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

Equal Employment Opportunity Commission

Jun 13, 2022

Appeal No. 2021001477 (E.E.O.C. Jun. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cheryl B.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2021001477 Hearing No. 570-2016-00972X Agency No. DOI-BIA-15-0890 DECISION 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 November 25, 2020 final order concerning an 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Contract Specialist-GS-11 at the Agency’s facility in Gallup, New Mexico. On August 25, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (Native American), national origin (Native American), age, and in reprisal for protected activity (instant EEO complaint). By letter dated November 23, 2015, the Agency accepted the formal complaint for investigation. 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. 2021001477 2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 22, 2018 motion for a decision without a hearing and issued a decision by summary judgment on September 23, 2020. In her decision, the AJ framed the claims in the following fashion: 1. On or about May 15 and June 3, 2015, Complainant was denied FAC-C Level II training and certification.2 2. Denial of the May 15 and June 3, 2015 training and certification impaired Complainant’s ability to qualify for advancement and promotion, including but not limited to those asserted in claims 3, 4, 7-8, 10-11, and 13-17 herein. 3. On or about June 2, 2015, Complainant was denied promotion to Job Announcement No. CV-15-PQ-1406482(MP), Contract Specialist, GS-1102-11/13. 4. On June 8, 2015, Complainant learned she was not selected for Job Announcement No. CV-15-PQ1360171(MP), Contract Specialist, GS-1102-11/13. 5. On or about September 10, 2015, Complainant was denied FAC-C Level II training and certification. 6. Denial of the September 10, 2015 training and certification impaired Complainant’s ability to qualify for advancement and promotion, including but not limited to those asserted in claims 3, 4, 7-8, 10-11, and 13-17 herein. 7. On or about October 20, 2015, Complainant was not selected for Job Announcement No. 1507681. 8. On or about November 30, 2015, Complainant was not selected for Job Announcement Number CV-16-PQ1538101(MP). 9. On or about April 4, 2016, Complainant’s FAC-C certification and warrant were not renewed. 10. On or about April 4, 2016, Complainant was not selected for Job Announcement Number CV-16-PQ11624675(MP). 2 The FAC-C program established education, experience, and training standards for the federal government acquisition workforce. 2021001477 3 11. On or about April 4, 2016, Complainant was not referred for Job Announcement Number CV-16-PQ1651114 (MP). 12. On or about May 2, 2016, [C1], an officer of the Agency, subjected Complainant to harassment by hugging her without permission, and in the presence of other Agency personnel. 13. On or about May 13, 2016, the Agency did not select Complainant for Job Announcement Number CV-16-PQ1671191(MP). 14. On or about May 16, 2016, the Agency did not select Complainant for a position in Albuquerque, New Mexico, Announcement Number CRPA 78/16. 15. On or about May 16, 2016, the Agency did not select Complainant for a position in Gallup, New Mexico, Announcement Number CRPA 81/16. 16. On or about June 9, 2016, the Agency did not select Complainant for two vacancies in Reston, Virginia, Job Announcement Numbers CV-16PQ1696209(MP) and CV- 16-PQ1696241 (MP). 17. On or about August 29, 2016, the Agency did not select Complainant for a Contract Specialist vacancy in Reston, Virginia Job Announcement Number PQ1719227. 18. On or about April 18, 2017, the Agency denied Complainant permission to attend training, specifically CON 290, Contract Administration and Negotiation Techniques, scheduled for April 24, 2017-May 5, 2017, at BIA Southwest Region, Albuquerque, New Mexico. 19. From April 18, 2017-May 4, 2018, the Agency delayed approval of Complainant’s leave requests, and then made approval contingent on completing certain work. 20. On or about April 18, 2017, the Agency informed Complainant that she would not be permitted to obtain a Level II FAC-C warrant without [Bureau Procurement Chief’s, (C1’s)] approval. The AJ found that Complainant failed to establish a prima facie case of discrimination and/or reprisal with respect to claims 3, 4, 7, 8, 11, 13, 14, and 16. Regarding claim 8, the AJ found that Complainant did not apply and submit an application for the position. Regarding claims 3, 4, 7, 11, 13, and 16, the AJ reasoned that Complainant did not meet the minimum qualifications because she did not have the Level II and Level III FAC-C certifications. Regarding claim (14), the AJ reasoned that Complainant did not establish a prima face case of discrimination and/or retaliation because the selectee was of the same national origin and sex of Complainant. In addition, the selectee for claim 14, was older than Complainant. 2021001477 4 Moreover, the AJ found that there was no evidence that the selecting official for claim 14 was aware of Complainant’s EEO activity. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to establish pretext with respect to claims 1, 2, 5, 6, 8, 19, 15, and 17-20. Finally, regarding claim 12, that C1 hugged Complainant, the AJ noted that Complainant did not claim that there were any sexual aspects of the hug. The AJ found that there is no evidence that Complainant’s protected classes motivated the hug. In addition, the AJ found that this single act was not sufficiently severe or pervasive to create a hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant, though her attorney, asserts that the Agency systemically denied promotions to qualified Native Americans. Complainant, in her brief, asserts that C1 decided that her 17-hour class on Analyzing Contract Costs was insufficient for Level II certification, even though another named Agency official approved it. Complainant also asserted that C1 decided, without OPM approval, that future contracting jobs would require Level II certification. Complainant asserts that these actions were taken to reduce hiring Native Americans. Regarding claim 10, Complainant stated that the Agency failed to articulate a legitimate, nondiscrimination reasons for its action. Regarding claim 12 the hug by C1, Complainant states that C1’s action could “support an inference that [C1] has at least implicit bias that Native American women are inferior, like children, for whom an embrace from her is a gift. This is quite a different attitude that the equal respect that is normal among professionals.” Complainant’s Brief at 25. In response, the Agency requests that we affirm its final order implementing the AJ’s decision without a hearing finding no discrimination. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 2021001477 5 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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Claims 1, 2, 5, and 6-Denial of Level II FAC-C Certification and Impact on Complainant’s Career Advancement3 A claim of disparate treatment 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 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. See 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. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 3 The record reflects that the FAC-C program establishes education, experience, and training standards for contracting professionals. 2021001477 6 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming arguendo that Complainant established a prima facie case of discrimination and/or retaliation, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions referenced above. The record contains an affidavit from C1. Therein, C1 asserts that she denied Complainant’s FAC-C Level II certification because she did not have the training. Report of Investigation (ROI), Exhibit (Ex.) F3 at 2. C1 stated, in her deposition, that her elective had to be at least 16 hours and of a certain complexity. C1’s Deposition (Dep). at 78. The record contains a copy of Complainant’s certification request for Level II which was disapproved. It contains a notation that the elective classes must be increasingly more complex and an elective class must be at least 16 hours of training. Agency’s Motion for Summary Judgment (Agency’s Motion), Ex. 8-10. Complainant failed to establish that the Agency’s reason was pretext for discrimination and/or retaliation. Complainant asserts that another Agency official had approved her certification request to Level II. However, C1 stated that this Agency official erroneously forwarded Complainant’s certification to her. ROI, Ex. F3 at 3. Claims 3, 4, 7, 8, 11, 13, 14, and 16 To prove a prima facie case of discrimination regarding a non-selection, a complainant must show that: (1) s/he is a member of a protected group; (2) the agency solicited applications for vacancies for the position at issue; (3) s/he applied for the vacancy and was qualified; (4) despite complainant's qualifications, applicant(s) outside his protected group were instead selected. Cain v. Dep't of the Army, EEOC Appeal No. 0120072018 (Jul. 10, 2007). Complainant failed to establish a prima facie case of discrimination and/or retaliation with respect to the above claims. Regarding claim 8, Complainant did not apply for the position. Agency’s Motion, Ex. 2. Regarding claims 3, 4, 7, 11, 13, and 16 that Complainant did not meet the minimum qualifications for these positions. Specifically, these positions require Level II and Level III FAC-C certifications and Complainant lacked either of these certifications. ROI, Exs. F5, F14; Agency Motion, Ex.6 at 87. The record also contains an affidavit from a human resource specialist (HR1). Therein, HR1 asserts that she served as a rating official and Complainant did not submit FAC-C Level II certification for the specified positions. ROI at Ex. F5. Thus, HR1 asserts that she was not certified as eligible for these specified positions. Id. 2021001477 7 Regarding claim 14, the selectee was of the same race, national origin, and sex of Complainant. In addition, the selectee is older than Complainant. The record is devoid of evidence that the selecting official for this position was aware of Complainant’s EEO activity. Thus, Complainant failed to establish a prima face case of discrimination and/or retaliation. Claims 9, 10, 15, 17, 18, 19 and 20 We find that assuming arguendo that Complainant established a prima face case of discrimination and/or retaliation with respect to the claims referenced above, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 9, not renewing Complainant’s Level I FAC-C certification, the Agency set forth that Complainant failed to complete the course requirements for renewal of her FAC-C Level I certification before it expired and a valid FAC-C certification was required to be eligible for a warrant. Agency’s Motion Exs. 5, 11. Regarding C1 not approving Complainant’s warrant, the record contains an email dated April 19, 2016 from C1 to various Agency officials that set forth that Complainant’s FAC-C expired on December 31, 2015 and therefore no warrant could be issued and that the package was never revised once Complainant addressed the expired FAC-C issue. Agency’s Motion Ex. 11. Regarding claim 10, the Agency set forth that the selectee was chosen due to his willingness to engage, be a team player, and to take on special projects.4 See C1’s Declaration. Regarding claim 15, the position was closed with no selection due to the regional office not having funding for the position. Agency’s Motion Ex. 16-17. Regarding claim 17, the selectee was considered the most qualified because she had experience with grants and knowledge of grant regulations.5 C1’s Declaration. Agency’s Motion Ex. 23. Regarding claim 18, the denial of the CON 290 training, the record contains emails between Complainant and her supervisor. The supervisor stated that Complainant had specific work projects that needed her attention and that Complainant had already requested leave around that time from May 18-June 2, 2017 and that the training (from April 24-May 5, 2017) would require Complainant to be out of the office for a lengthy period of time. Agency’s Motion Ex. 13. Regarding claim 19, Complainant’s leave request, the record contains emails from Complainant’s supervisor that the request would be approved contingent upon completion of various work projects. Agency’s Motion Ex. 12. Regarding claim 20, C1 approving Complainant’s Level II FAC-C warrant, the record reflects that C1, as Bureau Procurement Chief, was authorized to review warrant applications. C1’s Dep. at 16-20. Complainant failed to establish that the Agency’s articulated reasons were pretext for discrimination and/or retaliation. 4 The record reflects that the selectee for claim 10 was a Native American male. 5 The record reflects that the selectee for claim 17 was a Native American female. 2021001477 8 We acknowledge that the record contains an affidavit from a retired Agency official who asserts that the Agency engaged in a pattern of not hiring Native Americans or blocking Native Americans from advancement. ROI Ex. F7. However, this Agency official did not work with C1 and was not involved in the non-selections at issue. C1’s Deposition at 61. Finally, while the ROI contains affidavits from two Contract Specialists asserting the Agency engaged in practices to hamper Native American applicants, the record is also devoid of evidence that these individuals were involved in the selection decisions at issue herein. ROI, Exs. F2bii, F8.6 While Complainant suggests that C1’s requirement for Level II FAC-C certification for GS-12 Contract Specialist positions is discriminatory, C1, in her deposition, sets forth that when putting out the requirements for a job announcement she takes into account the need for the mission and the office and not for a specific person. C1’s Deposition at 87-88. Claim 12-C1’s Hug 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 the complainant's employment. 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, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Regarding claim 12, Complainant asserts that C1 hugged her on a single occasion. Complainant does not allege that the hug was sexual in nature but rather that she did not feel comfortable given the EEO complaint that she filed and that Native Americans don’t greet each other with hugs. Complainant’s deposition at 69-70. C1, in her deposition, asserts that Complainant and other employees came into her office and that the other employees hugged her and that she hugged Complainant too so as not to single her out. C1’s Deposition at 58-59. We concur with the AJ that Complainant failed to establish that the alleged incident was based on her protected classes. In addition, we find that this single incident is not sufficiently severe or pervasive to constitute unlawful harassment. While Complainant argues that the hug from C1 supports an inference that C1 had a diminutive attitude toward Native American women, we concur with the Agency that this assertion is unsupported by documentary evidence and is conclusory. We AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. 6 One of these Contract Specialists did not sign her affidavit. ROI Ex. F8. 2021001477 9 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. 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). 2021001477 10 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 June 13, 2022 Date