EEOC Appeal 2020000028

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Guadalupe H.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 2020000028
Hearing Nos. 480-2018-00545X
480-2019-00107X
Agency Nos. FS-2017-00579
FS-2018-00107
DECISION
The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403, from the
Agency’s July 18, 2019 final order concerning the two captioned formal complaints which claimed
unlawful 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 Forestry Technician at the Agency’s Santa
Maria Air Tanker Base in Santa Maria, California.
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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Complainant filed two formal complaints on June 6, 2017 (“Complaint 1” - Agency No. FS-2017-
00579) and April 17, 2018 (“Complaint 2” - Agency No. FS-2018-00107), respectively.
Complainant claimed that the Agency discriminated against him on the bases of national origin
(Hispanic), sex (male), age (over 40), and in reprisal for prior EEO activity. In his complaint,
Complainant raised the following matters:
1. 	on April 24, 2017, he received a Letter of Decision in response to a management inquiry
where he was denied the opportunity to move forward with his t-shirt order while a
female employee was permitted to do so;
2. 	on May 11, 2017, Complainant’s supervisor did not respond to his request to use
official time to participate in an EEO interview;
3. 	on June 12, 2017, his supervisor rejected his Time and Attendance submission for ½
hour of overtime for June 9, 2017;
4. 	on August 11, 2017, his supervisor failed to respond to his request to be released from
his duties to attend a meeting as a union representative on August 15, 2017, which
resulted in his not being able to attend the meeting;
5. 	in August 2017, his supervisor denied him three fire assignments that resulted in his
missing opportunities to perform team duties and gain valuable job experience;
6. 	on August 29, 2017, his supervisor denied him the opportunity to be available for a fire
assignment and overtime;
7. 	on October 17, 2017, management issued him a Notice of Change in Temporary Duties,
and removed him from his primary position;
8. 	on October 26, 2017, management cancelled his change in temporary duty assignment
at the Browns Field Tucker Base, and denied his request to fill a vacant position at that
same location;
9. 	on October 30, 2017, management issued his performance appraisal (signed by his
second line supervisor) via email, and failed to afford him an opportunity to discuss or
review it;
10. on November 1, 2017, management ordered him to turn in his radio and head set;
11. on January 23, 2018, management forced him to work with an undesirable employee,
when they placed that employee in the same position and location as him, although this
employee created a hostile work environment for him;

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12. management, during the internal investigation of Complainant’s complaint against a
manager who alleged harassed him, refused to remove the manager from her position;
and
13. on February 27, 2018, he learned he was denied an opportunity to participate in the
Interagency Airtanker Base Managers Workshop.
After its investigation of the two complaints, the Agency provided Complainant with a copy of the
reports of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely
requested a hearing. The record reflects that during the pre-hearing conference, the AJ consolidated
the two complaints for adjudication. 	Thereafter, the Agency filed a Motion for Summary
Judgment. Complainant responded to the Motion. On July 9, 2019, the AJ issued a decision by
summary judgment in favor of the Agency.
The Agency thereafter issued the instant final order implementing the AJ’s decision. 	The instant
appeal followed. Complainant did not submit a timely brief on appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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
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 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 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).
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 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 failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.

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During the relevant period Complainant was a Forestry Technician at the Agency’s Santa Maria
Air Tanker Base in Santa Maria, California.
Regarding claim 1, Complainant asserted that on April 24, 2017, he received a Letter of Decision
in response to a management inquiry where he was denied the opportunity to move forward with
his t-shirt order while a female employee was permitted to do so.
The AJ noted that in August 2016, the Battalion Chief, also Complainant’s supervisor, called a t-
shirt vendor requesting him not to sell the t-shirts with a logo that Complainant allegedly designed
without her permission. As a result, the Agency conducted a management inquiry and concluded
that Complainant’s allegations were not substantiated. The record reflects that on April 17, 2017,
the Agency issued a Disposition Notice Regarding Anti-Harassment Policy Allegation, and the
letter was rescinded and replaced by another one issued on May 4, 2017.
The AJ further noted that on May 24, 2017, the supervisor granted permission to Complainant to
move forward with his t-shirt order. However, Complainant chose not to move forward with his
t-shirt order.
Regarding claim 2, Complainant alleged that on May 11, 2017, Complainant’s supervisor did not
respond to his request to use official time to participate in an EEO interview.
The AJ noted that Complainant’s supervisor tried to allow Complainant to work official time
around the department’s workload but allowed him his requested time when she became aware of
its importance.
The Director of Fire and Aviation Management (Director) (Caucasian male, over 40) stated that
he received an email from Complainant and he referred the matter to the new Forest Supervisory
and Deputy Forest Supervisor because Complainant “was four levels below me in the organization,
which totaled over 500 employees and I did not want to approve a time away from duty that would
countermand [Complainant’s] supervisor, without ensuring all in the chain of supervision were
informed. 	I was also concerned that allowing [Complainant] to not report for duty and if his
supervisor planned on his attendance, this could affect the running of the Air Tanker Base or
Dispatch, which are both essential functions of the Forest requiring shift workers.”
Regarding claim 3, Complainant alleged that on June 12, 2017, his supervisor rejected his Time
and Attendance submission for one-half hour of overtime for June 9, 2017.
The AJ noted that Complainant’s supervisor did not approve a half-hour of overtime because
Complainant did not request the overtime in his official timecard submission as opposed to in the
“remarks” section of his above official timecard.
Regarding claim 4, Complainant claimed that on August 11, 2017, his supervisor failed to respond
to his request to be released from his duties to attend a meeting as a union representative on August
15, 2017, which resulted in his not being able to attend the meeting.

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The AJ noted that Complainant’s supervisor did not immediately respond to Complainant’s email
because it came from a different account. The AJ noted that the supervisor stated she recalled that
morning, Complainant asked her if she had received his email concerning a request to attend a
meeting as a union representative. She stated that she apologized to Complainant that she did not
see an email from him. 	The supervisor further stated “I have explained to [Complainant] if he
doesn’t hear from me, it usually means that I did not see the request; and that it is his responsibility
to make sure that I received and responded to an email. When I did a search of the email, I learned
that the email in fact came from [named employee] and not [Complainant], which was why it was
missed.”
Regarding claims 5 and 6, Complainant asserted that on in August 2017, his supervisor denied him
three fire assignments which resulted in Complainant missing opportunities to perform team duties
and gain valuable job experience, and on August 29, 2017, his supervisor denied him the
opportunity to be available for a fire assignment and overtime.
The AJ noted that the Chief denied the fire assignment requests because they were not aircraft
assignments.
Regarding claim 7, Complainant claimed that on October 17, 2017, management issued him a
Notice of Change in Temporary Duties and removed him from his primary position.
The Forest Fire Management Official (American, over 40) (Official) acknowledged issuing
Complainant the Notice of Change in Temporary Duties. 	She noted that Complainant was not
removed from his primary position. 	Complainant, however, “was temporarily assigned other
duties at another work location, due to a couple of harassment complaints against him.” 	The
Official stated that following a discussion with Employee Relations, the Agency decided to change
Complainant’s duties temporarily until a decision was made regarding the results of those
management inquiries.
Regarding claim 8, Complainant alleged that on October 26, 2017, management cancelled his
change in temporary duty assignment at the Browns Field Tucker Base and denied his request to
fill a vacant position at that same location.
The Forest Aviation Officer was Complainant’s temporary supervisor during the relevant period.
He was aware that Complainant had been temporary assigned to the Browns Field Tucker Base
“but before he could begin his assignment, [the assignment] was cancelled by Browns Field Tucker
Base. I am not sure why the assignment was cancelled, but [Complainant] was scheduled for that
temporary fire assignment. Dispatch had called me as the Aviation Duty Officer to inform me that
[Complainant’s] resource order had been cancelled. 	The assignment was for a fixed parking
tender, which [Complainant] is qualified, and why he was being sent. The vacant position was a
fire assignment not a permanent position.” 	Furthermore, the temporary supervisor noted that
Complainant never contacted him about his concerns.

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Regarding claim 9, Complainant asserted that on October 30, 2017, management issued his
performance appraisal (signed by his second line supervisor) via email and failed to afford him an
opportunity to discuss or review the appraisal.
The AJ noted that the temporary supervisor issued a “Successful” rating as the temporary rating
official and otherwise processed the rating based on his schedule.
The temporary supervisor stated at that time “there were several different issues that I had been
dealing with during this time to include a forest fire and I had not gotten around to going to see
[Complainant] personally to discuss his performance appraisal. This was not done intentionally
or maliciously. [Complainant’s] supervisor was on extended leave with a dean in the family.”
Regarding claim 10, Complainant claimed that on November 1, 2017, management ordered him
to turn in his radio and head set.
The supervisor acknowledged ordering Complainant to turn in his radio and headset for annual
inventory and maintenance. 	She explained that as part of the end-of-the-year inventory, all
equipment must be turned in and accounted for “so that [the equipment] can be sent in for
maintenance of needed. All radios and headsets are properly of the Santa Maria Airtanker Base.
These items are not the property of [Complainant]. 	At the time, [Complainant] was not an
employee of the Tanker Base, so we reached out to him by email asking for the temporary return
of the items.” 	Furthermore, the supervisor reached out to Complainant’s supervisor for
compliance.
Regarding clam 11, Complainant asserted that on January 23, 2018, management forced him to
work with an undesirable employee, when they placed that employee in the same position and
location as him, although this employee created a hostile work environment for him.
The Official stated at that time, she was aware that Complainant being temporarily reassigned to
the Vandenberg Interagency Training Center and the Forest Fire Training program area. 	She
asserted that Complainant was not forced to work with an undesirable employee, and “it has not
been brought to my attention that he was working with someone he felt has created a hostile work
environment for him.”
Regarding claim 12, Complainant claimed that on management, during the internal investigation
of Complainant’s complaint against a manager who alleged harassed him, refused to remove the
manager from her position.
The Officer stated that while she had no involvement in the incidents where Complainant alleged
the supervisor harassed him, she was the proposing official for one of the management inquiries.
Specifically, the Officer stated that once the management inquiry into the allegations of harassment
against the supervisor “found the allegations to be unsubstantiated, there was no need for the
supervisor to be removed.

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However, upon the management inquiry two harassment complaints against [Complainant]
revealed some of the allegations to be substantiated, he was temporarily reassigned until the
harassment investigations could be concluded. 	The decision to temporary move [Complainant]
occurred after reviewing witness statements collected during the management inquiries, not at the
time the allegations were made.”
Regarding claim 13, Complainant claimed that on February 27, 2018, he learned he was denied an
opportunity to participate in the Interagency Airtanker Base Managers Workshop.
The supervisor explained employees can reach out to the National Wild Fire Coordination Group
(NWCG) website for national training opportunities. 	She further stated that there is a Regional
Training Center on the Forest “that posts training for all employees to access. 	[Complainant]
works at the local training center during the winter months. 	Training needs are usually done
through their Individual Development Plan (IDP) and discussions with their supervisor.”
Further, the supervisor stated that she learned that Complainant did not request to attend the
workshop “because there was no record of a nomination form being submitted. He was not denied
acceptance, because he did not apply to go.”
With regard to all thirteen claims, beyond his bare assertions, Complainant failed to produce any
evidence that the proffered reasons provided by management witnesses for the disputed actions
were a pretext masking discriminatory or retaliatory animus. 	We note again that Complainant
provided no timely arguments on appeal.
Finally, to the extent that Complainant also offered these eight incidents in support of a
discriminatory harassment claim, he again has simply provided no evidence to support his claim
that his treatment was the result of his national origin, sex, age or retaliatory animus. A case of
harassment is precluded based on our findings that Complainant failed to establish that any of the
actions taken by the Agency were motivated by his protected bases. 	See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.

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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.
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.

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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 23, 2020
Date