[Redacted], Bruce W., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Appeal No. 2021002190 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bruce W.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2021002190 Agency No. DOI-BIA-20-0171 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 24, 2021 final decision concerning his 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. Complainant worked as an Environmental Protection Specialist, GS-0028-09, at the Office of Environmental Management in Crow Agency, Montana. On March 6, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Native American/Crow) and in reprisal for prior protected EEO activity when: 1. On an unspecified date in June 2019, the Natural Resources Officer, his first-line supervisor (S1), permitted a non-Native American individual to trespass without a permit (until a permit was issued) when he had recently prohibited a Native American individual from trespassing while awaiting issuance of a permit; 2. On October 8, 2019, S1 informed Complainant that if Complainant did not wear a Tyvek suit, eye protection, latex gloves, and a respirator when entering a storage facility known as the “Rock Shop,” he, S1, would discipline Complainant; 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. 2021002190 2 3. On November 1, 2019, S1 stated, “Of course they hired white guys because Indians don’t f@#$ing work,” and “What do you call an Indian with a fire extinguisher? - A fire extinguisher that don’t work;” 4. On November 8, 2019, S1 informed Complainant that his Employee Performance Appraisal Plan was based on his weekly logs rather than his fiscal year work portfolio and other factors Complainant and S1 previously agreed upon, which resulted in S1 rating Complainant lower than Complainant believed he should have earned during the rating period; 5. On November 8, 2019, S1 issued Complainant an EPAP rating that was lower than Complaint believed he earned during the rating period; 6. On November 25, 2019, S1 failed to answer a question that Complainant posed during a training session; and 7. On a consistent basis, through the present time, S1 made demeaning remarks and racial language using profane language. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On September 23, 2020, Complainant requested a final decision from the Agency without a hearing. In accordance with Complainant’s request, the Agency issued a decision in which it found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. This appeal followed. 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, 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”). Disparate Treatment To prevail on a claim of disparate treatment, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). 2021002190 3 The prima facie inquiry may be dispensed with in this case, however, since S1 articulated legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to allegation (1), S1 averred that he did not know how anyone could trespass since he was the only one who issued permits. He also asserted that he checked his daily log for the month of June 2019 and could find no instance of trespass. IR 456-57. Regarding allegations (4) and (5), S1 affirmed that on June 2, 2019, the Superintendent issued a memorandum in which he ordered that work logs were to be submitted every Friday and would be included as part of the performance evaluation of every employee. S1 also stated that although Complainant’s performance during the previous fiscal year had been rated outstanding, his performance, as well as that of his coworkers, had diminished following the end of a government shutdown. In particular, S1 pointed out that Complainant did not submit weekly work logs and had taken over 300 hours of leave during the rating period. S1 also noted that, despite his performance decline, Complainant still received the highest performance rating in the unit. The Deputy Superintendent corroborated S1’s testimony. IR 460-61, 518. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked why he believed that he had been discriminated against because of his disabilities and EEO activity, Complainant averred that the incident involved the Crow Tribe and that non-tribal members were usually ones that leased reservation property, which made it difficult for tribal members to use their own land. He also asserted that management had a personal vendetta against him for reporting improprieties. IR 306, 311. In addition to his own affidavit, Complainant provided affidavit testimony from a coworker (CW), a fellow member of the Crow Tribe to whom he was distantly related. This individual repeated Complainant’s assertion that non-tribal members were treated better than tribal members. IR 443. However, a note from the EEO investigator dated July 15, 2020 indicates that she sent CW a copy of his affidavit on July 1 and followed up on July 9, but that CW never submitted a signed version of the affidavit to her. IR 448. Other than his affidavit and CW’s unsworn statement, Complainant has not presented any documentary or testimonial evidence that actually contradicts or undercuts S1’s explanations for his actions or which cause us to question S1’s truthfulness as a witness. 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. 2021002190 4 Considering that evidence as a whole, we find, as did the Agency, that the record in this case is insufficient to establish the existence of an unlawful discriminatory or retaliatory motive attributable to S1 in connection with allegations (1), (4), or (5). Hostile Work Environment To prevail on his claim of hostile work environment, Complainant would have to show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find that Complainant satisfies the first two prongs of the Henson test. As a Native American and a member of the Crow Tribe, he belongs to a class protected by Title VII by virtue of bringing his complaint on the bases of race and reprisal. The conduct to which he was allegedly subjected, including derogatory remarks and threats of disciplinary action, were certainly unwelcome from his own, subjective viewpoint. The antidiscrimination statutes that the Commission enforces are not civility codes, however. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant must therefore present enough evidence to show that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must show that S1’s conduct was motivated by unlawful considerations of his race or prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, can the question of Agency liability for discriminatory or retaliatory harassment present itself. Applying the third prong of the Henson test, we note that indicators of discriminatory intent or motive include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, or deviations from standard procedures without explanation or justification. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). With respect to incident (2), S1, the Realty Officer, the Deputy Superintendent, and the Superintendent all affirmed that protective equipment in the rock shop was not required until the issue of chemical storage in the facility was brought to light, and that S1 issued a safety memorandum not just to Complainant but to all employees under his supervision. IR 457-59, 465-80, 510-11, 517, 526. With regard to incidents (3) and (7), S1 denied ever making the comments that Complainant attributed to him, although he admitted to using foul language “more than he should have.” S1 also stated that Complainant was a “gaslighter” with a history of disciplinary actions for acting disrespectfully toward management. 2021002190 5 In addition, S1 noted that Complainant, as a member of the Crow Tribe, may have had an issue with him as a member of the Sioux Tribe because the two tribes had a history of not getting along. The Deputy Superintendent and the Superintendent, both of whom were Native Americans, averred that they never witnessed S1 make demeaning or racial remarks toward his staff. The Superintendent noted that he did witness Complainant make those types of statements, for which he, the Superintendent, took corrective action. IR 459-60, 463, 520-22, 527-28. Concerning allegation (6), S1 and the Deputy Superintendent asserted that Complainant was asking a question about a policy that had been discredited after it was found to be in conflict with the Code of Federal Regulations, and that Complainant had asked the question in a manner that was disrespectful toward S1. IR 461-62, 519-20. We find that Complainant has presented no evidence demonstrating that the conduct at issue was based on discriminatory or retaliatory animus. Even if such a motive had been established, Complainant’s hostile work environment claim would still fail under Henson. In applying the fourth prong of the Henson test, we find that none of the incidents alleged, either singly or collectively, were severe or pervasive enough to rise to the level of a hostile work environment. Mikki P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182183 (Feb. 19, 2020). We note that it is well established that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences which are not sufficiently severe or pervasive to constitute harassment, unless the incidents occurred to harass complainant for a prohibited reason. Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017). Ultimately, we agree with the Agency that Complainant has not established that he had been subjected to discrimination, reprisal, or a hostile work environment 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. 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. 2021002190 6 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). 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. 2021002190 7 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 19, 2022 Date