Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Sep 2, 2015

01-2014-1675-0500 (E.E.O.C. Sep. 2, 2015)

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

,
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120141675

Agency No. BLM-12-0406

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated January 23,
2014, finding no discrimination with regard to 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., 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, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

In his complaint, dated July 18, 2012, Complainant alleged discrimination based on disability
(neck and back injury), age (over 40), and in reprisal for prior EEO activity when he was
subjected to an ongoing hostile work environment beginning with a series of events that
occurred from May, 2012, through April 22, 2013:

(1) On May 30, 2012, he was not allowed to participate in training required for all
employees:
(2) On June 1, 2012, he was counseled for stopping to use the restroom during physical
training;
(3) On June 2, 2012, he was excluded from physical training in which all other employees
at the station took part;
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(4) On June 6, 2012, he was counseled about incoming phone calls to the station/barracks
after 10 pm; given an agenda/performance improvement plan; given a schedule
different from the rest of the fire staff; and had limits placed on physical activity;
(5) On June 7, 2012, he was called into a meeting with his first line supervisor (S1)
following an incident with a coworker, in which S1 yelled, cursed, pointed a finger at
him and deliberately taunted and tried to provoke him. Subsequently, S1 told a Human
Resources (HR) Specialist, “I think we finally got him, we found his downfall;”
(6) On June 13, 2012, he was given a “fact finding questionnaire” questioning his role in
the June 7th
(7) On June 16, 2012, S1 told everyone at the station/barracks that he had filed a complaint
against them, but they need not worry, because they were just looking to get rid of him;
incident and directed to respond to it by the end of the day under threat of
disciplinary action;
(8) On June 17, 2012, his request for a meeting with S1 and second line supervisor (S2)
was ignored;
(9) On June 20, 2012, he was notified of an all employee meeting which he was the topic
of;
(10) On July 11, 2012, he was threatened with disciplinary action for not following
the chain of command, despite the fact that S1 ignored his emails;
(11) On July 12, 2012, he received numerous emails from S1 and S2 directing him to
provide medical documentation in a certain format by a deadline (the day of the
doctor’s visit) under a threat of disciplinary action;
(12) His OWCP (Office of Workers’ Compensation Programs) claim was mishandled
and S1 misrepresented the truth about an injury he sustained at work;
(13) On August 21, 2012, he received an email informing him that he was on
administrative leave with pay;
(14) On October 3, 2012, he received a directive from S1;
(15) On April 1, 2013, he received a harassing letter from S2 (Subject: Excessive
Leave, Need for Full-time Employee and Required Medical Leave) which made false
statements and demanded medical information that he previously provided; and
(16) On April 22, 2013, he received a letter from S2 charging him with misconduct
and directing him not to report to work.

After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency thus issued its final Agency decision in which it found no discrimination.

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. (November 9, 1999) (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
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of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that during the relevant time period at
issue, Complainant was an Assistant Fire Engine Operator/Lead Fire Fighter, GS-6, in the
Agency’s Alturas Field Office, West Valley Fire Station, in Alturas, California. Complainant
was a seasonal worker working from March/April through October of each year. The record
indicates that Complainant sustained a work related injury in July 2010, and was not able to
perform the essential functions of his duties as a Fire Fighter. The record also indicates that
Complainant was reinjured on June 14, 2012. The record indicates that since July, 2010, until
April 30, 2013, Complainant was on light duty status, washing windows in the barracks,
mopping floors, cutting grass, and painting.

With regard to claim (1), S1 acknowledged that Complainant was not allowed to participate in
training on the day in question because it was his day off, his participation for the training was
not needed, and he was not entitled to overtime pay since he was on light duty.

With regard to claim (2), S1 indicated that on the date of the incident, Complainant was
assigned to ride his bike as part of his physical fitness training but he did not come back for
over an hour and he was needed at the station to meet with a fire engine mechanic.
Complainant admitted that during his bike riding, he stopped by his friend’s house to use the
restroom and to see how his friend was doing. S1 acknowledged that Complainant was
counseled for the foregoing incident.

With regard to claim (3), S1 and S2 denied that Complainant was excluded from the physical
training. Specifically, S2 indicated that due to his work limitations, Complainant was not able
to do the physical training which was too strenuous for him. S1 also stated that on the date of
the incident, Complainant told S1 that he was not well with an upset stomach after taking some
pills.

With regard to claim (4), S1 and S2 indicated that Complainant was counseled about incoming
phone calls to the station/barracks after 10 PM (as late as 1 AM) because S1 received
complaints from his coworkers that the calls were waking them up at night. S1 denied giving
Complainant an agenda/performance improvement plan or a schedule different from the rest of
the fire staff. S1 indicated that Complainant was given a list of jobs to perform while on light
duty. S2 stated that all employees, including Complainant, were given an hour of physical
training and due to his physical limitation, he was not allowed training of walking with 45
pounds back packs for three miles.

With regard to claim (5), Complainant indicated that on June 7, 2012, while he was on the
phone, his coworker, whom he had verbal confrontations in 2011, “irritated” him by dropping
a milk crate full of papers on the floor creating a loud noise on two occasions. Complainant
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acknowledged that the coworker later apologized to him about the incident. Complainant
reported the incident to S1 and when S1 became confrontational, he told S1 that he would file a
complaint against S1 for S1’s unprofessional behavior. S1 indicated that S1 later apologized to
Complainant for his behavior and S1 was issued a written reprimanded for the incident. S1,
however, denied making the alleged remark to the HR Specialist who did not recall the
incident.

With regard to claim (6), S2 stated that after consulting with the HR Specialist, S2 was advised
to give Complainant the questionnaire to get his input on the June 7, 2012 event, described
above. Therein, indicated S2, Complainant was given until June 14, 2012, which was later
extended, to complete the questionnaire. S2 denied threatening Complainant as he alleged.

With regard to claim (7), S1 denied making the alleged remarks.

With regard to claim (8), S1 denied receiving the email. S2 acknowledged receiving the email
about a meeting. S2, however, stated that since Complainant was on OWCP continuation of
pay at that time and under doctor’s orders not to return to work until June 29, 2012, S2 did not
act upon the request immediately and Complainant did not follow up. Complainant indicated
that he fell off the ladder and reinjured himself on June 15, 2012.

With regard to claim (9), S2 indicated that the June 20, 2012 meeting was held because the fire
station employees requested the meeting. S2 stated that Complainant knew about the meeting
but choose not to attend since he was on OWCP and was advised by his doctor not to return to
work until June 29, 2012. S2 stated that during the meeting, the employees expressed their
concerns about the living conditions at the fire station.

With regard to claim (10), S1 indicated that since Complainant had been directed many times
throughout the year to follow the chain of command and he failed to do so, S1 sent the email at
issue. Therein, stated S1, Complainant was merely reminded to follow S1’s instructions and
he was advised his failure to do so may result in corrective action being taken.

With regard to claim (11), the HR Specialist indicated that Complainant was asked to provide
the Agency with medical documentations multiple times because he did not provide sufficient
documentation after the first request was made. Complainant does not dispute this.
Furthermore, the HR Specialist stated that Complainant was not threatened with a disciplinary
action; rather the letters merely contained standard language to remind, and not to harass,
employees of possible consequences for not following the supervisor’s instructions.

With regard to claim (12), S1 denied mishandling and misrepresenting Complainant’s injury
claim at issue.

With regard to claim (13), Complainant indicated that on August 20, 2012, he sent, via email,
his CA-17 Form wherein his physician indicated that he could return to work in a light duty
capacity with restrictions that he could not lift more than five pounds, but he was not allowed
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to return to work. S1 acknowledged that S1 responded by informing Complainant that he
would be on administrative leave until management could determine the availability of light
duty for him because all supervisors and firefighters were very busy facing with an historic fire
season and were trying to suppress catastrophic wildfires at that time. Complainant does not
dispute this. In fact, Complainant acknowledged that it was a busy time of year and he could
have performed administrative, logistical support, dispatch, or regular maintenance. The HR
Specialist, however, indicated that there were no managers available to supervise or oversee
Complainant’s work at that time as they were away fighting wildfires.

With regard to claim (14), S1 denied the incident. S2 indicated that S2 sent an email to
Complainant asking him as to when he would return to full duty to which Complainant
responded by indicating that he would get back to S2.

With regard to claim (15), S2 denied the letter was intended to harass Complainant; rather it
was merely to check on his current condition since he recently had surgery.

With regard to claim (16), S2 denied the letter was intended to harass Complainant; rather it
instructed him to update management on his condition due to his recent surgery. The record
shows that Complainant was not charged with misconduct in this letter.

After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for the alleged incidents. Also, we find that Complainant failed to
identify any similarly situated employee who was treated more favorably with regard to the
alleged incidents. With regard to harassment claim, we find the instances of alleged
harassment neither severe nor pervasive and therefore did not rise to the level of a hostile work
environment. Upon review, we find that Complainant was not a qualified individual with a
disability since he was not able to perform the essential functions of his position with or
without accommodation. Furthermore, despite his claim, we find that Complainant was not
entitled to an accommodation of his choice, i.e., solely performing administrative, logistical
support, dispatch, or regular maintenance without proper supervision. Also, Complainant
failed to show that there was any vacant funded position that met his medical restrictions.
Complainant did not claim that he was required to perform his duties beyond his medical
restrictions during the relevant time period at issue. We note that the record indicates that
many coworkers complained to management a number of times that they felt unsafe and
unpleasant living in the barracks/station due to Complainant’s demeanor and intimidation and
his late night telephone calls that rang over the speaker constantly. Based on the foregoing, we
find that Complainant failed to show that the Agency’s actions were motivated by
discrimination as he alleged.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.1

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

1 Complainant filed an appeal from the Agency’s final decision dated September 20, 2012,
concerning his complaint, Agency No. BLM-11-0442, dated October 3, 2011, wherein he
alleged a hostile work environment which is pending in our office under EEOC Appeal No.
0120130463.
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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 Complainants 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

September 2, 2015
Date