Jason M.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Feb 12, 2019

0120171652 (E.E.O.C. Feb. 12, 2019)

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

Jason M.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120171652

Agency No. NPS-16-0414

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 March 1, 2017, final
decision concerning his 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove that he
was subjected to unlawful harassment or discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Custodial Motor
Vehicle Operator, WG-4, within the Agency’s Building and Utilities division at Death Valley

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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National Park in California. Complainant began working in this position on January 24, 2016,
subject to a one-year probationary period. The Agency terminated Complainant on May 9, 2016.

On June 10, 2016, Complainant filed an EEO complaint in which he alleged that the Agency
harassed and discriminated against him on the bases of race (Hispanic), disability, age (born in
1972), and in reprisal for prior protected EEO activity when:

1. On February 17, 2016, while in the hospital following an accident, Complainant’s
supervisor (S1) stated, “This accident may have very well cost you your job;”

2. From February 2016 to May 2016, after being off duty for recovery from an
accident, S1 repeatedly called Complainant into his office and verbally
reprimanded him;

3. In or around February 2016, S1 verbally reprimanded Complainant for using tools
from the Auto Maintenance Bay to change tires on a government vehicle;

4. In or around April 2016, S1 verbally reprimanded Complainant for working on an
air conditioning system;

5. On an unspecified date, S1 released personal information about Complainant to
other workers;

6. On an unspecified date, S1 required Complainant to follow rules that non-Hispanic
employees were not required to follow;

7. In or around April 2016, S1 instructed Complainant to move out of government
housing, leaving Complainant and his family without housing; and

8. On May 9, 2016, S1 terminated Complainant’s employment after Complainant was
discovered taking breaks outside his scheduled periods at an off-limits Resorts
Ranch.

In an investigative statement, Complainant stated that he was disabled because he shattered his left
shoulder when he hit a bump on a scooter while coming to work in February 2016. Complainant
further stated that he previously filed an EEO complaint when he worked at the Mohave National
Reserve, and he believed that S1 may have been told about this EEO activity when he checked
with his prior supervisor before hiring Complainant.

Regarding claim 1, Complainant stated that while in the hospital awaiting surgery, he called S1 to
inquire about his leave status, and S1 said that this accident may have very well cost Complainant
his job. Complainant stated that S1’s comment made him feel like his job was in jeopardy, and
there was no other conversation with S1 after the comment.

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Regarding claim 2, Complainant stated that he returned to work on March 31, 2016, and upon his
return, S1 verbally reprimanded him about changing a tire and attempting to repair air
conditioning. Regarding claim 3, Complainant stated that in March 2016, S1 verbally reprimanded
him for using tools from the Auto Maintenance Bay to change tires on a government vehicle. He
stated that changing tires is not in his position description, and S1 told him that Complainant should
not have changed the tires and should have let the mechanic do it. Complainant further stated that
he thought he was helping by changing the tire himself and getting the nail out of the tire, and S1
never said the Auto Maintenance Bay was off-limits.

Regarding claim 4, Complainant stated that on April 2, 2016, the librarian at the housing unit told
him the air conditioning was off while he was off duty. He stated that he then offered to look in
the fuse box to see if a fuse had blown. Complainant further stated that he wrote a work order
stating that he had “minimally troubleshooted” the matter but did not know what was wrong with
the air conditioner. However, Complainant stated that S1 told him that he should not have been
involved, and it was the job of a certified air conditioning expert to determine the problem.

Regarding claim 5, Complainant stated that in April 2016, S1 told coworkers (C1 and C2) that he
was concerned about Complainant not having insurance and registration for his personal vehicle
while on government property. Regarding claim 6, Complainant stated that in April 2016, he
entered the Xanterra Resort Ranch during his break to get coffee, although it was not his assigned
break time. He stated that two non-Hispanic coworkers did not have to follow rules and were not
reprimanded.

Regarding claim 7, Complainant stated that he had a dispute with the power company about paying
$4,000 for service, which resulted in his power being turned off. Complainant stated that S1 and
his second level supervisor (S2) told him that he had violated a housing rule, and he asked if he
could live in a campsite at the Park or live with a coworker onsite, but S1 denied his request. He
stated that he asked S1 to work with him on this matter, but S1 only gave him a few more days to
get out of the unit. With respect to claim 8, Complainant stated that in May 2016, he was issued
a letter stating that he was terminated for speeding on a California highway, speeding in the
housing unit, and taking a break at the Xanterra Resort Ranch.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). 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 him to unlawful harassment or discrimination as alleged.

CONTENTIONS ON APPEAL

Neither party presents arguments on appeal.

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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

Disparate Treatment and Hostile Work Environment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of 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 employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

In this case, for purposes of analysis, we assume arguendo that Complainant is a qualified
individual with a disability and established a prima facie case of discrimination under a disparate
treatment analysis. However, we find that the Agency provided legitimate, nondiscriminatory
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explanations for its actions. Specifically, regarding claim 1, S1 stated that after Complainant
contacted him about leave, he asked Complainant how he was doing and the extent of his injury.
S1 further stated that Complainant then told him that he was having surgery and would be out a
couple of weeks. S1 stated that he knew Complainant would be on leave for a longer period and
told him about the shared leave program. S1 stated that he did not say that Complainant’s accident
may very well cost him his job.

Regarding claim 2, S1 stated that he did not verbally reprimand Complainant after he returned to
duty. Regarding claim 3, S1 stated that on March 3, 2016, he spoke to Complainant in S1’s office
about changing a tire in February 2016. He stated that if Complainant were out on the road and
experienced a flat tire, mechanics would have provided him with a spare tire so that he could
change the tire, but Complainant should not have changed the tire at all in the Auto Maintenance
Bay. S1 stated that Complainant should have taken another custodial truck with good tires and
created a work order for the mechanic to change the tire on his truck instead of taking a spare from
a truck on which the mechanic had fixed a flat tire. S1 stated that when the mechanic came to
work, he looked for the fixed tire, but could not find it. S1 also stated that he had previously
instructed Complainant to put in a work order if a tire needed to be changed, and to inform his
supervisor about the need for a tire change.

With respect to claim 4, S1 stated that a call came in about an air conditioning problem, and the
procedure is for a “person on the call out list” to be contacted to come in and repair the problem.
He stated that Complainant was reprimanded because he attempted to fix the problem by himself,
to no avail, and the building was without air conditioning from Saturday until Tuesday because
the call was not made. S1 further stated that working on the air conditioner is not within
Complainant’s position description, and there is a system in place for a certified air conditioning
mechanic to fix such problems because the system is complicated and a qualified person is needed
to fix such problems.

Regarding claim 5, S1 stated that he did not recall having a conversation with C1 about
Complainant’s car not being registered, but S2 saw Complainant get out of his car after driving to
work and noticed his license plate sticker had expired. S1 stated that S2 then asked him to set up
a meeting with Complainant to discuss the matter, and at the meeting, Complainant admitted to
having an unregistered car and no insurance. He stated that Complainant was then asked not to
drive the car until the situation was resolved.

Regarding claim 6, S1 stated that according to Agency “rules,” Complainant could not take breaks
in the Xanterra Resort Ranch because of the “appearance” of an Agency employee driving a
government truck to the establishment. He stated that on April 15, 2016, he noticed Complainant
coming out of the Ranch. S1 further stated that Complainant admitted he was at the Ranch, and
S1 has not observed nor been informed of any non-Hispanic employee coming out of the Xanterra
Resort Ranch. However, S1 stated that he issued an employee (C3) a five-day suspension for
being in off-limits areas, but C3 was not terminated because he is a permanent employee.

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Regarding claim 7, S1 stated that Complainant was instructed to move out of government housing
because he did not pay his electric bill and could not settle the dispute with the electric company.
S1 further stated that there was a health concern about Complainant living in his unit without
electricity/air conditioning in hot temperatures.

Regarding claim 8, S1 stated that he terminated Complainant because he was involved in two
speeding incidents and took his break at the Xanterra Resort Ranch. He stated that speeding was
a conduct and performance issue because Complainant was performing his job duties in an unsafe
manner.

In an attempt to prove pretext, Complainant maintains that two non-Hispanic coworkers did not
have to follow rules, particularly regarding visiting Xanterra Resort Ranch during breaks.
However, there is no evidence that S1 or management was aware that these employees visited
Xanterra Resort Ranch during their breaks. Moreover, Complainant acknowledges that he
improperly went to Xanterra Resort Ranch during his break.

Complainant also stated that he believed that S1 may have been told about this EEO activity when
he checked with his prior supervisor before hiring Complainant. However, Complainant has not
provided any evidence that his prior supervisor told S1 about his EEO activity. As such, we cannot
conclude that Complainant’s mere conjecture is persuasive evidence that such communications
occurred between his prior supervisor and S1. Further, S1 contends that Complainant told him
about his previous activity during the interview, which Complainant did not deny. At any rate, S1
hired Complainant after learning of his previous EEO activity, which greatly undermines
Complainant’s claim that S1 had retaliatory animus against him.

Further, although Complainant contends that S1 exhibited discriminatory animus against him
regarding his accident, the Roads and Travel Supervisor attested that S1 tried to obtain leave share
donations for Complainant after the accident. Regarding Complainant’s termination, the Roads
and Travel Supervisor attested that he reported Complainant to S1 and S2 after Complainant
passed him on the highway and admitted he was speeding because he was late to his next work
stop. Additionally, management asserted that Complainant was observed speeding in the housing
area near a playground, which Complainant has not denied.

Complainant does not deny he sped in a government vehicle in one incident. However, he
maintains that he was not in a government vehicle or on work time when the second speeding
incident in the housing area occurred. We find it reasonable for the Agency to hold Complainant
to a high safety standard on government property regardless of his work status because he operated
vehicles for the Agency. Additionally, where a complainant is a probationary employee, we have
long held that he or she is 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 his age, disability,
race/national origin, or previous EEO activity.

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We find that Complainant did not prove that the Agency’s nondiscriminatory explanations are
pretext for unlawful discrimination. Thus, we conclude that the Agency properly found that
Complainant did not prove he was subjected to unlawful discrimination or harassment. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s finding that Complainant did
not prove he was subjected to unlawful harassment or disparate treatment.

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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 12, 2019
Date