Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionMay 1, 20140120131128 (E.E.O.C. May. 1, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120131128 Agency No. FS-2011-00521 DECISION On February 1, 2013, Complainant filed an appeal from the Agency’s December 20, 2013, 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. 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 a Supervisory Forestry Technician (Fire Engine Operator) at the Agency’s Gila National Forest located in Silver City, New Mexico. The Agency advertised for the position of Supervisory Forestry Technician (Assistant Fire Management Officer (AFMO)) at the Gila National Forest, under Vacancy Announcement Number PERM-OCR-462-8/9-AFMO-G. The selection for this position was processed under the fire panel concept by a group of employees that reviewed all of the applications received. The applicants were ranked by the fire panel members into four tiers, with the first tier being the highest. Complainant applied for the position, was found qualified, and was ranked into tier 2. The Selectee applied for the position, was found qualified, and was ranked into tier 1. The District Ranger in the Silver City Ranger District, Gila National Forest, was Complainant’s third level supervisor (S3) and was the Recommending Official for the position at issue. The Forest Supervisor in the Tonto National Forest in Phoenix, Arizona was the Selecting Official. 0120131128 2 On July 15, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), age (53), and in reprisal for unspecified activity when: 1. On February 23, 2011, Complainant learned that he was not selected for the GS- 462-8, Supervisory Forestry Technician position, advertised under Vacancy Announcement Number PERM-OCR-462-8/9-AFMO-G; 2. In 2008, Complainant was not selected and/or not considered for an Assistant Fire Management Officer position; 3. In 2009, Complainant was not given the opportunity to compete for a Fuel Specialist position, as the position was filled noncompetitively; 4. In March 2011, management hired an assistant for Complainant without his input or approval; 5. On May 16, 2011, Complainant received negative evaluations regarding two fire assignments; 6. On an unspecified date “this past year,” Complainant was not included in management's efforts to encourage one of his subordinates to participate in an apprenticeship program; and 7. On June 14, 2011, Complainant’s assigned EEO Counselor informed him that one of management's explanations for the nonselection (i.e., the claim accepted for investigation) provided during pre-complaint counseling was that his computer skills were weak, which is false. On November 8, 2011, the Agency issued a letter of partial acceptance, accepting issue (1) for further processing. The Agency dismissed issues (2) and (3) pursuant to 29 C.F.R. §1614.107(a)(2), for untimely EEO Counselor contact. The Agency dismissed issues (3) – (6) pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that Complainant did not bring these issues to the attention of an EEO Counselor, and the issues were not like or related to the claims that were brought to the EEO Counselor's attention. Finally, the Agency dismissed issue (7), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. At the conclusion of the investigation on the accepted issue, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, 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. In its decision, the Agency noted that Complainant claimed he was subjected to discrimination by S2, a Fire Management Officer in the Silver City Ranger District, and S3, because the Selectee was a younger, non-White employee, who did not have prior protected EEO activity. Specifically, Complainant noted he had almost 20 years of fire experience, including 15 years experience as a Captain on the Type 3 engine, in addition to prior experience serving as a Captain on the Type 6 engine, and working on the Silver City Hotshot Crew and the Wilderness Helitack crew. Complainant stated that he successfully performed the major 0120131128 3 functions of his job and exceeded them by accepting details. He stated that his performance ratings have ranged from “Very Good” to “Excellent” and management never cited any problems with his writing. Complainant stated he successfully wrote technical reports, burn plans, hazard analyses, and similar forest-related documents and no concerns were expressed about his written vocabulary or writing skills. The Agency noted that Complainant accepted special assignments in the past two years that included serving as a Contracting Office Representative (COR) dealing with thinning fuels and accepting out-of-state fire assignments. Complainant explained that he did not travel as much as other employees because his Type 3 fire truck was designed for urban fires. Complainant stated he used computers daily for correspondence, hiring procedures, reports, timekeeping, enrolling in training, and making travel reservations. Complainant stated he kept his crew’s information current in the computer system to generate their work schedules, training assignments, travel orders to fires and payroll records. He also stated that he showed employees how to operate computer programs. Complainant noted that the current Fuels Specialist, Fire Management Officer, and Assistant Fire Management Officer all worked for him and moved up above him in the organization after his supervision and tutelage. The Agency noted that the Selecting Official (SO) stated that the applicants for the position were ranked into four tiers by the fire panel, with the first tier being the highest. The SO noted that applicants in tier 1 were considered ready to perform the major duties of the position. The SO explained that it was rare that a selection for supervisory position was made from anything other than the first tier of applicants. The SO chose the Selectee from the first tier of applicants and did not recall seeing Complainant’s name on the list. The Agency noted that the Recommending Official (S3) confirmed the position was ranked and rated under the fire panel concept. S3 explained that the Forest Supervisor’s Office called and gave him the names of the applicants that the fire panel had placed on the first tier of qualified applicants. S3 stated that Complainant’s name was not on the first tier list, but the Selectee’s name was on that list. The Agency noted that Panel Member 1, AFMO, Prescott National Forest, Arizona, served on the fire panel that evaluated the qualified applicants for the Supervisory Forestry Technician (AFMO) position. Panel Member 1 stated he referenced checks with Complainant’s first and second line supervisors. Panel Member 1 noted that S2 reported Complainant was overwhelmed with the computer systems and was unable to keep up with his work because of his poor communications skills. Panel Member 1 also noted that S2 reported that Complainant had not kept up with his qualifications and had let some of them slip in recent years. Panel member 1 also noted that S2 reported that Complainant declined to go on fires outside the state and harmed his team by not taking them on fires, which in essence caused the team to stay back unless someone else would take the engine out or take Complainant’s team on their team. Panel Member 1 noted that S2 listed Complainant’s skills and experience as being where they should be relative to his years of experience and said he had good verbal skills which served him well when supervising in the field, but his writing skills were not as good. 0120131128 4 Panel Member 1 said S1’s report was much more positive, but he still listed computer skills as a challenge to Complainant’s success as an AFMO. The Agency claimed that S1 also said Complainant’s written skills were not that good. Panel Member 1 also noted that S1 told him that S2 would not give an objective reference check. Panel Member 1 stated that he listed computer skills as the only challenge for Complainant on his work sheet since both S1 and S2 agreed that computer systems were challenging to Complainant. Panel Member 1 stated that he would not have rated Complainant on tier 2 strictly based on the lack of computer skills. Panel Member 1 noted that successful stints as AFMO were essential for an applicant to be rated at tier 1 for the AFMO position. Panel Member 1 stated he always looked in an application for language documenting that the applicant served as an AFMO successfully and then would record it on his worksheet. Panel Member 1 stated his worksheet did not show a notation that Complainant had served as AFMO on detail or temporary assignment. Panel Member 2, the AFMO, Coconino National Forest, Flagstaff, Arizona also reviewed Complainant’s application and did supervisory checks for the AFMO position. Panel Member 2 stated that both S1 and S2 indicated Complainant was challenged in using the computer, and S2 also indicated that Complainant’s writing skills were not good. Panel Member 2 also stated that those reasons alone would not be enough to place an applicant in tier 2 if the applicant had performed successfully in the position being filled. Panel Member 2 stated he always noted the qualifications an applicant possessed for a job, such as serving as an AFMO on a temporary detail assignment, on his review worksheet because successful experience as an AFMO is essential for an applicant to be placed as a tier 1 candidate for selection. Panel Member 2 noted that his worksheet for Complainant did not indicate that Complainant listed experience as an AFMO in his application. Panel Member 3, AFMO, Tonto National Forest, Young, Arizona stated he was the final reviewer of Panel Member 1 and 2’s reviews of Complainant’s applications and his supervisory checks for AFMO. Panel Member 3 confirmed that applicants must have experience in the position to rate tier 1 as their final rating. S2 stated that he was contacted by the fire panel for an evaluation of Complainant’s strengths and weaknesses. He stated that his input was based on his observation of Complainant as his direct supervisor when he was AFMO before his promotion to FMO. S2 stated that he reported Complainant had overall fire experience appropriate for his years of service. However, S2 reported Complainant had not kept up with some of his qualifications in recent years due to him only accepting limited outside assignments. S2 stated that he informed the panel that Complainant had some fuels experience dealing with thinning, that he was a COR on some fuels contracts, and that he was detailed to district fuels specialist for 90 days. S2 stated he commented that Complainant was required to get his people out on fire jobs to maintain their qualifications, but he was reluctant to accept out-of- 0120131128 5 state fire assignments and often his crew had to stay back from fires unless S2 could get someone to take Complainant’s team out on assignments. S2 stated that his overwhelming concern with Complainant’s qualifications for advancement was his difficulty with using computerized systems. S2 conceded that everyone needed help sometimes, but he stated Complainant regularly did not remember what was explained to him the day before, and he struggled with the computer work to the extent that his seasonal employees often did not have their paperwork prepared properly and it took many calls and computer hours to make the corrections. Additionally, S2 stated that Complainant did better out in the field on fire or project work supervising employees where his good oral skills served him well. S1 stated he told the fire panel that Complainant had lots of experience in fire and fuels but only limited experience in aviation, good oral skills, average writing skills, and an overall good work ethic. S1 noted there was nothing negative about his referral although it was not a superior rating. S1 noted that he told Panel Member 1 that he did not think that S2 would give a good evaluation of Complainant. S1 stated that his experience was that S2 was a “yes man” to S3 and would give a poor rating to Complainant so that they could freely select someone else for the AFMO position. S1 stated that he saw nothing to indicate that Complainant had slacked off in maintaining his professional qualifications; he had moved down to a type 4 District Fire Management Officer rating, but maintaining that is largely based on the opportunities he had to accept at that level to keep it current. S1 stated that he saw nothing to indicate that Complainant could not write at the level of “Fully Successful” standards. S1 reported that he never saw anything negative happen to any of Complainant’s employees that could be attributed solely to a failure of Complainant as a supervisor. S1 stated he was surprised by the selection of the Selectee over Complainant and by the fact that Complainant was not even rated in the first tier. The Agency noted that the Selectee was detailed into an AFMO position for 120 days and had worked at the Agency for 15 years. The Agency noted the Selectee had at least two years of college-level education relevant to the position. The Selectee had experience as a COR as well, and Panel Member 1’s notes indicated he had good writing skills. The Agency noted Complainant stated he filed a previous complaint with the Regional Office but he does not remember being contacted by an EEO counselor or EEO investigator. Complainant stated he filed a grievance in 2006 that was settled through mediation. The Agency stated there is no indication that Complainant filed an EEO complaint. The Agency claimed that even if Complainant filed an EEO complaint, management was not aware of prior protected activity. Thus, the Agency found Complainant did not establish a prima facie case of reprisal, and the Agency did not consider that to be a basis for his claims. 0120131128 6 The Agency determined Complainant established a prima facie case of discrimination based on his race and age. The Agency stated that based on Complainant’s applications and references, he was listed as a tier 2 candidate, while the Selectee was listed as a tier 1 candidate. The Agency noted Complainant received a bad reference from S2 based on his less than average writing skills and his poor computer skills. Both Complainant and S1 felt that S2 gave Complainant an unfair reference, but the Agency stated there was no evidence that S2’s reference was based upon Complainant’s race or age. Further, the Agency noted that S1 in his reference indicated that Complainant had less than average writing and computer skills. The Agency noted that neither Panel Member 1 nor Panel Member 2 knew Complainant and found that they did not place him in tier 2 for discriminatory reasons. The Agency determined Complainant failed to show that his qualifications were superior to those of the Selectee. 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 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 that Complainant does not challenge the Agency's dismissal of issues (2) – (7). The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the dismissal of issues (2) – (7) in this decision. Moreover, we note Complainant does not challenge the Agency’s definition of the issues in his complaint. 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 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). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (November 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, 134 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans 0120131128 7 Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy , EEOC Request No. 05950351 (December 14, 1995). In the present case, the record reveals that the Agency presented legitimate, nondiscriminatory reasons for its actions. The record reveals that based on their review of the candidates’ applications and supervisory reviews, the fire panel ranked Complainant into tier 2 and the Selectee into tier 1. A selection was made from the list of tier 1 applicants. On their review worksheets, under “Applicant Challenges,” both Panel Member 1 and Panel Member 2 stated Complainant had problems with computer skills. S1 and S2 both acknowledged that they told the fire panel that Complainant had computer problems. In addition, S2 stated that Complainant had poor writing skills and S1 stated that Complainant’s writing skills were average. In contrast, the Selectee’s writing skills were listed as good by the two individuals who reviewed his application and it was indicated that the Selectee had no “Applicant Challenges.” While S1 stated that he did not think that S2 would provide an objective evaluation of Complainant, we note that there is no indication that S2’s evaluation was based on discriminatory animus. All panel members noted that in order to be ranked in tier 1, an applicant had to have experience as an AFMO. The record reveals that the Selectee had been working on a detail as an AFMO at the time of the selection. In his rebuttal affidavit, Complainant claims that his experience acting as an AFMO was indicated on his application. A review of the record contains a copy of Complainant’s application which consisted of 19 pages. On his application, under “Work History” Complainant did not list experience working as an AFMO. However, on page 13 of his application, in response to a narrative describing his “ability to communicate effectively, both orally in writing,” in one sentence Complainant stated that while working at the Gila National Forest he has had the opportunity to detail as Fire Development, Silver City District AFMO. On page 16 of his application, Complainant listed several awards he received including a March 2003 Certificate of Merit and Cash Award for superior performance as acting AFMO. Finally, on page 18 of his application, under “Significant Details” Complainant listed that he had served as an AFMO from July 2002 – November 2002. While the brief notations on his application did indicate that he served in the position as AFMO, we note Complainant did not provide information detailing the work he performed while in this position. Moreover, we find no indication that any of the Panel Members treated Complainant’s application differently based on his protected status. In the present case, we find that Complainant failed to show that his qualifications for the position were plainly superior to the qualifications of the Selectee. Upon review, we find Complainant failed to show by a preponderance of evidence that the Agency's actions were based on discriminatory animus. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 0120131128 8 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you 0120131128 9 and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date May 1, 2014 Copy with citationCopy as parenthetical citation