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

Equal Employment Opportunity Commission

Jun 28, 2018

0120162328 (E.E.O.C. Jun. 28, 2018)

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

Kathleen L.,1
Complainant,

v.

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

Appeal No. 0120162328

Hearing No. 480-2015-00060X

Agency No. FS-2014-00205

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the July 13, 2016 final Agency decision (FAD) concerning her 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 a seasonal Wildland
Firefighter, GS-0462-04, at the San Bernardino National Forest in San Bernardino, California.
On October 11, 2011, Complainant claimed that she was sexually assaulted by a co-worker (CW-
1) after hours at the Big Bear Hotshot barracks.2 Complainant reported the alleged incident to
management in November 2011. The Forest Supervisor (S1) (female) reported Complainant’s

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 The date of this alleged incident is listed as November 4, 2011, in various investigative
reports conducted by the Agency and law enforcement officials.
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allegations to upper management officials and law enforcement. Agency law enforcement and
the San Bernardino Sheriff’s Office conducted a criminal investigation. Complainant stated that
she chose not to pursue criminal charges. Following an investigation, law enforcement officials
concluded that the sexual encounter between Complainant and CW-1 was consensual and no
criminal activity occurred. Complainant raised additional allegations during the investigation,
regarding CW-1 making inappropriate racial comments while on duty and other inappropriate
conduct in the barracks. The Agency’s Administrative Misconduct Investigator conducted an
investigation into the alleged inappropriate conduct. The Investigator concluded that there was
insufficient evidence to support the allegation that CW-1 made inappropriate racial comments
while on duty, engaged in inappropriate drinking in the barracks, or created an overall hostile
work environment. The Investigator recommended, however, that CW-1 be counseled or receive
a letter of warning, that Complainant refrain from conversations that may disrupt the workplace,
that CW-1 and Complainant attend a mediation session to facilitate them working together, and
for the Agency to create and distribute a policy for alcohol and other conduct in the barracks so
that all employees were aware.

In April 2012, Complainant was transferred to Engine 15 in Big Pine Flats following her
allegations against CW-1. CW-1, a permanent employee, worked at Heaps Peak. The following
season, CW-1 returned to the Big Bear Hotshot crew and Complainant remained with Engine 15.
Complainant did not live in the barracks that season. Over the course of the 2013 fire season, co-
workers and management reported several incidents of misconduct by Complainant. For
example, on August 19, 2013, Complainant kicked a branch while walking behind a co-worker,
hitting him in the back. That same day, Complainant had an outburst against her co-workers
stating that she hated working with them and that she wanted to throw her Pulaski (wildland
firefighting tool) at a co-worker. On September 8, 2013, the Captain provided Complainant with
advice about wind patterns and spot progression while on the Rim fire. Complainant shot back
that she knew that information and yelled at her supervisor, “He treated me like a child! I’ve
been a Hotshot for seven years! I’m insulted and you should be too!” The next morning, another
management official asked Complainant if she needed any training needs for burning and
Complainant snapped back, “I’ve been doing this for a long time, haven’t you seen my resume?”

On October 18, 2013, S1 placed Complainant on administrative leave indefinitely for her
disruptive behavior and threatening remarks to a co-worker. On November 16, 2013, the District
Ranger issued Complainant a Cancellation of Non-Competitive Rehire Eligibility. The notice
informed Complainant that she would not be eligible for non-competitive rehire next year based
on the incidents Complainant had with her co-workers and supervisors during the 2013 season.
On November 16, 2013, Complainant requested reconsideration of the decision and a meeting
with S1. S1 met with Complainant on December 4, 2013. Complainant disputed the reasons
stated in the notice. Complainant claimed that she was being sarcastic when she said she would
throw her Pulaski at her co-worker, but admitted she kicked the branch and had acted in a
disrespectful manner to her supervisors. Complainant explained that she was upset with the lack
of leadership and that she felt upset and emotional working alongside CW-1. S1 reviewed all of
the information regarding Complainant’s conduct and decided to sustain the decision to cancel
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her eligibility for non-competitive rehire. Complainant still had the right to apply for any
positions with the Agency.

On March 24, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of sex
(female) and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, on November 16, 2013, she was issued a Cancellation of Non-Competitive
Rehire Eligibility; since October 11, 2011, management failed to address her claims of sexual
assault by her former crewmember; since April 2012, her supervisor has belittled her, treated her
disrespectfully, and made false statements about her performance, and her supervisor made
derogatory comments about women such as, “I wished I had a private club; I would not allow
any of the pretty, skinny, the ones that are bitches in my club” and commented about
Complainant’s weight stating that she was “too skinny.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but withdrew her request
on May 13, 2016. On May 19, 2016, the AJ assigned to the matter issued an Order of Dismissal
remanding the matter to the Agency for issuance of a FAD. On June 1, 2016, the Agency
erroneously issued a “final order” in which it stated that it would fully implement the AJ’s Order,
but providing Complainant appeal rights to the Commission. On July 6, 2016, pursuant to that
final order, Complainant filed an appeal with the Commission. The Agency subsequently issued
a FAD (dated July 13, 2016, but not mailed to Complainant and her representative until August
16, 2016) addressing the merits of Complainant’s claims.

In the FAD, with respect to the cancellation of her eligibility for non-competitive rehire, the
Agency found that management had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, Complainant engaged in misconduct on several occasions during the 2013
season. That misconduct included kicking a branch that hit a co-worker, arguing with a
supervisor while on assignment, and yelling at her co-workers. Complainant’s behavior showed
an increasing inability to follow instructions, get along with co-workers and management, and to
complete tasks necessary to function as a successful employee. Complainant’s misconduct was
substantiated by witness statements and supporting documentation. The Agency determined that
Complainant failed to show that management’s reasons for its actions were pretextual. As a
result, the Agency found that Complainant was not subjected to discrimination or reprisal as
alleged.

As to her hostile work environment claim, the Agency determined that the alleged incidents were
insufficiently 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, with regard to Complainant’s claim that management did not
address her sexual assault claims, S1 stated that when Complainant reported the incident to her in
2011, S1 immediately reported all the information provided by Complainant to Agency officials
for investigation. Additionally, a criminal investigation was conducted and a report was issued
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on January 6, 2012. The report indicated that Complainant’s allegations were investigated and
found to be unsubstantiated.

As to her claim that management belittled her, the Forest Supervisory Technician (S1-2) (female)
denied doing so and, instead, stated that she often attempted to offer encouragement to help
Complainant. Finally, as to the derogatory comments, S1-2 denied making the comments. The
Agency noted that Complainant presented no evidence corroborating that the comments were
made. As a result, the Agency found that Complainant had not been subjected to a
discriminatory or retaliatory hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency’s initial final order should be considered its
decision and contends that the Commission should issue a declaratory judgment based on the
Agency’s issuance of a final order with no analysis in violation of the AJ’s order. Complainant
includes a narrative detailing the incidents that occurred over the course of several years that
make up her hostile work environment claim. Further, Complainant contends that she was
subjected to reprisal. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

The Agency’s Issuance of its FAD

EEOC Regulations provide that an agency shall issue the final decision within 60 days of
receiving notification that a complainant has requested an immediate decision from the agency,
or within 60 days of the end of the 30-day period for the complainant to request a hearing or an
immediate final decision where the complainant has not requested either a hearing or a decision.
29 C.F.R. § 1614.110(b).

Complainant withdrew her request for a hearing, and the AJ remanded the matter for a FAD on
May 19, 2016. On June 1, 2016, Agency issued a final order in which it stated that it would be
fully implementing the AJ’s dismissal order and provided Complainant appeal rights to the
Commission. Pursuant to instructions she received in the Agency’s final order, Complainant
filed an appeal with the Commission. On July 13, 2016, the Agency issued a FAD addressing
the merits of Complainant’s complaint. However, according to the Certificate of Service, the
FAD was mailed to Complainant and her representative on August 16, 2016.

On appeal, Complainant essentially requests that the Commission sanction the Agency in the
form of declaratory judgment in her favor. The Agency argues that its final order was issued
only to acknowledge the AJ’s dismissal order and to express its intent to issue a FAD pursuant to
that order. Even so, the Agency erroneously and prematurely provided Complainant appeal
rights to the Commission in its final order. Nonetheless, the Commission finds that the Agency’s
error was harmless as it subsequently issued Complainant a FAD addressing the merits of her
complaint with the proper appeal rights to the Commission. Complainant has presented no
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evidence that she was prejudiced by the Agency’s error. Accordingly, the Commission declines
to sanction the Agency for its error. The Commission takes this opportunity, however, to remind
the Agency that it has a responsibility to issue final decisions in a timely manner with proper
appeal rights pursuant to 29 C.F.R. § 1614.110.

Hostile Work Environment – Sexual Harassment

To establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex,
including sexual advances, requests for favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for imputing liability to the
employer, in other words, did the agency know or have reason to know of the sexual harassment
and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The
harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in
the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (Mar. 8, 1994).

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. The Commission finds that Complainant has not
established, by a preponderance of the evidence, that she was subjected to sexual harassment.
More specifically, the Commission finds Complainant failed to show that the alleged sexual
incidents occurred. Complainant failed to offer any corroborating evidence to support her
contentions that she was subjected to any unwelcome conduct of a sexual nature. Even assuming
that the conduct occurred as Complainant alleged, the record shows that after Complainant
reported the allegations to S1, S1 promptly initiated an investigation into the allegations.
Agency management officials and law enforcement officials both investigated Complainant’s
claims. Both law enforcement and management officials determined that Complainant’s
allegations were unsubstantiated. Nonetheless, Agency officials moved Complainant to Engine
15 in April 2012. Complainant stated that she was told that CW-1 could not be moved at the
time because he was a permanent employee while she was a seasonal employee. Complainant
did not allege that any similar alleged conduct recurred. As a result, the Commission finds that
Complainant has not established that she was subjected to sexual harassment as alleged.

Hostile Work Environment – Non-Sexual Harassment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she 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 her
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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 her harassment claim, Complainant must establish that she 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission notes that Complainant chose to withdraw her request for a hearing; therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her protected classes, management officials subjected her to
a hostile work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment including belittling and disrespectful comments about
her performance and derogatory comments about women. The Commission finds that
Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to
create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. Complainant alleged that S1-2 belittled her and made false
statements about her performance. Complainant claimed that she was treated like she was a
beginner when she was transferred to Engine 15 even though she had years of experience. S1-2
denied belittling or disrespecting Complainant and stated that she only tried to understand and
help her in whatever capacity she could. ROI, at 164-65. S1-2 explained that Engine 15 had a
smaller crew than Complainant was used to and they all had to pitch in and do the work needed
to get things done. Id. at 165. Further, S1-2 noted that Complainant thought she was above
certain tasks because of her experience on a Hotshot crew, but S1-2 did not ask anything of her
crew that she did not do herself. Id. Finally, Complainant alleged that S1-2 made derogatory
comments about women such as she would not allow “bitches in my [private] club” and
comments about women being “too skinny.” S1-2 denied making any such comments. Id. at
166. S1-2 noted that Complainant worked out hard and her co-workers respected her for it. Id.
Complainant presented no corroborating evidence that S1-2 made any derogatory comments
about women. Thus, the Commission finds that Complainant failed to show that she was
subjected to a hostile work environment as alleged.

Disparate Treatment

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Finally, as to the cancellation of her non-competitive rehire eligibility, the Commission notes
that 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). She must generally establish a prima facie case by demonstrating that she 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). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, assuming arguendo that Complainant established a prima facie case
of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. S1 stated that she placed Complainant on
administrative leave pending a management review into allegations that Complainant engaged in
disruptive and threatening behavior. ROI, at 89. The District Ranger stated that he subsequently
issued Complainant the Notice of Cancellation of Non-Competitive Rehire Eligibility based on
several reported instances of Complainant’s misconduct throughout the 2013 season. Id. at 155.
The District Ranger cited several disruptive incidents including, Complainant kicking a stick that
struck a co-worker; arguing with a supervisor about doing work that had been assigned to her;
and yelling at a co-worker and supervisor while on a fire assignment. Id. The District Ranger
explained that Complainant had displayed an increasing inability to follow instructions, get along
with her co-workers, and complete the tasks necessary to function as a successful employee
despite being counseled by supervisors. Id. at 156. S1 stated that she met with Complainant on
December 4, 2013, and sustained the cancellation of Complainant’s rehire eligibility on
December 5, 2013, finding that she failed to provide evidence to support reversing the decision.
Id. at 89.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

The Commission finds no persuasive evidence that Complainant’s protected classes were a factor
in any of the Agency’s actions. Aside from her bare assertions, Complainant has not provided
any evidence to rebut the Agency’s asserted legitimate, nondiscriminatory reasons for its actions.
At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on
the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden.
Therefore, the Commission finds that Complainant has not established that he was subjected to
reprisal or a hostile work environment as alleged.

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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 (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 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,
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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

June 28, 2018
Date