EEOC Appeal 2020000842

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Simon V.,1
Complainant,
v.
David Bernhardt,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 2020000842
Agency No. NPS-18-0367
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 September 25, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Grounds Supervisor,
WS-07, at the Agency’s facility in Jamaica Bay, New York. On May 17, 2018, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on the bases of race
(African-American) and color (black) when on April 2, 2018, he became aware that he was the
only WS-07 Grounds Supervisor within the Gateway National Recreation Area, while all of his
Caucasian counterparts hold WS-10 supervisory positions, and one non-supervisory employee also
holds a WS-10 position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
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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Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, 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 him to discrimination as alleged. On appeal, Complainant reiterates his
contention that he was subjected to unlawful 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, 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”).
To prevail in a disparate treatment claim, 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 he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction 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, 411 U.S. at
802 n. 13. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for its actions. Texas Department of Community 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 (2000).
Here, we find that assuming, arguendo, Complainant established a prima facie case of race and
color discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the record shows that prior to 2007, the three Grounds Supervisors,
including Complainant, were all classified at the WS-07 grade level. 	The record reveals
Complainant’s organization underwent a restructuring and as a result in 2007 two Grounds
Supervisors, including Complainant, remained classified at the WS-07 grade level and the third
supervisor (CW2) was upgraded to a WS-10. The other supervisor who remained at the WS-07
(CW1) was outside Complainant’s protected classes. CW1 retired from the position in 2018, and
was employed at the WS-07 level through the time of his retirement. The record shows that an
employee temporarily detailed into CW1’s position following CW1’s retirement maintained his
WS-10 grade, in accordance with Agency regulations governing detail assignments. Management
officials explain that when the vacancy is announced, it will be at the WS-07 level. Management
officials state that CW2 was upgraded because he supervised two WG-10 employees, which
justified the higher grade.

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As stated in the final agency decision, however, subsequent to CW2’s upgrade, Complainant began
supervising a WG-10 employee, which “elicits doubt that he should be graded a WS-07 rather than
a WS-10.” Accordingly, we note that, if he has not already done so, Complainant may pursue other
administrative avenues to remedy any possibly discrepancy in his grade level, such as a desk audit.
We do not find, however, that he has shown that the Agency’s actions were motivated by
discriminatory animus toward his race or color.
CONCLUSION
The Agency’s final decision is AFFIRMED.
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).

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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 9, 2020
Date