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

Equal Employment Opportunity Commission

Oct 25, 2018

0120171109 (E.E.O.C. Oct. 25, 2018)

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

Marquis K.,1
Complainant,

v.

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

Appeal No. 0120171109
Agency No. FS201400185

DECISION

On January 13, 2017, 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
December 18, 2016, 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 (FAD).

ISSUE PRESENTED

Whether the Agency’s final decision properly determined that Complainant failed to establish that
he was subjected to discriminatory harassment based on national origin as evidenced by 12
separate incidents which formed the basis of his complaint.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician
(Fire Prevention) GS-0462-07 at the Agency’s Los Angeles River Ranger District, Angeles
National Forest facility in Arcadia, California. On April 18, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against him based on national origin (Hispanic)
as evidenced by 12 separate incidents at identifiable points in time to include: being ordered to
cancel his calls; and subjecting him to acts of harassment that spanned over the course of several
years.

Complainant alleged he was ordered to cease his response to emergency calls, even in instances
when he was already in route to an incident. The Agency indicated that it is the Duty Officer’s
prerogative to assign individuals to respond to an emergency call, and the Duty Officer can arrange
or cancel assignments as required to manage resources, depending on the duration, nature, and
location of the emergency. The Agency further indicated that many officers are ordered to cancel
their response to an emergency call; and that Duty Officers often cancel or modify a unit’s response
to an incident to ensure the proper allocation of resources.

The Duty Officer, A1 admitted that in May 2011 and May 2012, he cancelled Complainant’s
responses to two emergency calls. He explained that for the May 2011 incident, a Patrol Captain
was already on the scene and Complainant’s assistance was not required. A1 stated that for the
May 2012 incident, another Patrol Captain also responded to the call and he arrived on the scene
prior to Complainant. A1 asserted that, as Duty Officer, it is his responsibility to manage resources
and to ensure that officers are available for incidents which may occur in other areas.

Complainant detailed a number of alleged acts of harassment that spanned over the course of
several years to include the questioning of his authority as a Fire Prevention Officer (FPO); the
scrutinizing of his work more strictly than other employees; removing him from an office where
he worked and denying him access to another office; giving him conflicting instructions about
responding to fire incidents; and verbal insults, such as calling him a “pretend cop” and a “fake
Law Enforcement Officer.”

The Agency maintained that it investigated the alleged acts of harassment once reported by
Complainant. The Agency noted that it interviewed a total of seven employees and provided
Complainant with a report of their findings. According to the Agency, the investigation did not
reveal that Complainant was harassed because of his national origin. However, the investigation
resulted in three recommendations to address the dissention between Complainant and the two
supervisors Complainant identified as perpetrators of the alleged harassment.

Complainant also alleged that management conducted investigation into his cell phone records and
questioned his whereabouts. The Agency indicated that its investigation into Complainant’s cell
phone records and the questioning of his whereabouts were permissible actions taken by Patrol
Commanders while carrying out their assigned duties.

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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. 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

Complainant did not submit a brief in support of his appeal.

The Agency, among other things, contends that its FAD correctly determined that no relief or
corrective action was warranted because Complainant failed to establish that he was subjected to
discrimination or harassment.
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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing
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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
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
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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). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Assuming, arguendo, that Complainant established a prima facie case of national origin
discrimination; we find that his claims of discrimination and harassment failed. First, we find that
the Agency provided legitimate, non-discriminatory reasons for ordering Complainant to cease his
response to emergency calls. According to the Agency, management’s actions resulted from
operational need for proper resource allocation; that Complainant’s national origin was not a
determining factor when his calls were cancelled; and that other employees, including employees
outside of Complainant’s protected group also had their calls cancelled or modified as needed.
Complainant provided no persuasive evidence of pretext or that his national origin played any role.

With respect to Complainant’s claim that he was subject to harassment regarding the other matters
raised in his complaint, we find no evidence that the Agency’s conduct was based on his national
origin, nor do we find that any of these matters, even if true, were severe or pervasive enough to
rise to the level of unlawful harassment. For the most part, we find these incidents to be work-
related issues that arise in the workplace when employees and supervisors disagree over the correct
approach to carrying out their duties.

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 FAD because the preponderance of the
evidence in the 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.
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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, 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.

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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

October 25, 2018
Date