Maryanne S.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181806 (E.E.O.C. Sep. 24, 2019)

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

Maryanne S.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120181806

Agency No. DOIBIE170393

DECISION

On May 4, 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
April 4, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

In the instant appeal, we examine whether the final agency decision (FAD) properly found that
Complainant did not establish that she was discriminated against or subjected to harassment based
on race (Native American) when:

1. On December 8, 2016, Complainant was made aware of the Program Support Assistant
(PSA), making a racial comment that Complainant was “just another white man coming to
save the Indians.” Complainant maintains she reported this matter to her immediate
supervisor (S1), who instead of addressing it, directed Complainant to cease all
communication and interaction with the PSA;

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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2. On June 2, 2017, the Special Investigator from the National Background Investigations
Bureau informed her of S1 accusing Complainant of misrepresenting her Native American
race;
3. At meetings held July 10 and July 12, 2017, with several Agency officials, to discuss
Complainant’s 120-day detail assignment to the Office of the Director, in Washington, DC,
Complainant alleged that S1 accused her of being “AWOL, stealing a laptop, and leaving
unfinished duties with her office” that Complainant had to complete before she, S1, would
agree to the detail. Complainant further alleged she was required to visit eight (8) school
sites, which she maintained were not owed by her and had not occurred, she had been
denied travel to visit schools by S1; and the site was held hostage by S1 based on fabricated
assignments;
4. On an unspecified date, Complainant involuntarily resigned from her position alleging
overwhelming workplace harassment, which extended from Minneapolis.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Education Specialist,
GS-13, at the Agency’s Bureau of Indian Affairs, Bureau of Indian Education (Great Plains
Division) in Bloomington, Minnesota. The Agency’s FAD thoroughly discussed the facts in the
record, and the instant decision incorporates them as stated. On July 25, 2017, Complainant filed
an EEO complaint alleging that the Agency discriminated against her as articulated above.

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. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

The instant appeal followed.

On appeal, Complainant requests that we reverse the Agency’s FAD finding no discrimination
because the evidence supports her claims that she was subjected to a hostile work environment.
Complainant contends that the Agency intentionally neglected to adequately review evidence and
include full witness testimony that supported her claims of hostile work environment. In response
to the appeal, the Agency requests that we affirm the FAD and deny the appeal. The Agency
contends Complainant’s appeal offers no additional evidence substantiating her claims of
discrimination based on race, harassment, and constructive discharge.

2 Because Complainant was still in her probationary period at the time of her resignation, the
Agency did not process this claim as a mixed case.
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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”).

ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (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. 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). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502,
519 (1993).

Assuming, arguendo, Complainant established prima facie cases of discrimination based on race,
we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents
Complainant cites to establish her claim, and that Complainant did not demonstrate that any
conduct on the part of the Agency was based on discriminatory animus. With respect to
Complainant’s allegations that she was improperly charged as being Absent Without Leave
(AWOL), accused of stealing an Agency laptop, and being denied a detail opportunity until she
completed unfinished duties, the record reflects that there was some breakdown in communication
between Complainant and S1 resulting in the mishandling of Complainant’s detail assignment.
The record reflects that S1 alleged that she was not initially made aware of Complainant’s detail
because Complainant did not advise her that she was leaving. As a result, she believed
Complainant was AWOL and noted the records accordingly.

Several other management officials confirmed that Complainant was scheduled to go on detail as
her help was needed in another critical area of the Agency. Additionally, the detail was seen as a
way to separate Complainant and S1, but it did not work out as planned due to S1’s inflexibility
around the detail.
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The record reflects S1 wanted to continue to supervise Complainant and required her to complete
eight school site visits before beginning tasks specific to the detail. Under this arrangement, much
of the allotted detail time would have been used before Complainant even started. While the detail
process could have been handled more efficiently and reasonably by S1, there is nothing in the
record, or presented on appeal, that supports Complainant’s contention that any of the actions
surrounding the detail were due to her race.

A review of the record supports the Agency’s assertion that its decisions were based on its
determination of how best to effectively manage the workplace. Nothing in the record, or
submitted on appeal by Complainant, demonstrate that management’s actions were in any way
motivated by discriminatory animus. The Commission has long held that an Agency has broad
discretion to set policies and carry out personnel decisions and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No.
05940906 (January 16, 1997).

Harassment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore
Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working
environment exists “when the workplace is permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”
Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No.
05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10,
1996).

An alteration to an employee’s working conditions exists if a tangible, discrete employment action
is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency’s actions were
sufficiently severe and/or pervasive to create a hostile work environment. The harasser’s conduct
is evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

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We agree with the Agency’s conclusion that Complainant failed to establish a claim of harassment
because she failed to show that that she was subjected to severe or pervasive treatment such as to
create an unlawful work environment due to her race. The incidents complained of here either
appear to have not occurred, been misunderstandings, or were reasonable actions by
Complainant’s supervisor and other management officials taken in the course of discharging their
supervisory responsibilities. A review of the record supports the Agency’s finding in the FAD that
several of the incidents did not occur as alleged by Complainant. For example, there is no
persuasive evidence in the record that Complainant was told she was just like “another White man
coming to save the Indians,” or that she was ever questioned about her Native American heritage.
Other incidents identified were in the nature of common interactions and employment actions that
would occur between a supervisor and a subordinate employee in the workplace. We agree with
the Agency’s findings in the FAD that the incidents, considered together and taken as a whole, do
not rise to the level of a discriminatorily hostile workplace.

Constructive Discharge

The central question in a constructive discharge claim is whether the employer, through its
unlawful discriminatory behavior, made the employee’s working conditions so difficult that any
reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v.
Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established
three elements which a complainant must prove to substantiate a claim of constructive discharge:
(1) a reasonable person in the complainant’s position would have found the working conditions
intolerable; (2) conduct that constituted discrimination against the complainant created the
intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from
the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688
(Apr. 13, 1995).

After careful consideration, viewing all of the circumstances presented here, we find that a finding
of constructive discharge is precluded by our findings above that Complainant was not subjected
to discrimination or harassment by S1 or any other Agency management official. Based on the
totality of the circumstances, we find that Complainant failed to show that she was forced to
involuntarily resign because of her working conditions. Therefore, we conclude that Complainant
has not established that she was constructively discharged.

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 (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

September 24, 2019
Date