EEOC Appeal 2020001446

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Aron J.,1
Complainant,
v.
David Bernhardt,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 2020001446
Hearing No. 540-2017-00136X
Agency No. DOI-BIA-16-0257
DECISION
Complainant filed a timely appeal with this Commission from a decision issued by an EEOC
Administrative Judge (AJ), dated December 5, 2019, concerning an equal employment opportunity
(EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Contract Information Technology Specialist
at the Agency’s Southwest Indian Polytechnic Institute (SIPI) in Albuquerque, New Mexico.2
On June 16, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency unlawfully retaliated against him for prior EEO activity (participated as a witness) when:
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.
2 The record reflects that on February 6, 2016, Complainant left Agency employment at the end of
his contract with the Agency.

2020001446	2
1. 	on September 25, 2015, his approval to attend VMware Training in Denver, Colorado
in October 2015 was rescinded by the Acting IT Specialist; and
2. 	on January 29, 2016, he was not selected for the position of Supervisory Information
Technology Specialist, GS-22012-12, advertised under Vacancy Announcement No.
1499232.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). 	Thereafter, the
Agency submitted a Motion for Decision Without a Hearing. 	Complainant responded to the
motion. 	On December 5, 2019, the AJ issued a decision by summary judgment in favor of the
Agency.
The Agency did not issue a final order, and the AJ’s decision became the final decision in this
matter. It is the from this decision that Complainant now appeals. Complainant did not submit a
timely brief on appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 	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. (as revised, August 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).
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 in Complainant’s favor.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.

2020001446	3
At the time of the matters at issue, Complainant had worked at the SIPI for approximately six years
as an Information Technology. Specialist. The Acting IT Specialist Supervisor (“the supervisor”)
was Complainant’s first-level supervisor and the Support Services Manager (“the Manager”) was
Complainant’s second-level supervisor. On February 8, 2015, Complainant was promoted from a
GS-9 to a GS-11.
Complainant stated that he had served as a witness in two EEO complaints filed by a coworker,
the first filed in March 2015 and the second in October 2015. He also stated that he was a witness
in a related investigation by Human Resources in August 2015. He said he knew the Manager was
aware of his statement in the October 2015 complaint.
Regarding claim 1, Complainant alleged that on September 25, 2015, his approval to attend
VMware Training in Denver, Colorado in October 2015 was rescinded by the supervisor. The AJ
noted that Complainant’s request to take VMware training had been verbally approved by the
supervisor twice, and his request to take VMware training was approved in writing by the
supervisor and Support Services Manager on September 2, 2015.
On September 24, 2015, the SIPI President, however, sent an email to the supervisor, the Manager
and others in which she expressed concerns regarding the cost-benefit of sending Complainant to
the VMware training. 	Specifically, the SIPI President stated, “I have come to find out that
[Complainant] has only five months left in his appointment at SIPI. Considering that the training
expenses are quite high (over $5,000.00), he has five months left in his term employment and the
training will be held in either Oct or Nov…(leaving him 3-4 months of service to SIPI after the
training)…this raises [a] concern. Is it wise to invest over $5,000.00?” 	The SIPI President
questioned whether a named employee should attend the VMware training since she is a permanent
employee.
On the same day, September 24, 2015, the Manager informed the supervisor that the decision
whether or not to approve Complainant’s training was hers to make. The supervisor responded to
the SIPI President’s email by stating that she understood her concerns and had made a decision to
cancel Complainant’s VMware training.
The next day, September 25, 2015, Complainant challenged the supervisor’s decision in an email
to the SIPI President. He complained that the cancellation was a “mismanagement of the chain of
command.” 	The supervisor responded to Complainant and the SIPI President stating that the
cancellation of the VMware training was her decision “since there was a concern about the time
frame and term end date I did email [Complainant] to let him know that the training was cancelled.
I made that decision to cancel the training after I heard the concerns.”
Regarding claim 2, Complainant alleged that on January 29, 2016, he was not selected for the
position of Supervisory Information Technology Specialist, GS-22012-12, advertised under
Vacancy Announcement No. 1499232.

2020001446	4
The AJ noted that on October 20, 2015, Complainant submitted his application for the position.
The announcement stated that to be eligible for the GS-12 IT Supervisor position, the applicant
must have “one year of specialized experience equivalent to at least the GS-11 grade level…Status
applicants must meet the Time-In-Grade requirements and Time after competitive requirements
by Monday, November 9, 2015.”
As of November 9, 2015, Complainant had nine months of specialized service equivalent to the
GS-11 grade level. He did not have one year of specialized experience at the GS-11 level in order
to be eligible for the GS-12 IT Supervisor position. Subsequently, Complainant was deemed not
eligible for the GS-12 IT Supervisor position. The Manager stated that Complainant was not
interviewed for the subject position because he was not eligible.
In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
there is adequate support the AJ’s determination that the responsible management officials clearly
articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare
assertions, Complainant has simply provided no evidence to support his claim that his treatment
was the result of his prior protected activity.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that unlawful discrimination and retaliation occurred.
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.

2020001446	5
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.
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 14, 2020
Date