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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020000859 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oliver M.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2020000859 Hearing No. 540201500166X Agency No. DOIBIA130350 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 17, 2019, 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 was employed by the Agency as a Supervisory Education Research Analyst, GS-14, Data Accountability Program (“Data Unit”), Division of Performance and Accountability (“DPA”), within the Agency’s Bureau of Indian Education (“BIE”) in Albuquerque, New Mexico. On September 19, 2013, Complainant filed an EEO complaint alleging that he was subjected to harassment/a hostile work environment, by the Agency on the bases of sex (male) and reprisal for 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. 2020000859 2 1. On or about May 2, 2013, Complainant’s coworker (“C1,” female),2 a Special Assistant, GS-14, filed a false report with the Agency’s Tribal Police, accusing him of [verbally] assaulting3 her, and thereafter emailed senior management officials of the [verbal] assault in an effort to damage his professional reputation. 2. In May 2013, the Deputy Bureau Director, SES, (“D2,” female), failed to take any action on C1's behavior towards him, she retaliated against him for challenging C1. Specifically, following his initial EEO contact on May 7, 2013, management officials removed Complainant's responsibilities for certain contracts, imposed new duties on Complainant's unit, and denied Complainant's legitimate travel requests which would allow him to perform his duties. Initially, the Agency dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(l). Complainant appealed to the Commission, which determined that the Agency’s framing of the complaint was overly narrow, as it only addressed Complainant’s allegations against S1, and no other management officials. We further noted Complainant’s legitimate emphasis on harm to his reputation, and that we have previously found that under certain circumstances, damage to a complainant's reputation may be sufficient to invoke protections of the EEO process even absent any adverse actions by the Agency. See Bough v. Dep’t of the Interior, EEOC Appeal No. 01201442360 (Dec. 13, 2014) citing Lorusso v. Dep’t of Defense, EEOC Appeal No. 01953224 (Mar,13, 1996) other citations omitted. On December 13, 2014, the Commission remanded the matter to the Agency for investigation based on a broader interpretation of the complaint. On remand, the Agency properly revised the claims, and, after conducting an investigation, provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a hearing, and the parties further developed the record by engaging in discovery. The Agency submitted a motion for a decision without a hearing. Over Complainant's objection, the AJ issued a decision by summary judgment in favor of the Agency. The record includes the following undisputed facts: Complainant reported to the Associate Deputy Director, DPA for his Data Unit, as his first level supervisor (“S1,” male) and his second level supervisor was the Director, BIE, (“D1,” male). In October 2011, S1 left on a temporary detail, so Complainant reported to an Acting Deputy Director, DPA, (“S2,” male). In April 2012, C1 was hired, with S2 as her first level supervisor. 2 At some point during the EEO process, Complainant began referring to C1 as his “de facto” supervisor, rather than his coworker. For clarity, we decline to use this label as there is no evidence in the record that C1 ever had supervisory authority over him in any capacity. 3 For additional clarity, we included term “verbally,” as C1 never alleged a physical assault. 2020000859 3 Complainant and S1 believed that S2 was engaging in illegal activity, and reported him to the Agency. However, S1, with C1’s assistance, allegedly destroyed the government records evincing the activity. On April 30, 2013, S2 retired, and at D1’s instruction, C1 conducted S2’s exit interview and collected his government issued laptop to mail to Washington, DC. There was no immediate announcement as to who would replace S2, however, S1, having returned from his detail, unofficially resumed his responsibilities as Associate Deputy Director on an earlier, unspecified date. Upon S2’s retirement, S1 wanted to access S2’s government-issued laptop, believing it contained evidence of S2’s alleged illegal activity. According to Complainant, S1 suggested that they “confront” C1 and retrieve the laptop. On May 2, 2013, toward the end of the workday at 5:00 pm, Complainant and S1 came to C1’s office, where she had been conversing with a coworker (“C2,” female). C1 said “come in” and S1 entered while Complainant remained in the doorway with a pen and notebook, ready to document the confrontation. S1 told C2 to leave, and when C1 objected because she wanted C2 to stay as a witness, S1 responded, “[Complainant] is the witness.” C2 left because S1 was a supervisor. Complainant alleges that C1 said, “stop ganging up on me! I'm not going to let you gang up on me!" Complainant and S1 “reassured” C1 that they were not “ganging up” but simply wanted S2’s government-issued laptop. Regardless, both describe C1 as visibly upset. C1 got up and walked out of her office repeating, “I won’t let you gang up on me,” but S1 and Complainant continued the confrontation in the hallway. Coworkers recount hearing “raised male voices” coming from the direction of C1’s office. C1, a survivor of an assault, testified that S1 and Complainant caused her to feel “threatened” as “two males” moving into her personal space even after she left her office. S1 and Complainant did not believe C1’s assertions that she already mailed the laptop to Washington, DC. According to Complainant, the confrontation lasted a minute or two, and was over before he could take notes. However, C2 testifies that it left C1 “shaking and crying.” Later that evening, C1’s husband took her to the emergency room for anxiety and heart palpitations. Rather than return to her office, C1 requested a detail to work in another building specifically to avoid Complainant and S1. C1 sent two emails to Management and Human Resources immediately after the confrontation. Around 5:20 pm, she described her version of events and alleged that S1 and Complainant subjected her to a hostile work environment. Around 8:00 pm, C1 followed up with the following statement, which Complainant cites multiple times in the record: [p]lease be advised that it is my intent to file charges against [S1] for violation of law, rule and regulations, gross mismanagement, gross waste of funds, abuse of authority, sex and substantial and specific danger to the public safety of an employee….My specific reason for filing the complaint is primarily for my safety. There is definite abuse of authority. [Complainant] has mismanaged a contract, with an 'unauthorized commitment of funds' in the amount of $63,471.72 2020000859 4 amongst other negligent work responsibilities. I do not believe that he could be considered a reliable witness when he is attempting to cover up his own actions." Complainant alleges that C1’s statement was part of a calculated attempt to harm his reputation, and to deflect attention from her performance. Earlier that year, S2 and D2 arranged for several of his assigned contracts to be reassigned to C1. Complainant alleges that S2 and C1 failed to renew agreements and intentionally created additional work for the Data Unit. Complainant also alleges that C1 is only raising these concerns about him because of his sex, as she specified that she felt threatened by him and S1 as “male” employees in her office. On May 3, 2013, C1 reported the May 2, 2013 incident to the Agency’s Office of Justice Services. The Officer assigned to the case interviewed multiple witnesses, including Complainant, S1, and C2, and found no probable cause to arrest Complainant (or S1) for assault. It was also determined by the prosecuting attorney that the May 2, 2015 incident “failed to meet all the requirements of the crime of Assault, Battery, Disorderly Conduct, Terroristic Threats, and Harassment." May 4, 2013, C1 reported the incident to District IV Tribal Police, and likewise, no charges were filed. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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. 2020000859 5 Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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 Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission has held that allegations of harassing conduct that include discrete acts that would independently state claims outside of a harassment framework, assuming that they are timely, are properly reviewed in the context of disparate treatment. Conlin v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120055310 (Dec. 5, 2006). Claim 2 identifies actions that resulted in concrete harm to a term or condition of Complainant’s employment, therefore, the alleged harassment in Claim 2 can also be can be analyzed as disparate treatment claims. As a preliminary matter, the record does not support Claim 2, to the extent that it alleges that Management retaliated against Complainant by removing his responsibilities for certain contracts. The underlying EEO activity for Complainant’s reprisal claim consists of the instant complaint, which he initiated on May 7, 2013.4 At S2’s request 4 Complainant identifies the following non-EEO protected activities: whistleblowing complaints with the Agency’s Office of Special Counsel in August 2012 and Office of the Inspector General in December 2012, an unspecified “whistleblowing/criminal activity complaint” in May 2013, and MSPB appeals in March 2014 and June 2014. As these concern allegations raised in different venues, they are outside EEOC jurisdiction and will not be addressed in this Decision. 2020000859 6 C1 replaced Complainant as the COR for the Research in Action contract on January 8, 2013. At CO and D2’s request, S2 removed Complainant’s assignment to Charbeneau and Northwest Evaluation Assessment (“NWEA”), transferring both to C1 on or about April 18, 2013. Therefore, the removal of Complainant’s responsibilities predated his protected EEO activity. The Agency also provides a legitimate, nondiscriminatory explanation for removing Complainant’s responsibilities, along with his other allegations in Claim 2. We note that the Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) This Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013). The management officials that removed Complainant as COR for Research in Action were exercising business discretion and acted within the scope of their authority. Complainant has not offered any evidence of a demonstrably discriminatory motive. Based on Complainant’s prior association with Charbeneau, D2 removed him as COR for NWEA, to avoid giving the appearance of a conflict of interest. As for Charbeneau, the Agency determined that Complainant made unauthorized financial commitments in the amount of $63,471.42 between October 2012, and April 2013. While Complainant denies any wrongdoing, he has not offered evidence that the Agency’s actions were pretext for discrimination based on sex. Moreover, ample email evidence and memoranda in the record establish that the unauthorized commitment occurred. It is not the Commission’s role to relitigate matters outside the scope of our authority, such as decisions on a contract ratification. The Agency was in the process of ratifying the unauthorized commitment throughout the rest of the relevant time frame, as ratification was completed in early 2015. For the remaining allegations in Claim 2, a heavier workload and denied travel requests, the Agency offers additional context. Specifically, in May 2013, Congress approved an “administrative structural realignment,” of the Agency. A September 2013 U.S. Government Accountability Office (“GAO”) Report, entitled “Better Management and Accountability Needed to Improve Indian Education,” covers extensive shortcomings, including administrative fragmentation and lack of leadership within the Agency. The GAO Report also referenced a December 2012 Memorandum of Understanding between the Agency and the Department of Education, in an effort to reverse poor performance and administrative disorganization. The Agency’s legitimate nondiscriminatory reason for imposing new duties was that it was undergoing an administrative realignment approved by Congress in May 2013. The Data Unit, led by Complainant, was impacted because it was “mission critical” and the only unit performing certain functions. The Data Unit was also among a number of underperforming areas with administrative deficiencies within the Agency subject to heightened scrutiny by the White House, Agency leadership, and the Department of Education. 2020000859 7 D2 opined that nearly all Agency employees were likely to experience difficulties similar to those described by Complainant as a result of the Agency’s “transformation.” According to D2, the “fundamental change,” of the realignment was particularly difficult for the Agency to implement given the minimal funding and support. Complainant has not offered any evidence to refute this explanation. His alternate allegation is that S2 and C1 intentionally acted in a manner that resulted in additional work falling to the Data Unit, but fails to provide any supporting evidence. The Agency’s legitimate nondiscriminatory reason for denying Complainant’s travel requests is also business judgment related. According to S2, in 2013, D1 decided to issue a blanket denial of travel requests “given the impact sequestration was going to have on the budget, [so] travel was not encouraged, and only very essential travel was considered for approval [by D2].” D2 testified that she denied Complainant’s May 2013 travel requests because of “budgetary constraints.” In Summer and Fall of 2013, Complainant, and the entire Data Unit were denied travel to Adequate Yearly Progress (“AYP”) technical assistance sessions with schools, which they provided in past years. Complainant’s requests for solo trips to attend highly relevant training were also denied. Complainant does not identify any other employee who was treated more favorably in these scenarios. S1 notes that he and an Education Program Specialist (“EPS,” female) went on a trip but Complainant’s request for the same trip was denied, despite his technical knowledge. However, S1 and the EPS both worked on this initiative, while Complainant did not. Further, S1, as Complainant’s supervisor, could reasonably be expected to be considered “essential” on certain trips where Complainant would not. Complainant failed to establish that a question of material fact exists, warranting a hearing, over whether the legitimate nondiscriminatory reasons the Agency provided in Claim 2 are pretext for discriminatory or retaliatory intent. Harassment/Hostile Work Environment To prove his harassment claim, Complainant must establish that he 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 his prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). We have repeatedly found that a few isolated incidents of alleged harassment, are usually insufficient to state a claim of harassment/hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Health and Human Serv., EEOC Request No. 0594081 (Feb. 16, 1995). 2020000859 8 The allegations in Claim 2 will not be included in the harassment analysis because Complainant did not show that the Agency’s proffered legitimate nondiscriminatory reasons were pretext for discriminatory or retaliatory motive. The allegations in Claim 1 all arise from C1’s alleged reaction to the May 2, 2015 incident, including C1 allegedly providing false reports to Management, law enforcement and other entities, and repeatedly recounting the incident to their colleagues. We emphasize that the record does not support Complainant’s statement that C1 made “false” reports about him. While Complainant may not characterize the events on May 2, 2015 as verbal assault, his and C1’s account of events are factually consistent. C1 does not accuse him of physical assault, and while she repeatedly states that she “felt threatened” she does not accuse Complainant of threatening her. Complainant offers no evidence to support his contention that C1 reacted in this manner deliberately in order to harm his reputation. The Agency notes C1’s experience as a survivor of assault, as a factor for why she experienced the same incident Complainant describes in such a different manner. Complainant testifies that his and S1’s approach was not threatening and that C1 invited them into her office after S1 knocked on the door. Yet, neither S1 nor Complainant deny that C1 became upset as they confronted her, nor do they deny that they continued the “confrontation” despite her reaction. S1 recalls that C1 was “very upset and agitated,” and Complainant recounts that C1 was “irrational.” C2 reported that S1 called C1 “crazy” during the confrontation. We find Complainant and S1’s language noteworthy given that historically, questioning a woman’s mental health has long been a gender-specific way to discredit, disregard, or delegitimize a women’s account (the most obvious example being “hysterics.”). Regardless of their perception of C1’s reaction, Complainant’s and S1’s actions of approaching C1, their coworker and subordinate, with an intent to “confront” her, then isolating, and essentially cornering her in an enclosed space, then following her out of that space and continuing the “confrontation” despite her visible and verbal cues that the actions are upsetting her, is objectively disrespectful and unprofessional. While C1’s reaction to Complainant and S1’s confrontation may have been stronger than Complainant feels is reasonable, all he offers as evidence of discrimination based on sex are bald statements, such as noting how C1 identified him and S1 in her police report as “males” coming into her office. This is insufficient to show that C1’s actions were intended to harass. Moreover, the incidents Complainant describes include two emails to Management on May 2, 2013, which did not result in disciplinary action, along with C1’s reports to the Agency’s Office of Justice Services on May 3, 2013, and the May 4, 2013 report to District IV of the Tribal Police, which unequivocally determined that Complainant did not commit assault. While the ensuing investigations may have felt awkward to Complainant (although he was described as “eager” to give a statement), they, and the reporting itself were isolated incidents. Complainant has not offered specific details or shown specific harm to support his allegation of additional harassing incidents where C1 allegedly falsely tells his colleagues that he assaulted her. 2020000859 9 Even when considered together, and assumed to have occurred exactly as Complainant describes, the allegations in Claim 1 involve isolated incidents that while unpleasant, are insufficient to establish a hostile work environment. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s 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). 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. 2020000859 10 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. 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 21, 2021 Date