Les B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Jun 5, 2019

0120180040 (E.E.O.C. Jun. 5, 2019)

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

Les B.,1
Complainant,

v.

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

Appeal No. 0120180040

Agency No. FS-2017-00040

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 9, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove he was
subjected to discrimination because of his religion or previous EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician,
GS-0462-7, at the Agency’s Angeles National Forest (ANF) in Anton, California. In this position,
Complainant primarily is responsible for firefighting, fire prevention, and forest protection.

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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In August 2016, Complainant was approved to take an assignment at another forest. According to
Complainant, on August 25, 2016, he received a call from a Security Manager asking if he was
available to take an assignment as a “Security 2” at the Henry’s Creek Fire in Idaho. However,
when Complainant asked management if he could take the assignment, he was informed that he
could not take the assignment.

On February 1, 2017, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the basis of religion (Christian) when on September 24, 2016, he
learned management cancelled his duty assignment to another forest.

In an investigative statement, Complainant stated that he accepts being labeled as “Christian” for
“ease of discussion,” but the idea of describing an entire group of people as “Christian” is offensive
to him. Nevertheless, Complainant stated that management became aware of his religion when in
May 2011, he requested time off work for religious observance.

Complainant stated that on August 23, 2016, he overheard a management official say on
speakerphone “kill all prevention assignments.” Complainant further stated that the next day,
management told him that his duty assignment had been cancelled. Complainant stated that he
was unaware of any other firefighters who could go on Level 2 security assignments.

After 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 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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency improperly failed to address his claim that he
was subjected to reprisal. Additionally, Complainant contends that he has been subjected to further
acts of discrimination and reprisal after filing his complaint. The Agency does not present any
arguments on appeal.

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. (Aug. 5, 2015) (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”).

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ANALYSIS AND FINDINGS

Disparate Treatment

Generally, claims of disparate treatment such as this are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For a 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). Once a complainant has established a prima facie case, the burden of production then
shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

If the Agency is successful, the burden reverts to the complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for
discrimination. At all times, the complainant retains the burden of persuasion, and it is his
obligation to show by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, we note that Complainant contends that the Agency’s final decision failed to
acknowledge his claim that he was subjected to reprisal. We note that in his formal complaint
and investigative statement, Complainant alleged that he was subjected to reprisal because he
requested reasonable accommodation for his religious beliefs in 2010 and 2011.2 Therefore, the
Agency should have analyzed Complainant’s complaint as alleging he was subjected to reprisal,
in addition to religious discrimination. As such, in our analysis, we assume arguendo that
Complainant established a prima facie case of reprisal as well as religious discrimination.

Nonetheless, we find that the Agency provided legitimate, nondiscriminatory reasons for its
actions. Specifically, the Forest Fire Management Officer (FFMO) stated that Complainant’s
assignment to another forest was cancelled because there was a high request for support at ANF
during the time, and he had to place a “hold on existing personnel leaving” ANF until others came
back to ensure safe operations. FFMO stated that it did not make sense to send his prevention
patrol to another forest when one was needed at the home forest. FFMO further stated that other
firefighters were also told that all patrols were going to kept at the “home forest,” and during a
conference call, he issued the order to hold all resources at ANF. “No one was allowed to leave
the forest during that time,” FFMO stated. Report of Investigation, p. 195.

2 The record reveals that in a letter dated July 25, 2011, the Agency notified Complainant that his
religious accommodation request had been granted.
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In an attempt to prove pretext, Complainant maintains that he was given different reasons for the
cancellation of his assignment to another forest. However, Complainant makes this general
assertion without specifying how the explanations differed. Instead, the record indicates that in an
email to management dated August 25, 2016, FFMO reported that because of fire danger and
requests for additional patrols by ANF, any orders to work at other forests were placed on hold.
We note that Complainant concedes that he was unaware of any other ANF firefighters who went
on assignment at other forests during the relevant period.

Thus, we conclude that the Agency properly found that Complainant was not subjected to unlawful
discrimination because he did not prove that the Agency’s nondiscriminatory explanation is pretext
for discrimination based on his religion or in reprisal for his prior protected EEO activity.3

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons
set forth herein.

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.

3 To the extent that Complainant contends that he has been subjected to additional discrimination
not raised in this complaint, we advise Complainant to contact an EEO Counselor if he wishes to
file an EEO complaint on these matters.
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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 (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

June 5, 2019
Date