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

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2020000829 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommie R.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020000829 Agency Nos. FS-2018-00973 FS-2019-00128 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 25, 2019 final decision concerning the two formal complaints which claimed unlawful 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Hydropower Coordinator at the Agency’s Whitman Ranger District, Region 6, in Blacker City, Oregon. Complainant filed two formal complaints on November 2, 2018 (“Complaint 1” - Agency No. FS-2018-00973) and March 5, 2019 (“Complaint 2” - Agency No. FS-2019-00128), respectively. The Agency consolidated the two formal complaints for processing. 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. 2020000829 2 Complainant claimed that he was subjected to discriminatory harassment based on disability (major depressive disorder, anxiety and chronic Post Traumatic Stress Disorder - PTSD) and unlawful retaliation for prior EEO activity when: 1. on November 14, 2018, he was charged Absent Without Leave (AWOL);2 2. on September 24, 2018, he was issued a Notice of Decision on Proposed Removal, effective October 6, 2018, subsequent to the Notice of Proposed Removal dated July 27, 2018;3 3. on September 18, 2018, he learned his July-August leave was not approved; 4. on various occasions including August 29, 2018, management failed to approve his Leave Without Pay (LWOP) requests; 5. on an unspecified date, he was coerced to begin a disability retirement application in exchange for future approved leave; 6. on May 17, 2018, under the Family & Medical Leave Act (FMLA), his leave and future leave requests were not approved; 7. on several dates, he was subjected to various incidents of harassment, including but not limited to when from April 2018 to September 8, 2018, management failed to communicate with him directly; 8. on or about October 16, 2018, management denied him leave without pay (LWOP) status until his disability retirement, directed him to change his time and attendance subsequent to his termination, and refused to correct his timesheets, resulting in his final pay being withheld; and 2 The record reflects in his affidavit, Complainant stated that the instant claim was investigated in his prior EEO complaint (Agency No. FS-2017-0051) so it should be withdrawn. 3 On October 15, 2018, Complainant filed a mixed case appeal to the Merit Systems Protection Board (MSPB) relating to claims 2, 5 and claim 8. The Agency dismissed claims 2, 5, and 8, pursuant to 29 C.F.R. § 1614.107(a)(4), asserting Complainant first raised these matters before the MSPB and, therefore, made an election to use that process. The record also reflects that on May 1, 2019, the MSPB issued a decision affirming the Agency’s removal action (claim 2 in his EEO complaint). See MSPB Docket No. SF-0752-19-0024-I-1. Claims 5 and 8 are inextricably tied to the removal action because Complainant is alleging he was forced to take a disability retirement because of the removal. Therefore, we will not address claims 2, 5, and 8 further in this decision as they have already been addressed by the MSPB. 2020000829 3 9. on several dates, he was subjected to various incidents of harassment including, but not limited to, beginning September 1, 2018, management singled him out and failed to assign him under new supervision as done with other similarly situated employees. After the investigation of the two complaints, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its September 25, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment - Claims 3, 4 and 6 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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. 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). Here, we find that the responsible Agency official articulated legitimate, non-discriminatory reasons for the disputed actions as detailed below. 2020000829 4 The Deputy Forest Supervisor, also Complainant’s third level supervisor, explained that when Complainant notified him that his July-August 2018 leave was not approved in an email, he approved Complainant’s leave immediately. He acknowledged he should have approved his leave but that the matter “fell through the cracks.” Regarding Complainant’s allegation that on various occasions including August 29, 2018, management failed to approve his Leave Without Pay (LWOP) requests, the Deputy Forest Supervisor, Forest Supervisor, and the Acting District Ranger stated that they were not aware of this incident. The Human Resources (HR) Specialist stated that Agency management contacted him concerning Complainant’s employment status. He recommended that LWOP be approved as Complainant’s disability retirement application was pending. The HR Specialist stated that it was his understanding that Complainant’s LWOP was approved. With respect to Complainant’s allegation that on May 17, 2018, under the FMLA, his leave and future leave requests were not approved, the Forest Supervisor noted the Acting District Ranger denied Complainant’s request because he did not submit the appropriate paperwork for FMLA. He noted that Complainant believed he had an approval from his supervisor. The Forest Supervisor stated, however, Complainant’s leave was approved through May 23, 2018. Moreover, he stated that he was not involved in the approval or denial of FMLA in May 2018. The Acting District Ranger stated that he was Complainant’s supervisor. He stated that on March 1, 2018, Complainant submitted a request for FMLA which was approved from February 26, 2018 through March 30, 2018. The HR Specialist stated that he advised management to approve Complainant’s FMLA leave request. In addition, he advised management to be proactive in notifying Complainant that the approved FMLA entitlement would be exhausted on or around May 23, 2018. Beyond his bare assertions, Complainant failed to produce any evidence that the proffered reasons provided by the management witnesses for the disputed actions were a pretext masking discriminatory or retaliatory animus on any of the bases alleged. Harassment: Claims 7 and 9 To establish a claim of hostile environment harassment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, 2020000829 5 Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 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 a protected basis - in this case, his disability, age or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant claimed that on several dates, he was subjected to various of incidents of harassment, that were not limited to the matter that from April 2018 to September 8, 2019, management failed to communicate with him directly. The Forest Supervisor explained that during the relevant period Agency management communicated directly with Complainant verbally and in writing. He noted that Complainant did not report for duty during his Acting Ranger detail and so most communication had to be in writing. The former supervisor stated at that time, Complainant had access to his work email. Complainant further claimed that beginning September 1, 2018, management singled him out and failed to assign him under new supervision as other similarly situated employees. However, the Forest Supervisor denied the assertion. He stated that at the time of Complainant’s termination, he was no longer affiliated with the Agency. In summary, the weight of the evidence does not support a finding that events occurred as alleged by Complainant and/or that discriminatory or retaliatory factors played any role in the events at issue. His claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). The image which emerges from considering the totality of the record is that there were conflicts and tensions with management that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment unless it can be shown that it was motivated by discriminatory factors. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002); Ferrell v. Dep't of Navy, EEOC Appeal No. 01994603 (no discriminatory animus found when supervisor used profanity) (citing Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 670 (N.D. Cal. 1980)). See also 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.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. There is nothing in this record to show that management was motivated by discriminatory or retaliatory animus. 2020000829 6 Denial of Reasonable Accommodation: Claims 3, 4 and 6 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that he was denied reasonable accommodation during the relevant period. Complainant claimed that on September 18, 2018, his July-August leave was not approved, and that on various occasions including August 29, 2018, management failed to approve his LWOP requests. However, the record reflects that there was an oversight which was immediately corrected after Complainant notified the Deputy Forest Supervisor. According to the Acting District Manager, he averred that Complainant exhausted his entitlement of 480 hours of leave under FLMA. However, he asserted that the Forest Supervisor approved Complainant’s leave which was through June 8, 2018. Evidence in the record indicated that Complainant was on approved leave status during the relevant period. As such, there is no support for a finding that the Agency violated the Rehabilitation Act. CONCLUSION After a review of the record in its entirety, including consideration of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record 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 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). 2020000829 7 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 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. 2020000829 8 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 May 25, 2021 Date