Christopher A.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0120170055 (E.E.O.C. Sep. 28, 2018)

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

Christopher A.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120170055

Hearing No. 450-2016-00089X

Agency No. DOI-BSEE-16-0083

DECISION

On September 23, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 12, 2016, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Safety and
Environmental Management Specialist (SEMS), GS-310-13, at the Agency’s Bureau of Safety and
Environmental Enforcement (BSEE), Gulf of Mexico Region (GOMR) facility in New Orleans,
Louisiana.

The record indicates that Complainant has held the SEMS position under a GS-301-13 position
description since January 2013. His duties include reviewing accident/incident investigation
reports, Technical Information Management System reports, and annual performance reviews.

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.
0120170055

2
Complainant fills in for the Chief as needed, assists civil penalty review officers, and serves on
investigation panels. Complainant reported that he also attends trainings regarding his
investigation and inspection assignments. Complainant maintains that his SEMS position
description involves the same duties as the GS-1801 series position (Inspections/Investigations),
as he is involved in enforcement, investigations, audits, and compliance activities. However,
unlike the GS-301 series, the GS-1801 series qualifies the employee for a special rate.

On December 28, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and color (Black) when from
June 5, 2015, to the present (defined as the completion of investigation), management failed to
address his request to reclassify his GS-301-13, SEMS position.

At the conclusion of 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). Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, 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.

In its decision, the Agency determined that Complainant failed to establish a prima facie case of
discrimination based on race or color. The Agency reasoned that Complainant did not show that
he experienced less favorable treatment than similarly situated Caucasian employees regarding job
classification.

Nevertheless, the Agency argued that assuming Complainant established a prima facie case of
discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, the Agency explained that following organizational realignment, management was
trying to identify whether the GS-301 or the GS-1801 series was the appropriate series for
Complainant along with three other employees in the GS-301 series. However, the Agency
experienced a delay in the review process due to the retirement of the GOMR Human Resources
Chief. As such, the Human Resources Chief at Headquarters assumed control of the review
process and hired a contractor to review the position descriptions of four GS-301 employees in
GOMR, including Complainant, but the final determination on classification remained
outstanding. The Agency argued that Complainant failed to establish pretext because two similarly
situated Caucasian employees were also affected by the delay in determining the appropriate job
classification in addition to Complainant. Likewise, the Agency noted that Complainant provided
no persuasive evidence that his race or color played a role in the delayed job reclassification.

ANALYSIS AND FINDINGS

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
0120170055

3
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”).

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
or 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). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. 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. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Here, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its actions.
Complainant’s supervisors reported, and Complainant acknowledged, that Complainant never
requested a desk audit for consideration of a job reclassification despite conversations regarding
his appropriate job series. In any event, management indicated that the Agency was in the process
of obtaining classification review for four employees in the GS-301 series, including Complainant,
to determine whether the GS-1801 series was the appropriate series. Two of the employees,
including Complainant, are African-American and the remaining two employees are Caucasian.
At the time of the FAD, the position descriptions were still under review in the Headquarters
Human Resource department.

In his complaint, Complainant identified three Caucasian employees that received job
reclassifications as comparators. However, management explained that these employees were not
similarly situated to Complainant for varying reasons, including differing job duties, chain of
command, job title, and job series. We find, as the Agency determined, that Complainant is
similarly situated with the three other GS-301 employees in GOMR, rather than the comparators
Complainant identified, and each of these employees are affected by management’s delay in
reclassification.

After a review of the record, we find that Complainant failed to show that the Agency’s articulated
reasons were a mere pretext for discrimination. Furthermore, we find that Complainant failed to
show that he was treated less favorably than similarly situated employees under similar
circumstances. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s actions were motivated by discriminatory animus.

0120170055

4
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination.

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.

0120170055

5
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 28, 2018
Date