Keenan O.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

0120182177 (E.E.O.C. Sep. 12, 2019)

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

Keenan O.,1
Complainant,

v.

David Bernhardt,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120182177

Hearing No. 540-2018-00165X

Agency Nos. DOI-NPS-16-0156,
DOI-NPS-16-0388,
DOI-NPS-17-0578

DECISION

On June 14, 2018, 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 21, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented is whether Complainant established that the Agency subjected him to
disparate treatment and denial of reasonable accommodation in violation of the Rehabilitation
Act.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Law Enforcement
Ranger in the Agency’s Law Enforcement Division at the Pinnacles National Park in Paicines,
California. Complainant sought a hardship transfer beginning in 2014 to care for his wife, who
had been diagnosed with Type 1 Diabetes and Hypothyroidism, and his mother-in-law, who had
cancer. Complainant applied for several positions as a lateral transfer within the Agency.
However, he was not selected for the positions. He filed three EEO complaints alleging
discrimination.

On March 8, 2016, Complainant filed his first EEO complaint, Agency No. DOI-NPS-16-0156,
alleging that the Agency discriminated against him on the bases of disability (association with an
individual with a disability) when:

1. in November 2015, he learned he was not selected for the position of Park
Ranger, GL-0025-09, which was advertised at Saguaro National Park, after he
requested and had been approved for a hardship transfer.

On September 8, 2016, Complainant filed his second EEO complaint, Agency No. DOI-NPS-16-
0388, alleging that the Agency discriminated against him on the bases of disability (association
with an individual with a disability) and in reprisal for prior protected EEO activity arising under
the Rehabilitation Act when:

2. In or around April 2016, Complainant was not selected for the Law Enforcement
Park Ranger position, GL-0025-09, at Montezuma Castle National Monument.

3. In or around May 2016, Complainant was not selected for the Law Enforcement
Park Ranger position, GL-0025-09, at Montezuma Castle National Monument.

On October 11, 2017, Complainant filed his third EEO complaint, Agency No. DOI-NPS-17-
0578, alleging that the Agency discriminated against him on the bases of disability (Post
Traumatic Stress Disorder) and in reprisal for prior protected EEO activity arising under the
Rehabilitation Act when:

4. On or about August 3, 2017, the Supervisor Park Ranger failed to respond to
Complainant’s requests for a reasonable accommodation during the hiring
process.

5. On or about August 26, 2017, the Supervisor Park Ranger informed Complainant
that he was not selected for a lateral reassignment Law Enforcement Ranger
position at Saguaro National Park.

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Each complaint was accepted for investigation and investigated separately. At the conclusion of
each investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing on Agency No. DOI-NPS-17-0578. In March 2017,
Complainant wrote to the Commission asking that the three EEO complaints be consolidated at
the hearing before the AJ. Subsequently, by letter dated March 15, 2018, Complainant withdrew
his request for a hearing and requested a final agency decision. On March 21, 2018, the AJ
dismissed the hearing and remanded Agency No. DOI-NPS-17-0578. Consequently, the
Agency issued a final decision on all three EEO complaints 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.

CONTENTIONS ON APPEAL

Complainant appealed, asserting that he was subjected to discrimination. He indicated that he
sought a hardship transfer. However, he was not provided with support to get a hardship transfer
and he was not placed in any of these positions. He asserted that he was subjected to
discrimination based on his association with a person with a disability. Complainant argued that
he provided evidence to establish that the Agency’s reasons were pretext for discrimination.

The Agency asked that the Commission affirm its decision finding no discrimination.

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 (EEO MD-110), 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”).

Denial of Reasonable Accommodation – Claim 4

Under the Commission’s regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9.

Complainant asserted that during the hiring process, he was asked by the Supervisory Park
Ranger to provide nine references via email. He claimed that he could not do so due to memory
loss issues related to his medical condition.
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He asked to provide performance evaluations in lieu of references. Complainant indicated that
management failed to respond to his request. The Supervisory Park Ranger stated that
Complainant did not require a reasonable accommodation in that he was able to provide her with
enough references. As such, we find that Complainant failed to demonstrate that the Agency
violated the Rehabilitation Act with respect to claim 4.

Disparate Treatment – Claims 1-3 and 5

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

In response to claim 1, the Supervisory Park Ranger averred that she, the District Manager and
the Chief Ranger were involved in the selection process for the position at Saguaro National
Park. The Supervisory Park Ranger and the District Manager reviewed the applications and
made a recommendation to the Chief Ranger who provides the approval for the selections in the
hiring process. The officials reviewed and created a matrix for the candidates for the position in
question. Based on the Supervisory Park Ranger’s review of the candidates, she chose to
interview the two top candidates, namely the Selectee and another applicant (Applicant), and not
Complainant. She noted that Complainant’s resume included statements that indicated to her
that he was not a “team player” and worked “solely.” The District Manager reviewed the six
applications. He narrowed the reference review to the Selectee, the Applicant, and Complainant.
He noted that Complainant’s references were from “some time ago” and were not relevant to the
position in question. He noted that Complainant’s references were relatively positive but noted
some “red flags” including Complainant’s conflicts in the workplace.
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Based on the District Manager’s review, he felt that Complainant would be a “negative influence
on the operations of the Park.” Based on his review of the applications and references, the
District Manager determined who he would interview. He chose not to interview Complainant
but did interview the Selectee and the Applicant. Both the Supervisory Park Ranger and the
District Manager chose the Selectee for the position based on his vast and diverse experience, his
excellent references, and demonstrated work with other divisions and state agencies. The Chief
Ranger was aware that Complainant had requested a hardship transfer. However, based on the
review of his application, the Chief Ranger did not feel that Complainant would work well with
staff at his facility. He too made a reference check on Complainant, which confirmed what the
District Manager had heard about Complainant was correct. The Chief Ranger wanted to be sure
Complainant had a chance due to the hardship transfer request.

In the positions alleged in claims 2 and 3, Complainant applied to be considered for selection for
a lateral transfer at the Montezuma Castle National Monument. The Chief Park Ranger at
Montezuma received Complainant’s hardship transfer request in 2014. He had been made aware
by a supervisor (Superintendent) that Complainant had previously applied for a vacancy
announcement at the Montezuma Castle facility in 2013. He had been selected in 2013.
However, the Agency rescinded the offer. The Superintendent informed the Chief Park Ranger
that Complainant used profanity and stated that he would never work at the Montezuma Castle
National Monument. As for the position raised in claim 2, the Chief Park Ranger noted that he
had two candidates apply for the job and he did not select anyone. He felt that he did not have a
large pool of applicants. The position was reposted and only Complainant’s applicant was
forwarded to the Chief Park Ranger. The Chief Park Ranger again was concerned with such a
small pool for consideration. He had also been aware of Complainant’s behavior in 2013.
Subsequently, the Chief Park Ranger had five applicants for the Law Enforcement Park Ranger
position, GL-0025-09. Complainant was amongst the five applications sent to the Chief Park
Ranger for consideration. He did not select Complainant because of the behavior he displayed
toward the Montezuma Castle facility employees in 2013. As such, the Chief Park Ranger did
not offer Complainant the Law Enforcement Park Ranger position.

With respect to the position alleged in claim 5 at Saguaro National Park, the Supervisory Park
Ranger averred that they were seeking a candidate who could be part of a division team and
park-wide team. Based on Complainant’s references, they indicated that Complainant worked on
his own. The Chief Ranger indicated that Complainant received the lowest scores of the three
candidates for the position with the exception of law enforcement experience. The Chief Ranger
stated that he was seeking a candidate who had a good working relationship with other agencies
outside of the Park and this Selectee had a vast amount of experience working for other agencies
and in the wilderness.

Upon review, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. We turn to Complainant to establish that the Agency’s
reasons were pretext for discrimination based on his own medical condition, his association with
an individual with a disability, and/or his prior EEO activity. Upon review, we find that
Complainant has failed to do so.
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Complainant argued that the Agency failed to properly apply its hardship transfer process.
However, we find that Complainant has not shown that the Agency’s reasons were based on a
discriminatory animus. Accordingly, we conclude that the Agency’s final decision properly
concluded that Complainant failed to show that he was subjected to discrimination and/or
retaliation in violation of the Rehabilitation Act.

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 final decision finding that Complainant
was not discriminated against as alleged.

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.
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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.
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

September 12, 2019
Date