Lupe M.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

2019001525 (E.E.O.C. Apr. 26, 2019)

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

Lupe M.,1
Complainant,

v.

David Bernhardt,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 2019001525

Agency No. BLM-17-0501

DECISION

On September 19, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 13, 2018 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., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

On November 18, 2017, Complainant, a former Firefighter with the Eastern Nevada Agency
(ENA), was an applicant for the position Engine Crew Member, GS-04, at the Agency’s Elko,
Nevada facility, Bureau of Land Management (BLM), filed the instant formal complaint.

Complainant claimed that the Agency discriminated against him on the bases of race (Native
American), national origin (Western Shoshone), and disability2 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.

2 Complainant identified his disability as partial hearing loss. For purposes of this analysis, we
assume, without so finding, that Complainant was a qualified individual with a disability.

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1. on July 22, 2017, the Assistant Fire Management Officer did not allow him to work as
a GS-04 engine crewmember and stated, “Aren’t you Indian? Go and work for
Owyhee;” and

2. on July 22, 2017, the Assistant Fire Management Officer did not allow him to work in
an Administratively Determined (AD) position for the Eastern Nevada Agency (ENA).

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision on August 13, 2018,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

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, she
must first establish a prima facie case of discrimination by presenting facts which, 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). 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 based on 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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

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Complainant claimed that during the week of July 22, 2017, he was waiting for his background
check to clear when a Human Resources (HR) Representative informed him she did not know the
reason for the delay, but she would get back to him. Complainant stated that he contacted his
former supervisor, the ENA Fire Crew Boss, who told him that management would love to have
him back and that he needed to take refresher training. Complainant stated that he later contacted
the former supervisor again to find out his training dates, the former supervisor informed him that
he was in the hospital, and that he should contact the Assistant Fire Management Officer. The
record reflects that the Assistant Fire Management Officer told Complainant to report to the facility
on July 22, 2017 for his refresher training.

Complainant stated, however, when he reported to the facility on July 22, 2017, the Assistant Fire
Management Officer informed him that he could no longer work for the Agency because
Complainant did not pass his background check. Complainant asserted that when he asked the
Officer if there was any way he could work for the Agency, the Officer replied “Aren’t you Indian?
Go work for Owyhee.” 3

The Assistant Fire Management Officer (Caucasian, American), Eastern Nevada Agency (ENA),
stated that during the relevant period, Complainant did not work for him. The Assistant Fire
Management Officer stated that Complainant’s former supervisor asked him if he could pick
Complainant up as an emergency firefighter, which he agreed to. He said that Complainant was
in the process of getting his medical clearance,4 when it was stopped because he did not pass his
background check apparently due to a criminal conviction that he did not reveal. The Assistant
Fire Management Officer explained that BLM at the state level conducted the background check
and indicated Complainant was not eligible for hire, not him.

The Assistant Fire Management Officer stated that when he had to tell Complainant that he could
not hire him, he did suggest to Complainant that he contact a named Agency employee who runs
a tribal program to see if perhaps he could hire Complainant because the tribal program did not
have the same requirements in their hiring process. The Assistant Fire Management Officer stated
that his primary goal “is to try to hire Native Americans into my program. It was BLM’s decision
not to hire the Complainant and if he can’t be hired by BLM, he can’t work for [me] for the same
reasons.”

The ENA Fire Crew Boss (Caucasian, American), also Complainant’s former supervisor, stated
he learned that Complainant was not hired because he did not pass the background check.

3 The record reflects that “Shoshone-Paiute Tribes” is a tribal administration located near Owyhee,
Idaho, which is a different entity from the Agency.

4 Complainant did concede during the investigation that he did not believe that his hearing
impairment resulted in the decision not to hire him, noting that he received a medical waiver for
it.
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He stated, “since this is a condition of hire and not something [Assistant Fire Management Officer]
and I have control over we could not hire him. . . [Assistant Fire Management Officer] and I had
no choice but to not pursue it further.” The ENA Fire Crew Boss also said that he and the Assistant
Fire Management Officer would often coach individuals even when they were not able to hire
them as employees. He said that he and the Assistant Fire Management Officer “try to inform
them of what alternatives might be available to them to pursue work. Another crew in the area is
the native tribal crew Sho Pai, near Owyhee, ID…this would have been a good opportunity for the
Complainant. We often refer people to them and they also refer people to us.”

The Management and Program Analyst (Caucasian, American) explained that employees need to
meet certain criteria before they can be hired, including passing a drug test, medical screening and
background investigation. She stated that if a prospective employee “does not meet one of these,
they are not eligible for employment.” The Analyst stated that because Complainant did not meet
the requirements of the background check, he could not be hired.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Harassment

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 his protected basis – in this case, his race, national origin, and disability.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, Complainant simply has provided no evidence to support his
claim that his treatment was the result of his race, national origin, and disability. Even if the
Assistant Fire Management Officer referred to Complainant as an “Indian” and advised him to
apply for a tribal firefighting position, in the context the statement was made, we find it did not
violate Title VII.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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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’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.

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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

April 26, 2019
Date