[Redacted], Floyd L., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2021003069 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Floyd L.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 2021003069 Hearing No. 540-2019-00108X Agency No. DOI-BOR-18-0247 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 30, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to his complaint, Complainant was employed as a General Supply Specialist, GS-2001-09, working in the Agency’s Property Management, Accounting Group in the Bureau of Reclamation located in Boulder City, Nevada. His immediate supervisor was S1, the Financial Manager. On June 11, 2020, he filed an EEO complaint alleging discrimination and harassment based on reprisal (prior 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. 2021003069 2 1. On February 23, 2018, his supervisor (S1) called him while he was on leave and asked him if he was returning to work and then stated, “We are going to chat for 15 minutes on Monday,” which he perceived as threatening; 2. On February 26, 2018, S1 questioned him regarding his travel to an EEO hearing, and within hearing distance of other employees, S1 asked how the trial went; 3. On February 28, 2018, he became aware that the Agency changed his travel authorization after initially approving it; 4. On March 29, 2018, S1 rejected his doctor’s note three separate times while he was sick requiring him to go back multiple times to his doctor; and 5. On or about April 5, 2018, h e was not referred for the position of Human Resources Specialist. Complainant initially requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ), but subsequently withdrew his request and asked for a final decision from the Agency pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. Complainant maintained that he was subjected to disparate treatment and a hostile work environment because of his involvement as a witness in a former coworker’s EEO complaint. Complainant alleged that S1, and his second level supervisor, S2, were aware of his involvement in the former coworker’s complaint because he had to request official time to attend the hearing. According to Complainant, S1 started treating him differently after his EEO activity and continued to treat him differently than his coworkers. He stated that both S1 and S2 started giving him intimidating looks, and S1 became abrasive and hostile. Complainant stated that S1 also began to overly scrutinize him and he felt that she was hovering over him and observing his computer activities, waiting to catch him doing something wrong. Complainant stated that S1 began to constantly call him to figure out what he was doing and to tell him that she was making sure he was working. He also accused her of barging into his cubicle frequently and invading his personal space, hovering, and making him feel uncomfortable. Regarding claim 1, Complainant stated that S1 called him at 7:30 a.m. on February 23, 2018, after he arrived back from testifying at the above referenced EEO hearing. This was his regularly scheduled day off. Complainant stated that S1 told him “we are going to chat for 15 minutes on Monday,” which Complainant perceived as threatening. Moreover, Complainant stated that S1’s voice was accusatory, short, and hostile. 2021003069 3 Regarding claim 2, according to Complainant, he met with S1 the morning of Monday, February 26, 2018, and they spoke about the travel policy and his use of his privately-owned vehicle (POV) for travel. Complainant claimed that S1 also asked him how the hearing went, with a hostile and stern tone. In addition, Complainant stated that the S1’s office door was open and that there were several employees in the hall, outside of her office. Regarding claim 3, Complainant stated that A1, the Supervisory Human Resource Specialist, delayed and refused to approve his travel to prevent him from testifying. Complainant maintained that A1 claimed that she did not have an account number in order to approve his travel. Complainant, however, was aware that A1 received the account number weeks prior to his trip. Complainant stated that he took annual leave before going to the EEO hearing, but his travel arrangements were not ready before he left, only the booking for his hotel. According to Complainant, A2, an Accounting Technician, was the individual who changed his travel authorization without his knowledge. Complainant stated that the changes included the days of lodging, specifically, he was set to arrive the day before the EEO hearing and stay until after the EEO hearing, which was common procedure. Complainant stated that he was notified of the changes on his work email, but he did not have access while he was out on leave. Complainant stated that he only became aware of the changes when he returned from his travel and accessed his work email. Complainant believed that the changes to his travel authorization were an attempt to deter him from testifying in the hearing. Moreover, Complainant stated that the changes were not in accordance with Agency travel policy and were unreasonable and burdensome. S1 stated that she had a phone conversation with Complainant regarding his travel arrangements and authorized travel, after she became aware that he changed his transportation and used his POV without authorization instead of traveling by flight as was previously planned (claim 1). S1 stated that when she became aware Complainant used his POV, he was already in California; therefore, she spoke with Complainant on Monday, February 26, 2018, (claim 2) after his return. During her meeting with Complainant, S1 stated that she counseled him on the use of his POV without authorization. S1 stated that she asked Complainant how his trip went to which Complainant responded, “Are you asking me about the trial?” S1 maintained that she told him “no,” and rephrased her question, asking how the trip itself went. S1 also stated that Complainant’s travel authorization was changed to reflect the changes to his transportation and to include an additional night of lodging. These changes, she maintained, were in accordance with Agency policy and federal travel regulations. She stated that this was the normal procedure and that the change did not affect the outcome of Complainant’s travel. S2 stated that she was aware that Complainant’s travel authorization was changed because his ticket was required to be re-issued when he changed his transportation. She indicated that his use of his POV was not an authorized mode of transportation and this needed to be changed. Furthermore, S2 stated that Complainant’s travel authorization had to be changed a second time in order to account for an additional night of lodging. S2 indicated that changes to other staff travel authorizations were also made when needed. 2021003069 4 A1 stated that the change to Complainant’s travel authorization was made in accordance with Agency policy, and that she did not believe he was treated any differently than his coworkers. A2 stated that she did not know Complainant and did not have a working relationship with him. She amended his travel authorization to reflect his actual mode of transportation and additional night of lodging. A2 stated that she initially scheduled Complainant’s travel and one night of lodging, but the reservation got canceled in the system because it was not timely approved, and she had to book the flight again. After unsuccessfully reaching out to Complainant by email, she had to request that S1 call him to finalize the travel authorization changes. During S1’s phone call with Complainant they learned that he had driven his POV to the hearing in Los Angeles. A2 modified Complainant’s travel authorization upon his return to reflect the additional night of lodging, the use of his POV, and an additional day of meals and incidental expenses. Regarding claim 4, Complainant stated that S1 advised him that he needed to provide a doctor’s note for his absence from March 26, 2018, through March 29, 2018, with a return to work date of March 30, 2018. Complainant stated that he provided three doctor’s notes which S1 considered inadequate because they did not contain enough information. Complainant stated that he believed the rejection of the doctor’s notes was to harass him and to retaliate against him. S1 stated that she required Complainant to provide a doctor’s note for his absence from March 26, 2018 through March 29, 2018, which was standard practice for sick leave requests exceeding three days. S1 noted that Complainant’s first doctor’s note, on March 26, 2018, indicated that he could return to work on March 29, 2018. On March 28th, however, Complainant requested another sick day for March 29, 2018, and provided another doctor’s note. The second doctor’s note did not have a return to work date; therefore, the note did not meet the requirements specified in the Agency’s Absence and Leave Handbook or the Leave Policy. S1 stated that Complainant then provided a third note which did not provide a return date or indicate the number of days needed. Later, on March 29, 2018, Complainant provided a final note which stated that he could return to work on March 30, 2018. This note was deemed acceptable. Regarding claim 5, Complainant stated that, on April 2, 2018, he applied under vacancy announcement BR-LC-18- 61, for a Human Resources Specialist, GS 9/11/12 position. The position duties included advising management on employee/labor relations, drug testing, ethics grievances, anti-harassment case law research, fact finding investigations, and administrative investigations. Complainant stated that he received an email from USA Jobs informing him that he was not found qualified for the position and he was not being referred for consideration. Complainant believed he should have been found qualified because of his experience with investigations, case law research, and leadership positions in previous employment. D1 stated that she was the supervisor who prepared and processed the vacancy announcement for the Human Resources Specialist positions. There were 65 applications for the vacancies, which were announced at multiple grade levels. 2021003069 5 D1 stated that 21 applications were referred to the selecting official for further consideration and the selecting officials chose two applicants to fill the vacancies. According to D1, the procedure started with a Human Resources Specialist reviewing the applications to determine if the applicants were within the area of consideration and if the applicant met the required qualifications. When an applicant’s score was below the best qualified (BQ) group based on the announcement assessment questions, then the application was not further reviewed. Complainant’s application did not move forward based on the assessment questions and was not further reviewed. The record indicates that Complainant applied for only the GS-09 and GS-11 positions. The record indicates that for the GS-09 position Complainant scored below the cutoff of 90.85. The highest applicant scored was 99.65 while Complainant scored 80.70. For the GS- 11 position, Complainant was also below the cutoff of 80.90. The highest applicant scored for the GS-11 position was 98.49, while Complainant scored 80.79. ANALYSIS AND FINDINGS On appeal, Complainant claimed that the Agency delayed investigating his complaint well beyond the required 180-days after he filed his complaint. He requests, as a sanction, that the Commission issue a default judgment against the Agency. The record indicates that Complainant’s complaint was filed on May 2, 2018. On October 29, 2018, the Agency accepted Complainant’s claims by issuing a Notice of Acceptance. On December 13, 2018, Complainant’s representative requested a hearing and requested sanctions against the Agency for failure to complete its investigation within the 180 days. The investigation was conducted from April 1, 2019, through April 15, 2019. On May 20, 2019, the Agency provided Complainant, via certified mail, a copy of the Report of Investigation. After Complainant withdrew his hearing request, the Agency received the AJ’s order dismissing the hearing request and remanding the matter for a final decision on October 2, 2020. The Agency however did not issue its final decision until March 30, 2021. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here, we find that the Agency failed to comply with the Commission’s regulations. The record reveals that the Agency did not complete and issue a copy of the report of the investigation of the complaint until approximately 180 days after the expiration of the regulatory time limit. See 29 C.F.R. §1614.108(f). Further, the record reveals that the Agency did not issue its final decision until, approximately, 120 days after the expiration of the regulatory 60-day time limit. See 29 C.F.R. §1614.110(b). 2021003069 6 After a review of the record, although we find that the Agency failed to timely investigate the complaint and failed to timely issue its final decision, we find that the Agency did not act in a manner to warrant a default judgment sanction. See, e.g. Anthony M. v. Dep’t of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020) (no default judgment when agency decision was two years late); Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the agency’s 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)). Upon review, we find no evidence the Agency’s delays in this case were attributed to contumacious conduct or bad faith. As such, under the specific circumstances present, we do not find the Agency’s delays warrant the sanction of granting default judgement. While we will not impose a sanction in the present case since the subject delays did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely processing of complaints. As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021003069 7 Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for his prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for each of its actions set forth in claims (1) - (5). We find no persuasive evidence of pretext. Complainant, other than speculation, offered no evidence that his prior EEO activity played any role in the Agency’s actions. Regarding the nonselection at issue in claim (5), we find that the persons Complainant alleges discriminated against him had no role in not selecting Complainant since Complainant did not make the best qualified list. Employers have broad discretion to set policies and carry out personnel decisions and should not be second- guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Furthermore, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), we find that Complainant’s claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the Agency’s actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2021003069 8 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). 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. 2021003069 9 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 February 7, 2022 Date