Otha R.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

0120172322 (E.E.O.C. Dec. 21, 2018)

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

Otha R.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.

Appeal No. 0120172322

Agency No. BOR-16-0549

DECISION

On June 23, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 1, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Journeyman Electrician at the Agency’s
Left Power House, Grand Coulee Dam in Grand Coulee, Washington.

On September 2, 2016, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against him based on age (over 40) when:

1. on June 20, 2016, he was notified that he was not selected for the position of Foreman
I, Electrician (Power Systems) (Maintenance), advertised under Job Announcement
Number BR-PN-VA-GC-16-164;

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. beginning August 17, 2015 to present, he experienced ongoing harassment from a co-
worker. Complainant claimed that his supervisor was aware of the harassment. The
harassment continued, however, and no efforts were made to stop it; and

3. his supervisor questioned him about his retirement and commented on his age.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On June 1, 2017, the Agency issued the instant final decision
finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment: Claims 1 and 3

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

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Complainant reported to the Power Systems Maintenance Electrical Foreman for one year.
Complainant claimed that he was qualified for the Foreman I, Electrician position because he
had 25 years of experience in the electrical trade and 6 years of experience at the Grand Coulee
Dam. He also stated that he had 2 different 120-day Supervisor II temporary assignments and
was approved to work as a “system planner Power system control craftsman in operations.”

Complainant stated that he also worked with the Electrical Supervisor II (supervisor) when he
first started working at Grand Coulee. Complainant further stated that when the supervisor
became a foreman, Complainant’s age became an issue. Specifically, Complainant stated that
the supervisor asked him “quite often” when he planned to retire from Agency employment.

Regarding claim 1, Complainant asserted that on June 20, 2016, he was notified that he was not
selected for the position of Foreman I, Electrician (Power Systems) (Maintenance), advertised
under Job Announcement Number BR-PN-VA-GC-16-164.

The supervisor (year of birth 1962) was the selecting official for the Foreman I, Electrician
position during the relevant period. The supervisor noted that he restricted the subject position to
employees that were working for the Left Powerhouse due to the difference in equipment
between the Left Powerhouse and the rest of Grand Coulee. The supervisor stated that he
implemented an interview selection panel consisting of two Agency officials and himself. The
supervisor stated that the panel interviewed all three candidates the same questions.

The supervisor stated that he chose the selectee because he was best qualified for the subject
position. Specifically, the supervisor stated that the interview committee came to “a unanimous
decision” that the selectee had the best interview of all candidates and was also the best fit for the
subject position.

The supervisor stated that during his interview, Complainant performed “okay.” The supervisor
further noted that two panelists ranked Complainant as number three while one ranked him as
number two. Moreover, the supervisor stated that Complainant’s age was not a factor in his
decision to select the selectee for the subject position.

The Supervisor II Electrical for Industrial Area (year of birth 1965) was part of the interview
panel for the subject position. Panelist 1 stated that the panel determined that the selectee had
the best interview because of the quality of his responses to questions. Following the interviews,
the panel determined that the selectee was the best fit “for being able to lead the team in a
harmonious effort.”

The Supervisor II of the Left Powerhouse Mechanical Maintenance (year of birth 1966) stated
that he was part of the interview committee (Panelist 2). He stated that while both the selectee
and Complainant both were good candidates “in my opinion. The selectee, who was also my
choice edged out the complainant by having a better interview.”
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Specifically, Panelist 2 stated that the selectee “gave the better interview in the quality and
completeness of his answers and that is why he was my choice.” Panelist 2 stated that while
Complainant was number two on his ranking, the selectee was ranked number one.

Regarding claim 3, Complainant alleged that his supervisor questioned him about his retirement
and commented on his age.

The supervisor denied questioning Complainant about his retirement plans and age, and it “is not
a concern to me.”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory animus.

Hostile Work Environment: Claim 2

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on his statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected basis – in this case, his age. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, Complainant simply has provided no evidence to support
his claim that his treatment was the result of his age.

Complainant alleged that beginning August 17, 2015 to present, he experienced ongoing
harassment from a co-worker.2 Complainant claimed that his supervisor was aware of the
harassment, however, the harassment continued and no efforts were made to stop it.

The supervisor stated that he had handled and “will continue to handle any and all harassment
swiftly and will not be tolerated.”

2 The record reflects that the co-worked identified by Complainant was the selectee for the
Foreman I, Electrician position.
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The supervisor stated that he became aware of Complainant’s allegation that he was subjected to
harassment by the co-worker, he talked to the co-worker and “swiftly gave [co-worker] a
punishment that he deserved for his action. I was not aware of any other time [Complainant] was
harassed, or I would have addressed it immediately.”

With respect to Complainant’s allegation that on every occasion he addressed his concerns to the
supervisor and the supervisor responded that because of his age he sees things differently, the
supervisor stated that he does not recall making this remark and “don’t believe I would say such
a thing.”

Based on the evidence developed during the investigation, we conclude Complainant failed to
establish an essential element of his claim of harassment/hostile work environment – that his age
played any role in the incidents he alleged as part of his claim.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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.
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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. 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

December 21, 2018
Date