0120112699
10-07-2011
Caleb B. Lief, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Caleb B. Lief,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120112699
Hearing No. 550-2011-00106X
Agency No. FS-2009-01224
DECISION
On April 25, 2011, Complainant filed an appeal from the Agency’s March
31, 2011, 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). 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
had not been discriminated against based on sex and in reprisal for
prior EEO activity when he was terminated from federal employment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a temporary/seasonal employee as a Forestry Technician (Fire Lookout),
GS-4, at the Agency’s Red Rock Lookout, Plumas National Forest, in
Quincy, California.
On December 15, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of sex (male) and in
reprisal for prior protected EEO activity arising under Title VII when
on September 9, 2009, he was terminated.
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 EEOC Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his
request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).
In its final agency decision, the Agency found that Complainant had been
a Fire Lookout for three previous seasons at the Plumas National Forest.
At the end of his third season in 2008, he had a conflict with the
Fire Prevention Technician, a female permanent employee. The Agency
decided to terminate Complainant’s employment at the end of that
season, but following Complainant’s initiation of the EEO process,
the Forest Supervisor (his fourth-level supervisor) agreed to bring him
back the following season. On July 30, 2009, Complainant and the Fire
Prevention Technician, who was also his Work Leader, were involved in
a confrontation. Complainant claimed that she had failed to bring him
essential supplies or to make repairs to the Lookout premises. He became
angry, and started yelling and cursing at the Fire Prevention Technician,
and calling her names. He also threw a screen door in the back of
her truck, in a very aggressive manner. She called the District Fire
Management Officer, Complainant’s second-level supervisor, upset and
crying over the confrontation, and was advised to vacate the premises.
The Agency conducted an investigation into the confrontation and as a
result, a decision was made to terminate Complainant’s employment,
based on the July 30, 2009, incident and previous issues with the
Complainant in other fire seasons.
The Agency concluded that Complainant had not established a prima
facie case of sex discrimination, because he had not shown that
similarly-situated employees not of his protected class were not
comparably disciplined. It found that four other Agency employees, both
male and female, had been terminated during the relevant time period.
The Agency also concluded that Complainant had failed to establish a
prima facie case of reprisal discrimination in that there was no causal
connection between his previous activity and his termination, and he had
not shown any retaliatory animus on the part of the Forest Supervisor
or the other management officials. However, assuming Complainant had
established his prima facie cases of sex and reprisal discrimination,
the Agency found that it has articulated legitimate, nondiscriminatory
reasons for Complainant’s termination, namely, Complainant’s conduct
and performance problems since 2007, and the incident on July 30, 2009
with the Fire Prevention Technician, in which Complainant yelled and
swore at her, and was otherwise aggressive. It found that Complainant
had not shown the Agency’s reasons to be pretext for discrimination.
The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. Complainant subsequently
filed the instant appeal.
CONTENTIONS ON APPEAL
In his statement in support of his appeal, Complainant argued that the
Agency should have interviewed the EEO counselor in his previous EEO
complaint to ascertain that there was an agreement that he would not
have to work with the Fire Prevention Technician anymore. He argued that
the Agency’s failure to deal with the causes of the conflicts between
him and the Fire Prevention Technician demonstrated that he had been
subjected to sex discrimination as he maintained that his treatment by
the Fire Prevention Technician was discriminatory. The Agency did not
submit any statement or brief in opposition to Complainant’s 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 Chap. 9, § VI.A. (Nov. 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”).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency’s explanation is pretextual. 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).
We find that, assuming Complainant had established his prima facie cases
of sex and reprisal discrimination, the Agency has put forth legitimate,
nondiscriminatory reasons for terminating Complainant from his position as
a Fire Lookout. The Agency found that Complainant had been involved in
a confrontation with his Work Leader, and had cursed at her, called her
names, and thrown a door into/at her truck. This, in combination with
other prior incidents involving Complainant, led the District Ranger,
his third-level supervisor, to determine that Complainant’s employment
with the Agency should be terminated. The Forest Supervisor concurred
with the decision to terminate Complainant.
Complainant attempted to show that the Agency’s reasons were pretext
for discrimination by arguing that in the previous fire season, when
the Agency had also proposed his termination, he had initiated an EEO
complaint, which the Agency settled with him. Complainant claimed
that in return for the withdrawal of his complaint, he was offered
a position as a Fire Lookout, and promised that he would not have to
work with the Fire Prevention Technician again. We find however, after
reviewing the evidence in the record, that although the EEO Counselor
successfully resolved the issue in Complainant’s previous EEO contact,
no written settlement agreement was ever signed. The e-mail record of
the discussions between the EEO Counselor and the Forest Supervisor does
not reflect that the Forest Supervisor promised that Complainant would
not have to work with the Fire Prevention Technician. As the resolution
of that previous complaint was not put in writing, we cannot conclude
that the Agency promised what Complainant claims, and we cannot enforce
any oral agreement which might have occurred. The EEO Counselor was not
interviewed because he had retired by the time of the investigation in
this complaint.
We also find that although the Agency may not have adequately dealt
with the conflicts between Complainant and the female Fire Prevention
Technician before their escalation into the events of July 30, 2009,
this is not evidence that the Agency subjected Complainant to sex
discrimination. There is testimony that when determining what course
of action to take after the July 30, 2009 incident, Complainant’s and
the Fire Prevention Technician’s managers took into consideration
Complainant’s temporary employee status versus the Fire Prevention
Technician’s permanent employee status, as well as Complainant’s
previous issues and performance evaluations. There is no evidence that
Complainant’s sex or previous EEO activity played any role in the
Agency’s decision to terminate Complainant.
CONCLUSION
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 and its finding of no discrimination.
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 (Nov. 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 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
October 7, 2011
Date
2
0120112699
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112699