Burl M.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Nov 4, 2016

0120142122 (E.E.O.C. Nov. 4, 2016)

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

Burl M.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120142122

Hearing No. 550-2013-00186X

Agency No. NPS-12-0101

DECISION

The Commission accepts Complainant’s appeal from the March 26, 2014, final Agency
decision (FAD) 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Park Ranger
Trainee at the Agency’s Golden Gate National Recreation Area in San Francisco, California.
Complainant was appointed to the position in 2007 under the Student Career Experience
Program (SCEP) while working towards his master’s degree. Students in SCEP sign an
agreement laying out the parameters of the program. The agreement notes that the Agency has
the option to convert students participating in the program to permanent status at the end of the
program if they meet all the requirements.

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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On May 25, 2011, Complainant’s supervisor (S1) and the Human Resources Specialist (HRS)
met with Complainant. Complainant claims that S1 told him that he would not be appointed
anywhere within the Golden Gate National Recreation Area, and that the Agency had decided
not to convert his appointment to permanent. On June 23, 2011, S1 issued a memorandum
summarizing their May 25, 2011 meeting. Complainant challenged numerous statements in the
memorandum believing that S1 was trying to cover herself by providing a list of things he had
done wrong. Complainant claims that S1 was “really looking for stuff” and that it was
probably “easy for her to find stuff to get [him]” in his third year in SCEP when they had to
make the conversion decision. Complainant alleges that he had three years of fully satisfactory
performance ratings and S1’s actions consisted of “intentionally fault finding at every
opportunity.”

Following the meeting, Complainant claims that he retrieved some pamphlets that he and a co-
worker were to distribute the next day and returned with them to the office around 6:30 p.m.
When he entered the work area, S1 was still in the office and told him he should not be there at
that time. S1 left the area, went downstairs, and returned with a Law Enforcement Ranger.
The Law Enforcement Ranger told him to leave. Complainant responded that he was just
getting his things and needed to change out of his uniform to go home. Complainant claims
that the Law Enforcement Ranger followed him to the changing area and then followed him as
he left the building and walked to his car.

Complainant and management initially reached an agreement for Complainant to continue
working until July 2, 2011. Management later extended Complainant’s appointment to allow
him to remain eligible for placement in a different position, but in a leave without pay (LWOP)
status through September 19, 2011, to preserve his 120-day eligibility. On June 1, 2011,
Complainant alleges that he was meeting with HRS when his second-line supervisor (S2)
interrupted the meeting and asked when he was going to leave. On June 6, 2011, Complainant
spoke with the Superintendent and complained about the decision to not convert his SCEP
appointment. The Superintendent looked into Complainant’s concerns, and ultimately
supported the decision to not convert his appointment.

On March 21, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(Latino) and in reprisal for prior protected EEO activity when he was informed he could not be
hired anywhere in Golden Gate National Recreation Area after he completed his Student
Career Experience Program and was subsequently terminated after the 120-day timeframe for
placement expired; and he was physically removed from his office.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
ROI and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant timely requested a hearing, but
subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

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In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1 stated that she reached the decision
with the concurrence of the personnel board, not to convert Complainant’s SCEP appointment
because his performance – especially in the areas of communication and collaboration – had
degraded to the point that it was affecting the Division. S1 confirmed that Complainant’s
performance had been inconsistent throughout his term and that management had held
numerous informal counseling sessions with him, but there had been no improvement. S1
noted that Complainant was cautioned several times not to work on delivering education
material to classes during the day as there was an education staff that handled that, and he was
instructed to limit his activities to after-school programs. S2 corroborated S1’s stated reasons
and added that Complainant wanted to perform duties outside of those he was assigned, and he
was unable to accept what was part of his job. The effect of it was that he was not directly
doing his job. As a result, management decided not to convert Complainant’s appointment.

With respect to the events of the evening of May 25, 2011, S1 affirmed that Complainant was
told at the end of the meeting that he should consider that the end of his shift and that he
should return the following Tuesday morning. S1 stated that Complainant returned to the
office at approximately 6:30 p.m., and S1 reiterated to him that he was to go home and take a
few days off. S1 asserted that she enlisted the assistance of the Law Enforcement Ranger
because Complainant became belligerent and she was concerned about being alone with
Complainant after hours on the day she had told him his appointment would not be converted
and his employment would end. The Law Enforcement Ranger stated that she did not act in a
law enforcement capacity and denied watching him get changed. The Law Enforcement
Ranger maintained that she simply attempted to address Complainant as a supportive peer to
encourage him to leave the building.

In attempting to establish that management’s reasons for its actions were pretextual,
Complainant disagreed with S1’s criticism of his performance. The Agency noted that
Complainant essentially acknowledged that his work performance was deficient by his
assertions that S1 found fault “at every opportunity.” Further, Complainant acknowledged that
S1 warned him around 10 times over the two years prior to the non-conversion decision not to
work on school-day curriculum. Moreover, the Agency found that Complainant’s assertion
that S1 was overly picky was unpersuasive.

Additionally, Complainant claims that S1 did not explain to him during the May 2011 meeting
why his appointment was not being converted, and that the June 23, 2011, memorandum was
the first time he learned of the performance-based reasons for her decision. S1 stated that she
explained to Complainant the reasons stated in the memorandum for her decision during the
meeting. HRS corroborated that S1 discussed Complainant’s performance issues. As a result,
the Agency found that Complainant had not shown that S1’s reasons for his non-conversion
were false.

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With respect to the incident following the meeting, S1 and HRS stated that they told
Complainant at the end of the meeting he was to go home for the long weekend. Complainant
claims that he did not recall them saying that. When he returned to the office after his usual
hours, S1 was the only one from the Division present and perceived Complainant as becoming
belligerent and refusing to leave. Thus, she sought the aid of someone else in the building and
found the Law Enforcement Ranger. The Agency found that Complainant presented no
evidence demonstrating that the reasons given by management for enlisting the assistance of
the Law Enforcement Ranger were false.

Finally, the Agency found that Complainant failed to show that S2 interrupted the meeting as
he alleged. Likewise, Complainant did not prove that the Superintendent failed to act upon
Complainant’s report of unfair treatment. The Superintendent met with Complainant and
spoke to both S1 and S2 about the situation. Based on those conversations, the Superintendent
concluded that Complainant had not been treated unfairly.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Superintendent and his subordinates discriminated
against him and covered up their actions. Complainant claims that he was hired to engage the
community and to complete his master’s degree, not to be warned, harassed, and intimidated.
Complainant argues that his request for the Superintendent to investigate the May 2011
incidents was ignored. Accordingly, Complainant requests that the Commission reverse the
FAD.

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). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
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Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that Complainant failed to present evidence
to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, S1
stated that she decided to terminate Complainant’s employment and not convert his SCEP
appointment, with the concurrence of the personnel board, based on management’s belief that
the position he was in was not a good fit for him. ROI, at 95-97. S1 noted that Complainant’s
performance had been inconsistent throughout his tenure and management had held numerous
informal counseling sessions with him to try to help him improve in areas. Id. In the June
2011 memorandum, S1 cited as an example Complainant’s struggle with the Partnership and
Collaboration performance element. Id. at 325. S1 asserted that Complainant had difficulty
communicating and collaborating successfully with staff from various partner organizations.
Id. Additionally, S1 confirmed that Complainant missed scheduled meetings, failed to keep his
supervisor apprised of scheduling conflicts and other pertinent matters, worked on school
assignments while on duty, and communicated discourteously or unprofessionally to others.
Id. at 325-26. S1 stated that management was open to placing him in another position in the
park, but there were no other openings at the time or within the required 120-day time period
after his completion of the SCEP program. Id.

S1 maintained that she informed Complainant during their May 25, 2011, meeting that he
could consider his shift over, go home immediately, and return that next Tuesday morning.
ROI, at 105. S1 stated that Complainant returned to the office that evening around 6:00 p.m.,
and became belligerent and aggressive when asked to leave. Id. at 106. Based on
Complainant’s agitation, S1 felt uncomfortable and asked the Law Enforcement Ranger to
assist in encouraging Complainant to go home. Id. at 106-07. The Law Enforcement Ranger
denied physically removing Complainant from the building or watching over Complainant
while he changed; rather, she states that she encouraged Complainant as a peer to listen to his
boss and go home. Id. at 192-96, 199. Finally, the Superintendent affirmed that Complainant
expressed concerns to him about the circumstances of his non-appointment and, after
discussing the matter with S1, he determined that Complainant had not been treated unfairly.
Id. at 138-42.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant withdrew his request for a hearing, the Commission does not have the benefit
of an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant's protected classes were a factor in
any of the Agency's actions. At all times, the ultimate burden remains with Complainant to
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demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that he was subjected to discrimination or reprisal as alleged.

Finally, to the extent that Complainant is alleging that he was subjected to a hostile work
environment, the Commission finds that under the standards set forth in Harris v. Forklift
Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must
fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 3, 1994). Complainant’s harassment claim is precluded based on the
Commission’s finding that he failed to establish that any of the actions taken by the Agency
were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv.,
EEOC Appeal No. 01932923 (Sep. 21, 2000).

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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
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C.F.R. § 1614.604. 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. 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

November 4, 2016
Date