Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

May 7, 2014

0120131389 (E.E.O.C. May. 7, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120131389

Agency No. HS-CIS-22248-2012

DECISION
Complainant filed an appeal from the Agency’s final order dated January 16, 2013, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order finding no discrimination.

BACKGROUND
The Agency framed Complainant’s complaint, dated June 20, 2012, as alleging discrimination
based on race (Caucasian), color (white), and age (over 40) when:

(1) Beginning on February 16, 2012, through April 17, 2012, he was subjected to a
hostile work environment when derogatory comments were repeatedly made to him;
and

(2) On April 19, 2012, his employment was terminated.

Complainant has not challenged the framing of the complaint. After completion of the
investigation of the complaint, Complainant requested a final Agency decision without a
hearing. The Agency thus issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. On
appeal, Complainant contends that his performance was not deficient.

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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. (November 9, 1999) (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”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant was hired as an
Immigration Service Assistant, GS-6, a probationary employee, on May 22, 2011. With
regard to claim (1), Complainant claimed that he was subjected to derogatory remarks from his
coworkers and his supervisors which created a hostile work environment when:

1. On an unspecified date, while in the elevator with another employee (CW1) and
Complainant, the Records Manager (RM) stated “you are not going to be here as long
as [CW1],” referring to Complainant. RM denied the incident.

2. On February 16, 2012, the Branch Chief (BC) accused Complainant of calling a
Supervisory Immigration Services Assistant (SISA) a “Jew pig.” BC denied the
incident.

3. On March 14, 2012, the SISA stated to Complainant “you can’t beat me,” and
complained about Complainant being available for job interviews. The SISA denied the
incident.

4. On March 22, 2012, a second coworker (CW2), White, called Complainant, “White
trash.” CW2 denied the incident.

5. On April 6, 2012, a Supervisory Immigration Services Officer (SISO) called
Complainant “White trash,” while in the record room. SISO denied the incident.

6. On April 7, 2012, a third coworker (CW3) questioned Complainant about his age.
Complainant stated that CW3 did not question anyone else about their age. CW3
indicated that at the relevant time, they were in a group setting with other coworkers
and Complainant was taking part in the conversation with others and everyone was
discussing and comparing their ages. It was at that time, stated CW3, she asked
Complainant how old he was and he laughed and answered her question. CW3 stated
that the question at issue was not intended as harassment and Complainant did not
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object. A coworker who was present indicated that Complainant and CW3 “were
talking and comparing ages” and “everybody was light hearted with some laughing and
in no way was harassing for anyone.”

7. On April 10, 2012, while in the lunchroom with the SISO and Complainant, the District
Director (DD) stated that SISO was trying to “get Complainant back for calling him a
‘n….’” DD denied the incident and indicated that on April 10, 2012, he was not in the
lunchroom with Complainant and he ate lunch at a restaurant.

With regard to claim (2), management indicated that after Complainant was hired, he was
given formal classroom training on three occasions: a two-week course for Immigration
Services Assistants in the summer of 2011; a one-week course for Records training in Vermont
in July 2011; and a three-day training session in November 2011. Specifically, SISA,
Complainant’s first level supervisor, indicated that Complainant’s duties included shipping files
from the Philadelphia office to sub-offices and working in the mailroom. SISA stated
Complainant made errors on numerous occasions when: he forwarded files to the wrong
location; he made errors when he was trying to correct previous errors; he left the mailroom
without properly securing the mailroom; he opened packages without proper clearance, even
after he was told not to do so; and he delivered secure packages to the wrong employee.
Complainant does not contest the foregoing statement. Despite Complainant’s contentions that
he was not previously aware of his performance deficiency, he nevertheless acknowledged that
in early December 2011, RM, his second level supervisor, told him that his performance was
unsatisfactory. SISA also stated that in the fall of 2011, she discussed with Complainant his
performance deficiency. DD further indicated that in November 2011, Complainant contacted
him about his performance issues.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. With regard to his claim of
harassment when he was purportedly subjected to the derogatory remarks, we find that
Complainant failed to establish the severity of the conduct in question constituted a hostile
work environment. Furthermore, Complainant failed to show by a preponderance of the
evidence that any discriminatory remarks were made to Complainant. Management indicates
that Complainant had not brought the alleged remarks or harassment to their attention prior to
the complaint. Regarding the termination, although Complainant contends that he previously
received a satisfactory performance rating for FY11 period in November 2011, we find that
this, by itself, does not negate the fact that his performance was deficient as described by his
supervisors. We find that Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances. Based on the foregoing, we find that
Complainant has failed to show that he was discriminated against as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
0120131389

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RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 7, 2014