[Redacted], Margorie L., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.Download PDFEqual Employment Opportunity CommissionFeb 14, 2022Appeal No. 2021001234 (E.E.O.C. Feb. 14, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margorie L.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2021001234 Hearing No. 550-2017-00320X Agency No. DOI-BIA-16-0541 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 21, 2020, final order concerning her 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Worker/Meth Program Coordinator, GS-0185-9 at the Agency’s facility in Crow Agency, Montana. On October 5, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of parental status, race (Caucasian), sex (female), color (White), and in retaliation under Title VII of the Civil Rights Act of 1964 when: 1. On unspecified dates Complainant was denied about 80 hours of overtime; 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. 2021001234 2 2. Complainant was marked absent without leave (AWOL) for 54 hours on various dates, including, but not limited to June 7, 9, and 10; July 1, 19, and 29; August 23, 26, and 31, and September 1, 2016; 3. On August 17, 2016, Responsible Management Official 1 (RMO1) threatened that if Complainant did not turn in her government property (keys and cell phone), Complainant would be arrested and her daughter would be placed in foster care; 4. On August 18, 2016, RMO1 sent a sheriff to Complainant’s residence and the sheriff told Complainant he was there to retrieve government property of a “former employee”; 5. On August 22, 2016, Complainant was told she was not allowed to call her clients or colleagues, she was told not to attend meetings, and she was placed on desk duty, which affected her ability to perform her duties; 6. On August 22, 2016, RMO1 denied Complainant the use of a government vehicle to attend new employee orientation in Billings, Montana; 7. On August 23, 2016, Complainant had to ride with a colleague that had previously harassed her and then verbally harassed her during the trip; 8. On August 30, 2016, RMO2 sent an email to all employees, including Complainant, stating that all employees were to inform her when they took breaks and when they returned; 9. On June 16, 2016, Complainant’s driving privileges were revoked which affected her ability to perform her duties; 10. On June 28, 2016, RMO1 sought to hold Complainant accountable on her EPAP for inputting data into FASS, but FASS was not put on her computer until June 24, 2016; 11. On June 28 or 29, 2016, Complainant did not go to training in Billings AOTR because RMO1 revoked approval for Complainant to drive her own vehicle at the last minute and Complainant had no way of reaching colleagues with whom she was supposed to ride; and 12. On July 28, 2016, RMO1 called an ambulance over Complainant’s objection.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On November 27, 2017, the Agency filed a motion for a decision without a hearing; Complainant did not respond. The AJ granted the motion and issued a decision without a hearing on August 24, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. 2 The Agency dismissed claims 9-12 because they were not brought to the EEO counselor’s attention during the initial counseling pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant has not disputed the dismissal. Thus, claims 9-12 will not be discussed further herein. 2021001234 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. We find that Complainant has failed to establish by a preponderance of the evidence that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were pretextual. As an initial matter, parental status is not among the protected bases covered by Federal EEO laws and therefore it is not within our purview. 29 C.F.R. § 1614.101(a). Accordingly, discrimination based on parental status is dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Regarding claim 1, the Agency asserted Complainant was denied overtime because she failed to follow protocol, which required all overtime requests to be placed in advance unless there was an emergency. Even in case of an emergency, employees were required to text RMO1 for overtime to be approved. The evidence does not show that Complainant submitted any requests for overtime. Regarding claim 2, the Agency asserted Complainant was charged with AWOL on occasions where she was not at work during business hours and did not request leave approval. Regarding claims 3 and 4, the Agency explained that on the relevant dates, Complainant was on Workers’ Compensation leave but was still communicating with clients. This caused confusion among the clients and the employees that were handling her cases while she was off duty. 2021001234 4 RMO1 requested that Complainant hand in her phone, but Complainant would not allow RMO1 to pick the phone up from Complainant’s home. As result, RMO1 called the sheriff’s office and asked law enforcement to retrieve the government property. Regarding claim 5, the Agency denies telling Complainant she was not to attend meetings or speak with clients or colleagues and asserts that Complainant was told to focus on her work and caseload. The Agency asserts that this directive was necessary because Complainant often spent time conversing with coworkers when she could have been working on her cases. Regarding claims 6 and 7, the evidence shows that Complainant requested use of a government vehicle to attend training and her request was denied because all other employees attending the meeting were carpooling, and she was expected to do the same. Although the evidence shows she and the colleague she carpooled with had previously had a verbal altercation, the evidence suggests that the confrontation had been resolved prior to the training. Furthermore, Complainant did not allege that the person she was carpooling with was discriminatorily harassing her. Regarding claim 8, the Agency explained that given the dangerous nature of the job, the request that employees disclose their whereabouts at all times was in the interest of employee safety. Complainant asserts that the Agency’s asserted reasons for its actions were pretext for retaliation and discrimination based on her race and color because she was the only non-Native American working for the Agency. She further asserts that she was discriminated against based on sex because RMO1 hates women and sees them as weak for prioritizing family over work. Complainant has not presented any evidence other than her opinion to show that the Agency’s actions were motivated by discrimination. Furthermore, Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated more favorably under similar circumstances. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Lastly, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing the AJ’s decision finding no discrimination. 2021001234 5 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). 2021001234 6 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 February 14, 2022 Date Copy with citationCopy as parenthetical citation