Forestry Technician A called to let
Complainant know he was sick and would not be in to work. It was noted that Complainant
admitted he was sarcastic with Forestry Technician A and hung up on him. Specification 2
noted that there were four employees Complainant supervised who stated that he made
derogatory comments about his current and former supervisors. Specification 3 noted that 10
current or former district employees described instances where Complainant would display
anger, blow up, or yell. Specification 4 noted that nine current or former district employees
stated Complainant accused employees of spying on him.

On February 3, 2014, the Agency issued a Notice of Decision on Proposed Suspension
sustaining the suspension. The Notice stated that the suspension was necessary to correct
Complainant’s conduct and to promote the efficiency of the service. The effective dates of the
suspension were identified as February 23, 2014, to March 4, 2014. Complainant was advised
of the right to grieve the action through the Negotiated Grievance Procedure.

On July 2, 2013, Complainant filed an EEO complaint, which was subsequently amended,
alleging that the Agency discriminated against him and subjected him to harassment in reprisal
for prior protected EEO activity when:

1. On May 21, 2013, he was issued a Letter of Direction (LOD), relieved of his
supervisory duties, and reassigned from the position of Supervisory Engine
Operator to that of Fire Prevention Technician; and

2. On February 3, 2014, he was issued a letter of 10-day suspension.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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.
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In response to Complainant’s appeal, the Agency argues that assuming arguendo that
Complainant could meet a prima facie case of reprisal, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The Agency also states Complainant cannot
establish reprisal based harassment.

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. (Aug. 5, 2015) (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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. 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. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v.
Department of Transportation, EEOC Request No. 05900159 (June 28, 1990).
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In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. With regard to claim (1), the Fire Management Officer (FMO) stated that one of
Complainant’s employees came forward with a complaint charging Complainant with
misconduct. The FMO stated that management believed that the charges against Complainant
were serious enough to warrant an investigation. The FMO explained that Human Resources
(HR) conducted an investigation into the matter and determined that Complainant had engaged
in the misconduct. The FMO stated the decision to issue the Letter of Direction was based on
the findings and recommendations of HR.

The District Ranger stated that the investigation conducted by HR was the result of one of
Complainant’s subordinate employees claiming that Complainant created a hostile work
environment for that employee. The District Ranger stated that, although he initially made a
strong effort to ameliorate the situation between the two employees, he was unable to achieve a
resolution. The District Ranger stated that based on the evidence from his supervisor and HR,
he believed that an investigation was warranted. The District Ranger explained that HR
recommended that Complainant be temporarily relieved of his supervisory duties. He noted
the Letter of Direction was issued to Complainant based on this recommendation.

In rebuttal, Complainant stated that Lead Forestry Technician A’s position description was not
Engine Assistant. Complainant notes he was the Engine Captain and claims that Lead Forestry
Technician A should not have been on his engine. Complainant noted that management failed
to take into consideration that Lead Forestry Technician A abused sick and annual leave and
that Complainant attempted to correct that issue.

Complainant and the three witnesses who provided statements on his behalf all stated that the
Agency’s actions were based on the belief that Complainant had revealed that a Federal
firefighter had re-lit the fire in the “Brushy fire” incident which had occurred several years
earlier. However, even if the Agency’s actions were taken because of such whistleblower
activity, we find this would not constitute reprisal for protected EEO activity. While we
acknowledge that Complainant has engaged in prior protected EEO activity based on his
previously filed EEO complaints, the preponderance of the evidence does not establish that the
Agency's legitimate, nondiscriminatory reasons are pretext for retaliatory animus.

With regard to claim (2), the District Ranger stated that the investigation, which was conducted
by HR, determined that there had been misconduct by Complainant. The District Ranger
noted that based on this finding, Complainant was issued a 10-day suspension. The Forest
Supervisor stated that he had brief discussions with the District Ranger as to whether the
suspension was appropriate and he concurred with the District Ranger that it was appropriate
under the circumstances.

In rebuttal, Complainant asserted it was inappropriate for the HR misconduct investigator to
recommend discipline for him after conducting the investigation. Complainant further claimed
that he was given insufficient time to prepare his response to the suspension.
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Upon review, we find Complainant failed to show that the Agency’s articulated reasons for
issuing him the 10-day suspension were pretextual. Moreover, there is no evidence to show
that the Agency made the decision based on harassment or reprisal for his prior protected EEO
activity.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 Complainant’s 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

April 5, 2017
Date