Sylvester C.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120172370 (E.E.O.C. Oct. 23, 2018)

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

Sylvester C.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120172370

Agency No. DOIBSEE160361

DECISION

On July 3, 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
June 23, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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

During the period at issue, Complainant worked as a Petroleum Engineer at the Agency’s Bureau
of Safety and Environmental Enforcement (BSEE) in the Gulf of Mexico region in New Orleans,
Louisiana.

On July 21, 2016, Complainant filed a formal EEO complaint claiming the Agency subjected
him to a hostile work environment and discriminated against him based on race (African-
American), national origin (Sudanese), sex (male), religion (Muslim), color (black), age (55),
and in reprisal for his protected EEO activity. Complainant provided several incidents in support
of his claim, including that he was denied training, suspended for 14 days, belittled, and
excluded from meetings.

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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On August 19, 2016, the Agency accepted Complainant’s allegations of discrimination as
follows, whether the Agency subjected him to a hostile work environment, and discriminated
against him on the bases of race (African-American), national origin (Sudanese), sex (male),
religion (Muslim), color (black), age (55), and in reprisal for his protected EEO activity when:

1. from around February 2016 through the present (defined as the period at
completion of the investigation), Complainant was subjected to a hostile
work environment (hostile work environment examples are referenced in
the formal complaint).

The Agency stated that the allegation as identified above was accepted for investigation, and that
all additional information provided in the formal complaint would be added to the record as
background to the allegation. The Agency also noted that in addition to identifying the above
bases in his complaint, Complainant had also alleged that he was subjected to a hostile work
environment based on “oppression.” The Agency informed Complainant that “oppression,” as a
basis of discrimination, is not enforced by the Equal Employment Opportunity Commission
(EEOC). The Agency informed Complainant that he could seek assistance under certain
circumstances from the Agency’s Human Resources Division, which had oversight responsibility
for non-EEO acts of harassment. Consequently, oppression was not included as a basis.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

For ease of reference, the Agency focused on four main incidents that it pulled from
Complainant’s formal complaint. The Agency stated that Complainant argued that he was
subjected to a hostile work environment, and discriminated against on the raised bases when:

1. Complainant’s performance expectations were changed causing him to
underperform and be denied a within grade increase in September 2016;

2. on April 22, 2016, Complainant was issued a proposed 14-day suspension without
pay;

3. he was denied a religious reasonable accommodation during Ramadan;

4. when he was suspended without pay for 14 days between June 11, 2016, and June
27, 2016.

The decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

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The instant appeal followed. Complainant argued that the Agency’s collective actions amounted
to continuous harassment based on his protected classes, and in reprisal for his protected EEO
activity. Complainant reiterated arguments contained in the investigative file.

The investigative record reflects the following salient events relating to the subject claim.

Responsible Management Officials

Complainant named two responsible management officials, his first line supervisor, the Chief of
Well Operations Section (male, over the age of 40, black, Baptist, American, and previous EEO
activity) (hereinafter referred to as “S1”), and his second line supervisor, the District Manager
(male, over the age of 40, white, Caucasian, Catholic, American, previous EEO activity)
(hereinafter referred to as “S2”).

Reprisal

Complainant filed a previous EEO complaint in 2015 against S2. S1 and S2 were aware of
Complainant’s EEO activity.

Claim 1

Complainant alleged that S1 changed the expected performance standards in his Employee
Performance Appraisal Plan (EPAP) in or around February 2016. Complainant stated that the
changes in his EPAP resulted in him being denied a Within Grade Increase in his salary in
September 2016. Complainant stated that the Within Grade Increase was denied due to an
Agency determination of poor performance.

S1 testified that Complainant had difficulty learning how to complete the duties of his position
without supervision or oversight. S1 stated that Complainant required additional training on
working independently after his initial training was completed. S1 stated that Complainant's
performance caused Complainant to be rated as Minimally Successful in elements on his EPAP
in October 2015. S1 stated that, in early 2016, Human Resources (HR) contacted him to request
narratives in association with Complainant's 2015 Minimally Successful rating. He testified that
he wrote the narratives and reviewed them with Complainant on September 9, 2016, and then
asked Complainant to sign the document they reviewed. S1 stated that it was due to
Complainant's minimally successful ratings in 2015, and his failure to significantly improve by
September 2016, that Complainant was denied a requested Within Grade Increase. S1 denied
altering any expectations in order to deny Complainant a Within Grade Increase.

S2 stated that Complainant did not sufficiently review operations reports, and did not always
communicate effectively with customers. For example, the Agency found Complainant’s emails
could be confusing at times, and that sometimes he provided incorrect information. S2 stated that
he advised Complainant of his mistakes, and encouraged him to consult other senior engineers,
or himself, if he had concerns.
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S2 further stated that both S1, and he, encouraged Complainant’s work, told Complainant that he
had a good work ethic, and promised to work with him individually in an effort to get him to a
higher level. He did not believe that Complainant was receptive to the constructive feedback.

The Supervisor Inspector (male, over the age of 40, white, Caucasian, American, no religion, no
previous EEO activity) was Complainant’s colleague. He stated that Complainant seemed to take
issue with talking out any issues he might have. He stated that Complainant did not act like a
team player.

Claims 2 and 4

On April 22, 2016, S1 issued Complainant a proposed 14-day suspension. Complainant testified
that the proposed 14-day suspension was issued due to an incident at one of S1’s February 2016
staff meetings. Complainant stated that he attempted to raise an issue, but S1 interrupted him, to
which Complainant responded by telling S1 not to interrupt him.

S1 stated that he issued Complainant a proposed 14-day suspension due to Complainant's
repeated failure to follow instructions, disrupting a February 2016 staff meeting, disrespecting
him during said meeting, and recording conversations between Complainant and himself. S1
stated that during the staff meeting, Complainant raised an issue, and advised him (S1) not to
interrupt him. S1 asked Complainant to discontinue, and informed him that the two of them
could speak privately on the matter at another time, but Complainant persisted.

Regarding the recordings, S1 stated that Complainant informed him that he was uncomfortable
speaking with S1 privately, and requested to either have another engineer present during any
meetings, or permission to record the conversations. S1 informed Complainant that he would not
permit another engineer to sit in on every conversation they had because it would be a waste of
time, and that per Human Resources directives, if Complainant recorded conversations, he could
be subjected to disciplinary action. S1 testified that Complainant, between January 2016, and
April 2016, recorded five-six separate conversations between them, despite being reminded of
potential disciplinary action. S1 noted that this occurred after Complainant had already been
ordered not to record conversations. S1 stated that he consulted with S2, and the HR Department,
prior to issuing the proposed suspension.

Complainant testified that his April 22, 2016, proposed suspension was upheld and he was
suspended without pay for 14 days from June 11, 2016, through June 27, 2016. Complainant
testified that he had the right to record conversations between him and S1, regardless of S1’s
order because the law allowed him. Complainant testified that he also had a right to speak his
mind at the February 2016 staff meeting without being interrupted by S1.

Regarding the February 2016 staff meeting, the Supervisor Inspector stated that Complainant
“had an unusual, strange outburst during a staff meeting” when he complained about a travel
reimbursement.
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He stated that Complainant shouted that he did not want to be interrupted, and continued to rant.
S1 attempted to explain that the staff meeting was not the appropriate time or place, but
Complainant only grew louder.

The Regional Supervisor for District Field Operations (male, over the age of 40, white, Catholic,
American, previous EEO activity) (hereinafter referred to as “S3”) was the deciding official on
the suspension. S3 stated that he reviewed the proposed suspension, and found merit in S1’s
proposal based on HR’s recommendation. S3 denied making his decision based on
Complainant’s protected classes.

Claim 3

Complainant stated that he did not request a specific religious accommodation. Rather, he
contended that he was generally treated with disrespect based on his religion. Complainant stated
that he “closes” off his cubicle when he does his prayers, and acknowledged that when
management officials saw him praying, they would walk away. At the same time, he noted that
while S1 allowed him to take an alternative lunch on Fridays to go the mosque for his prayers,
S1 also monitored the time very closely. He provided that the Agency also sent him offshore
during Ramadan during, and he has even had to use sick leave during the Muslim Holy Days.

S1 testified that he never denied any religious accommodation request by Complainant. He
denied ever taking any actions against Complainant due to his religion. S2 stated that
Complainant had asked for time around the lunch hour to pray offsite, which S1 had previously
granted. As to offshore travel during Ramadan, S2 stated that Complainant had volunteered to
go, noting that the travel was set on a volunteer basis for the engineers. S1 and S2 denied
knowledge of Complainant’s use of sick leave for religious reasons.

Example of Hostile Work Environment

Complainant provided a variety incidents alleging demonstration of a hostile work environment.
For example, Complainant asserted that S1 denied his training requests because the S2 planned
to reduce his position and transfer him. Complainant alleged that part of this was forcing him to
take a workover class in support of the effort to transfer him.

S1 declared that in April 2016, management asked Complainant to sign up for a workover class
for September 2016. S1 denied that management’s request was made to move Complainant out
of the drilling section. He asserted that the workover class would be appropriate for employees
working in either the Drilling or Workover Sections because both deal with completions. He
added that he supervised both Sections. S1 also denied ever rejecting training for Complainant
based on his protected classes or in reprisal.

Complainant also argued that he was either not paid, or underpaid, on business trips for expenses
such as mileage, per diem expenses for meal, and compensatory time for time spent travelling.
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Complainant noted that for one training in Houston, he had requested additional time because he
wanted to leave earlier to avoid rush hour traffic, but was denied the request. Additionally, for
the same trip his per diem for expenses were lowered, and his mileage was not calculated the
same as for others.

Regarding the training, S1 stated that per diem for expenses was lowered because the training
provided lunch. Regarding the travel time, S1 stated that he could only approve for six hours,
because the trip was six hours, and he could not approve additional time because Complainant
wanted to leave early. Regarding mileage, S1 stated that he offered an Agency car for
Complainant to drive. However, he chose to use his own car, and mileage is counted differently
when someone uses a personal vehicle.

In other examples, Complainant also alleged that he was made to sit backwards on helicopter
rides during offshore visits. Complainant also asserted that he was expected to work on
weekends, and found it to be harassing. S1 investigated Complainant’s concern that he was
forced to sit backwards on the helicopter, and determined that seating was based on the pilot’s
discretion for proper weight distribution. Regarding weekend work, S1 stated that while he
continued to work on the weekends at times, if he sent an email during the weekend, he did not
expect staff to respond until it was a business day.

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 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”).

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim
1, Complainant alleged that he was discriminatorily denied a Within Grade Increase. However,
the record demonstrated that Complainant, despite his contentions, had difficulties on the job.
Even Complainant acknowledged that he made mistakes at time, and could benefit from
additional training. S1 and S2 testified that based on his performance, Complainant was
evaluated at the Minimally Successful level. Ultimately, Complainant’s Within Grade Increase
was denied due to poor performance. Aside from his contentions, Complainant did not provide
sufficient documentation that the evaluation was not warranted.

Regarding claims 2 and 4, the record demonstrates that S1 proposed the 14-day suspension based
on a variety of incidents. Specifically, due to Complainant's repeated failure to follow
instructions, disrupting a staff meeting, disrespecting S1 during said staff meeting, and recording
multiple conversations between himself and S1, despite being repeatedly reminded of potential
disciplinary action. S1 testified that the suspension was proposed after a discussion with HR and
S2, and that the suspension was upheld by S3. During the investigation, Complainant adhered to
his right to speak up during the meeting, that S1 should not have interrupted him while he spoke,
and that by law, he was allowed to record conversations between S1 and himself. The
Commission has repeatedly determined that as the employer, the Agency has broad discretion to
determine how best to manage its operations and may make decisions, including personnel
decisions, on any basis except a basis that is unlawful under the discrimination statutes. See
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Based on the record, we find that the suspension was
appropriate given the circumstances.

Regarding claim 3, Complainant acknowledged during the investigation that he did not request a
specific religious accommodation, but that he felt generally disrespected based on his religion.
Complainant also acknowledged that if management saw him conduct prayers in his cubicle they
would walk away and not disturb him.
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Additionally, Complainant acknowledged that S1 granted him permission to take an alternative
lunch time on Fridays so that he could go to a local mosque to pray. Complainant asserted that
while he was given this permission, the time was watched carefully, and he would be docked
time if he stayed too long. Here, it is evident from the record that management made informal
religious accommodations for Complainant. There is no evidence to suggest any discriminatory
actions based on Complainant’s religion.

In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory
animus. Complainant has not provided any evidence that suggests that the Agency's reasons were
pretext for discrimination or that discriminatory animus was involved.

Harassment

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 Agency. Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982).

In short, to prove his harassment claim, Complainant must establish that he 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, because of his race,
national origin, sex, religion, color, age, and prior EEO activity. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant has cited various incidents that he found to be adverse or disruptive to him. For
example, Complainant argued that he forced to take a workover class as a method of forcing him
out, that he was treated differently during business training, and, that he was forced to sit
backwards on a helicopter during offshore travel. However, the record demonstrates that the
workover class was an appropriate training course designed for a variety of staff. There was
nothing to indicate that Complainant’s placement in the workover class was designed to transfer
him out of the Agency. Additionally, the Agency has provided detailed responses to
Complainant’s allegations that he was discriminatory treated during Houston business trip.
Lastly, where Complainant sat on the helicopter was the discretion of the pilot’s concerns for
weight distribution, and was not intended to harass Complainant.

We find that Complainant has produced no evidence to establish that his race, national origin,
sex, religion, color, age, and prior EEO activity was a factor in any of these actions. The record
simply does not show that the responsible Agency officials acted with discriminatory or
retaliatory animus towards Complainant.
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Finally, we find that the Agency correctly informed Complainant that oppression, as a basis of
discrimination, is not enforced by the Commission. We note that the Agency informed
Complainant that he could seek assistance under certain circumstances from the Agency’s
Human Resources Division, which had oversight responsibility for non-EEO acts of harassment.

CONCLUSION

The Agency's final order finding no discrimination is AFFIRMED.

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.
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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. 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, Director
Office of Federal Operations
October 23, 2018
Date