Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

May 1, 2014

0120131128 (E.E.O.C. May. 1, 2014)

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.

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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
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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.
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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-
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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.

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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
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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.

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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

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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