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

Equal Employment Opportunity Commission

Dec 20, 2022

Appeal No. 2022004693 (E.E.O.C. Dec. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wiley W.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2022004693 Hearing No. 480-2022-00083X Agency No. FS-2021-00300 DECISION On August 31, 2022, 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 11, 2022, final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Material Handler, WG-6907-05, at the Agency’s Fire and Aviation Management facility in Ontario, California. On October 20, 2020, Complainant filed a complaint with the Agency’s Harassment and Review Team (HART) following a verbal exchange with coworkers. Complainant alleged that he feared for his physical safety because one of his coworkers cursed and screamed at him. 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. 2022004693 2 On an unspecified date, the Cache Fire Manager filed a HART complaint regarding the incident. The Cache Fire Manager reported that Complainant had alleged that his coworker was cursing during the incident and that Complainant was worried about his health. However, the Cache Fire Manager reported that the coworker claimed that Complainant frequently bullied and talked down to him which the coworker believed was because of his race. From November 2020 through December 2020, the Harassment and Review Team investigated both complaints. During the investigation, the Cache Fire Manager reported that Complainant had previously been disciplined for being aggressive toward other employees while the coworker involved in the incident had not. The Cache Fire Manager added that Complainant had been in arguments with other employees and that Complainant talks to employees in a condescending manner. On February 24, 2021, the Assistant Director proposed to suspend Complainant for 14 days due to his conduct toward his coworkers. The Assistant Director considered the HART findings and Complainant’s receipt of discipline on three prior occasions. Subsequently, on April 6, 2021, the Director issued Complainant a Notice of Decision on Proposed Suspension, informing Complainant that he would be suspended for 14 days because of his conduct during the incident, unwillingness to take responsibility, and history of similar incidents. On May 19, 2022, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on April 6, 2021, management issued Complainant a Notice of Suspension, effective April 25, 2021, to May 8, 2021.2 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). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s May 27, 2022, motion for a decision without a hearing and issued a decision without a hearing on August 10, 2022. First, the AJ found that there was insufficient evidence in the record to establish that there was a genuine material dispute and/or credibility determinations that required a hearing. Regarding disability discrimination, the AJ assumed that Complainant was a qualified individual with a disability. However, the AJ found that Complainant could not establish a prima facie case of discrimination based on disability because Complainant failed to establish that his coworker was similarly situated or that the suspension was issued with discriminatory intent. In addition, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. 2 In the Initial Status Conference Order, the Administrative Judge (AJ) explained that an additional claim regarding Complainant’s receipt of a Notice of Proposed Suspension merged with and was subsumed by the Agency’s decision to suspend Complainant. 2022004693 3 Specifically, two witnesses gave substantially similar accounts of Complainant’s conduct during the incident, and both expressed that Complainant had been aggressive or condescending to them. Agency officials further explained that Complainant had previous suspensions under the same circumstances for how he interacted with his coworkers. With respect to retaliation, the AJ determined that Complainant established a prima facie case because the Notice of Suspension was issued 10 weeks after Complainant’s most recent EEO complaint. The AJ explained that the temporal proximity of the adverse action was sufficiently brief to support an inference of causality. However, the Agency articulated a non-retaliatory reason for its actions for which Complainant failed to show was pretext for retaliation. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and he must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Upon review of the AJ’s decision, and the record as a whole, we find that the AJ accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Accordingly, the AJ properly issued a decision without a hearing. We also find that the AJ correctly identified the legal standards for Complainant to prove that he was subjected to discrimination based on disability and reprisal. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 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 order adopting the AJ’s decision. 2022004693 4 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). 2022004693 5 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 December 20, 2022 Date