[Redacted], Cristobal F., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2021000496 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal F.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2021000496 Hearing No. 560-2018-00333X Agency No. DOI-BIE-17-0580 DECISION On October 2, 2020, 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 3, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Instructor of Accounting at the Agency’s Haskell Indian Nations University (“HINU”) in the Bureau of Indian Education (“BIE”) in Lawrence, Kansas. On November 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of national origin (Cherokee Nation), sex (male), and reprisal for prior protected EEO activity when: 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. 2021000496 2 1. on or about September 18, 2017, Complainant received an electronic official personnel file (“eOPF”) notification of a new document and discovered that the Letter of Reprimand he had previously received on January 30, 2017, had been re-uploaded; 2. on May 3, 11, and 30, 2017, Complainant was allegedly bullied and intimidated by the HINU President, his 3rd level supervisor (“HINU President”), on the appropriate chain of command policy, in an email and then in a campus-wide memorandum, following Complainant’s email to the BIE Director seeking information on the chain of command; and 3. on August 29, 2016, Complainant alleges the HINU Dean of Professional Schools (“Supervisor”) informed him he was not being promoted, even though he had received an email notification on August 25, 2016, from the HINU Dean of the College of Natural and Sciences (“Dean”) stating that she had signed the document approving his promotion from GS-9 to GS-11. The Agency dismissed claim 3 as a discrete act for untimely EEO counselor contact, but noted it could be used as background evidence in support of Complainant’s other claims. The Agency accepted claims 1 and 2 and conducted an investigation into these claims. Claim 1 The investigation shows Complainant alleged he had been discriminated against and subjected to harassment on the bases of his sex, national origin, and reprisal, when the Agency re-posted his January 2017 reprimand letter to his Electronic Official Personnel File (“eOPF”). He contends the originally posted reprimand should have been removed from his eOPF on January 25, 2018, but the newly posted form changed the date to January 30, 2018. Complainant contends this was done in retaliation for his recent inquiries to HINU Human Resources about a step increase. He also contended it was because he took management officials to mediation and challenged their activity. The record reflects Complainant received a Letter of Reprimand dated January 25, 2017, which he signed receipt of on January 30, 2017 (“Reprimand”). On September 17, 2017, Complainant received a notification that there was a new document uploaded to his eOPF. However, when he viewed this “new” document, he discovered it was the Reprimand which was now listed in his eOPF twice. Complainant contacted an Agency Human Resources Specialist in Albuquerque, New Mexico, about this and he was told someone at HINU had added the “new” Reprimand to his eOPF. The HINU Human Resources Specialist (“HINU HRS”) had originally uploaded the Reprimand to Complainant’s eOPF using the wrong code. Later, a Security Assistant for Employee and Labor Relations for BIE also uploaded the Reprimand into Complainant’s eOPF. When Complainant notice the Reprimand was in his eOPF twice, he contacted Supervisor and HINU HRS. HINU HRS checked Complainant’s eOPF and also discovered the Reprimand had been uploaded twice. 2021000496 3 Later, Human Resources removed one of the Reprimands from Complainant’s eOPF. Complainant acknowledged on September 30, 2017 that one of the Reprimands had been removed from his eOPF. On October 2, 2017 HINU HRS requested that the removed Reprimand be purged. Supervisor testified she believed the Reprimand being uploaded to Complainant’s eOPF a second time was an administrative error that was corrected, and she did not believe it was meant to harass or retaliate against Complainant. She further testified that neither Complainant’s national origin nor sex were factors in the way she responded to or treated Complainant relative to what happened. HINU President also testified that neither Complainant’s national origin nor sex were factors in the way she responded to or treated Complainant relative to what happened. HINU HRS also testified that that the loading of the Reprimand twice was an administrative error. She further testified that neither Complainant’s national origin nor sex were factors in the way she responded to or treated Complainant relative to what happened. Claim 2 The investigation showed that Complainant alleged he had also been discriminated against and subjected to harassment on the bases of his sex, national origin, and reprisal, when on May, 3, 11, and 30, 2017, he was bullied and intimidated by HINU President on the appropriate chain of command policy, in an email and then in a campus-wide memorandum, following Complainant’s email to the BIE Director seeking information on the chain of command. Complainant contended that he sought to receive a copy of the personnel document purporting to promote him, but did not receive responses. Therefore, he continued to escalate his request up the chain of command. On May 1, 2017, Complainant emailed the BIE Director asking for the chain of command above and below the BIE Director. The BIE Director responded by stating that HINU President would provide that information. On May 3, 2017, HINU President emailed Complainant explaining the supervisory chain of command at HINU and wrote that it was inappropriate of Complainant to bypass the supervisory line of authority as he had previously done. HINU President had previously advised Complainant of this via email on January 25, 2017 and that conduct had resulted in the above-discussed Reprimand. HINU President testified that it was inappropriate for Complainant to include her in emails regarding her personnel issues because she could ultimately become the deciding official on unresolved matters. On May 11, 2017, HINU President issued a campus-wide memorandum on the supervisory line of authority at HINU and encouraged HINU employees to pursue personnel issues though proper established procedures. Complainant was not mentioned by name or any other identifying factor in the memorandum. HINU President testified that her memorandum was not directed at Complainant, but it was issued as a reminder to all employees. She noted other employees were discussing issues on social media and she wanted everyone to understand their responsibilities to follow the supervisor line of authority to resolve issues. She testified that Complainant’s national origin and sex were not factors in her issuance of the email or memorandum and that neither her email nor the memorandum were meant to harass Complainant. 2021000496 4 The record also shows that similar campus-wide memorandums about the necessity of following the “chain of command” were issued in 2012 and 2013 by former HINU Presidents, and that HINU President issued a campus-wide memorandum on harassment in April 2017. 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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order adopting the AJ’s decision.2 Complainant filed the instant appeal, but he did not file a statement or brief in support of his appeal. In response to the appeal, the Agency argues Complainant failed to establish a prima facie case of national origin discrimination, sex discrimination, or retaliation because he was not aggrieved or harmed by the Reprimand being posted twice and then corrected, HINU President’s response to Complainant’s email inquiry, or a campus-wide memorandum. The Agency contends that the AJ correctly determined Complainant was not an aggrieved employee because having his reprimand uploaded twice and then remedied did not harm him as to a term, condition, or privilege of employment, and neither did HINU President’s May 3, 2017 email to Complainant or her campus-wide memorandum. The Agency also notes Complainant cannot identify any similarly situated employees who were treated differently. The Agency contends that Complainant’s own statements, viewed in the light most favorable to him, do not provide any evidence of discrimination or harassment; the Agency has identified legitimate, non- discriminatory reasons for its actions; and Complainant has not provided any evidence to show these reasons were pretextual. ANALYSIS AND FINDINGS 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. 2 The AJ found Complainant failed to state a claim because he did not show he was aggrieved. However, rather than dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) and 29 C.F.R. § 1614.109(b), the AJ entered summary judgment on the complaint in favor of the Agency. 2021000496 5 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 103, 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, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed file a brief or statement in support of his appeal, and before the AJ did not point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Partial Dismissal/Timeliness In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Here, the record reflects that in Claim 3, Complainant alleged discrimination and harassment based on the rescission of his promotion on August 29, 2016. However, he did not contact an EEO counselor until months later, on September 18, 2017. Complainant indicated in his summary judgment argument that he filed a complaint with the Agency’s Office of Inspector General and he was waiting for the issuance of a report. We agree with the AJ that Complainant’s utilization of the Agency’s Inspector General process does not toll the time limit for contacting an EEO counselor. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000); Wes L. v. Dep’t of Justice, EEOC Appeal No. 0120170847 (Mar. 23, 2017) (complainant’s utilization of the Agency’s Inspector General process does not toll the time limit 2021000496 6 for contacting an EEO counselor); Christopher M. v. Dep’t of the Navy, EEOC Request No. 2019002772 (Aug. 15, 2019) (complainant’s argument that he was unaware he had a viable EEO complaint until he received findings from his Inspector General complaint does not toll the time limit for contacting an EEO counselor). Complainant has not provided a sufficient justification for his failure to timely challenge his promotion issue. Therefore, we agree with the AJ that Claim 3 was properly dismissed as a discrete act for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2), but that it may be considered as background evidence in support of his timely filed harassment claim. Failure to State a Claim The regulation set forth under 29 C.F.R. § 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). For claims of reprisal, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage.” Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter complainant or others from engaging in protected activity. See Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007), citing Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000) and EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15. Neither Claim 1 nor Claim 2 successfully alleged a present harm or loss to a term, condition, or privilege of employment for which there is a remedy, and neither of these claims describe Agency conduct that is reasonably likely to deter Complainant or others from engaging in protected activity. In Claim 1, Complainant alleges his Reprimand was uploaded to his eOPF twice and remained there five days longer than it should have. However, he has not shown how this caused any harm or would serve as a deterrent to him or others. There is no evidence that anyone other than Complainant or those involved in the administrative error and correcting it viewed his eOPF during the relevant time frame. Additionally, Complainant acknowledged that the duplicate reprimand was removed after he brought it to the attention of Supervisor. In Claim 2, Complainant alleges he was bullied by HINU President in an email and a campus-wide memorandum. 2021000496 7 However, the undisputed evidence shows that the email was a response to Complainant’s inquiry about the supervisory chain of command (and did in fact detail the chain of command), and the memorandum was not directed at Complainant and in no way mentioned or alluded to Complainant. Instead it was sent as a reminder to all employees and it was partially based on other employees’ social media activity. Therefore, with respect to a claim of disparate treatment, Claims 1 and 2 fail to state a claim of discrimination. Harassment In addition to raising claims of disparate treatment, Complainant also alleged a pattern of ongoing discriminatory harassment. In determining whether a harassment complaint states a claim, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission has held that where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Id. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). However, we have found that allegations of a few isolated incidents of alleged harassment usually are usually not sufficient to state a viable harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Dep't of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). The alleged incidents are not sufficiently severe or pervasive to state a claim of discriminatory harassment. An administrative error that was later corrected, a response to Complainant’s request for information about the chain of command, and a campus-wide memorandum, even when viewed in connection with Complainant’s allegations of non-promotion, do not rise to the level of conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Moreover, there is simply no evidence to show that these events were motivated in anyway by Complainant’s national origin, sex or unlawful retaliatory animus. Therefore, we find Complainant’s harassment claim fails. 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. 2021000496 8 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021000496 9 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 March 21, 2022 Date