Scott K.,1 Complainant,v.David L. Bernhardt, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

0120182608 (E.E.O.C. Dec. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Scott K.,1
Complainant,

v.

David L. Bernhardt,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120182608
Hearing No. 551-2015-00106X
Agency No. BLM140115

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 June 13, 2018, final
decisions 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decisions.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a State Chief Ranger
at the Agency’s Office of Law Enforcement and Security in Reno, Nevada.

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.

2 We note that Complainant attempted to file two separate appeals, one appealing the Agency’s
final decision, and the other appealing the Agency’s procedural dismissal of his allegations
concerning dissatisfaction with the EEO process. We note that only one of his appeals was
docketed; however, this decision will address Complainant’s arguments from both appeals.
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Complainant stated that from October, through December 2013, $869.86 was deducted as
advanced pay for pay periods 22, through 26. Complainant stated that he did not request this
deduction, and that he believed that a Human Resources Specialist (HRS) was responsible for
approving the deduction. Complainant stated that from February 4, 2014, through June 2014,
HRS approved a $20 deduction for a “Miscellaneous Offset POD.” Report of Investigation (ROI)
at 260-1.

On July 1, 2014, Complainant was removed from federal service. Complainant stated that on
July 14, 2014, following his termination, his acting supervisor (AS) conducted a credit card
review into Complainant’s property records and government credit card purchases. ROI at 264.

EEO Complaint

On April 21, 2014, Complainant filed an EEO complaint alleging that the Agency subjected him
to sexual, and non-sexual, harassment on the bases of disability (physical and perceived mental
disability), and in reprisal for prior protected EEO activity. At the conclusion of the
investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.

On July 28, 2014, Complainant appealed his removal from federal service to the Merit Systems
Protection Board (MSPB), which upheld Complainant’s removal. The MSPB also found that
Complainant did not prove his affirmative defense of discrimination based on disability, or in
reprisal for prior EEO activity. Complainant appealed the MSPB’s final decision to the
Commission. On April 27, 2016, the Commission issued a decision concurring with the MSPB’s
final decision. Scott K. v. Dep’t of the Interior, EEOC Petition No. 0320160018 (Apr. 27, 2016).

On March 29, 2018, the AJ issued a Notice/Order: Intent to Consider Partial Dismissal and/or
Issuance of a Decision without a Hearing. The AJ noted that the majority of the claims were
untimely raised, or part of Complainant’s removal action, which was appealed to the MSPB. The
AJ found that Complainant’s sexual harassment allegation was untimely raised, and that it was
distinct from the other claims in the complaint. The AJ limited the claims to the following:

1. from approximately October to December 2013, HRS approved advanced pay
deductions from Complainant’s Earnings and Leave Statement in the amount of
$869.86;

2. from February 8, 2014, to at least June 2014, HRS approved “Miscellaneous
Offset POD” from Complainant’s Earnings and Leave Statement in the amount of
$20.00;

3. on or about July 1, 2014, the Agency failed to pay Complainant for his annual
leave (approximately 280 hours); and

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4. on or about July 14, 2014, following Complainant’s termination on July 1, 2014,
AS initiated and conducted a credit card review into Complainant’s property
records and government credit card purchases.

The AJ stated that there was no evidence that these incidents occurred due to discrimination, or
retaliation, and that they appear to be administrative matters. The AJ informed the parties that
they had 15 days to respond. The AJ specifically informed Complainant that if he did not either
respond to the notice and order, or request a conference call to discuss the matter, by April 23,
2018, the AJ would construe the failure to respond as a withdrawal of Complainant’s hearing
request. On April 23, 2018, the AJ ordered the return of the case back to the Agency to issue a
final decision because Complainant did not respond.

In May and June 2018, Complainant contacted the Agency to file additional EEO complaints
regarding his interactions with EEOC administrative judges and Agency officials. On June 13,
2018, the Agency sent Complainant a letter informing him that the Agency was dismissing his
complaints as expressing dissatisfaction with the EEO process, pursuant to 29 C.F.R.
§1614.107(a)(8).

Also, on June 13, 2018, the Agency issued a final decision concluding that Complainant did not
prove that the Agency subjected him to discrimination as alleged. The Agency found that
Complainant did not establish a prima facie case of discrimination based on disability, or in
reprisal for prior EEO activity, because he did not show that he had a $869.86 deduction; he had
a $20 deduction; or that a review was conducted into his government credit card.3 The Agency
found that even if Complainant had established a prima facie case of discrimination,
management officials articulated legitimate, nondiscriminatory reasons for their actions when
they asserted that the events did not occur as alleged, or they had no knowledge of these events.

The Agency then found that Complainant had not established that the reasons were pretext for
discrimination. The Agency noted that Complainant did not offer evidence to show that
management’s reasons were pretext for discrimination, or that the alleged events occurred. The
Agency concluded that Complainant did not establish that he was discriminated against based on
disability, or in reprisal for prior EEO activity.

CONTENTIONS ON APPEAL

Complainant’s Contentions

On appeal, Complainant states that he filed multiple complaints regarding his interactions with
EEOC administrative judges and Agency officials, and that the Agency dismissed his complaints
as expressing dissatisfaction with the EEO process. Complainant argues that this shows a
continued pattern of discrimination, and that the Agency violated his due process rights.

3 The Agency did not address claim 3 because Complainant’s representative withdrew this claim
on August 26, 2014.
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Complainant asserts that he has attempted to amend his complaint to include like or related
claims, and that the Agency has not allowed him to do so. Complainant requests that the
Commission reinstate his complaints.

In subsequent appeal briefs,4 Complainant states that he responded to the AJ’s March 29, 2018
notice. Complainant states that on April 22, 2018, he requested an extension to submit his
response, and emailed his response to the AJ on April 23, 2018. Complainant states that when he
sent a revised brief on April 25, 2018, the AJ responded that the case had already been disposed
of.

Regarding claims 1 and 2, Complainant provided copies of his relevant earnings and leave
statements showing the $869.86 advanced pay deduction and the $20.00 offset. In addition,
Complainant notes that a witness stated that if an employee is overpaid, an audit will be
conducted, and that the employee is notified about the reason for the overpayment and his rights;
however, Complainant was never notified regarding this debt and his rights. For claim 4,
Complainant asserts that AS made a comment about a “trace” of property records, and credit
card purchases, but that he is not aware of the Agency conducting “traces” of property
records/credit card purchases of other Agency employees.

Complainant requests that his claim alleging that he was discriminated against when he was not
paid for 280 hours of annual leave be reinstated. Complainant also asserts that the emails from
Agency officials regarding the instant appeal are “another form of reprisal and harassment.”

Agency’s Contentions

The Agency argues that Complainant is attempting to mischaracterize his disagreement with the
processing of his complaints as “amendments.” The Agency states that Complainant did not
timely respond to the AJ’s notice. For the claims that the AJ dismissed, the Agency states that
after the AJ highlighted the untimeliness of some of the claims and correctly determined that the
events leading up to his removal were previously ruled upon by the MSPB, and affirmed by the
Commission, Complainant did not provide any evidence to overturn the AJ’s determinations.
The Agency asserts that Complainant was not subjected to unlawful employment discrimination
based on disability, or in reprisal for prior EEO activity, and requests that the Commission affirm
its final decision.

4 We note that Complainant makes extensive arguments regarding his removal and the events
related to his removal. However, we will not address these issues since they were previously
addressed in EEOC Petition No. 0320160018.
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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.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 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”).

Dissatisfaction with EEO Process

EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed complaint. EEO MD-110
defines such a complaint as a “spin off” complaint, which should be referred to the agency
official responsible for complaint processing and/or processed as part of the original complaint.
See also Fields v. Dep't of Health and Human Servs., EEOC Request No. 05910159 (Feb. 11,
1991). In this case, Complainant argues that his complaints are like or related to his prior
complaint, and requests that the Commission reinstate his complaints for processing. However,
we find that the Agency properly dismissed Complainant’s complaints for alleging
dissatisfaction with the processing of his previously filed complaints because he only raises
issues regarding the Agency’s, and the Commission’s, processing of his prior EEO complaints.
As such, we AFFIRM the Agency’s procedural dismissal of these claims.

Withdrawal of Complainant’s Hearing Request

We note that under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of
administrative hearings, including the authority to sanction a party for failure, without good
cause shown, to fully comply with an order. See Malley v. Dept. of the Navy, EEOC Appeal No.
01951503 (May 22, 1997). The record shows that the AJ ordered Complainant to respond with
any evidence or arguments regarding the noted claims, or request a conference call, by April 23,
2018. Complainant states that he responded to the AJ’s notice on April 23, 2018; however, he
noted that he sent the email at 8:46 p.m. (MST), which is after the close of business. We do not
find that the AJ abused his discretion when he did not consider Complainant’s submission, which
was sent to the AJ past the given deadline and accordingly, we find that Complainant has not
shown that the AJ abused his discretion when he found Complainant’s hearing request to be
withdrawn.

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Claims

On appeal, Complainant requests that the Commission reinstate the claim that he was
discriminated against when the Agency did not pay him for his annual leave. However, the
record shows that Complainant, through his then attorney, voluntarily withdrew this claim. ROI
at 188. We find that Complainant has not presented any justification for reinstating this claim,
and we decline to reinstate this previously withdrawn claim.

To the extent that Complainant challenges the AJ’s procedural dismissal of his other claims, we
find that the AJ properly dismissed the claims based on untimely contact with an EEO counselor,
or because they were previously addressed in Complainant’s MSPB appeal and subsequent
petition for review. EEOC regulation requires that complaints of discrimination should be
brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. 29 C.F.R. § 1614.105(a)(1). Complainant initiated the instant
complaint on January 29, 2014. We note that the events for Complainant’s sexual harassment
claim occurred between August 2012 and January 2013; and the events for his non-sexual
harassment claim, that were unrelated to his removal, occurred between April 2012 and July
2013. As such, we find that the claims unrelated to the removal (and all claims prior to mid-
December 2013), were properly dismissed as untimely.

Further, the regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall
dismiss a complaint that states the same claim that is pending before or, has been decided by, the
Agency or Commission. The record shows that Complainant’s petition for review regarding his
removal has already been decided by the Commission, and that the claims related to
Complainant’s removal were properly dismissed.

In addition, Complainant argues that the Agency’s emails sent to him in August 2018, regarding
the instant appeal, are “another form of reprisal and harassment.” However, we note that the
Commission has held that it is not appropriate for a complainant to raise new claims for the first
time on appeal. See Hubbard v. Dep't of Homeland Security, EEOC Appeal No. 01A40449 (Apr.
22, 2004). Accordingly, the Commission will not address these allegations in the instant
decision.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13.
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Once Complainant has established a prima facie case, the burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts
back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the
burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, the Complainant established a prima facie case of discrimination, we find
that the management officials proffered legitimate, nondiscriminatory reasons for their actions.
For claim 1, HRS stated that she was informed that Complainant’s Administrative
Uncontrollable Overtime (AUO) was terminated, which she approved. HRS stated that she did
not know if the reduction in pay was due to the AOU termination, but she believed that the AOU
was 25% of Complainant’s base pay prior to his termination. Regarding claim 2, HRS stated that
she had no knowledge of Complainant’s $20.00 offset because that was not a personnel action.5
ROI at 399. For claim 4, AS stated that he did not conduct a review into Complainant’s property
records and government credit card. Rather, AS stated that he was tasked with making the
arrangements for Complainant to return any government property in his possession. ROI at 347.

We find that Complainant has not shown that the proffered reasons were pretext for
discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer's proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.
In this case, Complainant did not provide any evidence and made bare assertions that
management officials discriminated against him, which are insufficient to prove pretext or that
their actions were discriminatory. Accordingly, we find that Complainant did not establish that
the Agency discriminated against him based on disability, or in reprisal for prior EEO activity
when the Agency approved an advanced pay deduction, approved a miscellaneous offset, and
initiated and conducted a credit card review into his property records and government credit card
purchases, and we AFFIRM the Agency’s final decision.

CONCLUSION

We AFFIRM the Agency’s final decisions.

5 Complainant provided a copy of his earnings and leave statement, which showed “-20.00” in
the deductions section, which would indicate that there was a $20.00 credit to Complainant’s
pay, not a deduction.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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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

December 17, 2019
Date