Shantay H.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162230 (E.E.O.C. May. 16, 2018)

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

Shantay H.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120162230

Hearing No. 550-2015-00313X

Agency No. BLM-15-0104

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 May 20, 2016, final
decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant worked as a Transportation Assistant, GS-2102-05, at the Fire Service facility in Fort
Wainwright, Alaska. On January 16, 2015 and subsequently amended, Complainant filed an EEO
complaint in which she alleged that the Human Resources Officer (HRO) and other officials
discriminated against her on the bases of race (Asian), sex (female), color (Brown), disability
(severe anxiety, depression, post-traumatic-stress disorder, and insomnia), and reprisal (for prior
protected EEO activity). She identified three incidents in support of her claim:

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.
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1. Complainant alleged that she was discriminated against based on race (Asian), color
(Brown), sex (female), national origin (Vietnamese), disability (unspecified physical and
mental), and retaliation (prior EEO activity) when, on December 15, 2014, she learned that
her application for the Leave Share Program was delayed compared to the applications of
other employees.

2. Complainant alleged that she was discriminated against based on retaliation (prior EEO
activity) when, on June 29, 2015, a Human Resources Assistant requested additional
medical documents to support her request to participate in the Agency’s Leave Share
Program.

3. Complainant alleged that she was discriminated against based on race (Asian), color
(brown), national origin (Vietnamese), and reprisal (prior EEO activity) when the HRO
failed to process her May 2015 request for a desk audit.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew
her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

Incident (1): Complainant averred that she submitted her leave share program application to the
Human Resources Office on December 11, 2014, and that the normal processing time for leave
share applications was ten business days. She further averred that no one from the Human
Resources Office had contacted her regarding her application until June 29, 2015, and that when
she finally was contacted, she was told that additional information was needed. She stated that the
HRO intentionally delayed her application in order to prevent her from participating in the program
between December 2014 and January 2015, the time frame in which employees who had
accumulated use-or-lose leave could have donated their leave. In addition, she stated that two of
her coworkers, a white female and a Native American male, had their leave share applications
approved in less than a week. The HRO responded that she knew of no procedures or policies
which required that leave share applications be processed within ten days. The HRO maintained
that Complainant’s application had not been deliberately held up. Rather, the delay had been
occasioned by the Leave Share Program Administrator’s assessment that Complainant’s medical
situation, severe work-related stress, did not meet the definition of a medical emergency as set
forth in the Agency’s leave share policy. The HRO averred that after further discussion between
herself and the Administrator, Complainant’s application was forwarded to the Agency’s
headquarters in Washington, D.C. for a review and determination of eligibility. The HRO averred
that the white female comparative’s application had also taken approximately six months to
process because it was not clear whether the comparative’s situation met the definition of a medical
emergency. IR 96-98.

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Incident (2): Complainant averred that on June 29, 2015, a Human Resources Assistant had
contacted her via email, and that he asked her for additional medical documentation. She averred
that no one else who applied for the leave share program had been asked for additional medical
documentation. In particular, she states that the white female comparative did not have to provide
additional medical information for a year after her application had been accepted. Complainant
maintains that she had filed her EEO complaint on June 16, 2015, and that the Human Resources
Assistant was aware of her complaint. The HRO explained that the request for additional medical
information was based on regulatory requirements which mandated that employees update their
medical information every four to six months in order to verify the existence of the continuing
medical emergency that had necessitated participation in the leave share program. The HRO
averred that Complainant had been in the leave share program since 2011 and should have been
aware of these requirements. She also averred that other employees who participated in the
program had been asked to submit updated medical information. Supplemental Investigative
Report (SIR) 32-33. The Human Resources Assistant averred that he had sent Complainant a
memorandum on June 29, 2015, asking her to provide him with information to update the status
of her medical emergency and thereby validate her need for continued participation in the program.
He denied telling anyone that additional information would not be required for another year. The
white female comparative averred that on November 18, 2015, the Human Resources Assistant
had asked her to provide current medical information by December 11, 2015, in order to show that
she was still affected by the medical emergency that prompted her application for the program.
The comparative also stated that she had been warned that if she did not submit the requested
information, her case would be closed. SIR 61-62.

Incident (3): Complainant averred that when she asked the HRO for a desk audit of her position,
the HRO told her that employees could not request desk audits. She stated that as a result of the
HRO’s decision, she had to assume the duties of a vacant supervisor’s position, which included:
signing the time sheets of ten to fifteen emergency employees during the summer months, in order
to attest to the accuracy of those records; determining staffing needs; coordinating; and planning.
The HRO averred that Complainant had contacted her on January 8, 2015, to request a desk audit,
and that she had advised Complainant that a desk audit request must come from a supervisor as
employees could not request their own desk audits. SIR 33-34, 71-72. A Staffing Specialist who
handled Complainant’s request stated that Complainant was employed at the GS-5 level and that
she was inquiring about upgrading her position to GS-7. The Staffing Specialist noted that as a
GS-5, Complainant was not eligible for an upgrade to GS-7. SIR 40-41, 69-70.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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
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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). This analysis applies to disparate treatment claims brought under the
Rehabilitation Act. Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981).
She must generally establish a prima facie case by demonstrating that 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).

The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated
legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). As to incidents (1) and (2), the HRO stated that the processing of
Complainant’s leave share program application was delayed because Complainant needed to
provide updated documentation to verify that the medical emergency which gave rise to her
participation in the program still existed. Regarding incident (3), the HRO and the Staffing
Specialist stated that employees had to submit desk audit requests through their supervisors and
that as a GS-5, Complainant was not eligible to have her position upgraded to GS-7.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its actions that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
comparative or statistical data revealing differences in treatment across various protected-group
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Although
Complainant contests the outcome of the Agency’s final decision on its merits, none of the
documentary or testimonial evidence that she presented, either during the investigation, during the
discovery process prior to the withdrawal of her hearing request, or on appeal is sufficient to
contradict the explanations for the incidents provided by the HRO and the other officials involved
with those incidents, or which calls their veracity as witnesses into question. We therefore agree
with the Agency that Complainant has not sustained her burden of proof to establish the existence
of an unlawful motive attributable to any of the officials involved in the incidents at issue in this
complaint.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that she was discriminated against as
alleged.

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).

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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

May 16, 2018
Date