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

Equal Employment Opportunity Commission

Sep 7, 2016

0120142576 (E.E.O.C. Sep. 7, 2016)

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

Cornell S.,1
Complainant,

v.

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

Appeal No. 0120142576

Agency No. FS201300517

DECISION

On July 8, 2014, Complainant filed an appeal from the Agency’s June 16, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forest
Dispatcher, GS-0462-7, at the Agency’s Ottawa National Forest in Watersmeet, Michigan. On
May 15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male) and age (42) when:

1. Beginning in November 2011, and continuing, he was required to perform the
duties of a GS-0462-09, Forestry Technician, Fire Operation Specialist (FOS)
position without commensurate compensation;
2. On February 22, 2013, management denied his request for a temporary detail to
a GS-0462-08, Forestry Technician, FOS position;

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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3. On February 22, 2013, he was denied a Quality Step Increase (QSI) in spite of
his "Outstanding" performance rating for Fiscal Year 2012; and
4. On March 22, 2013, he learned that he was not selected for either the GS-0462-
08 or 09, Forestry Technician, FOS positions, advertised under Vacancy
Announcement OCRP-462-DFUEL-8/9G A.

At the conclusion of the investigation, the Agency provided Complainant 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 (AJ). In accordance with
Complainant’s request, 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.

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”).

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). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Claim #1 (Uncompensated Higher Level Duties)

Complainant alleges that he performed the duties of a GS-0462-09, Forestry Technician, Fire
Operation Specialist beginning in November 2011, while being paid at a GS-7 level.
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According to the Agency, Complainant was never required to perform such higher level duties
and was instructed not to perform work “outside his position description.” ROI at 205, 233.
During the period April-July 2012, Complainant was detailed to a higher grade position but
otherwise he did not perform duties above his grade level. ROI at 235. The weight of the
evidence supports the Agency’s position. Accordingly, we find that Complainant failed to
establish that the allegedly discriminatory events occurred.

Claim #2 (Denied Detail)

According to the Agency, Complainant was not assigned to a detail in February 2013, because
the needs of the Agency did not require it. In any event, Complainant would have been barred
from serving a detail in early 2013 because employees are limited to 120 days in a temporary
promotion within a 365-day period and he had served on a detail from April to July 2012.
ROI at 235. This is a legitimate, nondiscriminatory reason for the Agency’s actions.
Complainant has not proven it to be a pretext designed to conceal discriminatory animus.

Claim #3 (Denied Quality Step Increase Despite “Outstanding” Performance)

The Agency explains that Complainant did not receive a quality step increase, even though he
received an outstanding evaluation for the period in question, because there is no expectation
that an outstanding evaluation will be rewarded with a quality step increase. Most employees
who receive outstanding evaluations do not receive quality step increases. ROI at 242. This is
a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not proven it
to be a pretext designed to conceal discriminatory animus.

Claim #4 (Not Selected for Forestry Technician Position)

The Agency explains that Complainant was not selected for either of the Forestry Technician
positions because the selectees were better qualified than Complainant in that they had
extensive, recent, and broad backgrounds in fire, as well as proven fire leadership and
communication skills. ROI at 307. This is a legitimate, nondiscriminatory reason for the
Agency’s action. Complainant contends that he was more qualified than the female selectee.
However, the contemporaneous notes of Selection Panel members support the Agency’s
position. Complainant is described as lacking “experience in higher levels of fire complexity.”
ROI at 414. In contrast, the female selectee was described as having a “[b]road background of
[f]ire experiences.” ROI at 443. Complainant has not proven the Agency’s explanation for
not selecting him to be a pretext designed to conceal discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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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).

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.

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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

September 7, 2016
Date