[Redacted], Cornell S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021001096 (E.E.O.C. Feb. 2, 2022)

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. 2021001096 Agency Nos. FS-2016-005852, FS-2016-00770, FS-2016-00945 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 23, 2020, finding no discrimination 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2 Also referred to as FS-2016-00585P. 2021001096 2 On May 16, 2016, July 20, 2016, and October 22, 2016, Complainant filed three EEO complaints, which were later consolidated, alleging discrimination and harassment based on sex (male), disability (heart condition), age (over 40), and in reprisal for prior EEO activity when:3 1. On March 15, 2016, he received a letter that ordered him to apply for a Government Motor Vehicle Operator’s Identification Card or resume the driving requirement of his position by April 29, 2016. 2. On May 11, 2016, Complainant’s supervisor stated that while other National Forests might require prior approval of a Job Hazard Analysis for an employee to work alone, it would be “different” for the National Forests of North Carolina. 3. On January 25, 2015, management failed to reasonably accommodate him when his request to ride with a coworker during work assignments was denied. 4. During an unspecified timeframe, management subjected him to various acts of harassment, including, but not limited to, his being misled and bullied when given work assignments in an increasing workload, held to different standards, and performing work assignments under unsafe conditions. The Agency completed the investigation of the complaints. The Agency previously issued two separate final decisions concerning the complaints finding no discrimination as Complainant alleged. Complainant appealed. The Commission, in EEOC Appeal No. 0120180632 (Agency Nos. FS-2016-00585 and FS-2016-00770) and EEOC Appeal No. 2019002470 (Agency No. FS-2016-00945) (Sept. 27, 2019), consolidated the Agency’s final decisions, and vacated and remanded the complaints for a supplemental investigation due to insufficient evidence in the record. Specifically, the Commission found that there was no evidence whether driving was an essential function of Complainant’s position and whether he was treated differently than an identified coworker (referred to as CW2 herein) regarding the alleged incidents. Accordingly, the Agency investigated the subject matters as remanded and issued a final Agency decision on December 23, 2020, finding no discrimination. The record indicates that at the time of the alleged incidents, the Asheville facility had three Civil Engineering Technicians, GS-9, i.e., Complainant and his two Coworkers (CW1 and CW2). Civil Engineering Technicians were required to operate a motor vehicle and possess and maintain a valid state motor vehicle operator’s license. Specifically, the Agency’s policy required all Forest Service employees, including Civil Engineering Technicians, who operated government vehicles (or private vehicles used on official duty) to hold a valid state driver’s 3 Although Complainant also alleged parental status and marital status as bases for the complaints, we found in our prior decisions in EEOC Appeal Nos. 0120180632 and 2019002470 that we have no jurisdiction over these bases. 2021001096 3 license and a Forest Service-issued identification card indicating the type of vehicle or equipment the operator was authorized and qualified to operate. Complainant’s Forest Supervisor (FS), GS-15, indicated that the three Civil Engineering Technicians were assigned work in alignment with their skills and certifications as some technicians had better skills with road management than maintenance of facilities. Each Technician was assigned roads, facilities, or database input. Complainant was assigned as a Road Engineering Technician and his duties involved road maintenance responsibilities for North Carolina forest area. Complainant did not dispute this. Complainant acknowledged that the essential functions of his duties were inspection of road maintenance repairs. His job required him to drive most of the time in order to inspect roads and to inspect the repair work done by contractors before the payment was made to the contractors. CW1 was assigned as a Facilities Engineering Technician and his duties involved conducting inspections of administrative and recreational/picnic facilities, water, wastewater, and hazardous material cleanup. CW1 worked on contracts for repair of facilities and aquatic passages. The only task CW1 did not do was roads maintenance because Complainant had that responsibility. CW1’s job required him to drive most of the time, and he operated a government owned vehicle (a truck) to complete his job-related tasks. There is no evidence CW1 ever requested another employee to drive him for his inspections. CW2 was assigned as an Infra/NRM (Natural Resource Manager)/Data Steward Engineering Technician. She was responsible for updating and maintaining the corporate database used to track engineering assets (buildings, roads, bridges, etc.). Other engineers and engineer technicians, including Complainant and CW1, would go out to the field, gather data for roads, buildings, recreational facilities, bridges, trails, and water systems, and bring it back to CW2 to create reports and to input the information in the Infra/NRM database. CW2’s job did not require driving. Complainant indicated that he was treated differently than CW2 because she was not required to drive by herself when she did field work. CW2 indicated that her job did not require driving since she worked on computers. Complainant did not indicate he was denied the assignment CW2 was assigned, i.e., updating and maintaining the Infra/NRM/Data; nor did he indicate he was able to perform CW2’s job. Complainant also indicated he was treated differently than an identified female employee. The record indicates that the identified employee was not a similarly situated employee since she worked as a Realty Specialist, GS-12, at the relevant time at issue, i.e., from January 2015, to July 2016. Regarding claim 1, Complainant’s then supervisor indicated that in March 2014, Complainant voluntarily turned in his Government Motor Vehicle Operator’s Identification Card (OF-346) 2021001096 4 to the Agency indicating that he had heart conditions and he did not feel safe driving. As a result, Complainant’s government driver’s license was revoked on December 18, 2014, and he was instructed not to operate government vehicles or private vehicles used for official duty. Since then, acknowledged Complainant, another employee drove him to the field sites for his road and contract inspections. Management indicated that because of this arrangement, the office had to pull other personnel to escort Complainant to do his work. At times, there was no one to drive Complainant; the work was not accomplished timely or as planned; more staff time was required to plan the work to get Complainant to the worksite; and casework was delayed because no one was available to transport Complainant. Management also tried to give some data input work to Complainant but there was not enough data input work and the other technicians would have a heavier workload. Management stated that this arrangement was a highly inefficient process to achieve the office goal. Complainant’s then first level supervisor indicated that he issued Complainant the March 10, 2016 letter at issue directing him to apply for a new government driver’s license or resume the driving requirements of his position by April 29, 2016. There is no evidence whether Complainant complied as instructed and/or the Agency took any disciplinary action as a result of his noncompliance. The record is devoid of any evidence showing that Complainant possessed a state driver’s license. FS indicated that having a government driver’s license was part of Complainant’s position requirement and his position required up to 60% of his time to drive to field sites to inspect contracts and validate the contractors’ work. FS noted that there were only limited functions that required two employees to be in field sites, i.e., when data needed to be collected on the road that was driven. FS stated that during the relevant time period at issue, he received an anonymous letter describing that Complainant’s state driver’s license was suspended. Since Complainant never notified the Agency of the suspension of his state driver’s license, FS referred the subject matter for a management inquiry. 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, 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 2, Complainant’s then supervisor indicated that Civil Engineering Technicians, i.e., Complainant and CW1, spent a majority of time, 70% or 3 or 4 days/week of duty time, operating government vehicles, driving to inspect assets or overseeing active contracts. And, they were expected to drive alone to complete the work and check-in and check-out through a dispatch. Regarding claim 3, in January 2015, Complainant requested a reasonable accommodation allowing him to ride with a coworker when completing his field work. Complainant submitted his cardiologist letter, dated March 12, 2015, to the Agency. Therein, the doctor indicated that Complainant had a history of hypertension and paroxysmal symptomatic atrial flutter. The doctor also indicated that: “In my opinion, it is reasonable for [Complainant] to be 2021001096 5 accompanied when he is in remote areas as there is some risk for him given his arrhythmia and need for anticoagulation.” The record indicates that on April 14, 2015, the Agency’s Disability Program Manager notified Complainant that driving was an essential function of his position as his duties, as an Engineering Technician, involved traveling to and from work sites to perform road maintenance inspection and contract administration, which could not be eliminated through a reasonable accommodation, but that the Agency would attempt to reassign Complainant to a different position as the reasonable accommodation of last resort. Complainant was asked to complete a form indicating his geographic preferences and job interests by April 22, 2015. Complainant failed to submit the requested form. On December 16, 2015, the Agency closed Complainant’s reasonable accommodation request. Regarding claim 4, management indicated that when Complainant’s former supervisor, an Assistant Civil Engineer/Roads, retired in 2015, Complainant had to take on some of that former supervisor’s workload, i.e., road inspections and maintenance, and he was frustrated. Management stated that Complainant, however, did not inform his then supervisor or management that he felt bullied, misled, or harassed. Complainant appealed from the Agency’s final decision. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 2021001096 6 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, complainant must show that: (1) he or she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he or she was subjected to unwelcome conduct related to his or her membership in those classes or his or her prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with his or 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term “qualified,” with respect to an individual with a disability, means the individual satisfies the requisite skill, experience, education and other job- related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. Regarding claim 1, Complainant’s then supervisor requested Complainant apply for a Government Motor Vehicle Operator’s Identification Card or resume the driving requirement of his position because he, as a Civil Engineering Technician, was required to possess such an identification card and was required to drive. There is no evidence Complainant applied for the required card or resumed driving for his field work. Further, 2021001096 7 there is no evidence Complainant was subjected to any disciplinary action as a result of his noncompliance with the supervisor’s instructions. Regarding claim 2, the record indicates that Complainant and his coworker were required to drive alone to complete the work and check-in and check-out through a dispatch unless two technicians were required to accomplish certain jobs. Complainant seems to be implying that since other facilities (he claims) have two technicians often driving together, he should be allowed to be a passenger with another driver. FS indicated that the Asheville facility was small compared to other Forest Service facilities and it only had three technicians to cover substantially large forest areas. Turning to Complainant’s reasonable accommodation claim, described in claim 3, assuming (without deciding) that he was an individual with a disability, we find that the Agency did not deny his request for a reasonable accommodation. The essential functions of Complainant’s position, unrebutted by Complainant, were to perform road inspections and maintenances. Complainant was required to drive a government vehicle to perform the essential functions of his position. Complainant requested “a ride with a coworker” as a reasonable accommodation due to his heart conditions. However, Complainant provided no documentation that he was unable to drive or unable to obtain a new government driver’s license. The record indicates that since Complainant voluntarily relinquished his government driver’s license in March 2014, he had been accommodated by riding with a coworker for his field assignments since then. Complainant acknowledged this. The Agency however indicated that this arrangement caused undue hardship to its small Asheville office in that Complainant and other employees were not able to finish their work assignments in a timely manner and that there were no funds in the budget to provide a driver solely for the purpose of transporting Complainant to his worksite. Further, when the Agency offered to search for another job that required no driving, Complainant failed to participate in the interactive process to locate a vacant position. Regarding claim 4, Complainant’s supervisors indicated that Complainant did not notify them that he felt bullied, misled, or harassed. We find no evidence supporting Complainant’s assertions in claim 4 (apart from his own statements) and no indication any Agency action at issue in claim 4 was discriminatory. Upon review, we find that Complainant failed to show that he was denied a reasonable accommodation or that any Agency actions were motivated by discrimination. Complainant has not shown that he was required to perform his duties beyond his medical restrictions, i.e., heart conditions. Further, Complainant did not produce any evidence or medical justification to show that he could not drive or could not obtain a government driver’s license. After a review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. CW2 was assigned to Infra/NRM/Database Steward function duties whereas Complainant was assigned to Roads Engineering Technician function duties. 2021001096 8 Complainant does not claim that he can and/or is qualified to update and maintain the Infra/NRM/Database for the Asheville office. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 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 2021001096 9 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. 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