Daisy B.,1 Complainant,v.Ryan Zinke, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0120150765 (E.E.O.C. Mar. 29, 2017)

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

Daisy B.,1
Complainant,

v.

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

Appeal No. 0120150765

Agency No. BIA-13-0308

DECISION

The Commission accepts Complainant’s appeal from the October 28, 2014, final Agency
decision (FAD) 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Instruments
Examiner in the Agency’s Land Titles and Records Office in the Northwest Regional Office in
Portland, Oregon. Complainant was previously a Social Service Representative, but was
removed from employment in December 2009. In January 2010, Complainant filed a formal
EEO complaint and a complaint with the Federal Labor Relations Authority regarding the
removal. Thereafter, Complainant and the Agency entered into two settlement agreements to
settle the matter. Complainant was subsequently appointed to a Legal Instruments Examiner
position as a probationary employee in June 2010, pursuant to the FLRA settlement agreement.

On October 29, 2010, Complainant’s supervisor issued Complainant a memorandum
terminating her employment. The memorandum cited four instances of Complainant’s inability

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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to work effectively with co-workers or accept instruction on performance assignments from co-
workers. In addition, the memorandum charged Complainant with misrepresentation of a
leave request based on her over-usage of official time for union activities.

On September 30, 2013, Complainant filed a formal complaint2 alleging that the Agency
discriminated against her on the bases of race (Caucasian/Native American), color (White),
and in reprisal for prior protected EEO activity when effective October 29, 2010, she was
terminated from Federal service and the position of Legal Instruments Examiner, GS-0963-05,
Northwest Regional Office, Land Titles and Records Office, Portland, Oregon.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Management maintained that Complainant was a
probationary employee, and she was terminated because she abused her Union Steward
privileges and had difficulty getting along with others. In particular, management stated that
Complainant knew that she was approved for only 10 hours per pay period to work on union
issues and that she was supposed to fill out a leave slip for the time she spent working on union
activities. Complainant went over her allotted ten hours, using 13.5 hours during one pay
period. Complainant, Human Resources, and the Union had discussed Complainant’s official
union positon and how many hours she could spend on union activity; therefore, Complainant
was clear as to the expectation. In addition, management stated that Complainant was asked to
train with several examiners. Management noted that Complainant was “unreasonably nit-
picky” and had unreasonable perceptions about the trainers’ motivations and treatment of her.
The Agency added that Complainant was described by her colleagues as negative, defensive,
and uncooperative.

The Agency determined that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

2 In June 2010, Complainant alleged that the Agency breached the settlement agreement for her
previous complaint. She amended her charge of breach on November 3, 2010, to include her
termination. In EEOC Appeal No. 0120111244 (Feb. 21, 2013), Complainant’s breach
allegation and complaint were remanded to the Agency for further processing, after which
Complainant was able to pursue a separate complaint regarding her termination.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the investigator conducted an incomplete and biased
investigation against her. Complainant argues that the Agency ignored evidence showing that
she was subjected to discrimination and reprisal. Complainant alleges that the Agency’s
explanation for terminating her was pretextual. Further, Complainant argues that her
supervisor failed to properly train her and allowed her co-workers to harass her. Complainant
contends that it is unfounded that she did not get along with her trainers. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
investigation of her complaint. Complainant claims on appeal that the investigator assigned to
investigate her complaint made several errors, and that the investigation was biased. Upon
review of the entire record, the Commission is not persuaded that the investigation into
Complainant’s complaint was biased or improper. Complainant failed to request a hearing, a
process which would have afforded her the opportunity to conduct discovery and to cure
alleged defects in the record. Thus, despite the above referenced arguments, the Commission
determines that the investigation was properly and adequately conducted.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish 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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, Complainant’s supervisor (S1)
stated that she issued Complainant the termination memorandum after consulting with Human
Resources based on two reasons: Complainant went over her allotted union hours during a pay
period and she had difficulty getting along with other employees. ROI, at 91. S1 affirmed
that Complainant was aware that she was approved for only 10 hours per pay period to work
on union activities and she was required to complete a leave slip for the time spent working on
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union activities. Id. The acting supervisor signed a leave slip for Complainant which led to
her using 13.5 hours for union activities for that pay period. Id. S1 stressed that
Complainant, Human Resources, and the Union had discussed this matter previously and
agreed that Complainant was limited to 10 hours for union activities as a Union Steward. Id.
at 94. S1 noted that this was another example of Complainant’s tendency to nit-pick and make
her own rules. Id.

S1 confirmed that the primary reason for issuing the termination memorandum was
Complainant’s inability to work well with her co-workers. ROI, at 94-95. S1 affirmed that
she spoke with Complainant’s trainers and each trainer reported conflicts with Complainant.
Id. at 95. S1 stated that she believed that Complainant had unreasonable perceptions of her
trainers’ motivations and treatment of her. Id. One of Complainant’s former trainers
confirmed that in her experience with Complainant, it seemed no one could say anything to
Complainant without her being defensive or making it into something unintended. Id. at 108.
That trainer stated that Complainant’s attitude had begun to negatively affect everyone else in
the office. Id. at 108-09. Another co-worker described an incident where Complainant made
her uncomfortable by raising her voice and accusing the co-worker of having issues with her.
Id. at 121. The co-worker stated that she believed Complainant’s termination was justified as
there was an undercurrent of negativity and uncooperativeness with Complainant that was not
healthy for the office. Id. at 122.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant
failed to carry this burden. As a result, the Commission finds that Complainant has not
established that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

March 29, 2017
Date