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

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020005468 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theo C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020005468 Hearing No. 550-2016-00273X Agency No. FS-2016-00044 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated August 10, 2020, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist/Press Officer, GS-13, in the Agency’s Public Affairs and Communications (PAC), Office of the Pacific Southwest Region, Regional Office of the Forest Service, Vallejo, California. On November 11, 2015, Complainant filed his complaint alleging discrimination and a hostile work environment on the bases of sex (male) and in reprisal for prior EEO activity when: 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. 2020005468 2 1. On November 3, 2015, he received a reduced performance award amount; 2. On October 2, 2015, his supervisor (S1) issued him a “Superior” rating on his annual performance appraisal; 3. On August 31, 2015, October 2, 2015 and other unspecified dates, his job duties were diminished, and office assignments were changed; and 4. Since March 2015, he has been subjected to various acts of harassment, including but not limited to: a. On May 8, 2015, his second level supervisor (S2) told him “maybe this isn’t the right job for you anymore;” b. On May 12, 2015, management threatened to remove some of his job duties; c. On May 29, 2015, he was told that approval of his requested leave was conditional; and d. On October 5, 2015, his work location was moved from the 2nd floor to the 4th floor of the building. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ granted Complainant’s motion to amend his complaint to add the following claims: 5. On or about August 9, 2016, the Agency, through S1, issued to Complainant a letter of expectation including seven restrictions on his work and reiterating his unfavorable work schedule; and 6. On or about December 2, 2016, the Agency, through S1, informed Complainant orally that he would no longer be a spokesperson on the issue of tree mortality, which had been part of his job duties as a regional Press Officer, and Complainant was asked to move from the 2nd floor back to the 4th floor. On August 4, 2020, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Regarding claims 1 and 2, S1 indicated that Complainant’s performance for the appraisal period from October 1, 2014, to September 30, 2015, was “Superior,” and it did not rise to the level of “Outstanding.” S2 indicated that Complainant’s rating was based on the negative feedback received from S2’s supervisor (S3), the Acting Deputy Regional Forester. S3 informed S2 that during a meeting held on April 9, 2015, to prepare S1 and an identified Forest Supervisor for an interview with a reporter concerning a high-profile topic, Complainant interrupted S1 twice and was reluctant to adapt the change in messaging and direction espoused by S1. S2 did not attend the meeting. Toward the end of the meeting, S3 asked Complainant to draft a set of talking points reflecting the direction that S1 wanted to take in response to the reporter’s questions. 2020005468 3 Complainant submitted the requested talking points later the same day; however, the talking points did not adequately capture the message emphasized by S1 in the meeting. Thus, S3 had to rewrite the talking points herself on the evening of April 9, 2015. For his appraisal, Complainant received a fully successful rating for Mission Results performance element due to his poor work product, described by S3, above, and exceeds fully successful ratings in three other performance elements which resulted in his annual overall rating of “Superior.” Complainant was awarded a $1,350 performance award for his “Superior” annual rating the same as other employees with “Superior” annual ratings. Regarding claims 3 and 4, S2 indicated that on May 8, 2015, Complainant told her that he was overstressed and overworked. In response, S2 told Complainant that: she was sorry to hear that; she would talk with S1 about offering some assistance; and S1 would let her know if there were other less stressful positions that might appeal to him. S1 indicated that Complainant also told S1 that he was overwhelmed with his work assignments and his workload was stressful causing him stomach issues, including neck, shoulder, and back pain. In response, S1 agreed with Complainant that his Press Officer job could be stressful due to its complexity at the GS-13 level. S1 then decided to transfer some of his duties to another individual to reduce his workload. S1 indicated that Complainant did not complain about this change at that time. Regarding Complainant’s leave request, S1 indicated that under the office policy, Complainant, as a Press Officer, and his designated back-up employee, were required to coordinate their leave schedules to ensure coverage of media inquiries. Although S1 usually talked to Complainant in person when he asked for leave, since S1 was given the leave form, S1 just indicated on the form for Complainant to ensure that he and his back-up employee had coordinated coverage of media inquiries. Complainant acknowledged that both he and his back-up employee were required to coordinate their leave schedules. Regarding Complainant’s work location, Complainant’s original PAC office location was on the 4th floor. During the summer of 2015, Complainant and another PAC employee temporarily moved to the 2nd floor to assist the Fire and Aviation Management unit because of high fire activity. In October 2015, after the fire activity had diminished, Complainant moved back to his PAC office on the 4th floor. Regarding claims 5 and 6, in the spring of 2016, Complainant was tasked with providing communications and media relations assistance to the Tree Mortality Response (TMR) Team. The Agency indicated that on June 21, 2016, Complainant was allowed to temporarily relocate to the 2nd floor TMR work area while the Agency conducted an inquiry of his allegation that S1 made him feel unsafe at work. In July 2016, the Agency conducted an inquiry concerning Complainant’s allegation against S1 which was found to be unsubstantiated. On July 27, 2016, the TMR Team determined that they did not need full-time assistance from Complainant. Thus, management decided that Complainant would work part of his time with the TMR Team and part of his time working at his desk in his PAC unit. On August 9, 2016, S1 sent an email to Complainant because S1 was having difficulty communicating with him and Complainant did not attend scheduled PAC staff meetings. 2020005468 4 S1’s email to Complainant articulated his expectations regarding Complainant’s work location, schedule, and assignments. In December 2016, Complainant was returned to his PAC unit on the 4th floor because the TMR Team no longer needed Complainant’s assistance with communications regarding tree mortality. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). 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. 2020005468 5 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. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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. 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for its actions were a pretext for discrimination. Specifically, Complainant’s performance during the 2015 fiscal year warranted a “Superior” annual rating and $1,350 performance award based on that rating. Specifically, Complainant’s drafted talking points were not satisfactory as requested by S3. During the 2015 summer season with a high fire activity, Complainant and his coworker were temporarily assigned to the Fire and Aviation Management unit on the 2nd floor to assist the unit. Further, during the spring of 2016, Complainant was tasked with providing communications and media relations assistance to the TMR Team. When his assistance was no longer needed in the Fire and Aviation Management or in the TMR Team, Complainant was moved back to his original PAC unit on the 4th floor. Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. 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 action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2020005468 6 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). 2020005468 7 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 November 8, 2021 Date