Merlin W.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Feb 13, 2019

0120172816 (E.E.O.C. Feb. 13, 2019)

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

Merlin W.,1
Complainant,

v.

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

Appeal No. 0120172816

Agency No. DOI-BIA-160562

DECISION

On August 18, 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
July 7, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Native American Student Information
System (“NASIS”) Specialist at the Agency’s Minneapolis Education Line Office in
Bloomington, Minnesota.

On November 2, 2016, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to a hostile work environment and discriminated against him based on
race/national origin, sex, and in reprisal for prior protected activity. His initial claims were
accepted for investigation. Subsequently, Complainant amended the formal complaint twice, first
on November 13, 2016, and then on March 10, 2017. Each amended request was accepted.
Complainant’s amended formal complaint alleged that the Agency subjected him to a hostile
work environment and discriminated against him based on race/national origin (Native-

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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American/Turtle Mountain Band of Chippewa Indians, Ojibwe-Cree Tribe), sex (male), and in
reprisal for prior protected activity when:

1. on September 1, 2016, Complainant discovered that he was not selected for the
Agency Grant Management Specialist position;

2. on August 9, 2016, Complainant was notified that the Agency Safety and
Occupational Health Specialist position had been cancelled;

3. on August 16, 2016, Complainant was required to sign a document agreeing to certain
responsibilities creating a larger workload than his position required by his remote
supervisor, the Acting Native American Student Information System Supervisor
(Prior EEO Activity, Female, Native American) (hereinafter referred to as “S1”);

4. on July 20, 2016, in a meeting with senior leadership present, S1 openly blamed
Complainant for her staff not doing their assigned work;

5. on an unspecified date in 2016, Complainant was denied access to his workplace prior
to 7:00 AM as S1 did not respond to the facility manager's request to provide a
justification for Complainant to enter the building prior to 7:00 AM;

6. beginning August 10, 2016, Complainant noticed that the Program Assistant had
stopped delivering mail to his personal bin;

7. on August 10, 2016, the Program Assistant posted a sign on her desk stating that
Complainant needed to pick up his mail;

8. in April 2015, the Program Assistant referred to Complainant as "just a Wasi'chu" (a
Lakota term meaning non-Native or white);

9. on October 17, 2016, while on travel, Complainant received an email, which included
S1, the Assistant Deputy Director, and the Education Program Administrator stating
that the Education Program Administrator was recommending Complainant's transfer
to the District of Columbia’s Office because of concerns about Complainant's
workload;

10. on October 17, 2016, while Complainant was driving to the training site, S1 called to
check on his status and, when Complainant brought up the email from the Education
Program Administrator, S1 refused to discuss the email; and,

11. on October 19, 2016, Complainant emailed the Education Program Administrator
requesting a conference call upon return from travel to clarify his concerns about his
performance element.

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The Agency conduct an investigation into the claims, which reflects the following evidence
relating to Complainant’s allegations of discrimination and unlawful retaliation.

Claims 1 and 2

Complainant testified that he applied for the Agency Grant Management Specialist, GS-1109-13,
position (claim 1) in August 2016, and for the Safety and Occupational Health Specialist, GS-
0018-11, position (claim 2) in March 2016. Complainant was scheduled for a telephone
interview for the Grant Management Specialist position on April 25, 2016, but was later
informed that the interview was cancelled. The interview was never rescheduled. Complainant
was never contacted to schedule an interview for the Occupational Health Specialist position.
Complainant subsequently received letters stating that both positions had been
cancelled/postponed. Complainant believed the interviews were cancelled and/or he was never
interviewed due to his prior EEO activity.

Complainant had dual supervision, a remote supervisor located in Washington, D. C., and a local
supervisor in Minnesota. Complainant’s remote supervisor, the Acting Native American Student
Information System Supervisor (prior EEO activity, female, Native American) (hereinafter
referred to as “S1”) stated that she was not involved in either vacancy announcement, and was
unaware of Complainant’s applications. Complainant’s local supervisor, the Education Program
Administrator (prior EEO activity, male, Native American) (hereinafter referred to as “S2”) also
testified that he was not involved, and unaware of Complainant’s applications.

Records demonstrated that both positions, along with several other vacancies, were either
expired or cancelled, and left unfilled.

Claims 3 – 5

In 2016, the Agency underwent reorganization which had an impact upon Complainant’s
position and duties. Due to reorganization, Complainant was assigned additional Formerly East
Region schools to oversee (claim 3). Complainant asserted that he went from oversight of 66
schools to 97 schools. Additionally, he was assigned to lead the Tribally Controlled Regions
Indian Student Equalization Program process, and performed additional administrative duties,
including drafting policies. Complainant initially refused the additional workload, but stated that
he eventually agreed out of fear of retaliation by S1.

S1 stated that the reorganization increased work required of everyone. S1 stated that
Complainant provided support to the East Region Tribally Controlled and Bureau Operated
schools (54 in total), and his colleague (no prior EEO activity, male, Native American)
(hereinafter referred to as “CW1”), provided support to the West Region Tribally Controlled and
Bureau Operated schools (63 in total).

On July 20, 2016, a staff meeting was held concerning Division of Performance and
Accountability. During the meeting, Complainant stated that he made general remarks about the
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negative work environment in the office. Afterwards, CW1 reiterated his sentiments, but made
specific, negative comments about S1, with S1 present. In response, S1 stated that Complainant,
and other staff members, were not completing their work (claim 4). Complainant felt that CW1’s
specific, and negative, comment caused S1 to retaliate directly at him, even though Complainant
did not make negative comments specifically about her.

S1 stated that during the Division of Performance and Accountability meeting, she noted that
Complainant had several schools pending certification, while his colleagues had already
completed their workloads. S1 stated that she was not attempting to shame or blame
Complainant, and noted that the discussion was appropriate given the topic of the meeting. She
offered to work with Complainant, and other staff, regarding any work issues. She noted that
during the meeting both Complainant, and his colleague had raised their voices about workplace
environment. She noted that a discussion was later held about whether to discipline Complainant
and CW1, but she ultimately decided that it was best not to.

Employees are only allowed access to the building between the hours of 7:00 AM to 5:00 PM. If
necessary, employees may be granted access outside of usual hours. In 2015, Complainant
requested permission from the Assistant Deputy Director (prior EEO activity, female, Native
American) access prior to 7:00 AM. Complainant was informed that S1 would need to provide
justification prior to approval. S1 did not respond to his request, and he was denied access (claim
5). Complainant stated that because of his large caseload, he felt that his request was justified.
Complainant noted that a Special Education Staff member had early access to the office.

S1 recalled Complainant requesting access to the building before 7:00 AM and on weekends, but
she did not act because she did not understand why Complainant needed access. Further, she
thought that the matter had to be resolved by the Education Line Office in Bloomington,
Minnesota, where he was physically located. S2 noted that no employees, other than the
Assistant Deputy Director, had early access. The Assistant Deputy Director stated that due to
past security and theft problems, outside access is highly restricted, and difficult to justify. She
affirmed that no one at the Bloomington office had outside access besides her.

Claims 6 – 8

In April 2015, Complainant stated that a colleague (hereinafter referred to as “CW2”) heard the
Program Support Assistant refer to Complainant as "just a Wasi'chu" (a Lakota term meaning
non-Native or white) (claim 8). During the investigation, CW2 denied overhearing this
statement. S1 and S2 were unaware of the Program Support Assistant allegedly calling
Complainant "just a Wasi'chu". The Program Assistant denied ever calling Complainant such a
term.

Complainant explained that the Bloomington office consisted primarily of female employees
from the Lakota Tribe, a few employees from the Ojibwe Tribe, and male employees often in
supervisory roles. Complainant noted that in April 2015, the Program Support Assistant (prior
EEO activity, female, Native American) stopped delivering mail to his personal bin. After
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talking with the Program Support Assistant, she resumed delivery. Around August 2016,
Complainant sent the Program Support Assistant an email, copying various managers such as S1,
asking that his mail not be opened due to sensitive information. After this, he asserts that the
Program Support Assistant stopped delivering his mail, and posted a sign on her desk stating that
Complainant needed to get his own mail (claims 6 and 7). Complainant believes the incident was
meant to harass and embarrass him because he was one of the few male Ojibwe Tribe
employees, and was also in retaliation for his EEO activity.

The Program Support Assistant stated that since her arrival in 2012, the mail process was always
to open each letter, stamp, log, and then deliver the letter. Complainant was the first person to
complain of this process in October 2015, so she stopped delivering his mail so that he could
open it himself. When Complainant asked that she continue mail delivery, she did, until
Complainant had issues again concerning the opened mail. The Program Support Assistant stated
because the mail was not personal, she saw no issue with the way that it was processed.
However, due to Complainant’s concerns, she informed Complainant that she would no longer
open or deliver his mail, that it would have to be picked up from the front desk. Subsequently,
she placed his mail on the front desk where he would see it when entering the office. She
affirmed that after several days of Complainant not retrieving his mail, she placed a Post-It note
with his name on it to draw his attention to the mail. When Complainant failed to pick up his
mail, she sent an email reminding Complainant to pick up his mail, and that she would not be
held responsible for delayed communication due to his failure to collect his mail.

S1 affirmed the Program Support Assistant’s statements. S1 stated that any delay in the mail was
due to a disagreement on how the mail should be delivered. Eventually, the Program Support
Assistant and she resolved that mail would be received, stamped, and delivered unopened to all
employees.

Claims 9 - 11

On October 17, 2016, while on travel, Complainant received an email, which included S1, the
Assistant Deputy Director, and the Education Program Administrator stating that the Education
Program Administrator was recommending Complainant's transfer to the Washington, D.C.
office as a result of concerns about Complainant's workload (claim 9). When he brought up this
email to S1, she allegedly refused to discuss it (claim 10), and it was only after he requested a
conference call (claim 11) was the matter discussed. After several discussions, the Education
Program Administrator ultimately decided it was best for Complainant to stay in Bloomington,
Minnesota, and he was not transferred.

S1 stated that Complainant did not like having a local and a remote supervisor, so S2 proposed
Complainant transfer to Washington, D.C. to be solely under S1’s supervision. S1 stated that the
proposal was not meant to harass or retaliate against Complainant. She noted that despite her
efforts to keep a positive work relationship with Complainant, she felt interactions with him were
hostile and she felt harassed by Complainant. S2 stated that under his dual supervision, he had no
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involvement in completing Complainant’s performance elements, and thought Complainant
might be better under the direct supervision of S1.

After the investigation was completed, 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 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 noted that claims 4, 5, 8 were untimely raised with an EEO
Counselor, but indicated they would be analyzed under a hostile work environment theory. The
Agency found no discrimination.

The instant appeal followed. On appeal, in a detailed appellate statement, Complainant refers to
the record and listed several documents which he asserts establishes discriminatory and
retaliatory conduct by Agency officials. Complainant also explains that he disputes several
managerial statements made during the investigation.

ANALYSIS AND FINDINGS

As a preliminary matter, we note that the Agency only analyzed claims 4, 5, 8, under a hostile
work environment theory because it determined that those three claims were untimely raised
with an EEO counselor. However, all claims were fully investigated. Based on the record, we
move forward with a merits-based analysis on all claims.

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”).

Disparate Treatment – Claims 1 - 3

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, 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. 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,
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the 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. 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).

Even if Complainant established a prima facie case, the Agency has articulated legitimate, non-
discriminatory reasons for its action. Specifically, regarding claims 1 and 2, the record
demonstrated that the listings were cancelled, and no one filled either position. Moreover,
records demonstrated that a variety of listings were cancelled or left to expire at the same time as
the vacancies listed in claims 1 and 2. There is no evidence to demonstrate that the Agency
intentionally cancelled the listings to avoid placing Complainant in either position. The
Commission cannot second-guess an Agency's personnel decisions unless there is evidence of a
discriminatory motivation on the part of the officials responsible for making those decisions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in
order to prevail on his disparate treatment claim, Complainant would have to prove, by a
preponderance of the evidence, that the Agency was motivated by unlawful considerations of his
race/national origin, sex or in reprisal when his interview was cancelled, and when the listings
were cancelled. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In this
matter, Complainant has not done so.

Regarding claim 3, the record demonstrates that the Agency’s reorganization changed every
employee’s workload. Complainant asserted his school coverage went from 66 to 97 schools.
However, the record contains a signed note dated, August 16, 2016, stating that Complainant
would be assigned just 54 schools, while his colleague, CW1, would be assigned 63 schools.
Even if the workload increased due to what was necessary to cover those 54 schools, the record
demonstrated that a similarly situated colleague was assigned more schools to cover. There is no
indication that Agency officials threatened or coerced Complainant into a higher than normal
workload.

Hostile Work Environment – Claims 1 - 11

With regard to Complainant’s hostile work environment claim, 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
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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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 bases – in this case, his race/national origin,
sex, or prior EEO activity. 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, sex, or prior EEO activity.

As discussed above, we have already concluded that Complainant failed to prove that the
legitimate, non-discriminatory reasons provided by management for claims 1-3 were a pretext
for discrimination or unlawful retaliation.

Regarding claim 4, the record demonstrated that the staff meeting was held specifically to
discuss performance issues. Therefore, a discussion by Complainant’s supervisor regarding the
status of everyone’s school certification status progress was not improper. Particularly, as the
meeting was held to discuss the Division of Performance and Accountability.

Regarding the early access matter identified in claim 5, S1 noted that she was remote, and felt it
was improper for her to make such a decision, and believed the local office and/or the local
supervisor would handle the matter.

Complainant also asserted that he was harassed in the workplace, and that S1 and S2 did nothing
to stop the behavior. For example, Complainant asserted that the Program Support Assistant
stopped delivering his mail (claim 6), and posted a public sign for him to retrieve his own mail
(claim 7). The record clearly demonstrated that there was a disagreement as to how time
sensitive mail should be handled. Based on the record, there is no indication that the Program
Support Assistant actions were done so with malicious intent. After both parties discussed the
situation, an amicable compromise was reached. There is no indication that the Program Support
Assistant’s actions were meant to be harassing. Similarly, there is no indication that S1 and S2
intentionally allowed others to harass Complainant in the workplace.

Additionally, Complainant asserted that the Program Support Assistant referred to Complainant
as "just a Wasi'chu" (a Lakota term meaning non-Native or white) (claim 8). Regarding being
referred to as "just a Wasi'chu," the Program Support Assistant denied stating it, and the
individual that allegedly informed Complainant of this comment denied hearing or reporting it
during the investigation. Here, Complainant decided not to request a hearing before an EEOC
AJ, and as a result we do not have the benefit of an AJ's credibility determinations of these
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conflicting witnesses. Complainant had to prove, by a preponderance of the evidence, that the
alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly,
Complainant has failed to meet his burden of persuasion. Complainant v. Dep't of Health and
Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland
Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of
Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012).

Finally, claims 9 – 11, Complainant had dual supervision with a local and a remote supervisor,
and based on his workload and split supervision, S2 proposed that Complainant transfer to the
Washington, D.C. office. S2 proposed the transfer because while Complainant was under dual
supervision by S1 and S2, there were several aspects of his performance that was primarily under
S1’s supervision. S2 believed that Complainant might be better suited in Washington, D.C.,
office, and hence his proposal. After several discussions, Complainant was ultimately not
transferred, and nothing was changed to his schedule or workplace location.

In sum, there is no evidence which suggests that the Agency’s actions were based on
discriminatory animus. Complainant has not provided any evidence that suggests that the
Agency's reasons were pretext for discrimination or that discriminatory or retaliatory animus was
involved.

The Agency's final order finding no discrimination 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 M Street, NE, Washington, DC 20507. In the absence of a
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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, Director
Office of Federal Operations

February 13, 2019
Date