0120091671
08-31-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Forest Service), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Forest Service),
Agency.
Appeal No. 0120091671
Agency No. FS-2007-01089
DECISION
On March 17, 2009, Complainant filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency correctly determined that: (1) Complainant was not denied a reasonable accommodation; and (2) Complainant was not discriminated against in retaliation for engaging in protected EEO activity when he was given a negative evaluation, suspended and subsequently terminated.
BACKGROUND
During wildfire season, the Central Oregon Interagency Dispatch Center (COIDC) dispatches local, state, and federal emergency workers to suppress fires. Typically, an official places a request for a certain type of emergency worker. Logistics Section Chief Affidavit (Aff.) 2. This request is received by the area coordination center, which consults a computerized system for an "administratively determined" employee who is available for that position. Id. The area coordination center then selects an appropriately qualified and available employee and dispatches that person. Id. The dispatcher normally passes on to the requesting official any information about that person's reasonable accommodation needs. Id.
Since 2000, Complainant took part in fire suppression efforts under the "Administratively Determined Pay Plan for Emergency Workers."1 The Agency temporarily hired him to be a Base camp manager. Complainant Affidavit (Aff.) 2.2 Base camp managers supervise crews that set up and maintain the base camps for the firefighters. In 2005 and 2006, Complainant received excellent performance ratings as a base camp manager.3 In the fall of 2006, Complainant's doctors indicated that he had two impairments: a chronic back condition that made it difficult to stand or walk for prolonged periods of time and obstructive sleep apnea. In an August 24, 2006 letter, a doctor wrote that Complainant's sleep apnea was serious enough that he needed to use a machine, known as a Continuous Positive Airway Pressure device (CPAP), whenever he slept. In an August 25, 2006 letter, Complainant's primary care doctor recommended that sitting would help ease Complainant's back condition, and that an all-terrain vehicle would help him with mobility issues.
Egley fire
On or around July 9, 2007, Complainant was dispatched as a base camp manager to the Egley complex fire in Burns, Oregon. According to Complainant's affidavit, he requested that dispatch advise the incident team that he would be bringing an accommodation for his disability, but the "resource order" did not note the request for an accommodation. So when he arrived at the camp site, he had to inform the facility unit leader of his need for an accommodation. Complainant Aff. 6.
The facilities unit leader testified in his affidavit that Complainant informed him of his back condition, and that he needed to use his personal utility vehicle to get around the camp site. Facilities Unit Leader Aff. 2. Complainant, he stated, indicated that he could not walk more than a few yards. The facilities unit leader prohibited Complainant from using his personal utility vehicle because he felt it was not safe to drive any type of vehicle in or around the camp area where fire fighters were sleeping in tents. Id. The facilities unit leader also cited a policy that prohibited the hiring of personal vehicles or equipment from employees. Id. at 3. However, the facilities unit leader acknowledged in his affidavit that, in the past, the team had used utility vehicles or golf carts from other agencies when required. Id. at 2.
Instead of having Complainant work as a base camp manager, the team's Deputy Logistics Chief indicated in an unsworn statement that he asked Complainant to work as a night radio operator, temporarily. ROI Ex. 9. Complainant at first stated that he was not trained or certified as a radio operator, but he tried the job for one night since nothing else was available to him. Complainant Aff. 6. In the morning, Complainant indicated that he would work at the Egley fire as a base camp manager, be reassigned to another location to work as a base camp manager, or be demobilized and sent home. ROI Ex. 9. The incident team denied his request to work as a base camp manager, so Complainant demobilized and left. Complainant Aff. 6.
The Deputy Logistics Chief for the Egley fire wrote in an unsworn statement that the morning after Complainant had worked as a night radio operator, Complainant told him not to talk to him as he was unhappy, and that he had not come to the camp to be a radio operator. Complainant then spoke to the facilities unit leader. Complainant allegedly stated that he really did not like working for either team and asked to be reassigned, sent back home, or allowed to work as the base camp manager for this site. According to the Deputy Logistics Chief, Complainant said if he had known which teams were here, he would not have accepted the assignment.
Monument Fire
On or around July 15, 2007, Complainant was dispatched to the Monument complex fire in Monument, Oregon. According to the Logistics Section Chief (Complainant's second-level supervisor), Complainant requested a power source for his sleep apnea machine, which was immediately provided by moving vehicles so Complainant could access a power outlet. Logistics Section Chief Aff. 3. The Logistics Section Chief stated that Complainant did not request to use a utility vehicle. Id. Nevertheless, because the Logistics Section Chief had worked with Complainant in 2006, and was aware of Complainant's previous accommodation requests, the team made a utility vehicle available to him, which he declined. Id. Instead, Complainant wanted to use his personal utility vehicle.
The Logistics Section Chief stated that he reminded Complainant that a national policy change in 2007 prohibited agencies from paying administratively determined employees for using their personal equipment because of a conflict of interest between contracting and federal employment. Id. at 3-4. For the duration of the fire, the team brought in another base camp manager to work alongside Complainant. ROI Ex. 7, at 6.
Negative Performance Evaluation, Suspension, and Termination
On July 22, 2007, the Logistics Section Chief for the Monument fire issued Complainant an overall negative incident personnel performance rating for the period from July 18, 2007 to July 22, 2007. ROI Ex. 7, pg. 6. The performance rating included the following remarks by the Logistics Section Chief:
* Complainant had an unprofessional attitude and expressed his personal dislike of the team, because in 2006 the team had refused to sign up and pay for his personal utility vehicle and generator. Id.
* The Logistics Section Chief knew that Complainant had recently had surgery. Complainant brought his personal utility vehicle to assist his performance on the job, but the Logistics Section Chief was concerned about liability issues. The Logistics Section Chief had a "real concern for [Complainant's] physical welfare, and ability to meet the level of exertion required to perform the duties required; even though [Complainant] expressed his desire to manage the spike camp. To manage this potential risk, a second BCMG was assigned to the Spike Camp." Id.
* "The morale of the personnel associated with [Complainant] at the spike camp was compromised by his continual negative comments regarding the management team assigned to the Incident." Id.
He also stated that Complainant would "[b]enefit from a refresher course in base camp operations, basic supervision, and interpersonal relationships as well communication skills." He noted that Complainant "exhibited a lack of initiative. When given a task it was not followed correctly or as identified correctly."4
Furthermore, he indicated that, prior to July 22, he had received adverse reports about Complainant's ability to manage personnel assigned to him and about alleged misconduct. ROI Ex. 7, pg. 4.
He also stated that:
This performance evaluation was not written in reprisal because Complainant had a disability and/or because he requested a reasonable accommodation. Complainant's insistence that he use his personal vehicle at this complex was a matter of his personal choice, thus no compensation was considered, or even allowed under the new guidelines. Furthermore, in the past 13 years that I have been on incident management teams, I have provided reasonable accommodations to employees who have had temporary injuries or illnesses, Parkinson's disease, sleep apnea, diabetes, and chronic back pain.
Id.
On August 29, 2007, the Assistant Fire Staff Officer for the Central Oregon Fire Management Service issued a letter, suspending Complainant's incident qualifications card due to the July 22, 2007 performance rating and additional, unspecified documentation. ROI Ex. 13.
Finally, on October 1, 2007, A-1, the Interagency Fire Management Officer issued a letter that was approved by A-2, the Forest Supervisor. ROI Ex. 14. The letter informed Complainant that he would no longer be hired because of issues arising from the Egley and Monument fires, where Complainant had conflicted with Incident Management Teams on several occasions. Id. According to the letter, such incidents demonstrated that Complainant had difficulty working in a team environment, which put firefighters and the public at risk. Id.
EEO Complaint
Complainant filed a formal EEO complaint on December 17, 2007. Complainant's allegations included various incidents in which COIDC and incident management team personnel allegedly discriminated against him on the bases of physical disability (back and mobility issues), and reprisal for prior EEO activities. The Agency accepted the following issues for investigation: Whether the Agency discriminated against Complainant on the bases of physical disability (back and mobility issues) and reprisal when:
1. he was denied reasonable accommodation; and
2. he was suspended and eventually terminated from employment.
The Agency issued a final decision on January 7, 2009. The Agency found that it did not discriminate against Complainant on the basis of disability or deny him a reasonable accommodation. The Agency further determined that Complainant did not demonstrate that he had engaged in prior protected EEO activity, or that there was a nexus between any protected activity and the subsequent adverse actions.
Complainant did not provide a timely brief on appeal.5
ANALYSIS AND FINDINGS
Standard of Review
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 of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
At the outset, we note the Agency's March 22, 2007 policy memorandum that provides that "administratively determined" employees cannot simultaneously have contracts or Emergency Equipment Rental Agreements (EERAs) for emergency equipment or services with the government. The memorandum counsels officials to avoid hiring "administratively determined" employees who have simultaneous EERAs and contracts of any type. If an official needs to obtain equipment and operators, then the official should enter into an EERA for the vehicle to be furnished "with driver."
We find that the Agency's equipment rental policy did not prohibit Complainant from using his personal utility as a reasonable accommodation. What the policy prohibits is that the Agency cannot enter into a rental agreement with Complainant in order to utilize his personal utility vehicle for purposes other than to transport him around a base camp site.
Reasonable Accommodation
Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). A modification or adjustment is "reasonable" if it appears to be "feasible" or "plausible." Enforcement Guidance on Reasonable Accommodation at 4. An accommodation also must be effective in meeting the needs of the individual. Id. at 4-5.
To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) ("Enforcement Guidance on Reasonable Accommodation").
Assuming, for purposes of this decision only, that Complainant is an individual with a disability and qualified, we find no persuasive evidence that he was denied a reasonable accommodation. We note that an employer is not required to provide the reasonable accommodation that the individual wants, as long as the chosen accommodation is effective at removing the workplace barrier. Id. at 18. When there are two or more effective accommodations, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations" Id. The employer may choose an alternate effective accommodation that is easier to provide, less expensive, or less burdensome that the accommodation requested by the complainant. Id.
For the Monument fire, we find that Complainant was offered reasonable, effective accommodations when he was allowed to use his sleep apnea machine and was afforded the opportunity to use an alternate utility vehicle. Although Complainant asked to use his own personal utility vehicle, we find no evidence that using a different utility vehicle would not have been effective in meeting Complainant's mobility needs.
Likewise, we do not find that he was denied a reasonable accommodation with respect to the Egley fire. The record indicates that in order to accommodate Complainant's back condition management asked Complainant to temporarily work as a night radio operator, because of concerns about the use of Complainant's personal vehicle if he were the Base camp manager and driving about the camp at night. Although Complainant worked one night as a radio operator, he informed management that he either had to work at the Egley fire as a Base camp manager, be reassigned to another location to work as a Base camp manager, or be demobilized and sent home. Here, the Radio Operator position, although not Complainant's first choice, satisfied his doctor's recommendation that sitting would help ease Complainant's back condition, and because there was no need for him move about the camp it eliminated his need for his personal all-terrain vehicle which satisfied management concerns about the safety of sleeping firefighters around the base camp.
It is important to note, however, that Complainant was only asked to work as a Radio Operator temporarily. ROI Ex. 9. The Deputy Logistics Chief stated that he asked Complainant if he would be willing to work in that position until "I could get the position filled. "I told him that this would only last two or three shifts. [Complainant] said he was willing to do the RADO job." Id. Complainant's insistence that he would only remain at the site in the role of a Base camp manager caused a breakdown in the interactive process and resulted in his requesting to be demobilized and sent home when he was not immediately placed in the Base camp manager position. Because of this breakdown in the interactive process, the parties were not able to discuss other options that may have resulted in Complainant continuing at the site in the position that he sought. We note, for example, that at the Monument fire, management brought in another Base camp manager to work with Complainant.
Given the totality of the circumstances the parties faced during these situations and based on the above facts, we simply cannot find that the Agency failed to provide Complainant with a reasonable accommodation at either the Monument or Egley fires.
Reprisal
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case 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. 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. 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 on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
We find that Complainant established a prima facie case of reprisal discrimination. Specifically, the record reveals that Complainant engaged in prior EEO activity when he requested to be provided a reasonable accommodation and the Agency was clearly aware of that activity. Further, we find that Complainant was treated adversely. The record reveals that Complainant was given a negative performance rating, suspended, and eventually terminated from employment. Further, we find that a nexus existed between Complainant's prior EEO activity and the adverse actions given the fact that the adverse actions took place within a relatively short period of time after the EEO activity took place.
We now turn of the Agency's proffered reasons for its actions. The Agency stated that Complainant received a negative performance evaluation, was suspended and was ultimately terminated because of his conduct during the Egley and Monument fires which led management to conclude that he had difficulty working in a team environment. The Agency noted his statements at the Monument fire to team members of his personal dislike of the team due to the team's prior refusal to pay for his personal utility vehicle and generator in 2006. According to the Agency, the morale of the personnel associated with Complainant was compromised by his continued negative comments regarding the management team assigned to the incident. There were similar concerns about his conduct at the Egley fire site, and performance concerns.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, Complainant must now demonstrate that the Agency's proffered reasons were a pretext for reprisal. We find that he has not met his burden. In so finding, we note that we do not have the benefit of an Administrative Judge's findings after a hearing, as Complainant chose a final decision from the Agency instead, and therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Unlike Complainant, we do not find that the Agency's concerns about his behavior were based on the fact he requested accommodations, but on his conduct during the Egley and Monument fires. We find no persuasive evidence of pretext. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision for the reasons set forth above.
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. 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, Director
Office of Federal Operations
__8/31/15________________
Date
1 In a memorandum dated February 7, 2007, the Agency's Office of General Counsel determined that personnel hired under the Administratively Determined Pay Plan for Emergency Workers are considered federal employees for purposes of Title VII of the Civil Rights Act of 1964. Report of Investigation (ROI), Exhibit (Ex) G.
2 During the investigation, Complainant's attorney delayed sending to the investigator a signed copy of Complainant's affidavit. The record includes only an unsigned affidavit from Complainant. However, the EEO investigator issued a letter on April 16, 2008, allowing Complainant to provide a rebuttal statement to the Agency witness' testimonies. The EEO investigator also wrote: "You are considered sworn from your previous affidavit; therefore, you do not need to have your rebuttal notarized or sworn to by the investigator."
3 The record includes four performance ratings, dated July 10, 2005, August 5, 2005, September 17, 2006, and September 19, 2006. In all of the performance ratings, Complainant received either satisfactory or superior ratings for each factor.
4 The Logistics Section Chief also stated that Complainant "[d]ispatched his entire Camp crew, without assuring adequate communication was in place to account for their welfare. He could not account for them for more than five hours."
5 The record reflects that Complainant filed his appeal on March 17, 2009. Complainant's brief was not filed with the Commission until June 1, 2009. Nothing in the brief or the record explains why the brief was not submitted in a timely manner, i.e., within 30 days of filing the initial appeal. 29 C.F.R. � 1614.403(d). Further, the record does not contain any evidence that the Commission granted any requests from Complainant to extend the filing period. Accordingly, we find that Complainant's appeal brief was not timely filed.
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0120091671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091671