Barrett V.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Apr 13, 2016

0120142252 (E.E.O.C. Apr. 13, 2016)

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

Barrett V.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120142252

Agency No. FS-2013-00204

DECISION

The Commission accepts Complainant’s appeal from the April 30, 2014 final Agency 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Archeologist at
the Fremont-Winema National Forest in Chiloquin, Oregon. Complainant supervises two
employees. One of his employees (W1) was scheduled to attend a meeting on September 24,
2012. An emergency came up and Complainant decided to send W1 to handle the emergency
while he would attend the meeting. Complainant claims that he told the Westside Roads
Manager (M1) about the change and that he was not happy about the change. Complainant
alleges that he was later approached by the District Ranger (DR), who is not his supervisor, in
an unprofessional manner and accused of trying to impede the project. Complainant states that
DR accused him of attempting to “torpedo” the project and of not following directions.

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.

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On October 29, 2012, Complainant claims that he was admonished again by DR regarding his
oversight of the Westside Heritage Program. Complainant alleges that he received a request to
attend a meeting called by DR and M1 to discuss Complainant’s response to an email about a
project. Complainant claims that he immediately felt uncomfortable when he entered the room
and that DR asked him why the project had not been completed. Complainant alleges that M1
stated that he had informed him months ago about the project. Complainant denies that M1
had requested the project and that even if he had, neither DR nor M1 were his supervisors and
their behavior was inappropriate.

On April 2, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (American
Indian/Alaskan) and in reprisal for prior protected EEO activity when:

1. Complainant was approached by a management official (DR), who is not his
supervisor, in an unprofessional manner and accused of trying to impede a project
after Complainant reassigned a staff member whom he supervises, to another task
on September 24, 2012; and

2. On October 29, 2012, Complainant was admonished by a management official
(DR), who is not his supervisor, regarding his oversight of the Westside Heritage
Program.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was
no evidence that the conduct at issue was based on discriminatory or retaliatory animus. For
example, as to claim (1), DR denied approaching Complainant in an unprofessional manner or
accusing Complainant of impeding or sabotaging the project. DR affirmed that he was
informed that W1 had been sent to the field and that there would be no archaeology expertise
on the project. DR stated that he went to Complainant to find out why W1 was sent to the
field. DR indicated that he was simply concerned because W1’s involvement had been
arranged weeks before the meeting was set to occur.

Regarding claim (2), DR denied that he admonished Complainant regarding his oversight of
the Westside Heritage Program or questioned his management of the program. Rather, DR
stated that he asked Complainant to help him understand the need for archaeology input into
the road maintenance project and to help him understand the level of archaeology input he felt
was necessary for the project and his rationale. DR noted that although he is not
Complainant’s supervisor, Complainant is physically located in his office at Chiloquin and is

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expected to participate in projects for the Chiloquin and Chemult Districts. DR added that his
superior had given directions that shared staff working in several districts should take direction
from the ranger for whom the project is being completed. Complainant’s first-level supervisor
(S1) noted that DR serves as the project lead and is the work group leader.

The Agency concluded that Complainant failed to show that the Agency’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that DR misused and abused his authority by directing
Complainant without Complainant’s first-level supervisor. Complainant alleges that DR
overstepped his authority by not following the chain of command and supervisory
responsibilities which led to miscommunication and hostility. Complainant argues that DR
accepted no responsibility for his actions and that he provided contradictory statements.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment, a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he 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 his statutorily protected class; (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; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 Complainant's
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. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his protected classes, management subjected him to a

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hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to him. The Commission concludes that the conduct alleged is
insufficiently severe or pervasive to establish a hostile work environment. Even assuming that
the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
there is no persuasive evidence in the record that discriminatory or retaliatory animus played a
role in any of the Agency's actions. The record reflects that the alleged incidents were more
likely the result of routine supervision, managerial discipline, personality conflicts, and general
workplace disputes and tribulations.

Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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

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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 (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 13, 2016
Date