Willie P.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

0120180722 (E.E.O.C. Sep. 13, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Willie P.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120180722

Agency No. FS-2016-00566

DECISION

On December 8, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency
decision (FAD) dated October 27, 2017, concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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 Wildlife and Fisheries
Program Manager, GS-0482-12 at the Agency’s Forest Service, National Forest and Grasslands
facility in Lufkin, Texas.

On August 2, 2016, Complainant filed an EEO complaint, as amended, alleging that the Agency
discriminated against him:

1. based on reprisal for prior protected EEO activity under the Rehabilitation Act when April
18, 2016, his first line supervisor (S1) denied his Time and Attendance submission; and

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.
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2. based on disability and reprisal when, since April 19, 2016, he has not been reasonably
accommodated.

Complainant also alleged that he was subjected to unlawful reprisal when:

3. on April 24, 2016, S1 informed him he could no longer telework from the remote Forest
Service Southern Research Station in Nacogdoches, Texas, and would have to return to
work at his regular duty station in Lufkin, Texas;

4. on May 24, 2016, he received a "Letter of Reprimand" (LOR) from S1;

5. in September and October 2016, under the Agency’s Wellness Program, S1 refused to
approve his revised reimbursement application for his fitness center membership from July
2014 – June 2016;

6. in his appraisal dated November 10, 2016, that covered the period of October 1, 2015 –
September 30, 2016, he got a “Does not Meet” rating on his performance element of
Teamwork and Partnerships; and

7. he was subjected to ongoing harassment, including but not limited to:

a. from April 14, 2016 to April 27, 2016, S1 continuously micromanaged and
criticized his work;

b. on an unspecified date after April 19, 2016, S1 refused his request to reduce his
work load per his doctor's orders;

c. on April 27, 2016, S1 intentionally scheduled his mid-year evaluation on the same
day he had requested annual leave;

d. from April 27, 2016 to May 11, 2016, he received four messages from S1 pressuring
him to schedule his mid-year performance review, declaring that it had to be
completed by May 20, 2016;

e. on April 28, 2016, he received an email from S1 informing him that he could not
go to the field without permission for anything not designated a "Forest Priority";

f. on May 17, 2016, S1 changed his performance standards in a manner he believed
was unfair, unattainable and designed for him to fail;

g. on July 29, 2016, S1 delayed approval of his timesheet until the end of the day;

h. on October 27, 2016, S1 discussed his performance rating in a social setting, in
front of his peers;
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i. on December 8, 2016, without forewarning, S1 had witnesses present during his
annual performance appraisal meeting; and

j. on unspecified date, he learned his supervisor provided him with false information
regarding a coworker's complaint.2

Following an investigation, by letter dated June 21, 2017, the Agency notified Complainant of his
right to request a hearing before an Administrative Judge (AJ) with the EEOC and provided him
the report of investigation (ROI). When Complainant did not request a hearing within the time
frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b). It found no discrimination. The instant appeal followed.

On appeal, Complainant contends that the Agency’s EEO office gave him misleading advice that
led him to believe that after the FAD was issued, he could request a hearing before an EEOC AJ.
He also argues that he was subjected to discrimination and harassment.

In opposition to Complainant’s appeal, the Agency argues that the FAD should be affirmed.

ANALYSIS AND FINDINGS

As an initial matter, in support of his contention that he got misleading advice by the EEO office
that he could request a hearing after receiving the FAD, Complainant submits a December 6, 2017
email exchange with the EEO office. We find nothing in the exchange to be misleading. But even
if we did, the exchange occurred after the 30-day time limit to request a hearing on this EEO
complaint expired.

Issues 1, 3 - 6

To prevail under the disparate treatment theory of discrimination, Complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct.

2 On appeal, Complainant contends that in its FAD the Agency should have addressed race
(Asian/White) discrimination, because he raised this basis. We disagree. Prior to filing his EEO
complaint, Complainant wrote the EEO counselor that “I don’t know if this is a factor because I’m
quite convinced my size is the issue, but [sic.] should let you know my ethnic designation…”
which he identified as “Asian, White.” This was insufficient to put the Agency on notice that
Complainant wanted a determination on race discrimination. After reviewing the record as it is,
we find Complainant did not prove race discrimination.
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See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981).

On issues 4 - 6, the Agency variously found that Complainant established or failed to establish a
prima facie case of reprisal discrimination, but nevertheless applied the three part evidentiary
scheme in McDonnell. On issues 1 and 3, the Agency found that Complainant failed to make out
a prima facie case of reprisal, and based on that determined there was no discrimination. Regarding
reprisal, we will apply Aikens and dispense with the prima facie case on issues 3 – 6.

We agree with the Agency that Complainant failed to establish a prima facie case of reprisal on
issue 1. He may establish a prima facie case of reprisal discrimination by showing that: (1) he
engaged in a protected activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Butler v. Dept’ of Veterans Affairs, EEOC Appeal
No. 0120065052 (July 10, 2008). The EEO activity which Complainant contends made him a
target of retaliation is the instant EEO case. He initiated EEO counseling thereon on April 21,
2016, after issue 1 occurred. Moreover, while under Commission precedent requesting reasonable
accommodation for a disability constitutes EEO activity, Complainant did not request
accommodation, at the earliest, until April 19, 2016, after issue 1 occurred.

Regarding issue 3, S1 stated that he canceled Complainant’s telework because while it fine with
his prior job, it was incompatible with his Forest Wildlife and Fisheries Program Manager job. S1
explained that it was difficult to contact Complainant because the Forest Service Southern
Research Station phone system was outdated and unreliable, and Complainant would forget his
laptop or cellular telephone. S1 also explained that a telework participant must be on track to earn
at least a “Fully Successful” performance rating and it was his belief, and Complainant’s second
line supervisor (S2) agreed, that Complainant was not on track for this because of his conduct.
Complainant failed to show these reasons were pretext to mask discrimination, nor proved
discrimination.

Regarding issue 4, on May 24, 2016, S1 issued Complainant a LOR for misconduct. Therein, S1
detailed instances of Complainant being rude, confrontational, and not accepting his authority in
April 2016, such as emphatically telling S1 over the telephone and that “I don’t have to listen to
you…” and “I don’t have to do what you say”, and telling S1 that he would not meet him regarding
his mid-year performance review and discussion of his work priorities without a third party present
as a witness because S1 was untruthful. Complainant has not shown these reasons were pretext,
nor proved discrimination.

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On issue 5, S1 explained that he declined to sign off on Complainant’s reimbursement request for
his fitness center membership because the application or related document was backdated two
years and he believed that Complainant’s related Individual Wellness Agreement had false
information. S1 elaborated that when Complainant first submitted his reimbursement request in
2014, which was not acted upon, he listed a knee problem in his Individual Wellness Agreement,
but in his subsequent Individual Wellness Agreement, which Complainant used to support his 2016
retroactive reimbursement request, he listed a heart problem. ROI, Exhs. Affid. A, Attach. 169 at
156, Bates No. 326, Ex. 17, at 2; Bates No. 689.

On appeal, Complainant writes that he never declared he had a knee problem. Pointing to a
reimbursement form in the record he submitted to the EEO investigator, Complainant avers that
he never requested reimbursement for a heart condition. But this form does not contain a field for
listing a medical condition. The form to which S1 referred was the Individual Wellness Agreement.
Id. Complainant failed to prove pretext, nor proved discrimination.

S1, in Complainant’s annual performance appraisal covering October 1, 2015 – September 30,
2016, which S1 signed on October 10, 2015, rated him as not meeting the performance element of
Teamwork and Partnerships. Therein, S1 wrote that Complainant demonstrated a lack of respect
for Regional and Forest leadership by making angry outbursts such as “What planet is he [Regional
Forester – upper level manager] from” and that these types of comments are disruptive and
counterproductive. S1 added therein that on a number of occasions Complainant vented his
frustrations in front of external partners with angry and sarcastic comments about the Forest
Service and his position, and demonstrated a lack of respect for Forest leadership by refusing
assignments as documented in the LOR.

Successor S2, who signed off as the reviewing official, stated that because he was not familiar
with Complainant’s performance, he checked with Complainant’s coworkers to verify S1’s
assessment, which they did. While Complainant attacks the character and disagrees with the
assessments of these two coworkers, he has not shown their assessments were based on reprisal
for his prior EEO activity. Complainant contends that S1 relied on an example to support the “Does
Not Meet” rating occurred prior to the appraisal period. We disagree. In the performance appraisal,
S1 referred to the LOR for the proposition that Complainant refused assignments. While the LOR
recounted S1 receiving a signed letter by an Engineering Program Manager via another person on
April 20, 2016, and Complainant correctly points out that the letter is dated March 19, 2014, the
letter regarding Complainant being rude and discourteous, not refusing assignments. ROI, Affid.
A, Attach. 16F, at 202 - 203, Bates Nos. 372.

Complainant argues that S1 did not give him examples of his refusing assignments. But on May
17, 2016, inside the appraisal period, S1 emailed Complainant complaining that he repeatedly
asked him to complete updates to a report, even “directed” him in writing to do so, that deadlines
came and went, and his edits were nearly two months overdue, and he did not understand. Affid.
A, Attach. 94B, at 140, Bates No. 310. The record also suggests that this referred to Complainant
working on “pet projects” rather than Forest Service priorities.
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In April 2016, inside the appraisal period, S1 emailed Complainant that as the Wildlife and
Fisheries Program Manager, his primary responsibilities do not include field work, that if he plans
on working on anything other than a Forest or District priority, he expected Complainant to ask
his permission, and Complainant was not authorized to take direction form District Rangers. ROI,
Exhs. Affid. A, Attach. 62A, at 128, Bates No. 298, unsigned Affid. B, at 35, Bates No. 538.

Regarding issue 6, Complainant failed to prove pretext or discrimination.

Issue 2 – Reasonable accommodation

Under the Rehabilitation Act and the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of a qualified individual
with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R.
§§ 1630.2(o), 1630.2(p).

On April 19, 2016, Complainant submitted a note to S2 from his health care provider, on a
prescription pad, that read “Pt. is advised to refrain from stressful conditions which may disrupt
his heart rhythm.” Complainant indicated that the stressful conditions referred to was harassment.
S2 referred the matter to S1. On appeal, Complainant clarifies that this was not a request for
reasonable accommodation, rather, he thought it was only reasonable to notify S1 and S2 upfront
that their retaliation could have consequences. Appeal brief, at unnumbered page 4, Section “Issue
3” (Jan. 15, 2018). We note, in any event, that on May 5, 2016, S1 emailed Complainant that for
health issues related to his heart, S1 would do whatever he could to adjust Complainant’s work
schedule if he needed to flex or take time off for medical reasons.

On appeal, Complainant clarifies that he made his request for reasonable accommodation when he
contacted the Agency Reasonable Accommodation (RA) Specialist. Id. He referred an email he
sent to the RA Specialist on April 17, 2017, which is located at ROI Ex. Affid. A, at 158, Bates
No. 328; Attach. 186A, at 188, Bates No. 358. In this email, Complainant suggested that his AFib
was caused by S1 harassing him, and concluded by writing the “agency should not allow this kind
of environment… and whether it be reasonable accommodation or anything else, I’m waiting for
the process to work….”

The EEO investigator contacted the Reasonable Accommodation Specialist, who replied by email
on May 17, 2017, that she verbally explained the reasonable accommodation process to
Complainant, and he did not request accommodation. She wrote that instead, Complainant in a
follow up email said his issue was workplace harassment, so she referred the matter out.

To determine the appropriate reasonable accommodation, it may be necessary for the covered
entity to initiate an informal, interactive process with the individual with a disability in need of the
accommodation. This process should identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. §
1630.2(o)(3). An Agency is liable if there is a finding that had a good faith interactive process
occurred, the parties could have found a reasonable accommodation.
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Mims v. Social Security Administration, EEOC Appeal No. 01201202310 (Nov. 5, 2010).
Complainant submitted a cryptic doctor’s note that he should refrain from stressful conditions
which may disrupt his heart condition, and suggested to the Reasonable Accommodation Specialist
that S1’s harassment caused his AFib. Identifying the appropriate reasonable accommodation in
this situation would be difficult, and would require further medical information and likely much
discussion. The Reasonable Accommodation Specialist suggested Complainant did not wish to
engage in this way. Given the sparse medical documentation in the record, and Complainant’s
emphasis throughout this case that he was harassed, we find the Reasonable Accommodation
Specialist’s characterization of her exchange with Complainant is credible. Accordingly, we find
that while Complainant entertained the idea of engaging in the reasonable accommodation process,
he decided not to do so. Accordingly, we find no discrimination on issue 2 based on disability or
reprisal discrimination.

Issue 7 - Harassment

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) 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
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 did not establish a claim of harassment because he failed to
prove the actions he complained of were based on his protected groups nor were they sufficiently
severe or pervasive to constitute an abusive working environment. We agree with the Agency’s
first reason for finding no harassment.

We have already referred to many of the incidents of alleged harassment in connection with issues
1 – 6, e.g., Issue 7.e. - S1 requiring Complainant to get permission before working on non-
priorities, and Issue 7.j. – regarding the March 19, 2014, letter that was referenced in the LOR and
his annual performance appraisal. Complainant failed to show these actions were motivated by
reprisal.

Regarding the refusal to reduce his workload per his doctor’s order, the record does not contain
medical information specifically requesting a workload reduction. S1, in his unsigned affidavit,
countered that Complainant did not prioritize his workload, and given his many years of experience
he should have been able to manage it.
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Complainant has not shown he was disparately treated, retaliated against, or that he engaged,
despite being informed, in the reasonable accommodation process regarding this.
Complainant did not establish that some incidents occurred, i.e., that S1 attempted to schedule his
Mid-year evaluation on a date that would interfere with his leave, S1 changed his performance
standards in a way that was unfair and designed to make him fail, and that S1 discussed his
performance appraisal near peers allowing them to overhear. Regarding S1’s multiple emails to
Complainant about scheduling his Mid-year evaluation, a reading of the emails shows
Complainant was making it difficult to schedule the meeting, putting it off. Complainant has failed
to prove he was unlawfully harassed.

Because Complainant did not prove he was subjected to discrimination or harassment, the FAD is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 13, 2019
Date