Bell S.,1 Complainant,v.David L. Bernhardt, Acting Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Apr 19, 2019

0120170782 (E.E.O.C. Apr. 19, 2019)

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

Bell S.,1
Complainant,

v.

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

Appeal No. 0120170782

Agency No. BLM-13-0078

DECISION

On December 14, 2016, 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
May 2, 2017, final decision 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 For the following reasons, the
Commission AFFIRMS the Agency’s final decision (FAD).

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 On September 2, 2016, while this case was pending before an EEOC Administrative Judge (AJ),
Complainant issued a letter to the AJ requesting to withdraw her hearing request. On September
13, 2016, the AJ erroneously issued an Order of Dismissal dismissing the complaint “in response
to Complainant’s Withdrawal.” On September 22, 2016, the Agency requested a FAD from its
Office of Civil Rights. On December 14, 2016, Complainant filed an appeal with the Commission,
and subsequently submitted a brief contesting the decision of the AJ to dismiss her complaint after
she withdrew her hearing request. We find that the AJ erred by dismissing Complainant’s
complaint; however, because the Agency subsequently issued a FAD, the AJ’s error was harmless.
Furthermore, although Complainant filed an appeal with the Commission prior to the Agency’s
FAD being issued, we find that the matter is now ripe for adjudication.
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ISSUE PRESENTED

Whether Complainant has established that the Agency’s final decision was incorrect and should
not be affirmed.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician
(Senior Fire Dispatcher), GS-0462-07 at the Agency’s Alaska Fire Service, Galena Fire
Management Zone facility in Fort Wainwright, Alaska. On January 9, 2013, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian),
national origin (Vietnam), sex (female), color (Brown), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:

1. On November 5, 2012, she was denied a reasonable accommodation
(reassignment to GS/5 Vehicle Dispatch position), denied interactive process, and
the Agency failed to respond in writing to her reasonable accommodation request
within the time allowed [under the Agency’s] reasonable accommodation policy;
and

2. Complainant discovered that she was discriminated against based on reprisal
(prior EEO activity) when the Agency intentionally uploaded or failed to take
proper precautions to prevent her unofficial 2011 Employee Performance Appraisal
Plan (EPAP) from being uploaded to her Electronic Official Personnel Folder
(eOPF) file during 2013 (but not discovered until on or January 30, 2014).

The Agency dismissed Claim 1 on the grounds that it states the same claim that was pending before
or had been decided by the agency or EEOC, pursuant to EEOC Regulation 29 C.F.R.
§ 1614.107(a)(1). The record indicated that Claim 1 was added to EEOC Hearing No. 551-2012-
00125X, BLM-11-0549, which was subsequently decided by the Commission in Bell S. v. Dep’t
of the Interior, EEOC Appeal No. 0120151968 (Nov. 8, 2017).3

With respect to Claim 2, Complainant stated that she believed that she was treated differently
because unofficial EPAP forms are not typically sent to Human Resources (HR). Complainant
sated that the same incident happened in 2013. Complainant sated that she believes the incident
was in reprisal because A1, the HR supervisor, and her immediate supervisor, S1, wanted to harm
her because of her prior EEO activity. Complainant stated that she was harmed because this
unofficial rating was the lowest rating she had ever received, and the thought of it aggravated her
medical condition by increasing her anxiety and depression. Complainant did not think the
uploading of her EPAP was an oversight because it was obvious that some signature blocks were

3 At the time of the Agency’s FAD, our decision in EEOC Appeal No. 0120151968 had not yet
been issued.
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unsigned and therefore this was an invalid EPAP. Complainant stated that she was unaware of
anyone else having an unofficial rating sent to HR for filing. Complainant stated that she believes
this incident was intentional because the same unofficial EPAP had been uploaded before.

A1 testified that she did not recall when she became aware of Complainant’s prior EEO activity.
A1 stated that the HR Office provides services to Complainant’s work area. A1 indicated that she
received approximately 1500 EPAP rating forms during a three-month period and had two or three
employees who reviewed those forms for accuracy, scanned them, and filed them in the respective
employee’s eOPF. A1 stated that it is possible that someone overlooked the block which read
unofficial and interim. A1 “categorically” denied the allegation of intentionally uploading or
failing to take proper precautions to prevent the “unofficial” 2011 EPAP from being uploaded
again based on reprisal.

S1 explained that Complainant’s EPAP was unofficial because she was not at work very much
during the 2014/2015 rating period; that she worked under his supervision for less than 90 days
because she was out on sick leave or detailed to another office under a temporary supervisor for
much of the time. S1 stated that he gave the EPAP to HR and was told that it was not official; and
that he did not discriminate against Complainant as alleged.

The HR specialist who uploaded the EPAP explained that there were a large number of EPAPs
that needed to be scanned and filed in employees' records; that when he got to Complainant’s file,
he noticed that it was missing a 2011 EPAP, so he scanned the EPAP and put it in his records; that
the EPAP had no indication that it was unofficial; and that once Complainant acknowledged
receipt of the mailed 2011 EPAP, it was removed from her official records.

CONTENTIONS ON APPEAL

Complainant did not file a statement or brief that directly addressed the Agency’s FAD.

STANDARD OF REVIEW

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”).

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ANALYSIS AND FINDINGS

At the outset, we find that the Agency’s dismissal of claim 1, pursuant to 29 C.F.R.
§ 1614.107(a)(1), was appropriate. This issue was addressed in Bell S. v. Dep’t of the Interior,
EEOC Appeal No. 0120151968 (Nov. 8, 2017).

Claim 2:

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, sex, color, national origin, disability and reprisal; we find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. In this case, Complainant has alleged that
she was harmed when unofficial personnel documents were uploaded into her official records.
Management explained that Complainant’s unofficial 2011 EPAP was uploaded into her EOPF
due to clerical errors which were subsequently corrected when the documents were removed
without any adverse consequences against her. Complainant did not provide any reason to doubt
the credibility of management’s nondiscriminatory explanations. We therefore find that
Complainant failed to prove that the alleged management’s actions were motivated by unlawful
discriminatory animus; and the record contains no evidence that the Agency’s explanations are
unworthy of credence.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s FAD.

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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 19, 2019
Date