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

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020000795 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wade H.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2020000795 Hearing No. 541-2016-00131X Agency No. DOI-NPS-15-0684 DECISION On October 17, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a September 13, 2019 final Agency 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Housing Management Specialist, GS-1173-12, at its Intermountain Region, Division of Facility Management (“Division”) in Lakewood, Colorado. On August 14, 2015, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her national origin (Middle East), sex (female), and age (58) 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. 2020000795 2 1. In February and March 2015, she was not compensated for performing higher grade duties such as the Radon testing project of housing units. 2. In March 2015, she was continuously discredited during team management meetings. 3. On April 7, 2015, she learned that multiple requests she made for a desk audit and position upgrade were ignored. 4. On April 30, 2015, she was denied the opportunity from May 7 and 8, 2015, to act for her third line supervisor (S3 - Associate Regional Director - Facilities and Lands, Intermountain Region, male, USA, age 55).2 The Agency accepted the complaint and conducted an investigation, Following the EEO investigation, the Agency gave Complainant a copy of the report and notice of her right to request a hearing before an EEOC Administrative Judge (AJ), which she did. Over Complainant's objection, the AJ granted the Agency’s Motion for Summary Judgment and issued a decision without a hearing for the reasons advanced by the Agency. In summary, the record developed during the investigation and in support of the motions before the AJ showed the following relevant evidence. Issue 1 - Radon project Since around 2010, the Division’s Environmental Management Specialist, GS-13, was assigned to handle the radon mitigation program. When the Environmental Management Specialist went on detail, Complainant was assigned a radon project. In her response to the Agency’s motion for summary judgment, Complainant contended she was assigned to gather responses from parks, evaluate them, and draft a memo. Previously, Complainant explained this involved asking parks to respond on how they mitigated for the presence of radon and finalizing a memo. It was a report memo. In his short EEO investigatory statement, the Branch Chief, also Complainant’s first line supervisor (“S1”) (male, America, age 66), stated this was a one-time event, expertise was supplied by the Acting Environmental Officer, Complainant was not involved in ensuring radon testing occurred, and the project took 12 - 16 hours over a month period. In her EEO investigative rebuttal affidavit Complainant did not rebut S1’s statement on this issue. Complainant’s second line supervisor (S2 - Chief, Facility Management Division, male, USA, age 56) stated he requested Complainant review the memo already drafted by the Environmental Management Specialist, add comments to it, and move it to the Intermountain Regional Director (S3’s supervisor) for signature and distribution to the field. 2 The Agency and AJ defined this issue as Complainant being denied the opportunity on April 30, 2015, to act for her S3 and her second line supervisor. Complainant clarified that this incident pertained to acting for S3. 2020000795 3 While Complainant acknowledged this was a one-time project, she simultaneously contended it was still ongoing, albeit she did not describe her continuing involvement. Complainant stated this project was not necessarily in her program since it did not involve tenants. An Agency Human Resources Specialist (“Classifier”) (female, Caucasian, age 46) stated work outside a position description must be regular and recurring for at least 12 months and exceed 20% of an employee’s time to warrant reclassifying a job at a higher-grade level. Issue 2 - Discredited during team management meetings Complainant stated she was discredited when S2 told her to stay behind after a meeting for some management training by him and S3 on how to process housing unit occupancy certification forms for employees. She related S2 told her after the meeting that parks could not request additional occupancy just for 24-hour coverage, and she disagreed. Complainant contended she was discredited in a separate meeting when S2 instructed her to contact the Washington Office to verify what she was saying about occupancy. Issue 3 - Position upgrade In January 2015, management updated Complainant’s position description to better reflect the job’s duties and responsibilities. At management’s request, in January 2015 the Classifier completed her classification of this and classified the job as GS-12, the same as before. This was approved by the Chief of Classification. Complainant believed that because of an accretion of duties, her position should have been reclassified as a GS-13, not GS-12. At Complainant’s behest, the Classifier conducted a desk audit. She reviewed a position description Complainant drafted, and did separate telephonic interviews on February 12, 2015, with her and S1. She completed the audit which resulted in a GS-12 grade again, and this was approved by the Chief of Classification. Complainant disagreed with the GS-12 rating. The Classifier than reconsidered the audit. She met with Complainant on March 17, 2015, who expressed the belief that several rating classification factors were undervalued. The Classifier asked Complainant to give examples of work she did at a higher factor level. Complainant responded with more than 10 emails/examples thereof. The Classifier then re-interviewed S1 on March 30, 2015. In her reconsideration decision, which on April 6, 2015, was signed by her and approved by the Chief of Classification, the Classifier again determined the job was properly graded GS-12. Issue 4 - Denied opportunity to act for S3 from May 7 - 8, 2015 S3 stated he did not ask Complainant to act for him because it is his practice to have peer Associate Regional Directors do so, and if none are available then his direct reports. The person who acted for S3 on May 7 - 8, 2015, was a Management and Program Analyst, with a full performance grade level of GS-12 (“Comparison 1”) (female; also white & late 20s, according to Complainant). Comparison 1 was the acting Fleet Manager. 2020000795 4 Complainant stated the Fleet Manager position reports to S2, and in her opposition to summary judgment, cited the Intermountain Facilities and Lands organization chart as evidence that Comparison 1 did not report to S3. But Comparison 1 was not on the chart. In its sur-reply to Complainant’s opposition to summary judgment, the Agency pointed out that while the organization chart Complainant pointed to was correct, it did not break down S3’s individual office. It referred to a record organization chart which reflected Comparison 1 directly reported to S3. In her EEO investigative statement Complainant stated Comparison 1 was a GS-11, but later conceded in her hearing deposition that she did not know for sure and she could be a GS-12. In opposing summary judgment, Complainant stated she confirmed after the deposition that Comparison 1 was a GS-11. She did not state how she did this, nor submit documentary support. The final Agency order adopted the AJ’s summary judgment decision concluding no discrimination was established. The instant appeal followed. On appeal, Complainant reiterates the arguments she made below. The Agency submits no response. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 2020000795 5 Issues 1, 3 and 4 To prevail on these disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Regarding issue 1, in its motion for summary judgment the Agency argued Complainant offered no evidence that her one-time radon project was higher graded work. We agree. While the radon mitigation program was part of a GS-13’s job, Complainant does not aver she took over the radon program. Rather, she finished off a reporting memo that required her to consult parks, and it took 12 - 16 hours of work over a month or so. Even if this was higher graded work, it would not justify compensating Complainant at a higher grade because she did not come close to assuming the Environmental Management Specialist, GS-13 job. Also, the project was insufficient work to justify upgrading Complainant’s job - not regular and recurring for at least 12 months and exceeding 20% of her time. On issue 3, in its motion for summary judgment the Agency argued Complainant offered no evidence that she performed higher grade duties warranting an accretion promotion to GS-13. In opposition thereto, Complainant argued that the Classifier did not consider her documentation supporting a higher grade, and only considered management’s information, which was inaccurate. We agree with the Agency. Despite Complainant’s contention, there is no genuine issue of material fact that the Classifier reviewed and considered the information she and management submitted. The Classifier’s reconsideration decision discusses the job description Complainant submitted and content from Complainant’s two interviews. The Classifier noted that when comparing the job description Complainant drafted with the classified one, a substantial number of the duties and factor levels were similar. The Classifier also acknowledged the examples Complainant gave of work she believed was at a higher level in her reconsideration decision. According to the counselor’s report, the Classifier stated some were covered by the position description, and the few potentially at the GS-13 level were one-time projects that were not regular and recurring. Complainant contends that the position description S1 created and gave the Classifier for grading was inaccurate. For example, in her opposition to summary judgment, Complainant contends the classified position description misrepresented supervisory controls because S1 did not direct her work in any way, resulting in a lower rating on this factor. 2020000795 6 The position description indicated Complainant worked under the general supervision of S1, who gives a general framework. We find what Complainant characterizes as a misrepresentation by S1 is in fact a dispute with the Classifier over the meaning of supervisory controls and how to rate them. In her reconsideration decision the Classifier acknowledged Complainant was responsible for independently planning and designing housing management program directives, setting priorities and plans to carry out assignments including unfamiliar issues, and that S1 reported Complainant works independently. But in not rating this factor higher, the Classifier wrote new projects are evaluated for available funds and resources and done in consultation with the supervisor regarding new projects. Likewise, in disagreeing with the rating for the “Guidelines” factor, Complainant disagreed with how the Classifier assessed what Guidelines means and how to rate this factor, i.e., the Classifier declined to give a higher rating because Complainant did not develop policies, standards or procedures for nationwide guidance. The Classifier later explained that while Complainant was a member of a committee that discussed Agency nationwide issues that may suggest nationwide solutions, she did not indicate in her interviews that she develops and places into effect nationwide policies. Complainant provided no evidence that the Classifier’s assessments on meaning and rating of classification factors were discriminatory. On issue 4, in its motion for summary judgment the Agency favorably cited S3’s explanation that his practice is to have peer Associate Regional Directors act for him, and if none are available then his direct reports. Given the organization chart to which the Agency points, there is no genuine issue of material fact that Comparison 1 directly reported to S3. Complainant has not shown this explanation was pretext to mask discrimination. Issue 2 - Harassment To establish a claim of 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; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In other words, 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 - in this case, her 2020000795 7 national origin, sex or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. In its motion for summary judgment, the Agency argued that S2’s comments at the meetings were not sufficiently severe or pervasive to alter the conditions of her employment. We agree. Moreover, the evidence does not establish that the remarks were motivated by Complainant’s national origin, sex or age. CONCLUSION The final Agency order is AFFIRMED. 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). 2020000795 8 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. 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 August 3, 2021 Date