0120122793
12-12-2012
Richard Sandoval, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Richard Sandoval,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120122793
Agency No. FS-2011-00776
DECISION
Complainant filed a timely appeal from the Agency's May 26, 2012, final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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
At the time of events giving rise to this complaint, Complainant worked as a Supervisor Forestry Technician at the Agency's Los Padres National Forest facility in Frazier Park, California.
On October 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic/Mexican) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on June 23, 2011, the Agency denied his request for a special assignment.
The pertinent record shows that Complainant had prior EEO activity in April of 2011 and his first-line supervisor (S1) was aware of his prior EEO activity.
As further background, the Forest Service is sometimes called upon to provide assistance to other facilities in fighting fires, when additional help is requested. In reaching his decision on who to send, the supervisor usually uses a rotation system, which was implemented prior to the time that Complainant filed his complaint. S1 averred that he also considered performance issues and conduct in reaching his decisions. S1 stated that, although Complainant was qualified and willing to go, the issue is whether the unit could operate without the person.
Shortly after Complainant returned from being out of the office from June 30, 2011 to July 14, 2011 on an outside assignment, Complainant asked his supervisor to be allowed to go on another special assignment as a Recurring / Distribution Manager on the "Wallow Fire." S1 denied his request. His supervisor (S1) told Complainant that another Battalion Chief was next in line to go on a fire assignment. Complainant conceded that he was not the next person in the rotation. When the next person in line was not available or qualified to go, S1 did not send anyone out on the special assignment.
Complainant's second line supervisor (S2) also confirmed that the Agency used a system of rotation and it was not Complainant's turn. He also concurred with the decision not to send Complainant because Complainant had just been out on an assignment.
In addition, the record shows that the Agency permitted Complainant to go on more special assignments than persons outside of his protected groups. While the Agency tries to lend its assistance, S1 averred that, as a manager, he has a responsibility to ensure that the needs of the office are being met; and this takes precedence over the requests from outside organizations.
The record shows that the person who would have been next in line identified himself as "Hispanic" - or the same national origin as Complainant. Complainant disputes the comparator's ethnicity. Complainant maintains that the next-in-line was not Hispanic, but was married to a Hispanic woman and had a Hispanic family.
After S1 decided not to send anyone, Complainant contacted an EEO Counselor and alleged discrimination and reprisal.
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). 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 Agency found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that Complainant established a prima facie case, but the Agency concluded that he did not show that the Agency's stated reason was a pretext for discrimination.
This appeal followed.
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").
On appeal, Complainant contends that the Agency erred in dismissing his complaint because the Agency did not specify the exact reason why it denied him the assignment. Instead, the Agency offered general reasons. Complainant also maintains that the Agency's assignment decisions should be made on a case-by-case basis, rather than on a rotation basis. Finally, he argues that the record is incomplete because the investigator did not interview all of his witnesses.
Title VII at Section 717(a) requires that all employment actions be made free from discrimination, including national origin discrimination and reprisal. In a reprisal claim, 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 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). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
Complainant must first establish his prima facie claims to shift the burden to the Agency to rebut the presumption established by the prima facie case by articulating a legitimate, nondiscriminatory reason for its actions. The record does not show that non-Hispanics or those with no prior activity were treated any better than Complainant with regard to the issues pending before us. It is also undisputed that the supervisor did not send anyone out. In short, Complainant did not identify anyone who received better treatment than the Agency provided to him.
For purposes of our analysis, we will assume that Complainant established the elements of his prima facie case of national origin discrimination and reprisal. Because we assume that he established the prima facie case, we also find that the current record is adequate to render a judgment on appeal.
Next, we find that the Agency met its burden of production. The Agency provided a specific, clear, legitimate and individualized explanation that provided an opportunity for Complainant to satisfy his ultimate burden of proof of pretext. The Agency met its burden because the Agency articulated its reasons why Complainant's request was not granted. His supervisor denied the request for two stated reasons: 1) it was not Complainant's turn on the rotation; and 2) he had just returned from an outside assignment. There is no evidence that these reasons are a pretext for discrimination or reprisal. A review of the record also reveals that the Agency permitted Complainant to serve on special assignments more often than other employees.
Reviewing the record as a whole, we find that the preponderance of the evidence supports the Agency's finding of no discrimination.
Accordingly, the Commission AFFIRMS the Agency's final decision.
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 tends 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 12. 2012
__________________
Date
2
0120122793
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122793