5 Sample EEOC Case Sec L.docx

SAMPLE CASE

FS-2012-60798

Complainant Contact Information: 575-441-6188

Case Analysis

On October 15, 2011, the complainant filed a formal complaint alleging harassment and discrimination on the basis of his race (American Indian). Specifically, the complainant alleged that he was not selected for a one year detail position as Head Biologist for the Carson National Forest and he was subjected to derogatory comments by his supervisors. The complainant provided the following examples of the alleged comments:

· In April 2010, his supervisor said: “Hey Chief, do you want some fire-water,” “Chief,”

· In the summer of 2010, while on a conference call, management made a derogatory comment in response to his request for clarity, stating “I’ll send you smoke signals next time instead of e-mailing the request.”

The complaint was investigated and on August 19, 2011, the complainant and his representative were furnished a copy of the investigative report, along with notification of the right to request either a final decision with a hearing before an Equal Employment Opportunity Commission Administrative Judge or a decision based on the record. The complainant and his representative were also offered the opportunity to participate in the ADR program.

Not Selected for One-Year Detail

The Complainant applied and was interviewed for a one year temporary detail to the position of Head Biologist, Carson National Forest GS-11. However, another candidate (Caucasian) was selected.

The Complainant believes that he should have been selected for the position because he had a strong educational background and had served in numerous capacities in the District. He led training sessions, had received merit awards and recognition in 1998, 1999, and from 2001 to 2007, had served as a super crew-leader and supervised more employees than anybody else in the same GS-9 crew leader capacity. He added that the selectee was qualified for the position, but noted that the selectee had started with the agency at a time when he was already doing trainings.

Mr. Dixson stated he was a member of the application review team and made recommendations to the Forest Review Team. The team’s job was to develop criteria, review application material, contact job references, conduct interviews, and identify the strengths and weaknesses of the candidates. Mr. Dixon contended that the criterion they looked at were education, formal biological and ecological training, experience in the field, ability to navigate in the woods and function in travel status, supervisory experience, safety consciousness, and prior experience. He stated each candidate was judged regarding their strengths, weaknesses, and chances for success in the detail. Once they gathered this information, it was forwarded to Ms. Hamblin to make the ultimate decision. Mr. Dixon stated the candidate who they thought had the strongest credentials did not accept the detail. He stated that the team found that their second choice had almost equally strong credentials, and he ultimately accepted the detail.

Ms. Hamblin stated she was the final approving official on the selection. She received a note from the chair of the evaluation committee listing the reasons the Complainant did not successfully compete, which were: (1) his application was not as well written as those of other applicants; (2) his breadth of experience and leadership and organizational experience was not as good as those of three other candidates; (3) he did not concisely answer questions during the interview; and (4) several references felt he was not organized, the quality of his field work was not high, and he had not worked hard to improve.

A member of the interview panel for the position stated that since the position at issue was a management position, they were looking at management qualifications. The panel had a series of interview questions dealing with management of people and how to complete the work; and they looked at how the candidates interacted with others and how thorough they were on the information provided in their application materials. He stated that the panel discussed the pros and cons of each candidate and ultimately came to a consensus on their first choice. However, their first choice declined the position. He contended that their first choice and the selectee submitted higher quality resumes and gave higher quality answers in their interviews. He recalled that the Complainant’s application was not as thorough, detailed, or easy to read as those of other candidates; and the Complainant did not seem to be as prepared as the other candidates in answering the interview questions as the Complainant rambled on in his interview responses.

Another panel member stated they were looking for somebody whose leadership skills would lead to a smooth transition since this was a temporary detail. The panel came to a consensus of their first choice, but she declined the position. She stated that the selectee was also very articulate in the interview, and impressed the panel with his ease in answering the questions.

The selectee was also well organized, had a strong application packet, demonstrated a diverse background and leadership experience, and his references vouched for his skills and capabilities. This panel member stated that she ranked the Complainant last based on his resume materials and answers to the knowledge and skills questions. She contended that part of his package was illegible and did not make sense to her and she was surprised the Complainant did not pay more attention to detail and failed to put together a cohesive application package. She added that after the Complainant’s interview, she was bewildered and had a difficult time understanding what he was trying to communicate.

Derogatory Comments

The Complainant stated Mr. Dixon’s comments occurred during a three-week onsite training session in April 2010. According to the Complainant, when Mr. Dixon had a social interaction with other employees Mr. Dixon held out a bottle of liquor and stated “Hey Chief, do you want some fire water.” He responded that he was fine and then walked off in bewilderment. The Complainant stated the next day, Mr. Dixon made the same comment again. He then told Mr. Dixon he did not appreciate those comments. According to Complainant, Mr. Dixon did not really say anything; at which point they went on with the training session. He added that a co-worker told him that Mr. Dixon made comments about other American Indian employees having a “pow-wow.” According to Complainant, when the coworker told Mr. Dixon he was Indian, he stated he was “surrounded.”

The Complainant stated in June 2010, he talked to Ms. Hamblin about Mr. Dixon’s comments. Ms. Hamblin response was “you know how John is.” Complainant then responded, “Yes, he is a disrespectful individual.”

Mr. Dixon stated he first met Complainant at an all-crew retreat in April 2009, during which time he had informal meetings in his hotel room with each crew leader. He asked the Complainant if he was active Native American and indicated he was interested in learning more. According to Mr. Dixon, the Complainant stated he was not active and it was not that important to him. He responded that he would not have to worry then about slipping up and calling him “Chief,” like on that Seinfeld episode. Mr. Dixon stated the Complainant said he would appreciate it if he did not, and he stated that was good to know. Mr. Dixon stated that he did not call the Complainant “Chief” and Complainant did not confront him or display any hard feelings. Mr. Dixon stated they continued to talk about other matters for at least an hour and the issue was never mentioned again, either during that meeting or subsequent to it.

Mr. Dixon stated when the Complainant was not selected for the Head Biologist detail in 2011, Ms. Hamblin told him that the Complainant might be filing a grievance and the “Chief” comment may be an issue. He stated Ms. Hamblin asked what happened and he explained the interaction he had with the Complainant. Ms. Hamblin did not admonish him or direct him to take any action. Mr. Dixon does not believe he made any derogatory comments, but simply asked Complainant in a respectful manner how the subject should be treated.

Ms. Hamblin stated she has never heard Mr. Dixon refer to Complainant or other American Indians in a derogatory manner. She contended the Complainant did not report any such statements to her. Ms. Hamblin recalled having conversations with the Complainant in June 2011 and remembers he was unhappy. She does not remember the specifics of everything he said, but stated the main issue was his non-selection for a temporary promotion to Head Biologist. Ms. Hamblin does not remember the Complainant reporting the derogatory comments by Mr. Dixon, and does not recall saying “you know how Jeff is”.

Witness #1 stated she did not hear Mr. Dixon make any comments towards the Complainant at the 2009 training but does recall hearing Mr. Dixon refer to the Complainant as “Chief” on other occasions. She indicated she does not recall the context; she just recalled Mr. Dixon referring to the Complainant as “Chief” or “Chief Jake.” According to witness #1, this happened on numerous occasions, and she did not understand the connotation at first because she did not think of the Complainant as any particular ethnicity. She does not recall the Complainant being around in all of the instances Mr. Dixon made this reference, nor does she recall ever hearing the Complainant express any issues or indicating he did not want Mr. Dixon calling him “Chief.”

Witness #2, does not recall exactly what Mr. Dixon said to the Complainant during the April 2009 training, but it was something along the lines of “Hey Chief, do you want some fire water.” She does not recall how the Complainant responded or what happened afterwards. She states it came across as one of those random things that fly out of Mr. Dixon’s mouth, as it is pretty common for Mr. Dixon to make odd or inappropriate comments. She added this is not something that seems aimed at Native Americans more than others; he does it to everybody. She does not recall Mr.Dixon making any other comments about Native Americans. She was used to hearing inappropriate comments from Mr. Dixon, so the comment to the Complainant may have made her cringe but it did not really stand out in her mind.

Witness #3 recalls Mr. Dixon stating “Hey Chief, want some fire water” to the Complainant during a lunch break from their training in April 2009. He believed that the Complainant handled it very well, stating he was not a Chief and he interpreted the statement as a bit of a slur. He contended that the Complainant asked Mr. Dixon not use the term again; and, while Mr. Dixon seemed surprised, he did not make the comment again. He does not recall Mr. Dixon apologizing for the comment, but stated he never heard Mr. Dixon making any such comments to the Complainant after this incident.

The Complainant also stated that during a July 13, 2011, conference call he asked the group if somebody could send him previous notes so he could get up to speed on things. The Complainant contended that Ms. Crawford made the comment “I’ll send you smoke signals next time.” He stated he told her just to send him an e-mail, and that was the extent of their interaction. The Complainant is not sure if this comment was retaliation or a way to poke fun at him for initiating his complaint. His only thought is that perhaps management told her to make him feel uncomfortable for initiating his informal complaint. Complainant states he contacted the EEO Counselor the next day, but did not contact management because he had already filed his informal complaint.

Ms. Hamblin stated she did not hear any such comment nor did Complainant ever report any such comment to her.

Ms. Crawford states she does not recall making the “smoke signals” comment. She recalls asking the Complainant if he had received some e-mails she sent and that the Complainant asked her to resend some things. Ms. Crawford does not recall how she responded, but states it seems that if she was going to say something about smoke signals; this is when it would have happened. She states she does not recall making the statement attributed to her, but if she did, it would have been completely unrelated to Complainant being Native American. Ms. Crawford contended if she did use the term “smoke signals,” it would have been in the context of describing a mode of communication – analogous carrier pigeons, telegrams, or a message in a bottle. Ms. Crawford believes the term “smoke signals” is not inherently negative and it has become a colloquialism that is part of the population’s vernacular. Ms. Crawford does not recall the Complainant raising this as an issue, and states she wished he would have so they could have addressed it and reach some type of clarity. She added that she was not aware at the time of the Complainant’s allegations of discrimination, and indicated this was definitely not something where management was directing her to make him uncomfortable about any such allegations. Ms. Crawford further states that if Mr. Dixon had ever requested that she purposefully make another employee feel uncomfortable for any reason, she would have said “no” and would have gone to his superiors to discuss the issue.

Witness #3 stated that he is one of the staff biologists and was generally involved in conference calls. He does not recall hearing any comments about “smoke signals” during any of the conference calls in which he participated.

The record contains an August 18, 2011 e-mail from an interview panel member to Ms. Hamblin explaining the selection process and the reasons for Complainant’s non-selection. The email indicated that the Complainant was the lowest ranked candidate and they considered not interviewing him, but they felt keeping the Complainant in the interview pool would be a good experience for him. The email also indicated that the Complainant was still the lowest rated candidate following the interviews based upon: (1) his application was not as well-written as those of other candidates; (2) the breadth of experience and leadership/organizational experience of the top three candidates was much higher than Complainant’s; (3) he did not concisely answer the interview questions, tending to ramble and get off-topic; and (4) several references felt he was not well organized, that the quality of his field work was not high, and that he had not worked hard to improve in these areas.

The report of investigation disclosed that the agency was unable to provide the applications, any interview panel notes, the ranking of candidates, or any other documentation regarding the evaluation of candidates for the position. However, the record indicates that five White employees and one Native American employee (Complainant) applied for the position. One White employee was found ineligible for the position, while Complainant and the remaining four White employees were found eligible.

Summary:

· The Complainant was not selected because his application was not well written to reflect his experience or qualifications for the job and his responses during the interview were rambling, and lacked specificity and detail.

· The record does not include the other candidates’ applications or interview notes because they may have been destroyed. Therefore, a comparison cannot be conducted to ascertain whether the Complainant’s application was not well written in comparison to the other candidates.

· The responsible management official does not recall making offensive comments about the Complainant’s national origin. However, witnesses stated that they have heard the responsible management official making such comments.