Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.Download PDFEqual Employment Opportunity CommissionMay 7, 20140120131389 (E.E.O.C. May. 7, 2014) Copy Citation 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. 0120131389 2 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 0120131389 3 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. 0120131389 4 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 5 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 Copy with citationCopy as parenthetical citation