0120071822
11-20-2009
Scott M. Rodgers, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Indian Affairs), Agency.
Scott M. Rodgers,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120071822
Agency No. BIA-05-009
DECISION
On February 27, 2007, complainant filed an appeal from the agency's
January 31, 2007 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission REVERSES the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that it
had not discriminated against complainant based on his race when he was
not selected for a position to which he had applied.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Prescribed Fire Fuels Specialist, GS-460-9, at the agency's
Colville Agency Office, part of the Northwest Regional Office, in
Nespelem, Washington. His position required him to work closely with
the Confederated Tribes of the Colville Reservation.
On October 18, 2004, complainant filed an EEO complaint, which he amended
on May 25, 2005, alleging that he was discriminated against on the basis
of race (white) and reprisal1 when:
1. on August 4, 2004, his tentative selection for promotion to the
position of Forester, GS-460-11, advertised under Vacancy Announcement
#NW-04-52, was disapproved; and
2. on May 25, 2005, his temporary promotion to the position of Forester,
GS-460-11, was also disapproved.
The agency did not issue a letter accepting the issue in complainant's
complaint until December 2, 2005, which was 410 days past the filing
of complainant's formal complaint. Under 29 C.F.R. � 1614.108(e), the
agency has 180 days from the filing of a formal complaint to accept or
dismiss the issues for investigation, and to initiate and complete said
investigation. The agency issued a second letter accepting the amendment
to the complaint on April 12, 2006, and conducted the investigation from
May 5, 2006 through May 31, 2006.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a FAD on August 17, 2006.
In accordance with complainant's request, on January 31, 2007, the
agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The final agency decision (FAD) concluded that complainant failed to
prove that he was subjected to discrimination as alleged. In its FAD,
the agency found that complainant had applied for the GS-11 Forester
position on May 26, 2004, and was deemed qualified for the position.
His name was forwarded as the only qualified candidate, as there were no
qualified Native American applicants. He was tentatively selected for
the position, the Colville Agency Office Superintendent (MO) concurred in
his selection, and forwarded his name to the selecting official (SO),
the Director of the Northwest Regional Office. The SO disapproved
his selection. The position was re-advertised in May 2005, but it
was not filled at that time either.
The agency found that complainant had failed to establish a prima facie
case of race discrimination in that he had not shown that similarly
situated employees had been treated more favorably. It stated that
the two Native American comparators that complainant named as having
had received promotions were not similarly situated to complainant.
The agency noted that it had a legitimate, nondiscriminatory reason for
not promoting complainant.
According to the SO, all personnel actions in the Northwest Regional
Office were being held in abeyance if the action involved a person
who was being investigated for violating the U.S. District Court Order
in the Cobell case.2 For a time period during the litigation of that
case, the Department of the Interior was prohibited from accessing the
Internet, except in extremely limited circumstances, due to the Temporary
Restraining Order and Consent Order issued in late 2001. It had been
alleged that complainant had accessed the Internet in 2002 from the
agency's office, and he and approximately 16 other individuals were being
investigated by the agency's Office of Inspector General. According to
the SO, he was unable to promote complainant due to the investigation.
Complainant claimed that the two Native American comparators he named
had also accessed the Internet, and were also under investigation, but
had received or been offered promotions. However, the agency concluded
that complainant had not shown that his non-selection was due to his
race, and had not shown that he had been discriminated against. It
claimed that complainant was eventually selected to fill the position,
although he was no longer a federal employee at the time of the FAD.
Complainant filed this appeal.
CONTENTIONS ON APPEAL
In his statement in support of his appeal, complainant stated that he
"was not 'eventually selected for the position at issue.'" He noted
that while the GS-11 Forester position was vacant he performed all the
duties associated with it (without the commensurate pay), and that he
was actually hired by the Tribal organization to perform those duties
as a non-federal worker.
Complainant argued that one of his comparators (CO-1, Native American) was
similarly under investigation for Internet use and received a promotion
as a career ladder promotion. Complainant further argued that his
second comparator (CO-2, Native American) had been offered a promotion
to another Region in the BIA, and that if personnel actions were to
be held in abeyance during the Inspector General's investigation, then
CO-2 would not have been able to be offered the promotion and transfer
either (CO-2 declined the promotion). He noted that the SO had denied
a lateral transfer to the former holder of the GS-11 Forester position
(CO-3, white).
Complainant finally argued that the record was incomplete as the agency
did not interview MO, despite his requests to do so, as MO had retired
between the time of the filing of complainant's complaint, and when the
investigation was finally conducted. In response to complainant's appeal,
the agency submitted a summary argument in which it requested that the
Commission affirm its FAD.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that complainant has put forth a prima facie case of race
discrimination. He applied for a promotion at the agency, was qualified,
and was tentatively selected, but his promotion was disapproved. We note
that complainant provided the names of two individuals within his agency
facility who were not of his race, but were promoted or selected for
promotion, CO-1 and CO-2. For the purposes of comparison, these two
individuals would be similarly situated to complainant as each was also
under investigation for Internet use and therefore also presumably subject
to the SO's policy of not processing personnel actions for individuals
under investigation.
The agency met its burden to put forth a legitimate, nondiscriminatory
reason for not promoting complainant, namely that he was under
investigation for violating the Cobell Court Order, and the SO stated
that he was unable to process personnel actions for individuals under
investigation. We conclude however, that the agency's reason is
unworthy of credence and is not supported by the evidence in the record.
The SO stated that the investigation necessitated that he not process
personnel actions. He did not provide a copy of a written policy that
individuals under investigation may not be promoted. The January 11,
2002 memo to all agency employees entitled "Notification and Clarification
Concerning the Continued Prohibition of Internet Access" specifies that
employees who access the Internet may be subject to disciplinary action
or other penalties. It does not suspend personnel actions. The record
also does not contain a copy of any documents pertaining to the Inspector
General's investigation, such as notice of the investigation, actions
that agency personnel may or may not undertake during the pendency of
the investigation, or the results of that investigation, even three
years after the initiation of the investigation.
Complainant provided the names of several individuals not of his race,
who received either career ladder promotions, a promotion, or the
offer of a promotion and transfer. SO tried to distinguish the career
ladder promotion of CO-1 as being different than the personnel action
he disapproved for complainant. The agency claimed that the offer of
a promotion to CO-2 was distinguishable in that a different selecting
official in a different region chose CO-2 for promotion. However, there
is no evidence that the policy not to promote or process personnel actions
for those under investigation for Internet use in connection with the
Cobell case only applied to the Northwest Region. The Cobell District
Court Order applied to the agency as a whole. We find that the agency has
not supported its reason for not promoting complainant, and conclude that
he has shown that the agency's reasons were pretext for discrimination,
as those reasons are unsupported by the record and unworthy of belief.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has shown that he was discriminated against based on his race,
and we REVERSE the decision of the agency.
ORDER
Within sixty (60) days of the date this decision becomes final the agency
is ordered to:
1. Offer complainant the position of Forester, GS-460-11, or a
substantially equivalent position, at the Colville Agency office,
retroactive to the date of his non-selection, August 4, 2004. Complainant
shall have fifteen (15) days from the date of the offer to accept or
decline the position. If complainant should decline the agency's offer
of a position, the date of his declination shall be the end date for
any back pay due complainant.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant since July 6, 2005,
pursuant to 29 C.F.R. �1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages as a result of his
non-selection, and shall afford complainant an opportunity to establish
a causal relationship between the non-selection and any pecuniary or
non-pecuniary losses. Complainant shall cooperate in the agency's
efforts to compute the amount of compensatory damages he is entitled
to as a result of the discrimination which resulted from his race,
and shall provide all relevant information requested by the agency.
The agency shall issue a new agency decision awarding compensatory
damages to complainant within sixty (60) days of the date this decision
becomes final.
4. The agency shall provide eight (8) hours of EEO training to the
involved management officials regarding their responsibilities under
EEO laws.
5. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the Compliance Officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
6. The agency shall post a notice in accordance with the paragraph below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Colville Agency Office facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____11/20/09_____________
Date
1 The agency did not accept complainant's basis of reprisal for
investigation, stating that complainant did "not meet the necessary
criteria." We note that complainant did not object to the acceptance
of his complaint by the agency.
2 Cobell, et al. v. Salazar, Secretary of the Interior, et al. is a class
action case that has generated over 20 decisions of the U.S. District
Court for the District of Columbia and the U.S. Court of Appeals, District
of Columbia Circuit. In that case, which began in 1996, beneficiaries
of Individual Indian Money trust accounts brought a class action against
the Secretary of the Interior, the Secretary of the Treasury, and the
Assistant Secretary of the Interior for Indian Affairs, alleging that
those officials had violated their fiduciary duties as trustees acting
on behalf of the United States, and attempted to force an accounting of
those trusts. On December 5, 2001, the District Court entered a temporary
restraining order requiring Interior to disconnect from the Internet
all information technology systems that housed or provided access to
individual Indian Trust data. See Cobell v. Norton, 274 F.Supp.2d 111,
113 (D.D.C.2003) (known as Cobell IX). Several subsequent cases either
vacated or modified the disconnection order, or requested and ordered its
reinstatement, with Cobell v. Kempthorne, 455 F.3d 301 (C.A.D.C. 2006)
(Cobell XVIII) most recently vacating the District Court's order to
disconnect. The most recent case issued in the litigation's history is
Cobell v. Salazar, 573 F.3d 808 (C.A.D.C. 2009).
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0120071822
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120071822