Alexander A.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Bureau of Indian Education), Agency.

Equal Employment Opportunity Commission

May 6, 2020

2019004242 (E.E.O.C. May. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexander A.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (Bureau of Indian Education), Agency. Appeal No. 2019004242 Agency No. DOI-BIE-18-01952 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Native American Student Information System (NASIS) Specialist, GS-12, at the Agency’s Bureau of Indian Education’s office in Bloomington, Minnesota. Report of Investigation (ROI), at 38. Complainant averred that, as a NASIS Specialist, he was initially responsible for working with the Agency’s East Region comprised of 66 schools, which was the largest region geographically within the Agency. ROI, at 177. According to Complainant, the Agency began with a re-organization in 2016 and most positions within the Agency were re-advertised. Complainant stated that on April 29, 2016, he was notified of his re-selection to the NASIS Specialist, GS-12, position. Id. at 174. 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. 2 The Agency also labeled Complainant’s complaint as Agency No. DOI-BIA-18-0195. 2019004242 2 He averred that despite being re-selected for the NASIS Specialist, GS-12, position, there was no change in the position description (PD) for his position. During a meeting with the Agency’s Human Resources (HR), Complainant apparently shared his belief that he was serving in a “dual assignment” wherein he was physically assigned to the Minneapolis area serving under his first line supervisor (S1), but he was also reporting to another supervisor who was assigned to the Albuquerque, New Mexico office. Id. at 177, 179. Complainant also stated that his workload increased, and he started managing 98 schools after the Agency’s reorganization. Id. at 178. He further averred that a coworker, who held the same position as him, was reassigned and S1 instructed him to assume some of her duties related to school responsibilities, which made his work assignments excessive. As a result, Complainant sent an email to the Agency’s HR Director, copying S1 and a HR Specialist. In the email, Complainant requested a desk audit of his position based on his belief that his duties had increased. Id. at 192-193. According to the HR Specialist, she received an email on September 11, 2017, from her supervisor at the time, requesting that she assist S1 with a grade increase request from Complainant. Id. at 243. On December 21, 2017, the HR Specialist sent an email responding to Complainant’s request for a desk audit. Id. at 274-275. Therein, the HR Specialist wrote to Complainant that the PD used for Complainant’s position was a standard PD used for the Agency nationwide and could not be changed without the approval of the Deputy Director for School Operations. Id. The HR Specialist further wrote that any change to Complainant’s PD would impact other positions within the Agency listed on the same PD. Id. The HR Specialist also explained to Complainant, in the email, that the appropriate supervisor must submit a written, signed, and dated statement outlining the changes which have been made to the job, reasons for the changes, and a recommendation for a non-competitive promotion. Id. The HR Specialist further noted to Complainant that his request failed to meet the conditions of the “Accretion of Duties” promotion principle in that Complainant continued to perform the same basic functions of his position. Id. at 275. On April 24, 2018, Complainant filed a complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity3 when on December 21, 2017, the HR Specialist denied him a staff audit (also known as a desk audit), and she mentioned that he had a previous grievance filed back in May or June 2016. Following 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). 3 Complainant filed a prior EEO complaint (DOI-BIA-16-0562) involving allegations of harassment and disparate treatment based on reprisal, national origin (Native American/Ojibwe Tribe), and sex (male) for incidents that occurred in 2015 and 2016. Complainant also alleged that he was subjected to reprisal based on a 2016 Office of Inspector General (OIG) complaint filed in 2016. 2019004242 3 In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency initially found that Complainant did not establish a prima facie case of discrimination based on reprisal. In so finding, the Agency noted that it was unclear whether the HR Specialist, who Complainant named as the responsible management official, was aware of Complainant’s prior EEO activity. The Agency noted that even assuming the HR Specialist was aware of Complainant’s prior EEO activity, Complainant failed to show that a causal connection existed between the denial of the desk audit and his EEO activity. The Agency nevertheless assumed, without finding, that Complainant established a prima facie case of discrimination based on reprisal and determined that it articulated legitimate, nondiscriminatory reasons for failing to conduct a desk audit for Complainant’s position, and that Complainant did not show that those reasons were pretextual. On appeal, Complainant asserts, in pertinent part, that the HR Specialist referenced a grievance he previously filed in her December 21, 2017, email to him. Complainant further contends that he was assigned double the amount of work in comparison to other NASIS Specialists, including duties that were not in his PD. Complainant maintains that HR purposefully delayed and then blocked his request for a desk audit for his position, and that the Agency has continuously subjected employees to reprisal who have filed similar complaints against the Agency. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Disparate Treatment 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). He must generally establish a prima facie case by demonstrating that she 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). 2019004242 4 The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as noted above, the HR Specialist explained that any change to Complainant’s PD would impact other positions within the Agency listed on the same PD. ROI, at 274-274. The HR Specialist also explained to Complainant in the email that the appropriate supervisor must submit a written, signed, and dated statement outlining the changes which have been made to the job, reasons for the changes, and a recommendation for a non-competitive promotion. Id. The HR Specialist further noted to Complainant that his request failed to meet conditions of the “Accretion of Duties” promotion principle in that he continued to perform the same basic functions of his position. Id. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant maintains the HR Specialist referenced a grievance he previously filed in her December 21, 2017, email to him. Complainant further contends that he was assigned double the amount of work in comparison to other NASIS Specialists, including duties that were not in his PD. Notwithstanding Complainant’s contentions, we find that he has not shown that the HR Specialist’s explanations were pretextual based on his prior protected EEO activity. In so finding, the record simply does not show, and Complainant does not contend, that the HR Specialist was aware of his previous protected EEO activity. There is no evidence that the HR Specialist was motivated by retaliatory animus in not granting his request for a desk audit. We note, moreover, that Complainant named the HR Specialist as the sole responsible management official herein, and we find that Complainant has not established that her actions were due to discrimination based on his protected EEO activity. In addition, to the extent that Complainant maintains he was subjected to reprisal based on his previously filed grievance or his OIG complaint, we note that such activity does not generally constitute protected EEO activity unless there is an issue of discrimination raised in such matters. Complainant, however, has not alleged that his grievance or OIG complaint raised an issue of discrimination. Even assuming, without finding, that the grievance or OIG complaint mentioned an issue of discrimination, there is no evidence to show that the HR Specialist was involved in the grievance or the OIG complaint, or denied Complainant’s request for the desk audit based on either the grievance or OIG complaint. CONCLUSION We AFFRIM the Agency’s final decision finding no discrimination. 2019004242 5 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. 2019004242 6 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 May 6, 2020 Date