0120133146
09-22-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
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. 0120133146
Agency No. FS-2012-00525
DECISION
Complainant filed an appeal from the Agency's July 16, 2013, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician at the Agency's Kern River Ranger District, Pacific Southwest Region, Sequoia National Forest facility in Kernville, California.
On August 7, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Native American) when:
1. Beginning in June 2011, and continuing, Complainant's supervisor assigned him more work than his coworker and / or allowed his coworker to "dump" work on him;
2. Beginning on an unspecified date, and continuing, his supervisor did not permit him to be available for fire assignments and / or to work overtime;
3. On a continuing basis, his supervisor failed to provide him with performance elements for fiscal year (FY) 2012; and
4. On various dates, and continuing, management officials and/or his coworkers subjected him to additional harassing treatment.
The pertinent record shows the following facts. Complainant is one of three Forestry Technicians. Complainant is the only Native American Technician. Management is aware that he is Native American.
He reports to the District Fire Management Officer, who is also a Supervisory Forestry Technician (Caucasian) (S1). S1 has been in his supervisory position since February 28, 2011. Complainant's second line supervisor is the District Ranger (Caucasian) (S2). His third line supervisor is the Forest Supervisor (S3) (Caucasian). His comparator coworker is a Forestry Technician (Hispanic).
Claim 1 Assigned more work
Complainant joined the Fuels Group in April 2011. Prior to that time, Complainant's co-worker was the only Forestry Technician in the Fuels Group. After Complainant came on board, the projects were redistributed. Consequently, Complainant was reassigned several projects that had been previously assigned to his coworker or to his immediate supervisor S1.
Complainant maintains that he performs the majority of the work in his group. Complainant maintains that the extra work places a heavy burden on him and prevents him for going on more fire assignments.
Complainant identified five projects reassigned to him: the West Plateau Burn Project, the Clear Creek Pile Burn Project, the Sirretta Salvage Fuels Project, the Valley View Fuels Project and the Joey Fuels Project.
S1 states that he assigned Complainant and the Coworker four projects each. He denied dumping projects on Complainant or permitting the Coworker to dump projects.
Complainant maintains that S1 changed his working conditions without following the applicable provisions of the Master Agreement. Specifically, Complainant avers that S1 removed his geographic assignment locations and directed him to "just go where the work is."
S1 states that he decided to allocate assignments, without regard to geographic locations and that geographic assignment locations were not required. S1 was aware that Complainant did not agree with S1's decision.
Complainant also states that S1 attempted to make him serve as a supervisor of the "Crew 40." Complainant avers that when he transferred into the Fuels Group, he was no longer in a supervisory position and, therefore, could not supervise employees.
Beginning in April 2011, while serving as Superintendent of the Hotshot Crew, Complainant was not invited to management meetings. Complainant averred that it was standard practice to include a superintendent at meetings. Complainant also maintains that he has prevented from providing input or making staffing decisions, which ultimately affected his ability to manage his crew's workload and scheduling.
Claim 2 Not permitted to be available for fire assignments or overtime
Complainant states that S2 "placed him on hold from fire assignments in order to complete work that was previously assigned to his coworker." Management denied that it deprived Complainant of any opportunities.
With regard to the overtime claim, the record shows that Complainant was provided more overtime than his coworker.
Claim 3 Failed to provide him with performance elements
Complainant states that he was not provided with his FY 2012 performance standards. Complainant received his standards in May of 2012. S1 stated that he did not have time to provide Complainant standards any sooner. Complainant avers that he was not provided the performance elements in an attempt to conceal the fact that he was being forced to perform work outside of his position description. Complainant also states that S1 did not have the correct position description for him.
Claim 4 Subjected to harassing comments and changes in his working conditions
On an unspecified date in July 2011, after Complainant informed S2 of his plans to transfer to the Bureau of Indian Affairs (BIA), S2 responded that, "I wouldn't take no orders from no Tribal Council. I don't think I would do very well working for the BIA."
On December 8, 2011, the coworker called Complainant "lazy," a "punk" and an "a**hole" and the co-worker tried to fight him in the presence of his supervisor. Complainant averred that the supervisor (S1) heard the altercation, but he did nothing to stop the fight. Complainant believes that the coworker's actions were threatening. He reported the incident to S2, who agreed to temporarily remove Complainant from the office Complainant shared with the coworker, but the move never happened. S2 denied that he agreed to make the switch. A union official stated that S2 did make the commitment to make the switch, but the switch never occurred.
Complainant believes that S3, who was also given notice, failed to act because of Complainant's race. Complainant claims that when two Caucasians got into an argument on an unspecified date, the Agency fired the aggressor. S1 says that that was before he became a supervisor.
In January and March 2012, after Complainant informed S2 that he was considering taking a BIA position, S2 responded, "Not everyone fits in with the culture here, it might be a good thing for you." The same official looked at Complainant and, in the presence of several witnesses while looking directly at Complainant, said "Some folks will never fit into the culture here and they just have to move on".
On March 6, 2012, his supervisor (S1) called Complainant's pickup truck a "rusty rez wagon." Complainant regards the term as a racial slur and a negative reference to Complainant's Native American heritage and culture. Complainant says that he brought S1's statement to the attention of S2 and S3. Complainant states that S2 thought it was funny and smiled. S3 did nothing to address the comment.
On March 14, 2012, Complainant's supervisor attempted to change Complainant's working conditions without discussing them with Complainant. Specifically, Complainant states that the S1 attempted to change his non-supervisory assignment to one requiring him to supervise. The record does not show any personnel action changing Complainant's duties.
Several employees testified that the work environment was racially hostile to Native-Americans. One employee, who was the union steward, averred that she believed that Complainant had been the victim of race discrimination. Another witness attributed the apparent animosity to a personality conflict between Complainant and his co-worker. A third witness, who was a Native-American, stated that she did not believe that Complainant was discriminated against.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency Decision
The Agency found that Complainant established his prima facie claim of race discrimination with regard to issue 1 (assignment of work). The Agency found that Complainant failed to prove his claim with regard to issue 2 (overtime and fire assignments), because Complainant received more overtime than his co-worker. The Agency also reasoned that Complainant was permitted to go on several fire assignments. The Agency found that the delay in getting the performance standards was not an adverse action and Complainant had not shown that it led to any immediate tangible harm to him.
The Agency next found that it articulated legitimate reasons for its actions. S1 explained that the Fuels Group operated as a team and "on occasion, team members were required to complete assignments on projects that were originally assigned" to others. S1 denied giving Complainant a disproportionate workload.
The Agency acknowledged that "Complainant contends that the Agency permitted a culture of racial hostility to flourish" and that the "affidavits provide circumstantial evidence that some Agency employees may have made inappropriate comments or harbored discriminatory feelings towards Native Americans." The Agency found that the evidence failed to rebut the Agency's reasons.
With regard to the hostile environment claim, the Agency stated "on the evidence presented, we find that a rational fact-finder could reasonably conclude that the Complainant subjectively experienced a hostile work environment. That is, he perceived the environment as racially hostile." The Agency next found that "Complainant's hostile work environment claim must fail." The Agency reasoned that the remarks, while troubling, were too few and far between to be actionable and "are simply not indicative of the type of severe and pervasive conduct necessary to constitute an alteration of the terms and conditions of employment. The Agency concluded that the weight of the evidence indicates that discrimination and harassment did not occur with respect to the issues raised in the instant complaint.
This appeal followed.
ANALYSIS AND FINDINGS
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").
Complainant did not submit a brief in support of his appeal.
Disparate Treatment / Sex
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination . . based on race."
To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
For purposes of our analysis, we will presume that Complainant established his prima facie race claims. With regard to claims 1 through 4, the record shows that S1 and S2 did treat him less favorably than his coworker and did make inappropriate comments to him that were racially insensitive. There is no evidence, however, that any adverse personnel actions were taken. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The Agency articulated legitimate reasons. The assignments were the result of the re-allocation of the work load and assignments that were previously assigned to his co-worker, which were reassigned to Complainant when he joined the Fuels Group. The record does not show that Complainant was not permitted to work overtime or was denied fire assignment opportunities. The record also does not show that Complainant was harmed by the delay in getting his performance standards in place. To ultimately prevail, Complainant must provide evidence that these Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
We find that Complainant failed to show that the stated reasons were untrue or a pretext.
Harassment
Finally, to establish a claim of harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
The Agency found that Complainant had not shown that any personnel actions were based on his race. While the supervisors' comments revealed their animus and ignorance, the record does not show that any personnel actions were taken against Complainant because of his race. We remind the Agency, however, that federal agencies have an obligation to make all of its actions free of discrimination. To the extent, the Agency is tolerating or condoning anti-Native American sentiments, it is failing to abide by Title VII's federal mandate to promote equal opportunity and "to eradicate every form of prejudice or discrimination from the agency's personnel policies, practices and working conditions." See 29 C.F.R. � 1614.102(a)(3). We remind the Agency that appropriate disciplinary action should be taken against employees who engage in discriminatory practices or contribute to a racially hostile work environment. In this case, we find that the alleged incidents were too isolated to create a hostile work environment. However, we caution the Agency that if this atmosphere is allowed to continue, the Agency will soon become liable for a racially hostile work environment.
After a careful review of the record, we agree with the conclusion that Complainant did not show by a preponderance of the evidence that he was subjected to a hostile work environment or discriminated against because of his race.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 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, 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 (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, Director
Office of Federal Operations
September 22, 2015
__________________
Date
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