[Redacted], Hannah C., 1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020000657 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hannah C.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2020000657 Hearing No. 570-2017-00666X Agency No. DOI-OS-16-0440 DECISION On November 4, 2019, 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 26, 2019 final order concerning her 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist, GS-0501-09, in the Agency’s Division of Acquisitions at the Office of the Chief Financial Officer in Reston, Virginia. On September 23, 2016, Complainant filed (and later amended) an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American) and in 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. 2020000657 2 1. on December 2, 2015, Complainant received unfavorable desk audits from a Human Resources Official (HRO), which denied her promotional potential to a GS- 13; 2. on June 27, 2016, Complainant was informed by the Deputy Chief Financial Officer (Deputy CFO) that she would not receive a promotion because she was not Native American; 3. from December 2, 2015, to the present, HRO and Agency officials failed to provide Complainant with a copy of her desk audit, although she frequently requested a copy; 4. the Agency discontinued Complainant’s continuing education benefits; and 5. management has denied Complainant training. Complainant noted that she had previously filed an EEO complaint against the Chief Financial Officer (CFO) in 2015. Regarding Claim (1), the investigative file reveals that, at Complainant’s request, the Agency conducted a desk audit on December 2, 2015. Complainant asserted that she sought “a lateral grade increase starting at GS-11 to GS-13.” Complainant claimed she did not receive a copy of the desk audit, and HRO “always had excuses for why my desk audit results weren’t provided.” Complainant speculated that CFO was involved with her desk audit. Complainant argued that Human Resources failed to follow proper procedure in conducting her desk audit in a timely manner. Complainant argues that desk audit results should have been issued within 30 days, and the Agency’s failure to comply with the time frames constitutes discrimination. Additionally, Complainant contended that the Deputy CFO, who reported to the CFO, told her that her desk audit was not going to result in a promotion because she was not a Native American. Complainant acknowledged she subsequently received a promotion to the GS-11 position but maintains she should be a GS-13 because the person who held the position was a GS-13 prior to his retirement. Complainant’s immediate supervisor (S1) testified that she requested the desk audit to ensure that she was in the right series and grade. S1 noted that Complainant was ultimately promoted to GS- 11 in December 2016. Agency management further explained that Complainant’s promotion was delayed because she would have been promoted into a position to which Indian Preference laws and regulations applied. Therefore, the Agency needed to determine that there were no other employees with Indian Preference eligible for the position. The Deputy CFO’s reference to Complainant’s non-Native American status was in the context of her eligibility for promotion, and not couched in any racial animus. Complainant claimed that she was denied tuition assistance in August and December 2017. Complainant met with the new Chief Financial Officer in April 2018, who then said that he “didn’t even know what his budget was.” The Branch Chief explained that he denied Complainant’s request for tuition assistance because of a lack of available funding. 2020000657 3 Complainant also said she was denied permission to attend the GSA SMARTPAY3 FORUM training in Phoenix, Arizona. Instead a co-worker represented the Agency, and budgetary constraints dictated that only one person could attend. Complainant says that documentation shows that Complainant’s continuing education was never before denied by the Agency. The Branch Chief noted that “similar training was available through the Agency’s DOI Learn programming and through the Northern Virginia Community College at a lesser cost.” The Branch Chief also authorized Complainant to attend the GSA SMARTPAY3 FORUM in New Orleans, Louisiana in 2018. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 30, 2019, motion for summary judgment and issued a decision without a hearing on September 20, 2019. The AJ found that Complainant failed to sufficiently rebut the Agency’s legitimate, non- discriminatory and non-retaliatory reasons. Complainant provided uncorroborated beliefs, assumptions, and opinions, and failed to demonstrate discriminatory or retaliatory intent. The AJ also found that Complainant did not prove a hostile work environment because Complainant’s allegations consisted of normal workplace interactions. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2020000657 4 Disparate Treatment 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 Constr. Corp. 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding Claims (1) - (3), although Complainant requested a desk audit in December 2015 and did not receive the results until December 2016, the Agency explains that it determined Complainant’s duties warranted a promotion to the GS-11 level, and that the delay was largely the result of the Agency’s Native American-preference requirements. When the Agency determined that no other Native Americans were eligible for the position, Complainant received a promotion. With respect to Claims (4) and (5), the record establishes that the denial of Complainant’s training in 2017 and education assistance were based on budgetary constraints. The Agency noted that cheaper educational alternatives were available to Complainant and that she was subsequently approved to attend the training the following year. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. She has not done so. Construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation 2020000657 5 for its actions was pretext for discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; and (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 to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she 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 a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of management's actions. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment as alleged. 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 order. 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. 2020000657 6 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. 2020000657 7 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 22, 2021 Date