[Redacted], Cyrus A., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Jul 26, 2022

Appeal No. 2021002637 (E.E.O.C. Jul. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cyrus A.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 2021002637 Agency No. DOI-BOR-20-0437 DECISION On April 1, 2021, 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 7, 2021, 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. 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 a Plant Mechanic, BB- 5352-00 at the Agency’s Guernsey/Glendo Powerplant in Guernsey, Wyoming. Complainant stated that he engaged in prior protected EEO activity when another employee filed a harassment complaint against him in 2019, and he was subjected to an investigation. According to Complainant, during that investigation, some negative information was revealed about his first- line and second-line Supervisors, the Supervisory General Engineer and Supervisory Project Engineer (Supervisor 1 and Supervisor 2). Report of Investigation (ROI) at 87-90. 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 2021002637 On November 1, 2019, the Agency posted a vacancy announcement for the Powerplant Supervisor II (PSII) position, XE-00, under Announcement Number BR-GP-WY-20-12. ROI at 319-25. There were two vacancies: one for the Alcova-Freemont vacant PSII position and one for the Glendo/Guernsey vacant PSII position. Complainant applied for the Glendo/Guernsey vacant PSII position but he was not interviewed and he was not selected. ROI at 99. A selection panel consisting of three panelists reviewed the applications for the vacancy announcement and forwarded the names of four top applicants for interviews. Complainant was not one of the top applicants, and his name was not forwarded for an interview. All three interview panelists determined that the Selectee ranked higher and had superior qualifications than Complainant in areas including supervisory experience and teambuilding skills. ROI at 171, 174, 221-22, 329-30, 333, and 335-36. Supervisor 2 was the Selecting Official for the position. Supervisor 2 interviewed all four top applicants and selected two applicants to fill two vacant positions: one for the Alcova-Freemont vacant PSII position and one for the Glendo/Guernsey vacant PSII position. Complainant believed that Supervisor 2, who was named during the investigation into the 2019 EEO complaint against Complainant, and who was aware of that complaint, prevented him from being selected for the position. Complainant acknowledged that he did not know what the Selectee’s background was for comparison. ROI at 99-101 and 186-91. Supervisor 2 disallowed the prior Acting Powerplant Supervisor II (PSII), including Complainant, from continuing to act in that role beginning September 2019, through June 2020. ROI at 210-11. Complainant believed that he was prevented from serving as Acting Plant Supervisor due to Supervisor 2’s retaliatory motives against him based on his prior EEO activity. ROI at 102-06. On August 5, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. At the end of May 2020, Complainant learned that he was not selected for the Powerplant Supervisor II position, XE-00, Announcement Number: BR-GP-WY-20- 12; and 2. From September 30, 2019, through June 7, 2020, Supervisor 1 and Supervisor 2 did not give Complainant the opportunity to act as the Powerplant Supervisor II. 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 Administrative Judge (AJ). In accordance with Complainant’s request, on March 7, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 3 2021002637 In the FAD, the Agency addressed Complainant’s allegations as disparate treatment claims under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 The Agency subsequently determined that management had provided legitimate nondiscriminatory reasons for the alleged actions. Regarding claim 1 and Complainant’s non-selection, Supervisor 2 explained that he sought a candidate with, among other qualities, exceptional supervisory references and was able to effectively handle conflict, conduct issues, and performance issues. ROI at 191-93. He asserted that he selected the best qualified candidate for the position. ROI at 191-98. Included in the record are copies of Complainant’s resume and the Selectee’s resume that support Supervisor 2’s statements. ROI at 337-41 and 343- 51. Also included in the record is a copy of the scoring matrix compiled by the selection panel which supports the statements and explanations upon which the three panelists based their recommendations. ROI at 327-33. Complainant himself stated that he realized there could have been better applicants on the list for the PSII job. ROI at 99. Based on the record, the Agency concluded that the preponderance of the evidence fails to persuasively show that Complainant was plainly superior to the selectee. Regarding claim 2, Supervisor 2 stated that he prevented prior acting supervisors from continuing in that role because the Powerplant was experiencing extensive personnel issues that needed to be handled by an experienced supervisor. Supervisor 2 also explained that Complainant had made management aware that he intended to apply for the vacant PSII position, and management had determined that no individual who would be applying for the position should be able to serve as Acting PSII to avoid the perception of favoritism or a tainted selection process. ROI at 197-201 and 210-11. The record includes copies of emails from Supervisor 2 informing employees that individuals interested in applying for the PSII vacancy could not serve as Acting PSII. ROI at 354-56. Complainant also acknowledged that as soon as the new Supervisor began his job, Complainant’s acting responsibilities were restored. ROI at 106. Finally, the Agency addressed Complainant’s claims, including Complainant’s non-selection claim, under the legal standard for harassment. The Agency ultimately determined that Complainant could not prevail on his claims because Complainant failed to establish that he engaged in prior protected EEO activity since being investigated for allegedly harassing another employee under applicable Agency policy does not constitute protected EEO activity. 2 The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found, for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 4 2021002637 Based on that finding, the Agency determined that there was no link between the alleged management actions and Complainant’s membership in a protected class to sustain a harassment claim.3 The Agency also found that Complainant’s subjective testimony regarding a belief that the management actions at issue were the result of discrimination or reprisal was insufficient to prove that management officials acted on discriminatory or retaliatory motives.4 This appeal followed. On appeal, Complainant generally reiterates his allegations. He argues without supporting evidence that the alleged management actions were motivated by retaliatory animus based on his dismissed EEO complaint against two management officials neither of whom was involved in Complainant’s non-selection. On appeal, the Agency opposes Complainant’s appeal, asserting that Complainant provides no factual or legal basis for disturbing FAD. Upon careful review of the Agency’s final decision and the evidence of record, we find that the Agency correctly determined that Complainant failed to establish that the Agency subjected him to discrimination as alleged. In making this finding, we note that Complainant has not presented any arguments on appeal that would contradict the Agency’s finding of no discrimination. 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 3 It is settled law that even proven hostile behavior cannot support a claim of hostile work environment harassment unless there exists some link between the hostile behavior and the complainant’s membership in at least one of the identified protected classes. Brookey v. Dep’t of Agric., EEOC Request No. 01986339 (2001). 4 A complainant cannot prevail on a claim of reprisal when the complainant fails to present evidence to establish that management acted on a retaliatory motive based on the complainant’s prior EEO activity. Nadene M. v. United States Postal Service, EEOC Appeal No. 2019003038 (Mar. 6, 2020). A finding of a retaliatory hostile work environment is precluded by a determination that the complainant has not established that the actions taken by the Agency were motivated by a retaliatory animus. See Aron J. v. Dep’t of the Army, EEOC Appeal No. 0120182395 (Sept. 20, 2019), citing Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). 5 2021002637 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). 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. 6 2021002637 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 July 26, 2022 Date