Stanton S.,1 Complainant,v.Michael Young, Acting Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0120141661 (E.E.O.C. Feb. 16, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stanton S.,1
Complainant,

v.

Michael Young,
Acting Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120141661

Agency No. FS-2013-00180

DECISION

On March 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s March 6, 2014, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 an Information
Assistant, GS-1001-05, at Los Padres National Forest in King City, California. On March 5,
2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the bases of sex (male), disability (hearing impairment/arm and back injury), age (71), and
in reprisal for prior protected EEO activity when:

1. on November 20, 2012, his supervisor placed negative comments in the non -
critical “Teamwork and Partnership” element of the Complainant's annual
performance evaluation;

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.
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2. in March 2013 and on April 9, 2013, he was denied Wellness Program periods;

3. on April 1, 3, 4, and 10, 2013, he was subjected to disparate treatment when
female employees were permitted to take longer lunch breaks and participate in
the Wellness Program without the same or similar documental [sic] or
recordkeeping requirements;

4. on August 22, 2013, he was issued a Letter of Proposed Suspension; and

5. on several dates, he was subjected to various acts of harassment, including
but not limited to:

a. on June 3, 2013, his supervisor and coworker acted in a hostile and
threatening manner towards him, such that he contacted the police;

b. on June 3, 2013, and other unspecified dates, a management official
questioned his wearing of prescription sunglasses in the office; and

c. on July 9, 2013, during his mid-year performance evaluation, his
supervisor accused him of making a visitor uncomfortable while working
at the front desk.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision 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.

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”).

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). He must generally establish a prima facie case by demonstrating that he
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was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). 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 Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Claim #1 (Negative Performance Evaluation)

Complainant’s performance appraisal for the period ending September 30, 2012, noted several
instances when Complainant failed to provide customers with accurate information. According
to the Agency, these comments were included in the appraisal in order to point out deficiencies
in Complainant’s performance and suggest ways in which he could improve. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant has failed to show
that it is a pretext designed to conceal discriminatory animus.

Claims #2 (Denied Wellness Program Participation)

According to the Agency, Complainant’s participation in the Wellness Program was governed
by the Wellness Agreement signed by Complainant. That agreement provided that
Complainant could participate in the Wellness Program if someone was available to perform
his duties in his absence. On the occasions about which Complainant complains, he was not
permitted to participate in the Wellness Program because no one was available to perform his
duties in his absence. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has failed to show that this reason is a pretext designed to conceal discriminatory
animus.

Claims #3 (Female Employees Treated Differently with Respect to Wellness Program)

As noted, 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, he must first establish a prima facie case of disparate treatment on a
prohibited basis. Complainant must show that: (1) he is a member of a protected class; (2) he
was subjected to an adverse employment action; and (3) he was treated differently than
similarly situated employees outside his protected class, or there is some other evidentiary link
between membership in the protected class and the adverse employment action.

Here, Complainant contends that female employees were treated more favorably than he in that
they were permitted to take longer lunch breaks while participating in the Wellness Program
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and were not required to submit the same type of documentation to verify their participation in
the program as was Complaint. The record shows that Complainant’s immediate supervisor
supervised only one female employee and that that employee did not participate in the Wellness
Program. Therefore, it has not been shown that similarly situated females were treated more
favorably than Complainant with respect to the Wellness Program.

Claim #4 (Letter of Proposed Suspension)

The Agency explains that Complainant was issued a Letter of Proposed Suspension because of
his conduct during a workplace confrontation between Complainant and two supervisors that
took place on June 3, 2013. According to the Agency, in the course of that incident,
Complainant became upset, began screaming and, without justification, dialed “911,” resulting
in the police responding to the scene. This is a legitimate, nondiscriminatory reason for the
Agency’s action. Complainant has failed to show that this reason is a pretext designed to
conceal discriminatory animus. Complainant does not dispute that he called 911 and
summoned the police in the course of this incident. Complainant contends that he was
threatened by the two supervisors but the testimony of witnesses does not support that claim.

Claim #5 (Harassment)

It is well-settled that harassment based on an individual’s statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily
protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct
related to his membership in those classes or his prior EEO activity; (3) the harassment
complained of was based on those classes or that activity; (4) the harassment had the purpose
or effect of unreasonably interfering with his work performance 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).

Here, there is no evidence that any of the claimed harassing actions undertaken by Agency
management or by Complainant’s co-workers were based on his sex, disability, age, or in
reprisal for prior protected EEO activity. There is no evidence, for example, of an ageist slur
or disability-based ridicule that would support an inference of discriminatory animus.
Complainant points to a management official questioning his wearing of prescription sunglasses
in the office, however we find that this comment, even if based on Complainant’s vision
limitation, does not rise to the level of an incident so severe or pervasive that it would
constitute a legally hostile work environment. Additionally, we note that claim 5(a) refers to
the incident for which Complainant was issued the Letter of Proposed Suspension at issue in
claim 3. Therefore, we find that Complainant has not established a claim of harassment.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

February 16, 2017
Date