[Redacted], Georgianne B., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Oct 27, 2022

Appeal Nos. 2021003994, 2021003995 (E.E.O.C. Oct. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgianne B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal Nos. 2021003994, 2021003995 Hearing Nos. 480-2017-00417X, 480-2017-00419X Agency Nos. FS-2016-00628, FS-2017-00238 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated May 27, 2021, finding no discrimination regarding her consolidated complaints 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Forest Fire Training Officer, GS-0462-09 at the Agency’s Sequoia National Forest, Fire and Aviation Management facility in Porterville, California. On June 15, 2016, Complainant filed her complaint, Agency No. FS-2016-00628, alleging that the Agency subjected her to harassment and discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 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. 2021003994, 2021003995 2 1. On April 19, 2016, the Fire Qualifications Review Committee (FQRC) Chair, who was a GS-12, Deputy Fire Management Officer (O1), sent an email to all FQRC members accusing her of deviating from the process voted on by the FQRC, and approved by the Forest Supervisor. 2. On April 4, 2016, O1 sent an email to all FQRC members implying she acted improperly. 3. On April 1, 2016, management subjected her to various acts of harassment, including, but not limited to: a. O1 was publicly hostile to her, refused to respond to an information request from her, and stated in a rude manner, “it depends upon the person;” and walked out of the meeting when she requested to discuss issues and resolutions related to training. b. During a FQRC meeting, O1 refused her the opportunity to brief the committee on employee course failures and belittled, threatened, spoke over, disrespected, and treated her with contempt and hostility. c. The Forest Fire Chief, her first level supervisor (S1), admitted he deliberately refused to forward her written and verbal requests to add critical training issues to the FQRC meeting agenda and took no action to address her concerns of harassment; and d. During a FQRC meeting, S1 permitted O1 and his direct subordinate to harass her. Complainant retired from the Agency effective November 30, 2016. This is not at issue. On January 31, 2017, Complainant filed her complaint, Agency No. FS-2017-00238, alleging that the Agency subjected her to harassment and discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 4. On several dates, she was subjected to various incidents of harassment, including but not limited to: a. On November 1, 2016, when she reported that a death threat was made against her by a former employee, S1 failed to respond. b. On December 1, 2016, S1 implied she left her office windows unlocked so she could return and steal from or ransack the office. c. On December 1, 2016, S1 confiscated her computer and line pass. d. On December 2, 2016, per orders from S1, she was not allowed into the Western Divide Ranger District Office beyond the public area at the front office and was denied access to a phone and printer. e. On December 6, 2016, per S1’s order, her travel authorization was cancelled. 2021003994, 2021003995 3 f. Between November 1, and December 6, 2016, senior management officials knowingly permitted S1 to harass her. Upon completion of the investigation of the complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ).2 On April 27, 2021, the AJ issued a notice of intent to issue a decision without a hearing. The parties responded to the notice. On May 25, 2021, the AJ issued a decision without holding a hearing, finding no discrimination. The record indicates that O1 was not in Complainant’s supervisory chain. Both O1 and Complainant reported to S1. Regarding claim 1, O1’s email at issue was in response to Complainant’s email sent to the FQRC members related to the training spreadsheet she was responsible for producing and updating. Complainant suggested changing the process of the subject project that the FQRC had already voted on, approved, had reviewed by the union, and had been assigned by Complainant’s second level supervisor (S2). Since the spreadsheet still had not been completed by the February 2016 deadline, O1, as the FQRC Chair, responded to Complainant’s email asking for her explanation for her request for deviating from the process. Regarding claim 2, O1 indicated that he sent his email to the FQRC members, including Complainant, clarifying bin items versus agenda items to help facilitate the meetings efficiently and to give committee members an opportunity to research and prepare to discuss those items at the meeting. The email did not indicate Complainant acted improperly. Regarding claim 3, O1 stated that during the FQRC meeting, Complainant proposed two additional items that were not listed as agenda items. In response, O1 told Complainant those items were not related to the FQRC, and they could have a separate meeting for the additional items. Specifically, O1 indicated that Complainant asked him about the office’s handling of requests for FQRC folders for employees who went to another forest or Agency which included their qualifications and trainings. O1 informed Complainant to send those requests to him. O1 denied he treated Complainant as alleged. O1 indicated that he merely refused to discuss Complainant’s concerns about Agency employees’ failure to pass the Engine Academy because the subject matter was not related to the FQRC and was not listed in the meeting agenda. S1 indicated that when Complainant brought up the Engine Academy matters to be discussed during the FQRC meeting, he instructed her to talk with O1, who was the FQRC Chair. 2 The record indicates that on January 31, 2018, the AJ dismissed Complainant’s hearing request on the grounds that Complainant failed to show good cause for failing to participate in the initial conference. On March 29, 2018, the Agency issued its final decisions on the complaints finding no discrimination as alleged. Complainant appealed. The Commission, in EEOC Appeals Nos. 0120181591, 0120181592 (Feb. 27, 2020), consolidated the two complaints, and vacated the Agency’s final decisions and remanded the matter for a hearing. 2021003994, 2021003995 4 S1 denied that O1 harassed Complainant; rather it was Complainant who was raising her voice at O1 during the meeting. S1 stated that Complainant did not inform him that she was harassed by O1 or anyone at the meeting. Regarding claim 4.a, Complainant acknowledged that she was informed by her friend that the identified individual, a retired Agency employee, made the purported threat against her. Complainant indicated that she and the individual were good friends, but the friend later blamed Complainant for leaving the Agency. S1 indicated that Complainant informed him of the incident and contacting the sheriff about it but did not ask him to take any actions on his part. Regarding claim 4.b, S1 indicated that Complainant came to her office the day after her retirement to clean out the office. S1 stated that he merely made a remark about her office window being open because there was a theft incident when the facility windows had been left open. Complainant was aware of this incident and the office building had been locked as a result. Regarding claim 4.c, S1 indicated that he took Complainant’s computer and line pass because she retired and was no longer a federal employee. Regarding claim 4.d, S1 indicated that Complainant requested and was granted access to her computer at the District Office to transfer her union files to an external hard drive. S1 stated that Complainant never asked for access to a phone or printer. Regarding claim 4.e, S1 acknowledged that Complainant’s travel authorization was cancelled in error. But, after learning of his mistake, S1 worked with Human Resources to resend Complainant’s travel voucher and approved it. Complainant was paid a few days later. Complainant acknowledged S1’s subsequent approval of her travel voucher. Regarding claim 4.f, S2 denied he permitted S1 to harass Complainant or discriminate against her as alleged. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 2021003994, 2021003995 5 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, complainant must establish 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 his or her 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). 2021003994, 2021003995 6 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). In the instant case, the AJ, assuming arguendo that Complainant established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its action. Further, the AJ determined Complainant did not establish discriminatory animus, retaliatory intent, or harassment. It appears that Complainant and O1 did not work well together. Specifically, Complainant and O1 had several disagreements concerning the FQRC meeting agenda in April 2016. As the Chair of the FQRC, it was O1’s official duty to convene the FQRC meeting efficiently to address the items in the agenda. O1 sent emails in April 2016, in response to Complainant’s email inquiring about her assignment and to clarify the meeting agenda. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding the November 2016 incident, Complainant was allegedly told by a third party that an individual, who was no longer employed by the Agency, threatened her. We note that this incident is not related to her employment at the Agency. Regarding the December 2016 incidents, we note that S1, as a supervisor, was responsible for retrieving Complainant’s computer and line pass since she resigned and was no longer an Agency employee. S1 indicated that he merely made a remark about Complainant’s open window in her office because there was an incident where a thief came in through the office windows and stole from the offices. Complainant was aware of the theft incident. S1 stated that Complainant made no request for access to a phone or a printer other than a computer which was granted on December 2, 2016, as she requested. S1 admitted he made a mistake about Complainant’s travel voucher, but he fixed the error upon learning of his mistake. Complainant acknowledged S1’s approval of the voucher. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Regarding Complainant’s claim of harassment, considering all the events, we find that she failed to show that it was related to any protected basis of discrimination or that the incidents constituted a hostile work environment. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination or retaliation as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2021003994, 2021003995 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003994, 2021003995 8 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 October 27, 2022 Date