Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Feb 20, 2015

0120132650 (E.E.O.C. Feb. 20, 2015)

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

,
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120132650

Hearing No. 541-2011-00140X

Agency No. BIA-09-0108

DECISION
On June 28, 2013, Complainant filed an appeal from the Agency’s final decision, which he
received that same day. The decision concerned Complainant’s 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
deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R.
§ 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND
Complainant applied for the position of Realty Clerk at the Wind River Agency, a field office
of the Bureau of Indian Affairs located in Fort Washakie, Wyoming. On September 16, 2008,
Complainant received notification that he had not been selected. On January 20, 2009, he filed
an EEO complaint in which he alleged that he was nonselected because of his race (African
American) and sex (male). He identified the Superintendent, in his capacity as the selecting
official (SO), as the responsible official. At the conclusion of the ensuing investigation, the
Agency provided Complainant with a copy of the investigative report (IR) and notice of his
right to request a hearing before an EEOC 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.

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The Realty Clerk position in question was an Indian preference position, meaning that only
enrolled members of federally recognized tribes are eligible to apply. Complainant’s
background is multiracial. Both he and the selectee are enrolled members of the Northern
Arapaho Tribe. IR, Tab B, p. 15; Tab F-1, pp. 6-7; Tab F-2, pp. 8-9. Although Complainant
made the certification list of eligibles for the position, he was not chosen. Tab B, pp. 36-37.
Complainant testified in his affidavit that he received a letter from the Agency that his
application was not considered because he was not qualified. Tab F-1, pp. 7-8. What the
notification actually stated was that Complaint was found qualified and referred to the SO for
consideration, but was not selected. Tab B, p. 37.

The SO made the selections for every vacancy within the Wind River Agency. Tab F-2, p. 9.
He testified that he did so based on the recommendations of his section chiefs, pointing out that
he never overturned those recommendations because the section chiefs had to work with the
selectees. Tab F-3, p. 5. The Realty Officer was the Realty Section Chief. She served as the
Recommending Official (RO) for the Realty Clerk vacancy in question. The RO averred that
when she received the certificate of eligibles from the Human Resources office, she made her
decision based upon the application packages of the candidates, and had decided not to conduct
interviews. Tab F-2, p. 4. She testified that she had decided to recommend the selectee to the
SO because the selectee had been a GS-7 at the Indian Health Service and was willing to take a
downgrade. She also testified that the selectee had experience in minerals, which she
considered a very important part of the work done by the Realty Section. Finally, she noted
that the selectee had extensive clerical experience, which was also necessary for the position.
Tab F-2, p. 8.

When asked by the EEO investigator why he believed that he was not picked because of his
race, Complainant replied, “when you look at me on face value, you think I am a black
person.” Tab F-1, p. 7. When asked why he thought that his gender played a role in his
nonselection, Complainant stated, “when you walk in, there is nothing but women.” Tab F-1,
pp. 4-5. The SO averred that over the previous two years, she had made recommendations for
three vacancies, all of which were filled by women. Tab F-2, p. 10. Complainant also
maintained that he was better qualified by virtue of the fact that he had been an assistant to the
Chief Financial Officer of the Arapaho Tribe, and that he had an associate’s degree in Tribal
Realty and Land Management from Haskell Indian University. Tab B, p. 23; Tab F1, p. 10.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decision involving selection of personnel
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for the selection. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Therefore, in order to prevail on his claim of disparate treatment, Complainant
would have to prove, by a preponderance of the evidence, that the RO and the SO were
motivated by unlawful considerations of his race and gender. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the form of a
showing that Complainant’s qualifications for the position at issue were plainly superior to
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those of the selectee. Guida v. United States Postal Service, EEOC Appeal No. 01923174
(April 15, 1993). It can also take the form of discriminatory statements or past personal
treatment, comparative or statistical data, unequal application of Agency policy, or deviations
from standard procedures without explanation or justification. See Hovey v. Department of
Housing & Urban Development

, EEOC Appeal No. 01973965, (Aug. 31, 2000).
The RO testified that she based her decision to recommend the selectee to the SO on her
assessment of the qualifications of the two candidates, and that in her view, the selectee was
the better qualified candidate because of her clerical experience as a GS-7 and her background
in minerals management. The RO testified that he followed his customary practice of choosing
the selectee strictly on the basis of the RO’s recommendation. While Complainant expressed
his belief that the actions of the RO and the SO constituted discrimination, he has not presented
any sworn statements from other witnesses or documents which contradict the explanations
provided by these officials, or which call their veracity into question. The Commission has
long held that unsupported assertions are not sufficient evidence of illegal motive. Porter v.
Department of the Navy

, EEOC Petition No. 03800087 (January 14, 1981). We therefore
agree with the Agency that Complainant has not sustained his burden of proof in his claim of
disparate treatment in connection with his nonselection for the Realty Clerk position.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
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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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 20, 2015