Booker P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionMar 6, 20192019001096 (E.E.O.C. Mar. 6, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Booker P.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019001096 Agency No. HS-ICE-25898-2016 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 October 4, 2018 final decision 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., 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 an Information Technology Specialist for the Agency in New York, New York. On April 11, 2016, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against him based on race (African-American) and age (66). By letter dated June 22, 2016, the Agency determined that Complainant’s complaint was comprised of the following claim: 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. 2019001096 2 Whether Complainant was subjected to a hostile work environment when the following events occurred: 1. From December 1, 2015 to the date of filing his complaint, Complainant’s first-level supervisor (S1) continuously asked him to close help desk tickets while the job was still being completed. 2. From December 1, 2015 to the date of filing his complaint, Complainant’s supervisors micromanaged his work activities. 3. On December 7, 2015, to the date of filing his complaint, Complainant was required to complete hourly productivity reports. 4. Complainant’s supervisors required him to retake training before they would validate Complainant’s time and attendance. 5. Complainant’s second level supervisor (S2) made racially discriminatory remarks. 6. Complainant learned that his organization’s workstations would be removed and returned to the Mission Support for discard, and they remained in the ITFO pending excess. Following an investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 4, 2018, the Agency issued a final decision finding no discrimination. The Agency noted that it forwarded Complainant a copy of the ROI on April 18, 2017, and that Complainant failed to request either a hearing or a final decision. Regarding the merits of the formal complaint, the Agency found that Complainant not shown that he was subjected to unwelcome conduct based on his membership in his protected classes. The instant appeal followed. On appeal, Complainant, through his attorney, asserts that the Agency improperly issued a decision in this matter because Complainant requested a hearing with the EEOC’s New York District Office on May 25, 2017. In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency asserts that it properly issued a final decision in the instant matter. Specifically, the Agency asserts that Complainant received the notice to request a hearing or a final decision on April 22, 2017. The Agency noted that Complainant should have filed a hearing request by May, 22, 2017, but that he did not file a hearing request until May 25, 2017. The Agency states that: “[Complainant] sent his hearing request late to some unknown fax number…” 2019001096 3 Finally, the Agency, in its final decision, states that “[Complainant’s] argument that he believed he would have a hearing because on or about June 15, 2017, [a named union] communicated to him in a letter that his case was ‘at the hearing stage’ is immaterial as well...[the union] is not a proper administrative body authorized to opine on the status of Complainant’s EEO complaint…” ANALYSIS AND FINDINGS As an initial matter, we find that the Agency properly issued a final decision. The record reflects that on April 18, 2017, the Agency sent Complainant a copy of the ROI and a notice to elect either a hearing before an EEOC AJ or request a final agency decision. The record reflects that the election notice was received by Complainant on April 22, 2017. The election notice informed Complainant “[y]our written request for a hearing must be submitted to the EEOC Office indicated [on the hearing request form] within 30 calendar days of the receipt of this letter.” The hearing request form provided the mailing address for the EEOC’s New York District Office. The record contains a copy of a hearing request form submitted by Complainant on appeal. The hearing request form is signed by Complainant on May 25, 2017.2 The hearing request, submitted by Complainant on appeal, reflects that it was faxed to an unspecified number on May 25, 2017. The record is devoid of information as to whom the recipient was of the faxed hearing request form. In addition, the May 25, 2017 hearing request was sent outside of the applicable time period. We concur with the Agency that the union’s June 15, 2017 letter to Complainant is not determinative that Complainant timely filed his hearing request with the EEOC. The union issued its letter in response to Complainant’s request for representation. While the union’s letter stated “[w]e note that your case is at the hearing stage of the EEO process.” we concur with the Agency that the union does not have jurisdiction over Complainant’s request for a hearing before an EEOC AJ. Based on the foregoing, we find Complainant has not established that he timely submitted a hearing request to the EEOC’s New York District Office. We will now turn to the merits of the Agency’s final decision. 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”). 2 Commission records reflect that the instant matter has not been docketed for a hearing before an EEOC AJ. 2019001096 4 To establish a claim of harassment based on race, sex, disability, age, or reprisal, complainant must show that: (1) he is a member of the 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 the statutorily protected class; and (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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The Agency properly found that Complainant did not establish a prima facie case of harassment. Specifically, we find that Complainant did not establish, by a preponderance of the evidence, that the alleged actions were based on his protected classes. Regarding claim (1), Complainant being asked to close tickets by his first level supervisor (S1), Complainant has not established that S1’s alleged actions were based on Complainant’s protected classes. The record contains an affidavit from S1. Therein, S1 asserts that “I did not ask Complainant, or any of my direct reports to close help desk tickets while the job was still being completed…My responsibility as the Northeast Area Manager is to follow up on tickets that are past due for my area. I simply followed up with [Complainant]…on the status of tickets that were running past due and asked to close them (only) if they had been resolved.” Report of Investigation (ROI) at 108. Regarding claim (2), that S1 micromanages Complainant’s work activities, we find that Complainant has not established that S1’s actions were based on Complainant’s protected classes. S1 asserts that she is responsible for overseeing the effective delivery of Information Technology customer support. S1 further states that “I apply the same standards of supervision and/monitoring to all of my direct reports. At times, Complainant does not respond, or is late responding to requests and/or questions regarding work activities and follow up and review is necessary…” ROI at 114. Regarding claim (3), that management required Complainant to complete hourly productivity reports, we find that Complainant has not established that management’s actions were based on his protected classes. S1 asserts that Complainant was not asked to complete an hourly report but a daily workload report at the end of his shift. S1 states that the daily reports are necessary in order to evaluate current workload and properly align resources. 2019001096 5 S1 states that the daily report was initiated during a conference call with Complainant and other Information Technology Specialists. ROI at 117. The record also contains an affidavit from S2. Therein, S2 asserts that Complainant needed to complete a daily work report not an hourly work report. ROI at 145. We concur with the Agency that the other employees cited by Complainant as not having to complete these reports were not similarly situated to Complainant. ROI at 146. Regarding claim (4), S2 requiring Complainant to take training before he would validate Complainant’s attendance. S2 asserts that he had Complainant take time and attendance training as a refresher. S2 asserts that Complainant made several mistakes in the past when using the system and tried several times incorrectly to submit a leave request. S2 states that he therefore decided that Complainant needed a review of the time and attendance system. ROI 149-150. Regarding claim (5), Complainant’s allegation that S2 made the following statement “I’m not hiring any non-Spanish speaking blacks, Spanish people are African Americans, and the government can’t say I’m discriminating”, Complainant has not established that S2 made this statement. S2, in his affidavit, denied making this statement. ROI at 152. We note that we do not have the benefit of a hearing because, as set forth above, Complainant did not timely and properly request a hearing before the EEOC. We further note that Complainant alleges that S2 made this statement in 2002, more than ten years prior to the events at issue herein. Regarding claim (6), that management made Complainant remove workstations from his area, Complainant has not established that this action was based on his protected classes. S1 asserts that the workstations belonged to the Enforcement and Removal Operations (ERO) and were occupying Information Technology Field Operations (ITFO) space. S2 asserts that S1 learned that Complainant redirected the movers, without authorization, to leave over 20 of the ERO workstations in the ITFO space. According to S2, S1 advised Complainant that he failed to comply with specific directions. Based on the foregoing, we find that Complainant failed to establish that the actions at issue were based on his protected classes. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2019001096 6 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). 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. 2019001096 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 March 6, 2019 Date Copy with citationCopy as parenthetical citation