Zula G.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120172983 (E.E.O.C. Nov. 29, 2018)

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

Zula G.,1
Complainant,

v.

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

Appeal No. 0120172983

Hearing No. 540201500182X

Agency No. DOIOS140085

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, about an 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 the Age
Discrimination in Employment Act of 1967 (“ADEA)”, as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Appraiser, GS-14, at the OAS Great Plains Office, located in Rapid City, South Dakota.

Complainant filed an EEO complaint alleging that she was subjected to a hostile work
environment and disparate treatment (Claim 4 only) by the Agency, based on her race (Native
American), national origin (Chippewa/Ojibwa), sex (female), religion (Ojibwa), color (brown),
age (52), and—with respect to Claim 4 only—reprisal (engaging in protected EEO activity
related to the instant complaint) when:

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. On January 11, 2013 and January 24, 2013, one of her subordinates and an Appraiser in
another district made derogatory comments about her during phone conversations,

2. In September 2013, alleged deficiencies in her work, and work she had approved, were
set forth in a Quality Assurance Compliance Review,

3. On September 26, 2013, her second level supervisor and her acting first level supervisor
met with Complainant to discuss the Report, and D1 critiqued her performance, and,

4. On December 7, 2013, Complainant received a "Minimally Successful" appraisal rating
for her work performance during fiscal year 2013.

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 EEOC
Administrative Judge (“AJ”). Complainant timely requested a hearing. The AJ assigned to the
case determined sua sponte that the complaint did not warrant a hearing, and on May 11, 2017,
issued a Notice of Intent to Issue a Decision Without a Hearing to the parties. On July 12, 2017,
after considering Complainant’s timely submitted rebuttal, the AJ issued a decision by summary
judgment in favor of the Agency.

A review of the record provides the following undisputed facts:

The Office of Appraisal Services (“OAS”) is a division of the Office of the Special Trustee
(“OST”), established under the American Indian Trust Fund Management Reform Act of 1924.
OAS consists of multiple regional offices that provide “impartial estimates of market value for
[property interest in] real estate owned in trust or restricted status by tribes or individual
Indians.” OAS is also tasked with providing assessments containing “factual evidence of equity
in all real estate transactions” to protect tribal, individual, and government interests.

In December 2012, Complainant was selected for the position of Supervisory Appraiser, GS-14,
at the OAS Great Plains Office. There, she reported to the OAS Deputy Director (“S1”) (female,
Native American, Spokane Tribe, white, mid 50s), as her first level supervisor until September
2013, when S1 transferred to another division of OST. Complainant then reported to “S2”
(female, Native American, Blackfeet tribe, pale in color, age 52), who was on detail as Acting
OAS Deputy Director from September 2013 through November 2013. S2 drafted Complainant’s
2013 performance appraisal (“PA”) in December 2013. Both S1 and S2 reported to the OAS
Director, GS-15, (“D1”) (male, Native American, Pueblo Zuni Tribe, brown, early 50s). D1
was Complainant’s second level supervisor throughout the relevant time frame.

Among other things, Complainant was responsible for monitoring and distributing a regional
caseload of appraisal requests for districts or entire reservations, including complex analysis of
different types of property subject to multiple ownership interests, as well as economic analyses
“to denote the highest and best uses of the land.” All appraisals had to comply with the Uniform
Standards of Professional Appraisal Practice "USPAP." When she transferred to the Great Plains
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Region, Complainant brought several open cases from her prior position at the OAS Western
Regional Office in Albuquerque, New Mexico.

In early 2013, an Appraiser (“A1”), who Complainant hired, and was one of her direct reports,
conducted an appraisal (“Cyprus Appraisal”) in the Western Region for the Tohono O’odham
Nation (“Client”). The Cyprus Appraisal included the Cyprus Mine, requiring A1 to provide a
valuation that was also subject to property interests by the mining company, and fell within the
jurisdiction of the Bureau of Indian Affairs (“BIA”). Complainant approved A1’s Appraisal
Report in or around March 2013.

In or around April 2013, the Client notified BIA that aspects of the Cyprus Appraisal appeared
incorrect, voicing concerns about A1’s competency, as she appeared unfamiliar with the land and
economic climate. BIA notified OAS. D1 contacted the Agency’s Office of Valuation Services
(“OVS”), a neutral “third party,” to audit the OAS Western Region for USPAP compliance. In
preparation (per OVS request), D1 compiled a list of all appraisals conducted by the OAS
Western Regional Office in the past 3 years, flagging any cases that appeared to have USPAP
compliance issues. An OVS Quality Assurance (“QA”) Officer selected 22 of the appraisals,
including the Cyprus Appraisal, and their corresponding work files for review.

On August 21, 3013, the QA Officer issued a report (“QAR”) for the OAS Western Region
based on the 22 work files and interviews with Western Region staff and management officials.
Complainant was not interviewed, even though she was listed as the approving official for 9 of
the selected files. The QAR identified 10 “recurring or significant issues” and provided
recommendations to address them.

On September 26, 2013, Complainant met with D1 to discuss the QAR, with her new (acting)
first level supervisor, S2, present as an observer. D1 relayed that he already formally apologized
to the Client on behalf of OST. He echoed the Client’s concerns about A1. He also asked
Complainant to account for the confirmed deficiencies identified in the QAR. On or about
November 19, 2013, Complainant submitted a response to the QAR.

Meanwhile, on November 12, 2013, one of Complainant’s colleagues (“C1”) (female, Native
American, Navajo, brown, age 49), was assigned a 30-day detail as Acting Regional
Supervisory Appraiser for the Western Region. C1 testified that she attempted to meet and
consult with Complainant about the Western Region cases, including the Cyprus Appraisal, but
Complainant “made it clear she was not dealing with Western Region anymore.”

In December 2013, C1 and one of her direct reports, a Review Appraiser (“A2”) (male, United
States, Caucasian, white, mid-50s), attended a scheduled meeting with the Client regarding the
Cyprus Appraisal. The Client requested a new appraisal. As this was not OAS protocol, C1
consulted with her supervisor, S1, and D2, then conducted a review of the Cyprus Appraisal. C1
testified that she “rejected” the Cyprus Appraisal, as it failed to comply USPAP standards.

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On December 17, 2013, S2 issued Complainant’s 2013 Performance Appraisal (“PA”) for the
Great Plains Region. S2 rated Complainant as “minimally successful” on three out of five PA
“critical elements,” and “fully successful” on the remaining two, with an overall rating of
“minimally successful.”

Based on this evidence, the AJ concluded that Complainant failed to prove that the Agency
subjected her to discrimination or retaliation as alleged. In its final order, the Agency adopted
the AJ’s decision. The instant appeal followed.

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 (“EEO MD-110”) 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”).

Discovery Request

As an initial matter, we note on appeal Complainant contests the AJ’s denial of Complainant's
request for an extension of the discovery period, finding it untimely, and for failure to follow
instructions. An AJ has broad discretion in the conduct of a hearing, including matters such as
discovery orders, scheduling, and witness selection. See 29 C.F.R. § 1614.109(e); EEO MD-110,
Ch. 7; Bennett v. Dep't of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). In this case,
the AJ’s denial points out that she discussed the discovery process with the parties during the
prehearing conference, and issued an Order Following Initial Case Conference, with detailed
instructions for discovery, including scenarios where one party failed to produce the requested
documents. The AJ reasoned that despite the conference and order, Complainant did not file a
motion to compel or raise the discovery dispute with the AJ prior to “or even shortly after” the
stated deadline of November 30, 2015.

On appeal, Complainant reiterates her argument that an extension should be granted, because she
timely submitted a Discovery Request to the Agency in October 2015 and was prevented from
timely submitting a Motion to Compel, per the OFICC, due to misplaced reliance on the
Agency’s attorney. Complainant alleges that prior to the November 30, 2015 deadline, she called
the Agency to inquire about the status of her request, the Agency Attorney led her to believe it
would respond shortly after the deadline. She alleges that the Agency attorney suggested that she
not notify the AJ of the delay, and that it would also contact her to discuss a settlement, as she
“should be thinking about resolution.” Complainant never received the requested documents.
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However, her request for an extension came over a year later, when the AJ issued Notice of
Intent to Issue a Decision Without a Hearing.

We find the AJ acted within her discretion when she properly denied Complainant’s request.

Disparate Treatment – Performance Appraisal (Claim 4)

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency’s legitimate, nondiscriminatory reasons for Complainant’s ratings are provided
within the appraisal itself, which explains the rationale for the ratings of each “Critical Element.”
The appraisal discusses not managing the workload efficiently, that a large number of appraisal
requests were not reported, that this resulted in false reporting, and that appraisal requests not
identified in the monthly report should have been brought to the attention of upper-level
management to remedy the problem. Other than denying the false reporting, Complainant during
the investigation of her complaint does not dispute the statements explaining the rating on each
of her “Critical Elements” or offer any other evidence to create a question of material fact to
warrant a hearing.

On appeal, Complainant argues that the appraisal is illegitimate because her rater had supervised
her for less than 90 days and because the ratings failed account for “mitigating factors” that
“obstructed [her] ability to perform her duties.” Complainant specifies that in July 2013, the
OAS Great Plains Regional Representative was assigned to the Pine Ridge Agency Appraisal,
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and in August 2013, her work load, including reporting, was reassigned to the OAS Great Plains
appraisal team coordinator. We are not clear, and Complainant does not address how these
factors would impact her overall rating or the individual elements where she received a
“minimally successful.”

Most critically, there is no evidence at all to support her claim that her race, national origin,
color, age, religion, or sex played any role in the ratings she received. With regard to her reprisal
claim, Complainant indicated the appraisal was retaliatory because she believes it was unfair and
harsh. However, this again is a statement of subjective belief and not objective evidence.

Hostile Work Environment Claim (Allegations 1, 2, 3, and 4)

It is well-settled that harassment based on an individual’s race, national origin, sex, religion,
color, and/or age is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
Although Complainant’s membership in protected classes is undisputed, she has not satisfied the
other elements of a prima facie case for a harassment/hostile work environment, which are
necessary for a finding of employer liability. To prove harassment, Complainant must establish
that she 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 based on her membership in one or more
protected classes. Only if Complainant establishes both of those elements, hostility and motive,
will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Allegation 1: Derogatory Comments

The AJ properly determined that Complainant failed to present admissible evidence to support
Claim 1. On appeal, Complainant’s only evidence, a sworn statement by A1 describing
overheard phone calls between one of Complainant’s direct reports (female, white, Caucasian,
United States/Scottish descent, 51) and A2, who worked in the Western Regional Office and
reported to C1, is inadmissible hearsay. Further, testimony by those that allegedly made the
comments does not support A1’s account.

Assuming, arguendo, that the allegations in Claim 1 occurred as alleged, they lack the requisite
severity to state an actionable claim of harassment. Typically, for remarks or comments to
constitute harassment, they must be accompanied with a concrete agency action that would cause
direct and personal deprivation sufficient to render an individual “aggrieved” for purposes of
Title VII. See Backo v. United States Postal Serv., EEOC Request No. 05960227 (June 10,
1996); Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994) (an
"aggrieved employee" is defined as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy). In the instant complaint, the
alleged comments were not accompanied by a concrete employment action, nor were they made
by anyone with authority to take concrete action against Complainant. Moreover, we have
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repeatedly found that a few isolated incidents of alleged harassment, such as alleged comments
made during two phone conversations, are insufficient to state a claim. See Phillips v. Dep't of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Serv., EEOC Request No. 0594081 (Feb. 16, 1995).

Allegations 2 & 3: Quality Assurance Report

We have long held that a supervisor questioning a complainant about the performance of his or
her duties is a “common workplace occurrences” which, while sometimes unpleasant, do not
constitute harassment, even if done in a confrontational manner. See Agnus W. v. United States
Postal Serv., EEOC Appeal No. 0120160826 (Mar. 23, 2016) citing Carver v. United States
Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Unless it is reasonably established
that the common workplace occurrence was somehow abusive or offensive, and was taken in
order to harass the complainant on the basis of any of his or her protected classes, we do not find
such common workplace occurrences sufficiently severe or pervasive to rise to the level of a
hostile work environment or harassment as Complainant alleges. See Wolf v. United States
Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); see also Long v. Veterans
Administration, EEOC Appeal No. 01950169 (Aug. 14, 1997).

Moreover, while an employee may have a different idea about how operations should be run,
these are not issues which should be pursued in the EEO complaint process since decision
makers in the complaint process cannot substitute their judgment on how to run the day to day
operations of an Agency for that of the managers involved. Dewitt L. v. Dep’t of the Navy,
EEOC Appeal No. 0120160682 (May 3, 2016) other citations omitted.

For Claim 2, Complainant questions the propriety of D1’s decision to request an “outside” entity
to audit OAS work. She characterizes the compliance audit process as “biased” against her, and
the result of “extremely calculated teamwork” to target her specifically, citing the
disproportionate number of case files under review that were attributable to her and A1. She also
argues that D1 erred by granting C1’s request to review the Cyprus Appraisal in her capacity as
Acting Supervisory Appraiser for the Western Region. Complainant argues that C1 acted out of a
desire to “tear people down in an effort to build herself up” and by reviewing the appraisal rather
than ordering a new one, failed to take proper action. Complainant explains that the appraiser,
here A1, developed a “Scope of Work” for the appraisal assignment based USPAP requirements,
and in accordance with instructions provided by the Client. However, despite Complainant’s
objections to the audit, there is no evidence beyond Complainant’s bare assertions, that her
protected classes played any role whatsoever in the matter.

For Claim 3, Complainant contends that during the September 26, 2013 meeting regarding the
QAR, D1 called her incompetent, and criticized her performance, so that her “credibility as a
professional was under attack.” Both S2 and D1 deny Complainant’s allegation that D1 called
her “incompetent.” Having witnessed the meeting, S2 states that she did not get the impression
D1 was attacking Complainant professionally, or that the meeting was punitive in nature. D1
further testified that the “meeting was not meant to be the final meeting regarding the [QAR].
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The [Client’s] concerns needed to be validated so that I could report to the Principal Deputy that
the concerns brought to my attention were addressed.” Again, however, even if the incident
happened as alleged, there is no evidence that her protected classes played a role in the event.

We find Claims 2 and 3 represent instances where D1 appropriately exercised his supervisory
authority with respect to Complainant and in overseeing the OSA Western Region. Complainant
is challenging D1’s business judgment regarding his response to the Client’s concerns over an
appraisal that Complainant approved, and the steps he took to ensure the compliance issues with
the were not systemic in nature. As for her allegations about C1’s review and concerning D1’s
questions and request for a report on a QAR concerning her work, we find that Complainant has
not reasonably established that a question of material fact exists as to whether these common
workplace occurrences were somehow abusive or offensive, and taken in order to harass her
based on her membership in a protected class.

Allegation 4: Performance Appraisal

As already discussed earlier in this decision, Complainant has failed to establish that her
performance appraisal was impacted by her membership in a protected class or her prior EEO
activity. Without such evidence, a critical element of her harassment claim – motive- fails.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM

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),
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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).
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

November 29, 2018
Date