Bart M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Feb 12, 2019

0120170222 (E.E.O.C. Feb. 12, 2019)

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

Bart M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120170222

Hearing No. 541-2014-00131X

Agency No. FS-2014-00094

DECISION

On October 19, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 19, 2016, final order 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 order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forest Technician,
Recreational, GS-0462-06, at the Arapahoe & Roosevelt National Forest, Clear Creek Ranger
District in Idaho Springs, Colorado. Complainant’s position was also referred to as Rover Crew
Supervisor in the record.

Complainant’s position as a Rover Crew Supervisor involved supervising up to five seasonal
employees. During the relevant time, he supervised three full-time employees and one part-time
employee.

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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Complainant’s first level supervisor (S1) was the Recreation Fee Manager, GS-9. His second level
supervisor was the Recreation Program Manager, GS-11. The Deputy Forest Supervisor, GS-14
was Complainant’s third level supervisor (S3).

Complainant began working for the Agency in 1978. Complainant has reported to S1 since 2008.

In 2005, Complainant was a GS-5 Forest Technician. Complainant believed that he was
performing GS-6 duties and complained to management. Thereafter, S3 removed two of
Complainant’s duties and assigned them to Complainant’s supervisor. The Forest Technician
position was then advertised as a GS-6 level position. Complainant was told that he could reapply
for the newly created position, as the GS-5 position would be eliminated. Complainant applied
and was selected for the GS-6 Forest Technician position.

As a result of changes made in 2008, the position of Fee Collection Supervisor (FCS) acquired
increased responsibilities and accountability. In 2008, the FCS position was upgraded from a GS-
6 to a GS-7. Person A was hired as the new FCS in March or April 2008, and started as a GS-7.
The FCS position is also referred to as Entrance Station Manager in the record.

In 2011, Complainant complained to S1 and S2 that his positon should also be a GS-7 since he
was also performing supervisory duties. Complainant asked for a desk audit of his position. The
desk audit revealed his position should be classified at the GS-5 level; however, management kept
Complainant at the GS-6 level.

The FCS is responsible for the accounting of funds taken in by the site, collecting monies and
credit card receipts, making credit card adjustments, making bank deposits and tracking visitor
passes. The funds taken by the site total approximately $450,000 during each season (a four to
five-month period).

The Rover Crew Supervisor is responsible for managing the recreational facilities on Mount Evans
and providing visitor services information. The Rover Crew performs maintenance duties to
include collecting trash, cleaning bathrooms, making repairs, assisting visitors in general, and if
they get stuck, lost, or injured. The Rover Crew Supervisor is also in charge of issuing violations,
contacting county sheriffs, and cooperating with partner agencies.

The FCS and the Rover Crew Supervisor have similar duties with respect to their supervisory
duties, such as training their respective crew on applicable rules and compliance, scheduling,
maintaining time cards, and submitting paychecks.

On January 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male) when:

1. Since 2008, he has been paid at a lower wage rate than his female coworker, and
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2. On an unspecified date, he learned that his Rover Crew Supervisor position was not
classified at the same Grade Scale level as the Fee Collection Supervisor position.

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). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing on September 1, 2016.

The Agency subsequently issued a final order on September 19, 2016. The final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

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 for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We find that the record is adequately developed and there are no
disputes of material fact.

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, she 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 her 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).
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Upon review of the record, we find that Complainant failed to establish a prima facie case of
discrimination as he has not provided any evidence or facts that give rise to an inference of
unlawful discrimination based on his sex. We note Complainant has failed to show that he was
treated less favorably than a similarly situated female employee under similar circumstances.
Moreover, even if he had established a prima facie case, the Agency has articulated legitimate,
nondiscriminatory reasons for the actions at issue. Specifically, the Agency stated that
Complainant’s Rover Crew Supervisor position is classified differently than the FCS and that they
have different duties. S1 stated that Complainant’s positon is classified under Maintenance and
that the FCS position is classified under Finance and Accounting. S3 noted that the FCS position
required more technical skills and greater responsibilities and thus, was classified at a higher grade.
Complainant concedes that the FCS works with finance and accounting software, and requires
handling money, which are duties he does not have. Complainant also highlights that his position
requires him to do other duties that the FCS does not do. For example, he states he does most of
the Forest Protection Officer work and more of the work involved with cooperating partners. Upon
review, we find Complainant has not proven, by a preponderance of the evidence, that the
articulated nondiscriminatory reasons were a pretext for discrimination based on sex.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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
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of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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

February 12, 2019
Date