Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120121922 (E.E.O.C. Apr. 23, 2014)

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 Land Management),
Agency.

Appeal No. 0120121922

Agency No. BLM100644

DECISION
Complainant filed an appeal from the Agency’s February 10, 2012 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 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
At the time of events giving rise to this complaint, Complainant worked as a Planning and
Environment Coordinator (Wilderness), GS-0301-12 with the Agency’s Bureau of Land
Management, Southern Nevada District Office in Las Vegas, Nevada. On October 7, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of sex (male), religion (Christian), color (White), and age (59) when:

1. he was reassigned from his position as the Monument Manager/National
Conservation Area to the Red Rock Canyon Planning and Environment
Coordinator position;

2. he was issued a Letter of Directive to discontinue usage of a government vehicle
to commute between the Southern Nevada District Office to the Red Rock
Canyon National Conservation Area; and

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3. his supervisor, S1, referred to his religious beliefs as "right wing Christian" and
instructed him to remove reading material containing religious opinions from the
RRCNA employee break room; and S1 accused him of expressing his personal
beliefs in a Red Rock Canyon interpretive association display.

The Agency accepted Claims 1 and 2 and conducted an investigation.1

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 EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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. From that decision Complainant brings the instant appeal.

ANALYSIS AND FINDINGS
Disparate Treatment Discrimination

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 he
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). The
prima facie inquiry may be dispensed with where 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). 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).
Claim #1 (Involuntary Reassignment)

The Agency explains that Complainant was reassigned from the position of Monument
Manager/National Conservation Area for budgetary reasons, in particular, to make use of
Complainant’s expertise in wilderness planning in the position of Red Rock Canyon Planning
and Environment Coordinator to which Complainant was transferred. By taking advantage of
Complainant’s wilderness expertise, the Agency anticipated that it would be able to avoid
$95,000 in fees it would otherwise have paid to outside experts. Report of Investigation (ROI)
at 230. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant
does not dispute that he had greater expertise in wilderness planning than the person who
succeeded him in the Monument Manager position. Complainant failed to show that the
Agency’s reason for its action was a pretext designed to conceal discriminatory animus.

1 As discussed below, Claim 3 was dismissed for untimely contact with an EEO Counselor.
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Claim #2 (Use of Government Owned Vehicle Disallowed)

According to the Agency, Complainant routinely used a government owned vehicle on his
daily compute to his duty station at the Red Rock Canyon facility. On July 14, 2010, the
Agency directed Complainant to stop using government owned vehicles for this purpose
because doing so contravened established federal government policy on the use of government
owned vehicles by federal employees. This is a legitimate, nondiscriminatory reason for the
Agency’s action. Complainant does not dispute that the Agency’s directive was consistent with
applicable federal regulations. Complainant failed to show that the Agency’s reason for its
action was a pretext designed to conceal discriminatory animus.

Dismissal for Untimely Counselor Contact

Claim #3

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The record discloses that the
latest alleged discriminatory events raised in Claim #3 occurred on March 22, 2010, and in
April 2010, but Complainant did not initiate contact with an EEO Counselor until August 24,
2010, which is beyond the forty-five (45) day limitation period.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence he was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.

In the instant case, the Agency provided adequate proof that Complainant knew or should have
known of me time limits for seeking EEO counseling, including Complainant’s statement to the
EEO counselor that he was aware of the 45-day time limitation. ROI at 36. On appeal,
Complainant has presented no persuasive arguments or evidence warranting an extension of the
time limit for initiating EEO Counselor contact. We find that Complainant was on notice of
the 45-day time limit to contact an EEO counselor and that Claim #3 was properly dismissed as
untimely.

CONCLUSION
For the foregoing reasons, the Agency’s final decision is AFFIRMED.

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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,
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.

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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
April 23, 2014