Susie K.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Oct 26, 2018

0120170994 (E.E.O.C. Oct. 26, 2018)

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

Susie K.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120170994

Agency No. DOIBIA160174

DECISION

On January 17, 2017, 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
December 27, 2016, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 decision.

ISSUE PRESENTED

Whether Complainant established that she was subjected to harassment and discrimination based
on age as evidenced by 12 incidents that form the basis of her claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Cook, WG-7404-03
at the Agency’s Office of Justice Services Correctional Facility in Wagner, South Dakota. On
February 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of age (54) as evidenced by 12 incidents that include: not listening to her;

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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making rude remarks about her Certification; wrongfully accusing her; and terminating her
employment.

The Agency denied Complainant’s allegations and explained that Complainant was terminated for
disregarding directives and disrespectful conduct towards co-workers and supervisors. They assert
that Complainant’s age was not a determining factor; and that she was not subjected to harassment
or discrimination.

In support of her claims, Complainant cited several incidents involving her first line supervisor
(S1) not listening to her when she raised concerns about how things were incorrectly done in the
kitchen, and walking away from her. She states he made negative remarks about her work
performance; compared her to a younger coworker; and allowed that coworker time off but
deprived her of that privilege and gave her additional duties. She added that S1 often told her that
she asked for too many things.

S1 denied Complainant’s allegations. He asserted that he did not know Complainant’s age, and
that he was responsive to her as was required.

Complainant also alleged that S1 questioned whether she got her ServSafe Certification off the
internet. She stated that he asked her to remove food from the menu when he was not a Dietitian,
but he did not ask her younger coworker to do the same.

S1 stated that his only remarks about Complainant’s certification was letting her know he had gone
through the same process in response to her concerns that she had sat in classroom for 8 hours in
order to be certified. S1 also stated that he had a conversation with Complainant about substituting
the menu but that he did not ask her to remove any menu items. He added that, with management
approval, it was within his authority to have such a conversation with Complainant.

Complainant further alleged that S1 threw papers at her and a new employee when they went to
clarify that employees schedule with S1. She stated, however, that her younger coworker received
better treatment from S1 and could walk into his office to discuss her schedule.

S1 denied throwing papers at Complainant. The new employee also stated that S1 did not throw
papers at Complainant as alleged but that S1 threw the papers on the desk.

Complainant also alleged that S1 accused her of not cooking Thanksgiving dinner when she did,
and that he thought she could not cook or perform her job duties. S1 also failed to act when she
complained about a propane smell in the kitchen but only acted after another employee
complained.

S1 stated he was on leave during Thanksgiving and only asked questions to clarify the different
accounts he received regarding whether Complainant had cooked or not.
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Also, the Agency stated that appropriate action was taken after it was confirmed that a propane
tank was the actual source of a smell in the kitchen but Complainant might not have known the
issue was being resolved behind the scenes.

Finally, Complainant alleged that S1 terminated her employment during her probationary period
without due process. She stated that she let S1 know his conduct was unacceptable; that it stressed
her and made her cry, and she felt harassed. She stated that she reported the matter to management.

The Agency indicated that it was aware of the issues between Complainant and S1; that the matter
was reported to the Human Resources office (HR); and that Complainant’s employment was
terminated after consultation with HR based on another dispute about cooking recipes.

The Agency stated that Complainant did not file a harassment claim until after her employment
was terminated. Therefore, no internal investigation was conducted to resolve the issues. The
Agency also stated that S1 did not create a hostile work environment, and that none of his actions
were motivated by discriminatory intent based on Complainant’s age.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. In accordance with Complainant’s request, 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.

CONTENTIONS ON APPEAL

Although Complainant’s representative requested, and received an extension of time to submit a
brief in support of her appeal, the record indicates that no supporting brief was filed by either
Complainant or the Agency.

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, 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
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”).

ANALYSIS AND FINDINGS

In order to prevail in a disparate treatment claim such as those raised in this complaint,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 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 802 n. 13.

We note that the Commission also generally applies the McDonnell Douglas framework to prove
discrimination in cases alleging harm by a federal government employer under the Age
Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 633a(a). See Spencer v.
U.S. Postal Serv., EEOC Appeal No. 0120042065 (Aug. 6, 2008) (applying McDonnell Douglas
to ADEA claim); Carver v. Dep’t of Justice, EEOC Appeal No. 07A30025 (Aug. 8, 2005) (same);
Jones v. Bernanke (Federal Reserve System), 557 F.3d 670, 673 (D.C. Cir. 2009) (explaining in
federal sector ADEA retaliation claim that “[w]hether brought under Title VII or the ADEA, . . .
claims based on circumstantial evidence . . . trigger the familiar burden-shifting framework of
McDonnell Douglas”). Specifically, the first step of the McDonnell Douglas burden-shifting
framework requires a complainant to establish a prima facie case of age discrimination. To do so,
the complainant generally must raise an inference of discrimination by showing: 1) she was 40
years of age or older; 2) she was subjected to an adverse employment action; 3) she was qualified
for the job; and 4) there is some reason to infer that the action was related to age, such as ageist
statements showing bias by the decisionmaker, or evidence that she was treated less favorably than
someone substantially younger. While there is no bright line test for what constitutes
“substantially younger,” that term has generally been applied to age differences of at least five
years. See Hammersmith v. Soc. Sec., EEO Appeal No. 01A05922 (Mar. 6, 2002); Burns v. Dept.
of the Treasury, EEOC Appeal No. 0120102543 (Oct. 19, 2010).

Assuming, arguendo, that Complainant established a prima facie case of age discrimination; we
find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this case,
Complainant alleged that her supervisor did not listen to her; questioned the validity of her
vocational certification; wrongfully accused her; harassed and stressed her; and that he terminated
her employment during the probationary period all because of her age.

The Agency denied Complainant’s allegations and asserted that Complainant was not subjected to
harassment or discrimination because of her age. Rather, Complainant was terminated for
disregard of directives and disrespectful conduct towards her co-workers and supervisors.

In an effort to show pretext, Complainant asserts that she received less favorable treatment than
her younger coworker who, among other things, was listened to, had her concerns timely
responded to, was given time off and was able to walk into S1’s office to discuss her schedule.
She stated that management was responsive to other employees when they raised concerns and did
not listen to her.

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However, Complainant provided no persuasive evidence in support of her less favorable treatment
claims; and the younger coworker with whom she compares herself is a Food Service Worker, a
different job classification from that of Complainant who is a Cook, which might explain why
Complainant felt she was treated differently.

The Agency also denied not listening or being responsive to Complainant, and stated Complainant
might not have known that management was working behind the scenes to address her concerns
about the propane smell in the kitchen, for example.

Complainant alleged that she was subjected to harassment in her work environment, and that it
stressed her and made her cry. However, the various incidents she describes appear to result from
miscommunication and misunderstandings between Complainant and management which, though
uncomfortable and unwelcomed, were not severe or pervasive conduct that would reasonably
constitute workplace harassment, nor do we find persuasive evidence that her age played a role.

Finally, where a complainant is a probationary employee, we have long held that he or she are
subject to retention, advancement, or termination at the discretion of an agency so long as these
decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No.
01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Here, we do not
find that Complainant’s termination was based on her age.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision because the
preponderance of the evidence in the record does not establish that discrimination occurred.

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).
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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.

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.

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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

October 26, 2018
Date