U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bertie J.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120181347
Agency No. DOI-BIE-17-03-42
DECISION
On March 7, 2018, 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
February 2, 2018 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Business Manager at
the Agency’s Cheyenne Eagle Butte School in Eagle Butte, South Dakota. Complainant was hired
in May 2015 on a probationary status for three years.
On June 14, 2017, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of her race
(Native American), sex (female), disability (two broken fingers), and age (52) when she was
terminated during her probationary period, effective April 17, 2017.
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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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 (AJ). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).
The record reflects that Complainant worked as a Business Manager at the Agency from May 18,
2015 – April 17, 2017. Complainant sustained two broken fingers on her left hand in January
2017. Complainant stated that the injury lasted a few months and while she healed, she was limited
in lifting, dressing herself, showering, pulling her boots on and working with office equipment.
Complainant claimed that her Supervisor, the Acting School Principal, discriminated against her
on the basis of her race in light of his disrespectful and condescending manner as he once
commented that she was wet behind the ears. In terms of her sex discrimination claim,
Complainant argued that her Supervisor treated her in an intimidating, disdainful and dictatorial
manner, and she believed that her Supervisor insisted that women accept his flirtatious or
dictatorial behavior without objection. As for her age discrimination claim, Complainant claimed
that her Supervisor made it a regular practice to terminate older employees. With respect to her
disability discrimination claim, Complainant contended that her Supervisor was aware that she
was having difficulties completing her work duties due to her broken fingers, but he did not take
that into account when he terminated her.
In its final decision, the Agency assumed arguendo that Complainant had set forth a prima facie
case of discrimination under the alleged bases, the Agency determined that management
articulated a legitimate, nondiscriminatory explanation for Complainant’s termination. The
Agency noted that the Supervisor stated Complainant’s main duties included processing purchase
requests and paying vendors in a timely manner. According to the Supervisor, Complainant failed
to fulfill her duties and her failure to process the school debts in a timely manner resulted in a five-
month delinquency on the debts and the vendors became unwilling to continue working with the
school. The Supervisor asserted that Complainant never informed him that her broken fingers
prohibited her from completing her duties. Further, the Supervisor maintained that Complainant’s
negative performance issues began before she broke her fingers as documented in her September
2016 performance appraisal. The Agency concluded that Complainant failed to establish that
managements’ reasons for its actions were pretext for unlawful discrimination. As a result, the
Agency found that Complainant had not been subjected to discrimination as alleged. The instant
appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her work assignments were compromised by her broken
fingers and that her termination was attributable to disability discrimination. Complainant notes
that one of the school staff members testified that she believed her failure to complete her duties
in a timely fashion was attributable to Complainant’s broken fingers. Complainant maintains that
the investigation of her complaint did not include an important witness on her behalf. Accordingly,
Complainant requests that the Commission reverse the final decision.
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ANALYSIS AND FINDINGS
Initially, we note that Complainant argues that a key witness for her was omitted from the
investigation. The investigator noted that he attempted to call the witness but was unable to contact
her after leaving several messages. Nonetheless, Complainant has not offered more than a general
description of what her relevance was as a witness. Further, the record indicates that the
investigator determined that the interviews of several other witnesses listed by Complainant were
not necessary because they did not have any relevant evidence to the complaint. Upon review of
the entire record, the Commission is not persuaded that the investigation into Complainant's
complaint was incomplete or improper. There is no evidence that Complainant requested a hearing,
a process which would have afforded her the opportunity to conduct discovery and to cure alleged
defects in the record. Thus, despite the above referenced arguments, the Commission determines
that the investigation was properly and adequately conducted.
Disparate Treatment
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). 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 Constr. Corp. 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. The prima facie inquiry may be dispensed with where the Agency articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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). 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 Prods. Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. 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).
We shall assume arguendo without finding that Complainant is an individual with a disability. The
Agency explained that Complainant was terminated due to her failure to process the school debts
in a timely manner which resulted in a five-month delinquency on the debts and the vendors
became unwilling to continue working with the school. The Supervisor indicated that the
delinquencies were unacceptable to him given his concern that the vendors would not remain
willing to work with the school. We find that the Agency presented legitimate, nondiscriminatory
reasons for Complainant’s termination.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
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Complainant maintains that her Supervisor was aware that her broken fingers were affecting her
ability to complete her work assignments in a timely fashion. Complainant stated in her affidavit
that she asked her Supervisor if she could bring work home or stay late in the office, but he declined
her requests. Although Complainant claims that her work performance was affected by her broken
fingers, we discern from her September 2016 performance appraisal that she had performance
deficiencies before her injury in January 2017. Furthermore, Complainant’s Supervisor affirmed
that Complainant never requested a reasonable accommodation nor indicated to him that her
condition hindered her ability to perform her duties. However, to the extent that Complainant’s
request to take work home or stay later in the office could be considered a request for
accommodation, as noted above Complainant was experiencing performing issues prior to her
injury. The Commission notes that a request for accommodation is always prospective and cannot
be used to absolve an employee from performance problems. Finally, the Commission notes that
Complainant has not indicated how such a modification would have been an effective
accommodation.
The Commission finds no persuasive evidence that Complainant's protected classes were a factor
in the Agency’s decision to terminate her during her probationary period. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory
animus. Complainant failed to carry this burden. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination as alleged.
Hostile Work Environment
To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; and (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 her 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. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.
As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. Here, Complainant has
alleged that her Supervisor treated her in a condescending and disrespectful manner. As an
example, Complainant claimed that her Supervisor made the comment that she was “wet behind
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the ears†during a conference call. Further, Complainant alleged that her Supervisor acted in an
intimidating and dictatorial manner, including an instance where he sharply asked her “what do
you do?†Finally, Complainant stated that her Supervisor insisted that women accept his
“flirtatious or dictatorial†ways. There is no corroborating evidence that these comments were
made or that the incidents occurred as alleged. Furthermore, Complainant acknowledged that she
did not report the incidents to anyone in management. Nonetheless, the Commission finds that,
based on the totality of the circumstances, Complainant has not demonstrated that the alleged
incidents were sufficiently severe or pervasive to establish a hostile work environment. The
Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
objectively offensive as to alter the conditions of the victim's employment.†Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency's
actions were based on discriminatory animus. The record reflects that the alleged incidents were
more likely the result of routine supervision, personality conflicts, and general workplace disputes
and tribulations. Accordingly, we find that Complainant had not established that she was subjected
to discrimination or a hostile work environment as alleged.
CONCLUSION
The Agency’s determination that no discrimination occurred 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
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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. 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
July 9, 2019
Date
