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

Equal Employment Opportunity Commission

Oct 18, 2021

Appeal No. 2020004437 (E.E.O.C. Oct. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020004437 Agency No. FS-2019-01098 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 April 22, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fuels Crewmember, GS-0462-04, in the Arapaho & Roosevelt National Forest (ARNF), Fort Collins, Colorado from May to July 2019. The Supervisory Forest Technician was Complainant’s first level supervisor (S1) and the North Zone Fire Management Officer was his third-level supervisor (S3). Complainant’s proposed effective date to report to work was May 26, 2019, but he did not report to work until July 1, 2019, a delay he had requested due to a family emergency. In anticipation of the position, Complainant purchased the safety boots required for the position on May 15, 2019. When he started work, he was informed how to get reimbursed for the boots. He submitted a Safety Boot Reimbursement request on July 8, 2019, with the assistance of S1. 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. 2020004437 2 Complainant was the only Black crewmember and he averred S1 treated him differently from the rest of the crewmembers. For example, S1 would go down a line and ask everyone if they wanted to go out, but not ask Complainant. In the bunkhouse, Complainant claimed that S1 would not verbally reply to Complainant’s “good morning” as he did to everyone else, but instead would respond with a nod of the head. Additionally, Complainant averred S1 would help others with work-related issues; however, he would tell Complainant to call the 1-800 number for help, which could take 30 - 40 minutes for Complainant to get help. S1 denied treating Complainant differently from the rest of the crew. S1 explained that Complainant had some catching up to do since he had started work after his original start date and the other employees on the crew had already gone through the onboarding process before Complainant had reported for duty. S1 said he worked with Complainant to complete his initial paperwork and introduced him to the Human Resources department and others in the office to assist with his pay, housing, and boot reimbursement. S1 said he guided him to the resources S1 also used when he needed help such as the Customer Service Help Desk for computer and software issues or the Albuquerque Service Center for Human Resources and pay issues. S1 said he had invited the whole crew out after work, including Complainant. S1 explained since they lived with a number of Agency employees, there was little verbal communication in the mornings as people would still be sleeping. S1 said Complainant kept to himself and would disappear in the mornings, or he would go onto the porch alone. S1 said he respected Complainant’s space and did not see him much. Complainant signed up for an Administratively Determined (AD) position through the Region 9 Mark Twain National Forest (MTNF). On or around July 23, 2019, Complainant was assigned to an Engine from MTNF through the Missouri Iowa Interagency Dispatch Center as an AD Casual Hire Employee, starting July 24, 2019. He claimed that he verbally resigned to S1 from his ARNF Fuels Crewmember position on July 20, 2019 and removed all of his personal items from the bunkhouse that night. While dispatched to Arizona, Complainant learned S3 had called Complainant’s mother trying to get ahold of Complainant. S1 had informed S3 that Complainant had been verbally granted Annual Leave with the expectation that he would return to duty on July 24, 2019. When Complainant did not return, they performed welfare checks with no response from Complainant. On July 31, 2019, S3 reached Complainant’s emergency contact, his mother, who stated Complainant was in Arizona on a fire assignment. S3 deduced he was likely dispatched through the Missouri Iowa Interagency Dispatch Center and individuals from MTNF may not have known Complainant’s status. Complainant stated that when he spoke with S3 on July 31, 2019, they discussed Complainant returning his uniform and equipment. S3 said Complainant informed him that he was not willing to return to ARNF because he was not making enough money in overtime pay on wildfires, and that there was more opportunity if he worked as an AD employee. S3 then called the Forest Assistant Fire Management Officer (FAFMO) in the MTNF and informed him that Complainant was still a federal employee, therefore he could not work as an AD. S3 explained Complainant was in LWOP status, soon to be considered AWOL, because he left his position on the ARNF to take the AD fire position. The next day, Complainant was informed that S3 had reached out to 2020004437 3 FAFMO. Complainant stated S3 never spoke with him regarding this information and that S3’s conversation with FAFMO resulted in him losing his AD position. On August 1, 2019, Complainant emailed his notice of resignation. Earlier that day, the Agency had already started the paperwork requesting his termination. Complainant was terminated from his Fuels Crewmember position with ARNF on August 4, 2019, for failing to report back to his duty station after two days of leave and Complainant’s continuing absence. On September 11, 2019, Complainant was informed his request for Safety Boot Reimbursement was denied. Complainant averred his request was denied because he needed to have worked 45 days with the Agency before making the request, which he had not done. S1 explained he tried to help Complainant with his Safety Boot Reimbursement Request since the timeframe for the boot stipend had not been met due to Complainant not starting on his original start date, but that the final decision was out of his hands. S3 stated he reviewed the invoice Complainant provided with his request for Safety Boot Reimbursement and the Safety Boot Reimbursement policy. He explained Complainant purchased his safety boots May 15, 2019, before his Effective Date of Employment. Complainant also failed to submit his reimbursement request within 45 days from the date of the eligible expense, June 29, 2019. S3 further stated the final decision to deny reimbursement included consideration of Complainant’s AWOL status. On October 23, 2019, Complainant filed an EEO complaint alleging the Agency subjected him to discrimination and a hostile work environment on the basis of race (African-American) when: 1. On September 11, 2019, he learned his request for Safety Boot Reimbursement was denied; 2. On August 13, 2019, he learned his former supervisor processed his Time and Attendance with 36 hours of Leave Without Pay (LWOP) for pay period 17;2 3. On August 1, 2019, he learned S3 contacted the Agency’s Region 9 Forest Assistant Fire Management Officer regarding his Administratively Determined (AD) position, and as a result he was removed from his Fuels Crewmember, GS-0462-04 position; and 4. On several dates, beginning on or around June 2019, he was subjected to various incidents of harassment, including, but not limited to: a. S1 would invite his coworkers to after-work social events in Complainant's presence, but would purposely exclude Complainant from the invitation, b. S1 would assist his coworkers with work-related matters, but would refer Complainant to a "1-800 number", or would tell Complainant "he did not remember the process," and 2 Complainant stated during the investigation that Claim 2 was a “misunderstanding” and declined to answer any additional questions about the claim. The Agency noted this in the final decision and treated the claim as withdrawn. Complainant raised no challenges regarding this matter on appeal; therefore, the Commission can find no basis to disturb the decision in that regard. 2020004437 4 c. S1 would extend good morning greetings and engage in conversation with Complainant’s coworkers but would limit his greeting to Complainant by "throwing his head up." 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). In accordance with Complainant’s request, the Agency issued a final Agency decision (FAD) 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. The instant appeal followed. 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, 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”). Disparate Treatment 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the instant case, assuming arguendo Complainant established a prima face case of discrimination based on race, we find that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, the Agency policy for Safety Boot Reimbursement supports S1 and S2’s statements in order to be eligible for reimbursement of safety boots expenditures, the receipts must be dated on or after the effective date of employment. ROI at 365. Because Appellant purchased the safety boots prior to the start 2020004437 5 of his employment with the Agency, he was not entitled to reimbursement. Moreover, the policy also states that employees have 45 days from the date of an eligible expense (purchase, resole, or refurbish) to submit a request for reimbursement for supervisory review and approval, which Complainant failed to do when he submitted his request past the 45-day deadline of June 29, 2019. Id. With regard to S3 calling Region 9’s FAFMO, Complainant stated he had verbally resigned. However, he still took his issued gear that belonged to the ARNF when he cleared out his personal belongings instead of returning them. When FAFMO asked Complainant why he kept this gear if he had intended to resign or why he thought MTNF would not supply him with this gear, Complainant did not answer. Id. at 295. FAFMO also supported S3’s assertions that a Federal Employee cannot also be an AD by policy. Id. at 294. S3 had reached out to FAFMO to ascertain Complainant’s location and to inform the MTNF and FAFMO that Complainant was currently, to his knowledge, a Federal employee with ARNF. Finally, S3 decided to terminate Complainant due to Complainant’s continuing absence when he failed to return from leave. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected class was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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 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). 2020004437 6 Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant asserted that based on his protected class, he was subjected to a hostile work environment, alleging several incidents of what he believed to be discriminatory harassment as detailed above. The Commission finds that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. Two crewmembers that served at witnesses did not submit any statements supporting Complainant’s allegations of harassment. Neither witnessed any of the alleged harassing conduct from S1. Instead, both stated S1 did not exclude or treat Complainant differently from the rest of the crew, whether in regard to helping Complainant resolve an issue, helping him with his onboarding paperwork, inviting everybody out after work or how he greeted Complainant in the mornings. There is no evidence aside from conclusory statements that Complainant’s protected basis was the reason behind S1’s actions. As a result, the Commission finds Complainant has not shown he was subjected a discriminatory hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because a preponderance of the record evidence does not establish that discrimination occurred. 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 2020004437 7 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. 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 2020004437 8 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 October 18, 2021 Date