[Redacted], Mitchell G., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2020004553 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell G.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 2020004553 Hearing No. 541-2017-00180X Agency No. BLM-17-0088 DECISION 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 July 23, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision by summary judgment in the Agency’s favor; and (2) whether the AJ correctly found that the Agency did not discriminate or subject Complainant to harassment as alleged. 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. 2020004553 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Petroleum Engineering Technician at the Agency’s Field Office in Pinedale, Wyoming. The Field Manager served as Complainant’s first-level supervisor (S1), and the Associate Director served as Complainant’s fourth level supervisor (S4) during the relevant time period. According to Complainant, he had been named as a responsible management official in three EEO discrimination complaints filed by one of his subordinate employees. Complainant was accused by the subordinate employee of making unwanted comments towards him and denying him a reasonable accommodation for his disability. On April 1, 2016, S1 was notified that Complainant got into an argument with the subordinate employee wherein foul language was used. S1 attested that, upon learning of S1’s argument with the subordinate employee, he verbally instructed Complainant that supervisors are held to a higher standard and that Complainant’s loss of his temper and use of inappropriate language was not acceptable. On October 19, 2016, the Agency entered into a settlement agreement with the subordinate employee regarding his EEO complaint, wherein the Agency agreed to reassign Complainant from the Pinedale Field Office to the Rock Springs, Wyoming Field Office at the same position and pay grade. S4 noted that he made the decision to reassign Complainant to a new duty location due to the damaged relationships between Complainant and his subordinate employees, which he believed impacted Complainant’s ability to be an effective leader and supervisor. On March 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when: 1. From 2014 through 2016, he was harassed when his subordinates filed false claims against him; and 2. On November 4, 2016, he received a directed reassignment from Pinedale to Rock Springs, Wyoming. Following 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 23, 2019, motion for a decision without a hearing. In its motion, the Agency asserted that Complainant did not show he was aggrieved regarding claim 1. The Agency also contended that Complainant did not establish a prima facie case of discrimination based on reprisal, as he had not engaged in protected EEO activity. The Agency also maintained that it articulated legitimate, nondiscriminatory reasons for its actions with respect to claim 2, which Complainant did not show were pretextual. 2020004553 3 On April 20, 2020, the AJ issued a decision without a hearing in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Neither party filed a brief on appeal. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). ANALYSIS AND FINDINGS Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC's decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party's evidence and must draw justifiable inferences in the non-moving party's favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2020004553 4 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 to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. We find the record was fully developed and that the AJ properly determined that this case was suitable for summary judgment. Disparate Treatment and Hostile Work Environment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Constr. 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 Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may 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). Upon review, we find that Complainant has not established a prima facie case based on reprisal. Specifically, Complainant has not shown that he engaged in prior protected EEO activity. When asked to identify his prior activity, Complainant simply described being named as the responsible management official in prior EEO complaints filed by two subordinate employees and his defense of himself as “oppositional” activity. We find nothing in the record indicating that Complainant opposed a policy or practice he believed to be discriminatory. Similarly, the Counselor’s Report noted his prior protected EEO activity as “Being named in subordinates’ EEO complaints.” Accordingly, we find that Complainant has not established that he engaged in prior protected EEO activity. See Herb E. v. Dep’t of the Army, EEOC Appeal No. 0120143122 (Jan. 29, 2016) (Complainant's role as an identified responsible management official in the EEO complaint of another employee is not enough to serve as a basis for a claim of reprisal). 2020004553 5 We note that assuming, without finding, that Complainant established a prima facie case based on reprisal, the Agency nevertheless articulated legitimate, nondiscriminatory reasons for its actions with respect to claim 2. Management explained that the Agency entered into a settlement agreement regarding the subordinate employee’s EEO complaint, wherein the Agency agreed to reassign Complainant from the Pinedale Field Office to the Rock Springs, Wyoming Field Office. S4 specifically explained that he made the decision to reassign Complainant to a new duty location due to the damaged relationships between Complainant and his subordinate employees, which he believed impacted Complainant’s ability to be an effective leader and supervisor. We find that Complainant has not established that the Agency’s reasons were pretextual based on reprisal, as there is no evidence to show that he engaged in protected EEO activity. We note, moreover, that the Agency is obligated to address EEO matters of its employees consistent with our regulations. Further, to the extent that Complainant is alleging that he was subjected to a hostile work environment, based on Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) and Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), we find that Complainant failed to establish a prima facie case of harassment, as there is no evidence to show that Complainant engaged in protected EEO activity. 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 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. 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). 2020004553 6 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. 2020004553 7 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 September 30, 2021 Date