Levi P.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

0120172382 (E.E.O.C. Feb. 6, 2019)

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

Levi P.,1
Complainant,

v.

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

Appeal No. 0120172382

Hearing No. 550-2017-00043X

Agency No. DOI-BOR-16-0294

DECISION

On July 5, 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 26, 2017, final order 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electrician, BB-
2810-00/00, in the Bureau of Reclamation, Left Powerhouse at the Power Plant in Grand Coulee,
Washington. Complainant had been subjected to numerous disciplinary actions, and in May 2013,
he and the Agency entered into a “Last-Chance-Agreement” (LCA). Complainant agreed in the
LCA that any misconduct that would merit disciplinary action at the suspension level or higher
would violate the agreement and would result in his separation from Federal service.

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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Further, Complainant agreed in the LCA to voluntarily waive any and all procedural rights that he
may have concerning preexisting, current, and future claims or appeals arising from the operation
of the agreement. Complainant’s waiver of those procedural rights included future rights to
challenge any subsequent resignation or removal resulting from violation of the agreement.

The LCA was to remain in place for a term of two years beginning on May 20, 2013. It was signed
by Complainant and the Deputy Power Manager (DPM) on May 3, 2013 and by a representative
of the Columbia Basin Trades Council (CBTC) on May 7, 2013. Counselor’s Report, Attachment
L.

By memorandum dated September 16, 2013, the DPM notified Complainant that he had made the
determination that Complaint was in violation of the terms of the LCA. The DPM identified nine
specifications in support of a charge of failure to follow supervisory instructions. Those
specifications included: arriving late without going through proper leave procedures; taking leave
without first obtaining prior supervisory approval; and failing to check in with his supervisor
before proceeding to his assigned duty station. The DPM informed Complainant that, in
accordance with the LCA, he was to submit his voluntary resignation on or before September 18,
2013. Counselor’s Report, Attachment M.

In a decision letter dated September 20, 2013, the DPM informed Complainant that since he had
not submitted his voluntary resignation by September 18, 2013, he had been terminated, effective
September 19, 2013. A Standard Form 50 dated September 19, 2013 indicated that Complainant
had been removed on that date. The stated reason for the removal was listed as “violation of last-
chance agreement signed on May 7, 2013. Investigative Report, p. 160.

Complainant appealed his termination to the Merit Systems Protection Board (MSPB). In its initial
decision dated July 16, 2014, the MSPB dismissed Complainant’s appeal finding that it lacked
jurisdiction to hear the appeal because Complainant had previously entered into an LCA in which
he waived his right to appeal the action in question. The MSPB further found that the LCA was
valid and enforceable, that Complainant had breached the LCA, that Complainant’s non-
compliance with the LCA triggered the appeal-rights waiver, and that the Agency did not breach
the agreement. On February 10, 2015, the MSPB denied Complainant’s petition for review and
affirmed the initial decision. EEO Counselor’s report, Attachment N.

On March 17, 2016, Complainant contacted an EEO Counselor. On May 23, 2016, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of race
(Native American), sex (male), disability, and reprisal (prior protected EEO activity) by
terminating him, effective September 19, 2013.

At the conclusion of 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 Equal Employment
Opportunity Commission (AJ). Complainant requested a hearing, but on March 27, 2017, the AJ
assigned to the matter issued a notice of intent to dismiss the complaint, or, in the alternative, to
issue a decision on the record without a hearing.
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The AJ raised several points in support of her decision. First, she stated that Complainant’s waiver
of his right to appeal the removal action to the MSPB did not confer appeal rights before the
Commission. Second, the AJ stated that the MSPB’s determination that Complainant breached
the LCA had a collateral estoppel effect even if Complainant’s breach deprived the MSPB of
jurisdiction over the removal appeal. Third, the AJ stated that Complainant’s waiver of “any and
all procedural rights that he may have had concerning pre-existing, current, and future claims
arising from the operation of the LCA” included any procedural rights that Complainant might
have had before the Commission. On the merits of the complaint, the AJ held that the operation
of the LCA and its violation by Complainant constituted a legitimate and non-discriminatory
reason for his removal. The notice indicated that the parties had twenty days from its date to file
any responses.

On April 20, 2017, the AJ issued her order dismissing the complaint for the reasons set forth in
her notice of intent dated March 27, 2017. In so doing, the AJ noted that while the Agency
provided a timely response to the notice on April 14, 2017, Complainant did not. On May 2, 2017,
the Agency issued its final order in which it stated that it would fully implement the AJ’s decision.
On appeal, Complainant contends that matter should be remanded for a hearing under the
Commission’s hearing process.

ANALYSIS AND FINDINGS

We must first address the AJ’s finding that Complainant’s waiver of his appeal rights in the LCA
included procedural rights that he had before the Commission. The exact wording of the waiver
was set for the in the LCA as follows:

By this agreement, I * * * voluntarily waive any and all procedural rights that I may
have, if any, concerning preexisting, current, and future claims or appeals arising
from operation of this agreement. I * * * understand that my waiver of these
procedural rights includes, but is not limited to future rights to challenge any
subsequent resignation or removal resulting from my violation of this
agreement. . . .

In some cases, the MSPB enforces settlement provisions that provide for prospective waivers of
EEO rights. However, the Commission has held that a Complainant may validly waive only those
EEO claims arising from discriminatory acts or practices which antedate the execution of the
release. Williamson v. Dep’t of Def., EEOC Petition No. 03970004 (Jan. 6, 1997). The
Commission's position is that the provision of an agreement that waives prospective EEO rights is
invalid as a violation of public policy. Id. citing Porter v. Dept. of the Navy, EEOC Request No.
05930767 (Aug. 4, 1994). In this case, the LCA was executed by the parties on May 7, 2013. The
inclusion of future rights to challenge subsequent actions in the waiver language clearly places the
waiver in this LCA within that prohibited category. We therefore find that the waiver set forth in
the LCA invalid insofar as it bars Complainant from challenging the removal action now before
the Commission and other prospective actions.

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We now turn to the merits of Complainant’s claim.2 The Commission’s regulations allow an AJ
to issue a decision without a hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the
summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s
favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the
potential to affect the outcome of the case.

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, 802 (1973). This analysis applies to disparate treatment claims brought under the
Rehabilitation Act. Prewitt v. U.S. Postal Serv., 662 F. 2d 292, 310 (5th Cir. 1981). As a first step,
Complainant would normally establish a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed in this case, however, since the DPM articulated a legitimate and
nondiscriminatory reason for terminating Complainant’s employment, namely that he had violated
the LCA that he and the Agency had entered into in May 2013. See U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983).

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

2 The Commission notes that the AJ indicated in her March 27, 2017 notice that the complaint
could be dismissed under 29 C.F.R. § 1614.107(a)(4) or 29 C.F.R. § 1614.302(b) or subject to
summary judgment under 29 C.F.R. § 1614.109(g). As a basis for dismissal, the AJ mentioned
that the MSPB’s conclusion that Complainant breached the LCA had a collateral estoppel effect.
Nonetheless, the AJ determined that the Agency had articulated a legitimate, nondiscriminatory
reason for Complainant’s termination. The Commission will bypass the alternative bases for
dismissal and instead address the AJ’s summary judgment decision on the merits of Complainant’s
termination claim. In so doing, the Commission notes that Complainant was on notice that the AJ
was considering issuing a summary judgment decision, had the opportunity to respond, and failed
to submit a response.

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Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802
(Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo that
he established a prima facie case of discrimination and reprisal, Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons its actions.3 Specifically, the
DPM determined that Complainant violated the LCA based on nine instances of Complainant
failing to follow supervisory instructions. ROI, at 76-81. In particular, the DPM cited multiple
occasions where Complainant failed to adhere to the Agency’s leave policies. Id. The DPM
provided Complainant the opportunity to submit his voluntary resignation, but Complainant failed
to do so and was terminated effective September 19, 2013. Id. at 89-90.

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. 248, 256 (1981).

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency’s actions.
Complainant's subjective belief that the management actions at issue were the result of
discrimination or reprisal is insufficient to prove pretext. 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 or retaliatory
animus. Complainant failed to carry this burden. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order.

3 The DPM and other management officials have since retired from the Agency and did not
participate in the investigation of this complaint.
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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 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.
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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 6, 2019
Date