[Redacted], Horacio M., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2020000593 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horacio M.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020000593 Hearing No. 530-2018-00100X Agency No. DOI-NPS-17-0364 DECISION On September 21, 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 August 21, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Landscape Gardener, WG-6, at the Agency’s Independence National Historic Park facility in Philadelphia, Pennsylvania. On July 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and in reprisal for prior protected EEO activity. 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. 2020000593 2 A fair reading of his formal complaint in conjunction with the EEO Counselor report indicates that he alleged that the Agency discriminated against him when his status was not converted from being career seasonal to full-time, when the Caucasian/white workers were converted, and the Agency changed his furlough from a one-month to a two-week period, to his detriment.2 He also alleged that the Agency gave him an assignment to work on fountains, which was outside of the scope of his duties, in reprisal for the initiation of the instant complaint. Complainant provided the following as details and background information: 1. On March 19, 2017, Complainant’s manager instructed Complainant to submit a letter for the opportunity to be converted to full time status; however, the Caucasian workers on the second floor were not required to do so and were automatically converted to full time; 2. On April 5, 2017, Complainant became aware that he was not being converted to full time status and that management had reduced his furlough from one month to a two-week pay period, which caused him to lose money; 3. On April 5, 2017, during a meeting when Complainant asked for clarity on the topic of being converted to full time, he was told by management that his job was not important enough to become full time; and 4. On June 2, 2017 and June 9, 2017, Complainant, a landscape gardener, was charged with cleaning/prepping the fountains, which should be done by the building utility helper. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Complainant attested to the terms of his employment and explained that, every fiscal year, he received notice that he will be furloughed, two weeks in advance. He explained that the minimum furlough was one month per the terms of the Union agreement. He attested that the furlough for Fiscal Year 2016 was shortened from one month to two weeks, causing him to lose three weeks of pay because he was off-cycle. Complainant attested that, after learning that some employees had been recently converted to full-time, he asked management about being converted to full-time status. He attested that a Supervisory Facilities Operations Manager (Manager1) advised him to submit a written request for conversion. Complainant attested that, on March 20, 2017, he submitted a written request for conversion, but the previously converted employees did not have to do so. He attested that, in response to his request, the Chief of Asset Preservation and Maintenance (Chief) told him that a recently enacted hiring freeze prevented any additional conversions to full time. Complainant alleged that 4 or 5 Caucasian males from the Building Utilities Division had been converted to full-time status and the Agency did not advertise these opportunities and give everyone an opportunity to apply. 2 The record includes Agency policies indicating that the employee status called “subject-to- furlough” was changed to career seasonal. 2020000593 3 He also alleged that, in doing so, the Agency did not take seniority into consideration and failed to involve the Union in the selection process. He alleged that the Agency had a pattern of not selecting black men for opportunities and manipulating the processes to favor white males with less experience and seniority. Complainant attested that, during a staff meeting with Manager1, the Acting Superintendent, and a Supervisory Facilities Operations Manager (Manager2), he asked for clarification on the conversion process and was told that the positions in the Grounds division, which included landscaping, custodial, and motor vehicles functions, were not as important as those in Manager2’s division, which included painting, carpentry, and maintenance functions. Complainant also alleged that the decisions to shorten the furlough and convert some employees were not in compliance with the Union agreement. Complainant attested that, following his initiation of the instant complaint, he began receiving work assignments to maintain two fountains. He alleged that this should have been handled by a WG-8 level plumber and he was being assigned duties that were more complex and at a higher grade without the corresponding pay. He attested that he brought these concerns to Manager1 and was told that management has the right to assign duties and “anybody can do a fountain.” Complainant alleged that fountain maintenance was assigned to a division with mostly minority employees, but it belonged to another division comprised of mostly Caucasian employees. Manager1 was Complainant’s third-line supervisor. He explained that there are two Facility Management divisions under Asset Prevention and Management. He oversees the one that includes motor vehicle, grounds, and custodial functions and Manager2 oversees the other division that includes building and utilities functions. He explained that Complainant’s duties including assisting WG-8 Gardeners in taking care of the grounds, including mowing, pruning, leaf and snow removal. Manager1 explained that employees within both divisions are either permanent, permanent career seasonal, or seasonal employees. He explained that Complainant and 5 or 6 other employees in his division were permanent career seasonal employees and, as such, were subject to an annual furlough. He explained that the furlough period had been one-month long, but it was shortened to one pay period during due to new OPM guidelines. He attested that employees are not typically converted from one status to another, unless they change positions and he was not aware that it is was a possibility until his colleague requested to convert two employees to permanent career status due to a shortage. He explained that both converted employees were white. However, he explained that they were converted because there was a need for additional help in that division, whereas no employees in his division were converted because a similar need did not exist in his division. Manager1 acknowledged that he advised Complainant to request a conversion to full-time status in writing and, when he submitted Complainant’s request to upper management, he was told that there was a hiring freeze and threats of budget cuts and they could not move forward with the request. 2020000593 4 He did not recall anyone saying that Complainant’s position did not warrant conversion during the April 5, 2017 meeting. He attested that Complainant was the only employee that complained about the shortened furlough largely because Complainant failed to file the appropriate paperwork for unemployment benefits and experienced a delay in pay. Manager1 explained that Complainant was not assigned to maintain the fountain but was to clean the fountain, using a pool skimmer to clean the leaves and branches out of the water so that it could be drained and cleaned the following day. He explained that these functions were not specifically assigned to Complainant but were on the Sunday assignment list for all Grounds employees working that shift. He explained that Complainant had recently switched to the Sunday shift and the fountain cleaning duties were regularly assigned to the shift prior to his moving to that shift. Manager2 attested that his division comprised of 22 employees and they were responsible for utilities and buildings, including woodwork, masonry, locks, painting, lighting, water, steam, sewer, electric, and HVAC functions. He explained that all of his employees are permanent full- time status, except for six seasonal employees. He attested that he did not know of a formal process of conversion of employees, but he made a verbal request to Chief to convert three of his seasonal employees to permanent full-time status in August or September 2016, to address manpower shortages and backlogs. He explained that he thought converting these three employees would increase work capacity and efficiency and allowed them to meet safety goals and reduce overtime costs. He explained that one was a W-8 level Maintenance Worker that required the use of overtime while the employee was on furlough; the second was a WG-9 Carpenter who was the only carpenter and one of the woodshop employees was planning to retire; and the third was a WG-9 Painter and, in his case, there was year-round painting functions and only two painters to work during furlough periods. He explained that these employees were converted at the end of the fiscal year, prior to the hiring freeze and largely because those positions were singular series and the furlough would severely hamper functions. Manager2 attested that, during a meeting, either Manager1 or Chief indicated that no further conversions could be completed due to the hiring freeze and potential budget cuts. Manager2 attested that, years prior to his arrival at the Agency, the Grounds division was assigned to clean the fountains and if something came up with pumps or motors, the Utilities division would handle it. He attested that, in the last 5 to 10 years, the Building and Utilities Division took over fountain maintenance, however, because of his staff shortages, he asked Manager1 if Grounds could assume the cleaning functions and this change has been in effect since in April or May 2017. Chief explained that the staff is comprised of permanent full-time, career seasonal, and seasonal employees and the number of employees in each category is largely determined by budget, Agency-approved staffing levels, and the type of position. 2020000593 5 He explained that career seasonal employees have a period of non-duty time and, since he has been at the Agency, this has typically been one or two pay periods (1 month) per year. He explained that employees typically change their status by applying for a vacancy that has the desired status. Chief attested that Manager2 brought the matter of his excessive backlog to his attention and asked if two positions could be converted to full-time to ease the backlog. He attested that he endorsed the idea and it was approved by the Superintendent’s Office. He attested that there was no established process or precedent for the conversion and the converted employees did not request conversion. Chief explained that there all the Gardeners were career seasonal with furlough dates in the winter when the section is less busy. He denied that Complainant was told that his position was less important than those converted but stated that they are just different positions and functions. A January 23, 2017 Presidential Memorandum indicates the President issued a hiring freeze. 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, but the AJ denied the hearing request on the grounds that Complainant failed to show good cause for failing to comply with discovery requests and/or Orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal Complainant makes numerous allegations against the Agency, including that his schedule was changed, overtime was reduced, the Grounds division has been subject to reduced staffing and outsourcing and is being scrutinized, and he has been subject to false accusations. In response, the Agency argues that Complainant’s appeal was untimely and that the Agency’s decision that there was no evidence of disparate treatment on the basis of race, color, or reprisal was correct.3 ANALYSIS AND FINDINGS Standard of Review 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. 3 Complainant indicated on his Notice of Appeal that he received the Agency’s August 21, 2019 final decision on August 22, 2019. The postmark on his appeal indicates that it was mailed on September 21, 2019. Therefore, we find his appeal was timely. See 29 C.F.R. §§ 1614.402(a) and 1614.604. 2020000593 6 § 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”). Disparate Treatment 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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, as here, the agency has articulated legitimate, nondiscriminatory reasons for its actions at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether the 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). A complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep't of Veterans Aff., EEOC Request No. 05960473 (Nov. 20, 1997), a complainant can establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2020000593 7 See EEOC Compliance Manual, Section 8, Retaliation, pp. 8-18 (to support a finding of retaliation, there must be proof that agency took the alleged discriminatory action because of a complainant's prior protected activity and sought to defer complainant or others). Here, even if we assume arguendo that Complainant established a prima facie case of discrimination and/or reprisal, his claims still fail, as we find the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With respect to Complainant’s allegations regarding not being converted to full-time status, the Agency explained that a hiring freeze prevented such staffing changes at that time and that the previous conversions occurred prior to the hiring freeze. The Agency also explained that the other positions were converted to increase work capacity and efficiency, as the division in which they worked, unlike the Grounds division, had manpower shortages and a backlog. Regarding the shortened furlough, the Agency explained that Complainant’s position, by classification, was subject to furlough, which usually was one or two pay periods (one month) per year. The Agency also explained that Complainant’s duties regarding the fountain were to clean the fountain and this was on the Sunday assignment list for all Grounds employees working that shift. Although Complainant has alleged discrimination on the bases of race and color and in reprisal for prior EEO activity, he has failed to establish that the Agency’s reasons were motivated by discriminatory or retaliatory intent. 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. 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). 2020000593 8 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. 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. 2020000593 9 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 June 14, 2021 Date