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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020000772 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Porter H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020000772 Agency No. FS-2017-00673 DECISION On October 9, 2019, 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 September 3, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a District Ranger, Grade GS-13, at the Agency’s Coronado National Forest, Clifton Ranger District, Southwest Region 3, in Duncan, Arizona. On October 24, 2016, Agency management began investigating Complainant for misconduct as a supervisor. On January 7, 2017, the Agency completed the investigative report. On April 24, 2017, the Agency transferred Complainant to its office in Stafford, Arizona (Stafford Office) on a two-year detail to work as a Policy Analyst, Grade GS-13. On that same date, the Agency, issued a notice proposing Complainant’s suspension for conduct unbecoming a federal supervisor and specified ten offenses committed between 2014 and 2016. 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 2020000772 Represented by counsel, Complainant responded to each of the allegations. On September 24, 2017, the Agency indicated that Complainant’s suspension had been reduced from thirty to fourteen days. On September 13, 2017, Complainant filed the instant formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian/White), sex (male), and religion (Church of Jesus Christ of Latter-Day Saints, hereinafter “LDS”), when: 1) On April 24, 2017, management issued Complainant a letter directing his reassignment to a GS-13, Program Analyst (non-supervisory) detail position in Safford, Arizona, effective April 30, 2017, through April 29, 2019, and; 2) On September 28, 2017, management issued Complainant a Notice of Decision on Proposed Suspension which imposed a 14-day suspension, effective October 8 to October 17, 2017. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant provides supporting evidence from Complainant’s response to the Agency’s proposed 30-day suspension notice. Witnesses provided sworn testimony regarding Complainant’s positive character traits. Complainant included his performance evaluations wherein he had regularly received outstanding ratings in addition to meritorious awards. Complainant states the Agency’s disciplinary actions were overly harsh and inflicted emotional distress upon him and his family. 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). EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Ch. 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”). We reviewed, de novo, Complainant’s claims of racial, religious and sexual and discrimination. Our following discussion has been structured consistent with the U.S. Supreme Court’s three- part analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 3 2020000772 For Complainant to prevail, he must first establish prima facie of disparate treatment, by presenting facts that, if unexplained, reasonably infer discrimination, i.e., that a prohibited consideration was a factor in the Agency’s employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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 persuade the fact-finder by a preponderance of the evidence that the Agency acted based on animus toward her EEO-protected characteristics. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). At all times, Complainant bears the burden to show by preponderant evidence that the Agency’s reasons for the decisions at issue were pretexts to mask unlawful discriminatory motives. See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). For purposes of this analysis, we determined Complainant established the prima facie case. We observed none of the managers or witnesses involved in this case identified as LDS-affiliated. We now examine whether the Agency’s reasons for the challenged personnel actions and whether those reasons were pretextual. Detail to Stafford Office Complainant contended that he did not want the Stafford Office detail and that his removal from the supervisory District Ranger position at the Coronado National Forest was discriminatory. The Agency stated, however, that Complainant’s Stafford Office detail was neither punitive nor involuntary. Complainant’s first-line supervisor (Forest Supervisor) was an African American male and non-LDS Christian. The Forest Supervisor stated the policy analyst vacancy at the Stafford Office needed to be filled and Complainant had developed the desired skills for this particular detail. Forest Supervisor expressed confidence in Complainant’s competence on matters involving the National Environmental Policy Act. The Forest Supervisor stated that Complainant was chosen for the Stafford Office to serve as lead on a project involving the Clifton Ranger District’s Apache-Sitgreaves National Forest. The Forest Supervisor stated that he had assigned other employees to similar details. The Agency’s reasoning was both legitimate and non-discriminatory. Furthermore, record revealed testimony revealed low morale among some of the employees who Complainant had supervised at the Coronado National Forest. To the extent that the Forest Supervisor considered the Agency’s January 7, 2017, report of investigation into Complainant’s misconduct in his decision to reassign Complainant, we are not persuaded the Forest Supervisor harbored discriminatory animus based on the raise bases. Assessing record evidence in the light most favorable to Complainant, we find that he simply did not prove the Agency’s articulated reasons for detailing to him to the Stafford Office were pretextual. 4 2020000772 Fourteen Day Suspension A fair reading of the entire record reflects that the Agency had determined that Complainant had committed multiple acts of supervisory misconduct and violated Agency rules for acceptable behavior. In August 2016, Complainant invited the daughter of a subordinate male wildlife biologist to accompany Complainant’s daughter to an LDS-sponsored dance. After the invitation was declined, Complainant left an LDS pamphlet at the wildlife biologist’s desk. A female ranger had reported Complainant had played a ringtone on an Agency-provided cellphone that was a parody of Neil Diamond’s song “America.” This ringtone lamented that Mexicans were coming to America to take jobs from its citizens. Although Complainant had been instructed to delete the ringtone, Complainant had failed to do so when he turned in the cellphone to the Agency in October 2014. On May 22, 2015, a male rangeland specialist used heavy machinery without proper eye protection. This employee was under Complainant’s supervision at that time. Complainant sent the rangeland specialist home and charged him leave without pay LWOP. By immediately charging LWOP without giving a prior warning, Complainant had violated the Agency’s applicable regulations on progressive punishment. Regarding the allegation that he had inappropriately pressured the wildlife biologist to become involved in his LDS activities. Complainant asserted that he was merely attempting to welcome a new employee and his family into the local community. Complainant did not deny that he had downloaded the anti-Mexican ringtone on a government cellphone. Rather, he stated that he had already apologized to coworkers for the offensive ringtone. Complainant admitted charging LWOP against the rangeland specialist was erroneous. According to Complainant, he had corrected his mistake when he permitted the rangeland management specialist to use credit hours in lieu of being charged LWOP. Overall, the record confirmed that Complainant comported himself in a manner which the Agency determined was unprofessional and an exercise in poor judgment as a supervisor. The Agency’s suspension of Complainant was not unwarranted. We are not persuaded that the Agency’s justifications for disciplining Complainant were pretexts for unlawful animus toward his religion, his race, or sex. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). CONCLUSION Based on a comprehensive review of record evidence and Complainant’s contentions, we AFFIRM the final Agency decision of no discrimination. 5 2020000772 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. 29 C.F.R. § 1614.405; EEO MD-110, at Ch. 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 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, Complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of expiration of the applicable filing period. 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). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his 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 request for reconsideration, unless extenuating circumstances prevented timely filing. Any supporting documentation must be submitted with the request for reconsideration. EEOV will consider requests filed after the deadline only in very limited circumstances. 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. 6 2020000772 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, Director Office of Federal Operations May 24, 2021 Date