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

Equal Employment Opportunity Commission

Mar 6, 2014

0120131169 (E.E.O.C. Mar. 6, 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
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120131169

Hearing No. 510-2011-00619X

Agency No. HS-ICE-00048-2011

DECISION
On February 5, 2013, Complainant filed an appeal from the Agency’s January 8, 2013, final
order concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal
Investigator at the Agency’s Homeland Security Investigations (HSI), Resident Agent in
Charge (RAC) Office, located in Key West, Florida. Complainant began working as a
Criminal Investigator at the Agency on February 15, 2009, under an excepted service
appointment pursuant to the Federal Career Intern Program. Under the terms of
Complainant’s appointment he was required to serve a two-year probationary period. During
the relevant time Complainant’s first-line supervisor was the Group Supervisor. Complainant's
second-line supervisor was the Resident Agent in Charge (RAC). Complainant was terminated
from the Agency effective October 8, 2010, in a letter signed by the Special Agent in Charge.

On January 18, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of national origin (Hispanic) when: By letter dated
October 5, 2010, Complainant was terminated during probation from his position of Criminal
Investigator.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on December 10, 2012.

In her decision, the AJ noted that the Agency terminated Complainant’s employment effective
October 8, 2010. The AJ noted the reasons were as follows:

This decision is based upon your conduct. Specifically, on or about April 12, 2010,
you were directed by your supervisor to locate an illegal alien who failed to report to
the office after a verbal notice to appear. On April 22, 2010, you were directed to
include your alien in a Deportation and Removal Operations (DRO) fugitive operation
scheduled for April 27, 2010. Despite being advised what information you needed to
provide, you failed to get your alien included in the DRO fugitive operation. On April
23, 2010, your supervisor again reminded you of your responsibility to locate and
process the alien. On April 27, 2010, you failed to participate in the DRO fugitive
operation. On April 28, 2010, other agents from the office apprehended the alien at his
workplace. You were directed to return to the office to process and transport the alien
to the [X] Detention Center. Instead of processing the alien, you made a last minute
request for sick leave for 4:30-5:30 p.m. for that day. Although your stated reason for
requesting sick leave on very short notice was to transport your daughter to the doctor
that day, you later admitted that you did not take your daughter to the doctor until the
next day as reflected in a note from the doctor dated April 29, 2010.

The AJ noted Complainant was also cited for failure to adequately document his activities and
failure to follow instructions reflecting a lack of “good judgment and professionalism.”
Specifically,

On May 4, 2010, your supervisor directed you to open a case on the alien, complete a
report of investigation, and complete a search arrest seizure form. On May 5, 2010,
you told your supervisor that you had conducted two surveillances on the alien's
residence with another agent. However, you had not included any surveillances in your
report of investigation. Moreover, the agent who assisted you with surveillance
indicates that there was only one surveillance and it was not at the location that the alien
listed as his residence. Furthermore, you claimed sizeable foreign language translation
hours in February and March 2010 (74 hours and 76 hours respectively). You were not
the case agent on the case, and the case agent could not verify that you provided those
hours of translation on the case.

The AJ noted Complainant alleged that his direct supervisor discriminated against him on the
basis of his national origin. Complainant argued that he was not trained effectively and that
during the monthly meetings with his supervisor he was not informed of any deficiencies.
Complainant alleges that a non-Hispanic, Person A, received similar ratings on the “Conduct
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& Efficiency” (“C & E”) monthly meetings and was retained after passing probation. The AJ
noted that the ratings on the C & E were given by Complainant’s Field Training Officer
(FTO), not his supervisor.

The AJ noted that Complainant cited Person A as a comparative and provided his C&E
reports. The AJ determined that Person A’s reports indicate that Person A received
“excellent” ratings on all of the elements for his entire probationary period. The AJ noted
Complainant began receiving lower ratings during the period of early to mid 2010, when the
events cited in the termination occurred. The AJ noted the ratings were lowered in the element
of “Exercise good judgment and sound conclusions,” one of the reasons cited in the
termination letter. Complainant argued that his rating was lowered only to “fully successful”
instead of “marginal” or “unsuccessful” meaning that he should not have been terminated.
However, the AJ noted that the fact that the FTO chose to be more lenient in his ratings for the
monthly on-the-job training sessions, does not negate the fact that Complainant engaged in the
conduct alleged in the termination letter as the reasons for his termination. The AJ also noted
there was no evidence in the record that Person A engaged in any actions similar to those cited
in Complainant’s termination letter.

The AJ found the Agency articulated legitimate, nondiscriminatory reasons for its action. The
AJ noted that while Complainant disagreed with his supervisor’s instructions or the necessity to
locate the “alien,” he did not dispute that he did not locate him and other agents located the
alien at his workplace. The AJ found that while Complainant disagreed with the other reasons
cited in the letter, he did not dispute that he did not adequately document his activities
regarding language translation and surveillances of an alien’s residence. The AJ also noted
that Complainant did not dispute or address the fact that he submitted a request for sick leave
at the last minute to take his daughter to the doctor but the doctor’s note shows that she was
taken the next day, not on the day he was instructed to transport the alien to the detention
center. The AJ noted that two Hispanic Criminal Investigators were retained by the Agency
during the relevant time frame. The AJ concluded Complainant failed to show that his national
origin was a factor in the decision to terminate his employment.

The Agency subsequently issued a final order on January 18, 2013. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

On appeal, Complainant alleges that his supervisor treated him differently because of his
Hispanic background. Complainant also states the RAC “may also have had discriminatory
animus against [Complainant].” Complainant claims the atmosphere in the RAC Office in Key
West was not particularly “foreigner” friendly and appeared tinged with xenophobia.
Complainant states that during the first few months of his time at RAC Key West he observed
the cell phone ring-tone of the RAC made the following sound: Arabic sounding prayers,
followed by the sound of a shotgun pump, followed by the discharge (report) of a weapon,
followed by the playing of the American national anthem. Complainant argues that the ring-
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tone of the RAC does not give the appearance of an unbiased Agency attempting to carry out
the immigration laws free from bias.

In addition, Complainant states that the Group Supervisor referred to illegal aliens from south
of the border as “Mexicans,” regardless of their actual ethnic origin. Specifically,
Complainant cites to the Group Supervisor’s deposition of May 22, 2012, in which the Group
Supervisor referred to the illegal alien involved in the April 2010 incident as a “Mexican.”
Complainant states that the Group Supervisor was aware that Complainant was Hispanic and
did nothing to alter his language when referring to undocumented Hispanics as “Mexicans.”

Complainant notes that the FTO assigned to both Complainant and Person A discerned a
difference in the treatment between the two by their first-line supervisor (Group Supervisor).
Specifically, the FTO stated that he thought the Group Supervisor’s tone was more favorable to
Person A than Complainant at times. Complainant notes the FTO also stated that he did not
see any substantial difference in the Conduct and Efficiency Reports of Complainant and
Person A. Complainant also states that his termination came as a complete surprise to his
FTO. He argues this should immediately raise “red flags” as to why the Group Supervisor
kept Complainant's FTO out of the information loop regarding the upcoming loss of a criminal
investigator who had Spanish speaking skills.

With regard to the April 2010 incident, Complainant claims that the incident involved a low
priority call, following a traffic stop by a Key West Police Officer of an undocumented alien
which took place on Saturday, April 10, 2010. Complainant claims the duty call to HSI was
misplaced and that it should have gone to Border Patrol or ERO. In addition, Complainant
notes that the April 14, 2010 memorandum states that the Group Supervisor asked Complainant
to do a scratch Notice to Appear (NTA); however, he states in April 2010, there was no such
thing as a “scratch.” Rather, he states that at the time, HSI required that a supervisor sign off
on a NTA.

Finally, Complainant acknowledged that he claimed foreign translation hours in the amount of
74 hours for the month of February 2010, and 76 hours for the month of March 2010. He
stated that these hours were a miscalculation and argues that on their face the claimed amount
of hours was absurd. He states the Agency should have suspected an error on the part of
Complainant. He states that he was never questioned about the hours by management nor
asked to verify the hours.

In response to Complainant’s appeal, the Agency states that the AJ properly determined that
Complainant failed to identify any other employee was similarly situated to him because there
was no evidence that any other employee engaged in similar offenses as described in the
termination letter. In addition, the Agency notes that two other Hispanic criminal investigators
were assigned to the Key West Office during their probationary period. The Agency notes that
one of them was in his FCIP trial period at the same time as Complainant. The Agency notes
that neither of them was terminated.

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In addition, the Agency argues the AJ properly held that the Agency had legitimate,
nondiscriminatory reasons for terminating Complainant and that Complainant failed to satisfy
his burden to establish pretext. The Agency notes that in October 2010, the Special Agent in
Charge terminated Complainant during his probationary period for unacceptable conduct due to
his failure to follow supervisory instructions and to adequately document his activities.

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 EEOC Management Directive for 29 C.F.R. Part 1614

, Chap. 9,
§ VI.A. (Nov. 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”).
Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters

,
438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens

, 460 U.S.
711, 715-16 (1983).
In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. The Agency terminated Complainant as a result of: failing to follow his supervisor’s
directions in locating an alien; failing to adequately document his activities regarding language
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6
translation and surveillances of an alien’s residence; and requesting sick leave at the last
minute to take his daughter to the doctor but the doctor’s note shows that she was taken to the
doctor the next day, not on the day he was instructed to transport the alien to the detention
center.

While Complainant argues that the call to HSI was misplaced and was considered a low
priority, he does not dispute that the call was still placed to his office and that he was directed
by his supervisor to handle the situation. With regard to Complainant’s contention that at that
time there was no “scratch” Notice to Appear practice, he does not dispute that the Group
Supervisor told him to issue a verbal Notice to Appear on April 10, 2010, which he did. Nor
does Complainant dispute that the alien did not appear as directed on Monday, April 12, 2010,
and that he was instructed to locate the alien. Complainant also admitted that he was instructed
by the Group Supervisor to attempt to add the alien’s name to a list of undocumented aliens
being sought in an operation by DRO and that he did not accomplish this. Moreover, the
record is undisputed that Complainant did not locate the alien, but that other agents located the
alien at his work location.

Complainant also notes that on April 28, 2010, when the Group Supervisor instructed him to
return to the office to process the alien and transport the alien to the Detention Center, he was
away approximately four hours on other Agency business. While Complainant may disagree
with the Group Supervisor’s order that he return to the office to process the alien, we find no
evidence that the supervisor’s actions were based on discriminatory animus. Moreover, the
record is undisputed that upon his return to the office, Complainant put in for one hour of sick
leave and did not transport the alien to the Detention Center. In addition, we note that on
appeal Complainant did not dispute that he did not take his daughter to the doctor the afternoon
of April 28, 2010, as he indicated when he initially made his sick leave request.

With regard to the Conduct and Efficiency Reports issued by the FTO, the record reveals that
these reports rated employees on specific on-the-job objectives. The record reveals that Person
A received “excellent” ratings on all his C&E reports. In contrast beginning the week of
March 16, 2010, Complainant’s ratings began to drop below “excellent.” Specifically, the
record reveals that Complainant’s ratings were lowered in the element of “Exercise good
judgment and sound conclusions,” one of the reasons cited in the termination letter. With
regard to Complainant’s contention that the FTO was not aware of his termination until after
he was terminated, we note that this fact is not in dispute. However, we note that the FTO
was Complainant’s on-the-job trainer and was not in a supervisory position. Thus, we do not
find the fact that the FTO did not know about Complainant’s termination until after the fact as
evidence of discrimination. Moreover, with regard to the FTO’s statement that he believed the
Group Supervisor’s tone was more favorable to Person A than Complainant at times, we note
there is no evidence that the Group Supervisor’s actions were the result of discrimination based
on Complainant’s protected class.

With regard to the large number of foreign language translation hours claimed by Complainant
in February and March 2010, we note that in his initial affidavit, Complainant stated that he
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properly submitted his hours and they were approved by the RAC. Later, in his rebuttal
affidavit, Complainant stated that he erroneously entered 74 hours instead of 14 hours and 76
hours instead of 16 hours. Complainant stated he was never asked about the validity of the
hours and was never given an opportunity to correct his mistake. The record reveals that the
RAC had questions regarding the volume of hours submitted by Complainant as he was not the
case agent on the case and the hours requested were unusually high. The RAC then asked the
Group Supervisor to verify the hours claimed. The RAC noted that the case agent could not
verify all the hours Complainant claimed on the case. Even if Complainant was never asked to
verify the foreign language hours claimed, we find this is not evidence of discriminatory
animus.

In addition, Complainant claims that he was subjected to discrimination by the Special Agent in
Charge (SAC) when the SAC did not conduct an independent investigation and instead relied
on the allegations brought by the Group Supervisor. Upon review, we find nothing indicates
that the SAC was required to conduct on investigation. Moreover, there is no indication that
the SAC’s decision not to conduct an investigation was based upon Complainant’s national
origin.

Finally, we note Complainant tries to establish pretext by claiming the environment at the Key
West Office was xenophobic. Specifically, he cites the cell phone ring the RAC allegedly had
when Complainant first started at the RAC Office. First, Complainant does not specify the
exact time frame the alleged ringtone was in use. Second, we find the alleged ringtone does
not have any connection to Complainant’s protected national origin (Hispanic). In addition,
Complainant claims that the Group Supervisor referred to illegal aliens as Mexicans. First, we
find the term “Mexican” is not in and of itself a derogatory term. In addition, Complainant
cited the statement from the Group Supervisor in which the supervisor referred to the alien
involved in the April 2010 incident as Mexican. We note it is undisputed that the alien
involved in the April 2010 incident was Mexican. The Agency also states that the nationality
of the alien was important because the Group Supervisor understood Mexicans were subject to
mandatory deportation. Upon review, we find Complainant failed to show that the Agency’s
articulated reasons were a pretext for discrimination based on his national origin.

CONCLUSION
Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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:

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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.

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
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9
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
March 6, 2014