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

Equal Employment Opportunity Commission

Apr 22, 2015

01-2013-2001-0500 (E.E.O.C. Apr. 22, 2015)

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. 0120132001

Agency No. FS201101028

DECISION
On April 26, 2013, Complainant filed an appeal from the Agency’s 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for
de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Works
Program Officer (AWPO) and Safety Officer, GS-9, with the Forest Service, located in
Coeburn, Virginia. On January 30, 2012, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of disability and age (59) when:

(1) on March 3, 2010, he was given a Letter of Warning (LOW);
(2) on September 23, 2010, he was given a Letter of Direction (LOD);
(3) on September 14, 2011, he was given a Letter of Reprimand (LOR);
(4) on unspecified dates, he was assigned tasks that required him to do more walking than
his medical restriction allowed;
(5) on an unspecified date, and in an unspecified manner, management caused him to lose
his government travel card; and
(6) beginning on or about April 26, 2010, and continuing, management has subjected him
to additional harassing treatment intended to set him up for failure, including: (a) on
May 26 and August 3, 2011, he was accused of unspecified misconduct and subjected
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to “surprise” interrogations; (b) beginning on April 26, 2010, he was provided with no
training for his AWPO position, which he started on the same date; (c) on unspecified
dates he was assigned multiple challenging projects but accused of “dumping” his work
on coworkers when he sought their guidance or assistance and ultimately prohibited
from consulting them; and (d) on an ongoing basis, he was required to report to
multiple supervisors who were not coordinating their directions with each other.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). 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.

ANALYSIS AND FINDINGS
Harassment: Claims 1-3 & 5-6

To prove his harassment claim, Complainant must establish that he was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of a protected basis, i.e.

, in this case, disability and/or age. Only if
Complainant establishes both of those elements, does the question of Agency liability present
itself.
We agree with the Agency and conclude that while the evidence supports Complainant’s
assertions that his second-line supervisor (S2) was engaged in an attempt to ultimately
terminate Complainant’s employment, the record is devoid of evidence to support the assertion
that S2 was motivated by Complainant’s disability and/or age. We note that the record shows
that S2 treated younger and non-disabled employees in a similar fashion.

Reasonable Accommodation: Claim 4

Assuming that Complainant is an individual with a disability within the meaning of the
Rehabilitation Act, with respect to Complainant’s reasonable accommodation claim, the record
is devoid of evidence to indicate that Complainant was required to perform work outside his
physical restrictions or that he ever alerted management that he felt he was working outside his
physical restrictions. Specifically, the record shows that Complainant was reassigned to his
current position in response to an Office of Workers’ Compensation Program (OWCP) claim.1

1 The job offer that Complainant accepted states that “[t]he work is primarily sedentary,
although some walking, bending, or carrying of light items may be involved. Any work
accommodations [needed] will be met.”

The record also shows that the United States Department of Labor concluded that the position
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met all of Complainant’s physical restrictions when it offered Complainant the position.
Complainant asserts that he did not request an accommodation because the position he
currently occupied was supposed to be within his medical limitations. The record shows that
Complainant’s walking is restricted to “occasional walking.” We note that the record is
devoid of evidence showing that any management official observed Complainant struggling
physically, or had any other reason to suspect that Complainant was in need of a reasonable
accommodation. Accordingly, we agree with the Agency and find insufficient evidence to
support the conclusion that the Agency denied Complainant a reasonable accommodation.

CONCLUSION
On appeal, Complainant failed to address the fact that the record is devoid of evidence that the
employment actions at issue herein were motivated by his age and/or disability. We AFFIRM
the Agency’s final decision.

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).
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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
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
April 22, 2015