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

Equal Employment Opportunity Commission

Jan 6, 2016

0120142799 (E.E.O.C. Jan. 6, 2016)

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

Lewis Z.,1
Complainant,

v.

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

Appeal No. 0120142799

Hearing No. 540-2013-00063X

Agency No. FS-2012-00412

DECISION

Complainant filed an appeal from the Agency’s July 7, 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. The Commission deems the appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant had worked as a Forestry Technician at the Agency’s Pleasant Grove Ranger
District within the Uinta-Wasatch-Cache National Forest during the 2009, 2010, and 2011 fire
seasons. On May 29, 2012, Complainant filed an EEO complaint in which he alleged that the
Natural Resources Specialist, who had served as his first-line supervisor (S1) during the 2011
season, had discriminated against him on the bases of religion (Unaffiliated) and age (59) when
she informed him on March 8, 2012, that she would not be able to hire him back for the 2012
fire season.

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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S1 and the District Ranger averred that as a result of budget cuts that occurred prior to the start
of the 2012 season, the Agency had to consolidate three crews into one, which reduced the
number of available slots from twelve the previous season to nine. S1 also testified that it was
emotionally very difficult for her to tell Complainant that she could not hire him back, and that
she had waited until the last possible moment in the hopes that additional funding would
materialize. S1 reiterated that Complainant never had any performance issues during the three
seasons that he had worked in the District. Investigative Report (IR) 65-68, 78-79, 83-90,
100, 104.

When asked by the investigator why he believed that S1 had discriminated against him,
Complainant responded that a few of the crew members with whom he had worked in 2010
and 2011 had asked him why at his age he was doing forestry work and whether he was a
Mormon and that he brought his concerns to S1. IR 61. S1 responded that in June of 2011,
Complainant had come to her with concerns about being pressured, heckled and ostracized
because he was not a member of the Mormon Church. She pointed out to Complainant at the
time that she was not a Mormon and that she would look into the matter. IR 80-81.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing, but the AJ assigned to the case dismissed the
complaint as a sanction for Complainant’s failure to respond to his order to comply with the
Agency’s discovery requests. Upon remand from the AJ, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s hiring decisions unless there is evidence of
a discriminatory motivation on the part of the officials responsible for those decisions. See
Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore,
in order to prevail on his disparate treatment claim, Complainant would have to prove, by a
preponderance of the evidence, that S1 was motivated by unlawful considerations of his age or
lack of religious affiliation when she decided not to call him back for the 2012 fire season. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by showing that S1’s articulated reason for not calling him back is
pretextual. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450
U.S. at 253. He may do so by presenting evidence of discriminatory statements or past
personal treatment attributable to S1, comparative or statistical data showing differences in
treatment across age or religious lines, unequal application of Agency policy, deviations from
standard procedures without explanation or justification, or inadequately explained
inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC
Appeal No. 0120141697 (November 12, 2015).
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The Commission finds that the only evidence that Complainant put forward is the conversation
that had taken place between him and S1 the year before in which S1 informed him that she
was not a member of the Mormon Church. Beyond that, Complainant did not provide
evidence of any of the indicators of pretext described above. He has not submitted any sworn
statements from other witnesses or documents that contradict the explanation articulated by S1,
or which call her veracity into question, including how emotionally distraught she was after
delivering the bad news to Complainant. We therefore agree with the Agency that
Complainant failed to establish the existence of an unlawful motive on the part of S1 in
connection with her decision not to rehire Complainant for the 2012 fire season.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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
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).
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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

January 6, 2016
Date