EEOC Appeal 2020000349

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ira P.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 2020000349
Agency No. FS-2018-00963
DECISION
On August 22, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 18, 2019 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Materials Handler Work Leader (MHWL) at
the Agency’s Northern Rockies Fire Cache (NRFC), Fire, Aviation & Air (FA&A) in Missoula,
Montana.
On 	October 	15, 	2018, 	Complainant 	filed a formal 	complaint 	claiming that 	the Agency
discriminated against him based on race/national origin (Hispanic/Mexican-American, age (over
40), and in reprisal for 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.

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1. 	on December 7, 2018, his housing in the government barracks was terminated;
2. 	during October 2018, management issued him a lay-off notice, effective November 9,
2018;
3. 	on August 1, 2018, management denied his request to volunteer in the CFO2 Center,
which hindered his professional growth;
4. 	on an unspecified date, management denied him an opportunity to develop an
Individual Development Plan (IDP);
5. 	on several dates, he was subjected to various of incidents of harassment, including but
not limited to, that he was replaced by new employees and he was alienated and bullied.
After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.
In its August 12, 2019 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment: Claims 1 - 4
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. 	See 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).
2 The record reflects that in the report of investigation, this stands for the Office of Chief Financial
Officer.

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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. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Regarding claim 1, Complainant asserted that on December 7, 2018, his housing in the government
barracks was terminated.
The Deputy Director for FA&A (Caucasian, American, over 40), also Complainant’s third-level
supervisor, acknowledged being involved in the decision to terminate Complainant’s housing in
the government barracks. Specifically, the Deputy Director noted that Complainant had been laid
off for at least one month and he was continuing to live in the government housing. 	He asked
around why Complainant was still living in the dorm “if he was not working with us. I was told
he had car issues. We allow employees to come a few days before the start of their employment
and stay for a couple of dates after their employment is over to get their things together and move
on to whenever they are going for that portion of the time. It is my understanding of the master
agreement is that we provide Government housing for those that are employees.”
Further, the Deputy Director expressed his concerns to the Aerial Fire Depot Facilities Base
Manager about employees living in the dorms that were not in an employment status because they
were a potential liability if something were to happen to them.
The Administrative Support Assistant (Caucasian, under 40) stated that during the relevant period
she was the dormitory manager. She explained at that time “I never knew [Complainant] was laid
off and that is why my supervisor told me because she is the one who processes all of that
paperwork.” 	The Assistant stated asserted that Complainant’s housing was not terminated…I
asked him if he knew he was going to be moving out.”
Regarding claim 2, Complainant alleged that in October 2018, management issued him a lay-off
notice, effective November 9, 2018.
The Supply Management Specialist (Caucasian, American, under 40), also Complainant’s
supervisor, explained that Complainant “is a permanent season employee that is guaranteed
thirteen pay periods out of twenty-six. He gets laid off every single year around the same time. It
was not out of the ordinary…I told him it was due to the lack of work and money that we are
bringing him back in the spring.”

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Regarding claim 3, Complainant alleged that on August 1, 2018, management denied his request
to volunteer in the Office of Chief Financial Officer which hindered his professional growth.
The Director of Budget and Finance stated that she does not know Complainant personally and “I
do not recall and did not locate any documentation that indicated that I received any formal request
or email from or about [Complainant’s] request to volunteer in my organization.” The Director
stated that the past few years, she had received several requests from Complainant to work (not
volunteer) in her organization and he had applied for several job vacancies. She further stated, “I
have not hired in two years, and we have actually reduced the number of positions by twenty
percent. [Complainant] indicates that he asked to volunteer. 	As a practice, I do not allow
employees to volunteer their time. I believe it is a violation of the Fair Labor Standards Act and I
could be sued in the future for unpaid wages. [Complainant] has no experience working in our
financial system and doesn’t have the requisite access or training to fully contribute to the team
during our busiest time – fire season.”
Regarding claim 4, Complainant claimed that on an unspecified date, management denied him an
opportunity to develop an IDP.
The supervisor acknowledged this was the first time he had heard about Complainant’s allegation.
He stated that during the relevant period, he sent out to all of the work leaders requesting them to
send their updated IDP and “any training, list of accomplishments for this past year. [Complainant]
never submitted an IDP through AgLearn3 and I did not deny him verbally or in writing or
anything.”
After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that the responsible management official’s proffered legitimate,
non-discriminatory reasons for the disputed action was actually pretext designed to mask
discrimination. 	Beyond his bare assertions, Complainant provided no evidence that his race,
national origin, age or retaliatory animus played any role in these events.
Harassment: Claim 5
Complainant has also alleged that the incident as claim 5 in his formal complaint, created a
discriminatory hostile work environment. 	To prove his harassment claim, Complainant must
establish that he was subjected to conduct that was either so severe or so pervasive that a
“reasonable person” in Complainant’s position would have found the conduct to be hostile or
abusive. Complainant must also prove that the conduct was taken because of his protected bases
– in this case, his race, national origin, age, and prior protected activity. 	Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself. Here, as discussed below, Complainant simply has provided inadequate evidence
to support his claim that his treatment was the result of his race, national origin, age, and prior
protected activity.
3 “AgLearn” is an Agency workforce and training development system.

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Complainant asserted that on several dates, he was subjected to various of incidents of harassment,
including but not limited to, being replaced by new employees and being alienated and bullied.
The supervisor stated that this was the first time he has heard of Complainant’s harassment
allegation. He stated he was not aware of anyone being replaced by new employees. Specifically,
the supervisor stated that during the relevant period, Complainant was in charge of the Job Corp
students and “they worked underneath him. It was ten people, ten Job Corps people, the Job Corp
supervisor and [Complainant]. The job out there is not a one-person job. It requires a crew to do
the operations. He was never replaced by the Job Corps because they were laid off before he was
and he was not replaced by them.”
Furthermore, the supervisor stated that Complainant and the Job Corps people “started in fire
season in August through October. We would have ten people come in and they would live in the
dorm for 14 days. Then, we would have a whole different crew. We did not have a big fire season.
We were running out of things to do with the Job Corps. [Complainant] was supposed to tide up
the hoses ramp. Then, we would shut down for the year.”
In 	summary, 	as 	detailed 	above, 	the 	responsible 	Agency 	official 	articulated 	legitimate,
nondiscriminatory reasons for the disputed actions, which were not pretextual. 	Moreover,
Complainant is unable to meet his burden of a discriminatory and retaliatory motive concerning
the incidents making up his claim of a hostile work environment.
CONCLUSION
We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of
the evidence of record does not establish that discrimination occurred.
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.

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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.
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.

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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 14, 2020
Date