Diego V., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jul 26, 2017

0120151706 (E.E.O.C. Jul. 26, 2017)

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

Diego V.,
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120151706

Agency No. FS-2013-00676

DECISION

On April 7, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 27, 2015, 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 Westside
Archaeologist, GS-13, at the Agency’s Fremont-Winema National Forest, in Chiloquin, Oregon.

On July 23, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Native American), age (53), and in reprisal
for his prior protected EEO activity under Title VII and the ADEA when on May 20, 2013, a
selection was made for a 90-day detail and temporary promotion for the position of Acting
District Ranger for the Chiloquin and Chemult Ranger Districts, without the position being
advertised to give him the opportunity to apply. Complainant also claimed that this incident
constituted harassment.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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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 Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The Agency stated that Complainant has been in his current position
since 1997 and has worked for the Agency for 34 years. Complainant indicated that he is an
enrolled tribal member of the Klamath Tribes. Complainant stated that his prior EEO activity
occurred in 1996-2000, 2012 and 2013.

According to Complainant, on March 20, 2013, he learned that an announcement had been made
concerning the individual selected for the 90-day detail and temporary promotion as the Acting
District Ranger for the Chioloquin and Chemult Ranger Districts. Complainant claimed that
management did not adhere to well-established Agency policies for detail and temporary
promotions. Complainant argued that the position was filled without competitive placement,
which typically would have afforded an opportunity for all qualified individuals to be
considered. The Agency noted that Complainant asserted he was well-qualified for the position
given that he has been a District Ranger and has “Outstanding” performance evaluations.
Complainant claimed that the District Ranger previously conducted outreach for detail
opportunities, including the Fremont-Winema National Forests Acting Deputy Forest Supervisor
detail and temporary promotion.

The Agency observed that the District Manager and the Program Manager asserted that pursuant
to the Forest Service Handbook 6190.12, chapter 20, §23.21(b), page 34, a temporary assignment
of less than 120 days may be filled without competitive procedures. According to the Program
Manager, the Master Agreement between the Union and Management No. 5, Article 16-5,
Temporary Promotions, § B, page 50, authorizes filling this particular type of detail and
temporary promotion without the actual advertising of the position. The Program Manager
asserted that this process is commonplace and has been utilized by the Agency for a long time to
fill short, exigent details. The District Manager stated that the detail was necessary because he
went on extended leave. According to the District Manager, he recommended the selectee
because her individual development plan called for her to be detailed as an Acting Ranger and
the 90-day detail and temporary promotion was an opportunity to assign her to that detail.

The Agency noted that the Human Resources Officer stated that details and temporary
promotions of less than 120 days need not be filled by competitive procedures. The Human
Resources Officer asserted that the Agency executes this policy through its Handbook and the
negotiated agreement with the National Federation of Federal Employees Union.

The Agency determined that Complainant set forth a prima facie case of race and age
discrimination. The Agency determined that Complainant failed to establish a prima facie case
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of reprisal based on the length of time between his previous EEO activity and the alleged
discrimination at issue and that Complainant failed to demonstrate a causal connection.

The Agency determined that it articulated a legitimate, nondiscriminatory reason for not
selecting Complainant. The Agency asserted that Complainant was not considered for the
temporary detail and promotion based on the provision in the Forest Service Handbook that
states a temporary assignment of less than 120 days may be filled without competitive
procedures. The Agency stated that it also relied on similar language in the Master Agreement
between the Union and Management.

The Agency noted that Complainant attempted to establish pretext by arguing that other
temporary details and promotions were competitively filled. The Agency stated that the length
of the temporary details and promotions discussed by Complainant is unknown. The Agency
noted that even where it engaged in outreach, it was not mandated to do so as it was afforded the
discretion of whether or not to advertise such a temporary position. The Agency determined that
Complainant failed to establish pretext.

With respect to Complainant’s hostile work environment claim, the Agency stated that the sole
alleged incident of harassment concerns his not being able to competitively apply for the detail at
issue. The Agency asserted that Complainant did not allege that management subjected him to
personal slurs or other denigrating or insulting verbal conduct related to his protected class.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he has been in an adversarial relationship with the Agency
for many years as reflected in his prior EEO complaints. Complainant argues that he has not
been selected for any acting detail assignments even though he has demonstrated outstanding
performance and has 35 years of experience in natural and human resource management.
Complainant believes he has been labeled a troublemaker and thus has been precluded from
receiving an impartial evaluation for any position. Complainant claims that the Agency has on
numerous occasions awarded acting detail assignments to Caucasian male employees and not
favored diversity. Further, Complainant maintains that the District Manager engages in
favoritism to boost a few individuals.

In response, the Agency asserts that there was no obligation on its part to use a competitive
process to fill the 90-day detail. The Agency argues that Complainant has not shown that its
decision to proceed in this fashion was related to his membership in a protected class. With
regard to Complainant’s hostile work environment claim, the Agency maintains that the single
incident at issue does not rise to the level of an intimidating, hostile, or offensive work
environment in terms of severity or pervasiveness.

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ANALYSIS AND FINDINGS

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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).

With regard to Complainant not being considered for the Acting District Ranger position, we
shall assume arguendo that Complainant set forth a prima facie case of discrimination under the
alleged bases. The Agency asserted that it did not fill the 90-day detail through competitive
procedures because pursuant to the Forest Service Handbook, a temporary assignment of less
than 120 days may be filled without competitive procedures. The Agency stated that it also
relied on similar language in the Master Agreement between the Union and Management.
Additionally, the District Manager stated that he recommended the selectee because her
individual development plan called for her to be detailed as an Acting Ranger and the 90-day
detail and temporary promotion was an opportunity to assign her to that detail. We find that the
Agency articulated legitimate, nondiscriminatory reasons for its selection and the selection
process it utilized.

Complainant attempts to establish pretext by charging that the Agency has engaged in favoritism
and that it rejects diversity. These arguments, however, do not refute the fact that the Agency
was entitled under its policies to fill the Acting District Ranger 90-day detail by the method it
pursued rather than utilize competitive procedures. Complainant contends that his qualifications
and experience warranted selection but we find that he has offered no persuasive argument or
evidence to suggest that his race, age, or prior EEO activity were factors in his nonselection. We
find that Complainant has not established that the Agency’s stated reasons for his nonselection
were pretext intended to mask discriminatory motivation.

Complainant claims that he was subjected to harassment by management officials. To establish
this claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical conduct involving the
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protected class; (3) the harassment complained of was based on his statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile,
factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s
work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC
Enforcement Guidance at 6 (March 8, 1994).

As for Complainant’s hostile work environment claim, we find that this one incident of a
nonselection is neither sufficiently severe or pervasive to constitute a hostile work environment.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
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(FedSEP). See 29 C.F.R. § 1614.403(g). 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 Complainant’s 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

July 26, 2017
Date