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

Equal Employment Opportunity Commission

Jan 24, 2017

0120143033 (E.E.O.C. Jan. 24, 2017)

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

Lemuel M.,1
Complainant,

v.

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

Appeal No. 0120143033

Hearing No. 520-2014-00080X

Agency No. NPS-12-0194

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August
7, 2014, final order 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Park Guide, GS-
5, at the Agency’s Fort Wadsworth facility in Staten Island, NY. On April 5, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of his race (African-American), sex (male), and age (64) when:

1. from January 2012 to present, management has not afforded Complainant the
opportunity to work in the Office of the Chief of Interpretation and Education or the
New York Harbor Parks Education Center;

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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2. on February 5 and 12, March 31, and May 27, 2012, management prevented
Complainant from conducting large scale programs;
3. from April 2012 to the present, management has not provided Complainant with
training opportunities which would allow him to become more competitive for
higher graded positions;
4. on December 15, 2011, Complainant received negative feedback on his
performance during a “Sentinels of Our Shores” training session;
5. on or about December 15, 2011, Complainant’s supervisor (S1) sent a negative
email to Complainant;
6. on December 11, 2011, S1 referred to himself as a “slave driver” to Complainant;
7. from August 2010 to the present, management scheduled Complainant to work at
least one day per weekend.

Complainant later amended his complaint to allege that the Agency discriminated against him
in reprisal for prior protected EEO activity when:

8. on June 14, 2012, management reassigned Complainant to Sandy Hook, New
Jersey;
9. in or about June 2012, Complainant was not selected, or rated eligible, for the
position of Park Ranger, vacancy announcement number NY-MM-12-595909 MP;
10. in or about June 2012, Complainant was not interviewed or selected for the position
of Park Guide, at John Muir National Historic Site and Eugene O’Neill National
Historic Site;
11. in or about June 2012, Complainant was informed he was ineligible for a GS-0025-
09 position at Golden Gate National Recreation Area.

Finally, Complainant alleged discrimination on the bases of his race, sex, age, and reprisal
when:

12. on January 15, 2013, he was rated as ineligible for a Park Ranger position under
vacancy announcement number GOG-1211-(MP) 813682, located in San Francisco,
CA.

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 requested a hearing. The
AJ found that, after viewing the evidence in a light most favorable to Complainant, a decision
without a hearing was appropriate as there were no genuine issues of material fact in dispute.
The AJ issued a decision without a hearing on July 24, 2014, finding no discrimination. The
AJ also denied Complainant’s motion to amend his complaint to include additional claims,
finding that the claims were either already accepted by the Agency, were untimely, or were not
like or related to the any of the original claims in the original complaint. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged. On appeal, Complainant contends
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that the AJ erred in finding no discrimination and that the investigation was insufficient.
Complainant also alleges that the AJ erred in not allowing discovery with respect to his non-
selection claims.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip.Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. Additionally, we find no reason
to disturb the AJ’s denial of Complainant’s motion to amend his complaint. Further, despite
Complainant’s contentions on appeal, we find that the investigative record contains sufficient
information upon which to determine whether the Agency’s actions were motivated by
discriminatory animus. We also find that the AJ allowed the parties to engage in the necessary
amount of discovery to allow disposition of the non-selection claims.

To prevail in a disparate treatment claim, 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 Construction 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
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legitimate, non-discriminatory reason for its actions. Texas Department of Community 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 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, with respect to claim (1), the record shows that Complainant was not
denied an opportunity to work in the Office of the Chief of Interpretation and Education or the
New York Harbor Parks Education Center because he acknowledges that he never requested
that management assign him to either of those locations. As to claim (2), the record shows that
“large scale programs” were programs expected to bring in public audiences of 500 people or
more and coordinated by Park Rangers at the GS-9 level or higher. At the relevant time,
Complainant was a GS-5 Park Guide. With respect to claim (3), Complainant’s management
officials state that employees were continually encouraged to avail themselves of training
opportunities and that Complainant was “encouraged by all interpretive supervisors … to take
online and other appropriate interpretive training classes and to participate in training and
development workshops.” Complainant failed to identify any training he requested but was
denied by management.

Next, with respect to claims (4)-(6), we concur with the AJ’s finding that these isolated
incidents do not constitute adverse actions sufficient to support a finding of discrimination. As
to claim (7), the record shows that while management did, in fact, schedule Complainant to
work at least one day per weekend, this was standard scheduling for most employees.
Additionally, employees scheduled to work weekend days were provided additional pay
incentives and there is no evidence Complainant ever requested that management exempt him
from working weekends.

With respect to claim (8), the record shows that the Agency closed the Fort Wadsworth facility
in June 2012, and that all the employees assigned to that facility, including Complainant, were
reassigned to other facilities. The record also shows that although Complainant was reassigned
to the Sandy Hook, New Jersey facility, he never reported to that facility because he was
awarded a temporary detail as a GS-7 Park Ranger at the African Burial Ground National
Monument in New York. At the conclusion of that detail, Complainant was assigned to the
Floyd Bennett Field in Brooklyn, New York.

As to claims (9)–(11), we concur with the AJ’s finding that Complainant failed to establish a
prima facie case of reprisal discrimination. Specifically, the record shows that all of the
positions at issue were located outside Complainant’s Division, and Complainant has proffered
no evidence to show that the human resources employees responsible for determining his
eligibility for the vacancies were aware of his prior EEO activity or any of his other protected
bases. Finally, with respect to claim (12), we again concur with the AJ’s finding that
Complainant failed to establish a prima facie case as he has presented no evidence that any of
the employees involved in the selection process were aware of his protected bases.
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CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

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
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).

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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

January 24, 2017
Date