Booker P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Mar 6, 2019

2019001096 (E.E.O.C. Mar. 6, 2019)

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.
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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…”
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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.
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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.
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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.
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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.
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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