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

Equal Employment Opportunity CommissionOct 7, 2011
0120112699 (E.E.O.C. Oct. 7, 2011)

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