Les B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.Download PDFEqual Employment Opportunity CommissionJun 5, 20190120180040 (E.E.O.C. Jun. 5, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Les B.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 0120180040 Agency No. FS-2017-00040 DECISION 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 August 9, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not prove he was subjected to discrimination because of his religion or previous EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician, GS-0462-7, at the Agency’s Angeles National Forest (ANF) in Anton, California. In this position, Complainant primarily is responsible for firefighting, fire prevention, and forest protection. 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. 0120180040 2 In August 2016, Complainant was approved to take an assignment at another forest. According to Complainant, on August 25, 2016, he received a call from a Security Manager asking if he was available to take an assignment as a “Security 2” at the Henry’s Creek Fire in Idaho. However, when Complainant asked management if he could take the assignment, he was informed that he could not take the assignment. On February 1, 2017, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of religion (Christian) when on September 24, 2016, he learned management cancelled his duty assignment to another forest. In an investigative statement, Complainant stated that he accepts being labeled as “Christian” for “ease of discussion,” but the idea of describing an entire group of people as “Christian” is offensive to him. Nevertheless, Complainant stated that management became aware of his religion when in May 2011, he requested time off work for religious observance. Complainant stated that on August 23, 2016, he overheard a management official say on speakerphone “kill all prevention assignments.” Complainant further stated that the next day, management told him that his duty assignment had been cancelled. Complainant stated that he was unaware of any other firefighters who could go on Level 2 security assignments. After 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). 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. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency improperly failed to address his claim that he was subjected to reprisal. Additionally, Complainant contends that he has been subjected to further acts of discrimination and reprisal after filing his complaint. The Agency does not present any arguments on appeal. STANDARD OF REVIEW 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”). 0120180040 3 ANALYSIS AND FINDINGS Disparate Treatment Generally, claims of disparate treatment such as this are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, he 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 Construction Corp. v. Waters, 438 U.S. 567 (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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to the 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, the complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). In this case, we note that Complainant contends that the Agency’s final decision failed to acknowledge his claim that he was subjected to reprisal. We note that in his formal complaint and investigative statement, Complainant alleged that he was subjected to reprisal because he requested reasonable accommodation for his religious beliefs in 2010 and 2011.2 Therefore, the Agency should have analyzed Complainant’s complaint as alleging he was subjected to reprisal, in addition to religious discrimination. As such, in our analysis, we assume arguendo that Complainant established a prima facie case of reprisal as well as religious discrimination. Nonetheless, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically, the Forest Fire Management Officer (FFMO) stated that Complainant’s assignment to another forest was cancelled because there was a high request for support at ANF during the time, and he had to place a “hold on existing personnel leaving” ANF until others came back to ensure safe operations. FFMO stated that it did not make sense to send his prevention patrol to another forest when one was needed at the home forest. FFMO further stated that other firefighters were also told that all patrols were going to kept at the “home forest,” and during a conference call, he issued the order to hold all resources at ANF. “No one was allowed to leave the forest during that time,” FFMO stated. Report of Investigation, p. 195. 2 The record reveals that in a letter dated July 25, 2011, the Agency notified Complainant that his religious accommodation request had been granted. 0120180040 4 In an attempt to prove pretext, Complainant maintains that he was given different reasons for the cancellation of his assignment to another forest. However, Complainant makes this general assertion without specifying how the explanations differed. Instead, the record indicates that in an email to management dated August 25, 2016, FFMO reported that because of fire danger and requests for additional patrols by ANF, any orders to work at other forests were placed on hold. We note that Complainant concedes that he was unaware of any other ANF firefighters who went on assignment at other forests during the relevant period. Thus, we conclude that the Agency properly found that Complainant was not subjected to unlawful discrimination because he did not prove that the Agency’s nondiscriminatory explanation is pretext for discrimination based on his religion or in reprisal for his prior protected EEO activity.3 CONCLUSION Accordingly, 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 for the reasons set forth herein. 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. 3 To the extent that Complainant contends that he has been subjected to additional discrimination not raised in this complaint, we advise Complainant to contact an EEO Counselor if he wishes to file an EEO complaint on these matters. 0120180040 5 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, 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 5, 2019 Date Copy with citationCopy as parenthetical citation