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

Equal Employment Opportunity Commission

Jan 5, 2022

Appeal No. 2020004430 (E.E.O.C. Jan. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dennis C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020004430 Hearing No. 550-2019-00248X Agency No. FS-2018-00638 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 June 19, 2020 final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former employee seeking to be rehired as a Forestry Technician (Smokejumper), GS-0462-06, within the Agency’s Region 1 Fire and Aviation Division in Missoula, Montana. On June 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when, on May 3, 2018, he became aware that he was not selected for six Smokejumper positions advertised under Vacancy Announcements Numbers 18-FIRESSPRING-SMKJMPR-78G; 18-FIRESSPRING-SMKJMPR- 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. 2020004430 2 7G; 18-FIRESSPRING-SMKJMPR-56G; 18-FIRESSPRING-SMKJMPR-56DP; 18-TEMP-RI- SMKJ-56DT-JN; and 18-TEMP-R6-FTSJ-56DT-AM. Complainant averred that he is being “blacklisted” because he previously filed an EEO complaint and had reported that he was harassed after he challenged what he considered to be unsafe fire procedures. The record shows that on August 25, 2016, Complainant received a Letter of Instruction based on his failure to jump in the designated spot on August 1, 2016. Report of Investigation (ROI) at Ex. 2, pp. 50-51. Complainant averred it was not safe to jump at that spot. On June 2, 2017, the Agency proposed to terminate Complainant’s appointment for misconduct based on his failure to board a scheduled flight to a fire assignment and his failure to follow supervisory instructions. ROI at Ex. 2, pp. 53-55. Complainant’s prior EEO complaint (Agency No. FS 2017-00749) was settled on October 2, 2017. ROI at Exhibit 2, pp. 57-60. The settlement agreement permitted Complainant to resign in lieu of being terminated. The Agency posted six vacancy announcements for six positions at the same time on USA Jobs in November 2017. Complainant applied for all of them. He received an email notification that he was not selected. Complainant averred he was not given a reason. It is undisputed that the Base Manager served as the principal recommending official for the first five identified vacancy announcements. He served as Complainant’s third level supervisor for over four years and observed Complainant’s performance as a Smokejumper. He averred that he could not recommend Complainant to fill any of the vacancies. He also concluded that the references cited by Complainant in his job applications were not reliable, because the references did not serve as Complainant’s supervisor or because the information was dated. In addition, the Base Manager cited his perception and observance of Complainant’s record of deficiencies and shortcoming in his work ethic, leadership ability, failure to follow orders, and his inability to get along with his co-workers and superiors, which were all deemed to be essential elements of the job. It was undisputed that no one was hired under Vacancy Announcement No. 18-TEMP-RI- SMKJ-56DT-JN. Regarding the remaining five positions, it was undisputed that none of the selectees had any prior EEO activity. The recommending official for Vacancy Announcement No. 18-TEMP-R6-FTSJ-56DT-AM confirmed that one of Complainant’s supervisory references indicated that Complainant suffered from a lack of a work ethic, poor leadership skills, and an inability to get along with others. ROI, Ex. 15. As a result, he did not recommend Complainant for selection. 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 (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a summary judgment decision finding that Complainant was not subjected to reprisal as alleged. 2020004430 3 The Agency subsequently issued a final order fully adopting the AJ’s decision. 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). 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. Here, however, Complainant failed to establish such a dispute. It is undisputed that Complainant’s former supervisors refused to recommend him for any of the positions or provide him positive references based on his failure to follow instructions, work well in a team environment, and unsatisfactory leadership skills during his prior employment with the Agency. Complainant has presented no evidence demonstrating that management officials in this matter harbored retaliatory animus. We recognize that the anti-retaliation provisions of the EEO statutes seek to prevent an employer from interfering with an employee’s efforts to advance enforcement of the statute’s basic guarantees and are not limited to actions affecting employment terms and conditions. Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006). However, Complainant’s disagreement with the former supervisor’s perceptions of his prior conduct and trustworthiness, are not sufficient to give rise to a question of material fact regarding the pretext of the stated reasons. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020004430 4 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 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). 2020004430 5 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 5, 2022 Date