[Redacted], Cornell S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2022Appeal No. 2021002119 (E.E.O.C. Feb. 2, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cornell S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2021002119 Hearing No. 430-2020-00522X Agency Nos. FS-2019-00210, FS-2019-00705 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from an EEOC Administrative Judge (AJ)’s January 7, 2021 decision, which effectively became the Agency’s final action concerning his complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 29 C.F.R. § 1614.109(i). For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civil Engineering Technician/Roads, GS-9, at the Agency’s Forest Service, Region 8, Supervisor’s Office located in Asheville, North Carolina. 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. 2021002119 2 On January 28, 2019, Complainant filed an EEO complaint, Agency No. FS-2019-00210, alleging discrimination and harassment based on sex (male), disability, age (over 40), and in reprisal for prior EEO activity when:2 1. On an unspecified date (later Complainant identified as September 6, 2018), management denied his reasonable accommodation request and provided false and outdated information in response to the request. On August 26, 2019, Complainant filed an EEO complaint, Agency No. FS-2019-00705, alleging discrimination and harassment based on sex (male), disability, age (over 40), and in reprisal for prior EEO activity when: 2. On July 12, 2019, management denied him the opportunity to telework. 3. On March 22, 2019, management issued him a Letter of Reprimand. 4. On several dates, he was subjected to various acts of harassment, including but not limited to when, on an unspecified date (later identified by Complainant as October 2019), management did not notify him of a detail opportunity for the GS-0301-11/12, Geospatial Systems Specialist Program Management (GIS) Coordinator position located in the National Forest of North Carolina. After its investigation into the complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ subsequently issued a decision by summary judgment in favor of the Agency. The record indicates that as a GS-9, Civil Engineering Technician/Roads, Complainant’s duties involved road inspections. Complainant was required to drive a significant amount of his work hours in order to perform road inspections. In March 2014, Complainant voluntarily turned in his Government Motor Vehicle Operator’s Identification Card (OF-346) to the Agency. Complainant’s OF-346 was subsequently revoked on December 18, 2014. Since then, Complainant requested and was afforded to ride with a coworker to transport him to his field sites for his road inspections. In April 2018, the Agency discovered that Complainant’s state driver’s license was suspended. On April 20, 2018, the Agency conducted a management inquiry and questioned Complainant about the status of his license and whether it was suspended. The record reveals that Complainant’s state license was suspended repeatedly since 2012 due to his driving while under the influence of alcohol, including a one-year suspension from April 24, 2012 through April 24, 2 Complainant also alleged marital status as basis for the complaints at issue. The AJ found, and we agree, that the Commission has no jurisdiction over claims of employment discrimination based on marital status. Thus, such a basis is properly dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). 2021002119 3 2013; a 30-day suspension from March 30, 2014 through April 30, 2014; and a four-year suspension from August 18, 2015 through August 18, 2019. Regarding claim 1, the AJ stated that Complainant was not denied a reasonable accommodation for his disability. Specifically, the Agency indicated that on April 23, 2018, Complainant submitted a request for reasonable accommodation days after the Agency discovered his license was suspended and conducted a management inquiry into the matter. Complainant sought reassignment due to stress and anxiety having to catch a ride with his coworkers and due to a hostile work environment. The Agency denied Complainant’s request for a reasonable accommodation because, due to the suspension of his driver’s license, he was unable to drive in order to perform the essential functions of his position. Further, stated the AJ, Complainant was not entitled to reassignment as an accommodation since his requests for a non-hostile or stress- free work environment was not considered a valid request for reasonable accommodation for his disability. Regarding claims 2 and 3, the AJ stated that Complainant was issued the March 22, 2019 Letter of Reprimand due to his dishonesty during the April 20, 2018 management inquiry regarding the status of his driver’s license. During the management inquiry, Complainant was asked if he currently had a valid license, to which he stated yes; and was asked if he had ever been convicted of a DWI/DUI (Driving While Intoxicated/Driving Under the Influence of alcohol), to which he stated yes but only mentioned the conviction in 2012. As a result of the Letter of Reprimand, Complainant’s telework privilege (one day a week) was suspended for one year. Complainant indicated that before the Letter of Reprimand, two coworkers were allowed to telework more days than one day a week. The AJ indicated that the two identified coworkers were not similarly situated employees. Specifically, one coworker, a Civil Engineering Technician, performed a substantial amount of data entry duties including maintenance of the Agency’s database. The other coworker was a Forestry Technician, and not the same position as Complainant who was a Civil Engineering Technician. Regarding claim 4, the AJ stated that the Forest Supervisor selected an individual for a GIS detail because she was the most qualified for that position. Specifically, the detailed individual had experience with GIS projects associated with the forest planning process and, unlike Complainant, she was already working in GIS as a Forestry Technician. The AJ further stated that Complainant failed to establish that he was subjected to harassment since he did not allege any unwelcome verbal or physical conduct involving his sex, age, disability, or EEO activity. The AJ’s decision finding no discrimination as alleged became an Agency’s final action, pursuant to 29 C.F.R. §1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 2021002119 4 An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final action. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021002119 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002119 6 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 February 2, 2022 Date Copy with citationCopy as parenthetical citation