[Redacted], Chet L., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Jan 10, 2022

Appeal No. 2021001758 (E.E.O.C. Jan. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chet L.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 2021001758 Agency No. DOI-BLM-20-0047 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 December 22, 2020, 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 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronics Technician, GS-0856-12, at the Agency’s Remote Sensing/Fire Weather Support Unit (RSFWSU) Depot in Boise, Idaho. Person A began working as the RSFWS Depot Supervisor on October 27, 2019, at which time he became Complainant’s first level supervisor. Person B was the RSFSWU Program Manager2 and Complainant’s second level supervisor. 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 The RSFSWU Program Manager position is also referred to in the record as a Supervisory Electronics Technician. 2021001758 2 Complainant initiated contact with an EEO Counselor on October 15, 2019. Informal efforts to resolve his concerns were unsuccessful. On December 22, 2019, Complainant filed a formal complaint. Complainant alleged the following: 1. Complainant was subjected to disparate treatment based on race (Pacific Islander) and age (58) by the RSFWSU Program when, October 4, 2019, Complainant was not selected for the position of Supervisory Electronics Technician, GS-0856-12, under Vacancy Announcement FA-Merit-2019-0060. 2. Complainant was subjected to harassment and disparate treatment based on race (Pacific Islander), age (58), and in reprisal for prior EEO activity, from October 31, 2019, to present, by his supervisors, the RSFWSU Program Manager and the RSFWSU Depot Supervisor, when: a. They subjected Complainant to unwanted comments and unprofessional communications; b. They negatively impacted Complainant’s duties/assignments and modified his Employee Performance Appraisal Plan (EPAP); c. They negatively affected Complainant’s equipment and workspace; d. They negatively affected Complainant’s travel requirements for training and detail assignments; e. They negatively impacted Complainant’s time/attendance/schedule; and f. They issued Complainant a Letter of Counseling.3 The Agency accepted claims 1 and 2 for further processing. The Agency noted that Complainant alleged incidents that appeared to involve whistleblowing activity. Specifically, Complainant alleged whistleblower activities regarding “ethics concerns,” a “possible abuse of position” and “conflict of interest” regarding contracts in Hawaii, which the Agency noted were outside the purview of the EEO process. Thus, the Agency dismissed the allegations of whistleblowing. 3 The Agency noted issue 2(f) included a timely-raised discrete act and, therefore, analyzed it as an independently actionable claim as well as an incident related to Complainant’s overall harassment claim. 2021001758 3 At the conclusion of the investigation on the accepted claims, 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 concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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, 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”). At the outset, we find the record in the present case was fully developed. Additionally, we note that on appeal, Complainant discussed additional allegations occurring after the incidents alleged in the instant complaint. We decline to address the additional allegations in this decision which we note were not part of the accepted complaint. Upon review, we find the Agency presented legitimate, nondiscriminatory reasons for the two discrete incidents which Complainant failed to show were a pretext for discrimination. Regarding the nonselection, the record revealed Person B supervised both Person A and Complainant for 11 years and explained that they had similar qualifications and experience. However, Person B stated that he selected Person A for the Supervisory Technician since Person A was self-motivated, accountable, and a good leader. Person B stated he did not believe Complainant was self-motivated and that he had to push Complainant in order to get projects completed. Complainant failed to present evidence to establish he was a superior applicant to Person A or to otherwise show that he was discriminated against during the selection process. Regarding the Letter of Counseling, Person A issued the letter for insubordination when Person A asked Complainant twice whether he had completed an evaluation report and Complainant told him to check his email rather than answer the question asked. Complainant presented only his subjective testimony as evidence of Person A’s alleged discriminatory and retaliatory motives. Regarding his harassment claim, the Agency found Complainant failed to establish a link between the incidents raised in his harassment claim and his race, age, or prior EEO activity. 2021001758 4 Complainant claimed Person A treated him with disrespect when on November 19, 2019, Person A asked him in an angry tone of voice whether Complainant had completed the camera evaluation report as instructed.4 Person A stated at no time was he disrespectful or unprofessional towards Complainant. Complainant presented no evidence to refute Person A’s assertion. Moreover, as noted above, Person A perceived Complainant as the one showing disrespect and as a result issued the Letter of Counseling. Complainant has not shown that Person A’s actions surrounding the incident were based on discriminatory animus. Complainant claimed that Person A reassigned him training duties and changed his EPAP to include training duties. Person A explained that he had been lead instructor for classes prior to his selection as Supervisory Electronics Technician. He stated after he became Complainant’s supervisor, he learned that training was included in Complainant’s position description. Person A noted Complainant was a GS-12 and all the other full-time technicians were GS-11s and providing training was not on their position descriptions. A copy of Complainant’s position description showed that Complainant was responsible for training. Person A explained that he changed Complainant’s EPAP along with everyone else’s because the prior critical elements were not realistic or measurable. Person A stated he included training instruction on Complainant’s EPAP because it was in Complainant’s position description. While Complainant claimed that training required him to travel and Person A knew he preferred not to travel, we find Complainant’s contention to be speculative and insufficient to show pretext. Complainant also claimed the Agency negatively affected his equipment and workspace when he was required to give up one of the two workbenches in his work area. Both Person A and Person B noted that employees are only assigned one workbench. Person A and Person B also stated that Complainant was reassigned to a new workspace when Person A became his supervisor as a matter of convenience for the service. Person A noted that he asked Complainant to move his workspace from upstairs to downstairs with the rest of the employees so he would be more accessible for questions and not so isolated. Complainant claimed the Agency negatively affected his travel requirements for training and detail assignments. Specifically, Complainant stated that he was told by Person B that he would not be allowed to perform a 60-day detail required by the Agency’s Emerging Leaders Program. Complainant claimed that Person A was allowed to do so based on a personal family medical issue. Person B denied making the statement alleged. Complainant did not present evidence to refute Person A’s testimony. Person B further noted that Complainant never applied for the Emerging Leaders Program. Person B also stated that he asked Complainant to take a detail as the Depot Supervisor prior to the selection at issue in claim 1 and Complainant refused. 4 We note Complainant also identified an incident in his affidavit from October 2016, when Person A blamed him for a failure with the database and stated, “[Complainant’s first name] needs to get his sh## (vulgar language) together.” We note the date identified is beyond the scope of the accepted claims. However, even if that additional incident was considered, it would not alter the outcome of this decision. 2021001758 5 Person B stated he asked Complainant to reconsider and Complainant stated he would accept and was detailed into the position. Person B noted that both Complainant and Person A detailed into the same position for 55 days. Complainant claimed that the Agency negatively impacted his time/attendance and schedule. Specifically, Complainant stated that Person A informed him on October 31, 2019, that he would no longer be able to trade hours at the help desk with other employees and that his help desk hours were from 8:00 a.m. through 4:30 p.m. with no exceptions. Complainant stated that Person A knew he picked up his young daughter from school every day and believed that Person A knew he would be the one most impacted by this change in policy. Person A stated that all depot technicians rotate through the help desk where they provide support Monday - Friday from 8:00 a.m. to 4:30 p.m. Person A explained that every technician falls into the rotation once every two weeks. He noted there was a calendar that shows the help desk duties three months out. Person A stated he did not adjust help desk hours for anyone. Person A stated it has always been the policy that on your assigned day, you will work the help desk from 8:00 a.m. to 4:30 p.m. If you cannot provide support for the requisite hours on your assigned day, you were allowed to trade days with another technician where you can provide support for that entire day. When he became Complainant’s supervisor, Person A noticed that on the days Complainant was assigned to the help desk, he would leave at 2:30 p.m. and request a contractor finish his remaining two hours. Person A stated Complainant did not make up the two hours and felt it was unfair for Complainant to be adding to the workload to any contractor who was taking on Complainant’s last two hours at the help desk. Person A stated he was only enforcing an existing rule that employees could not trade hours at the help desk, only full days. While Complainant claimed that Person A did not inform other technicians of the policy clarification until several weeks after he was informed, even if this was true, Complainant acknowledges the policy applied equally to everyone. Moreover, Complainant failed to show that Person A’s motivation for the clarification was based on discriminatory animus. Based on the foregoing, we find that Complainant has failed to show that any of the Agency’s actions were motivated by discrimination or retaliation as alleged. To the extent that Complainant is challenging the dismissal of the claims of whistleblower violations, we find that such claims are properly dismissed for failing to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 2021001758 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021001758 7 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 January 10, 2022 Date