Joelle L.,1 Complainant,v.Kevin A. McAleenan, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Nov 8, 2019

2019002126 (E.E.O.C. Nov. 8, 2019)

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

Joelle L.,1
Complainant,

v.

Kevin A. McAleenan,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 2019002126

Agency No. HS-ICE-26410-2016

DECISION

On February 28, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 30, 2019 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Enforcement and Removal Assistant
(ERA), GS-8, at the Agency’s ICE Air Operations, Commercial Air Operations in Mesa,
Arizona.

On May 20, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
concerns were unsuccessful.

On August 18, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (African-American), sex (female), color
(brown), disability, age (over 40), and parental status when:2

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.
2019002126

2

1. she was subjected to harassment/a hostile work environment when the following
incidents occurred:

a. she became aware that before she entered on duty in April 2014, the office
knew “a pretty black girl is coming to work here;”

b. in approximately August 2014, she became aware that the following comment
was made about her, “Every time this [profanity] comes in this office she is
always dressed up;”

c. in approximately November 2014, she became aware the following comment
was made about her, “who does she think she is that she does not have to
speak to me ?;”

d. on May 20, 2016, her first-level supervisor (“supervisor”) counseled her for
not providing him a copy of her virtual university transcript; additionally, after
the counseling session ended, the supervisor emailed her a copy of the written
counseling and then stopped by her cubicle with the written counseling in his
hand, asking her to take it, at which time she informed him she did not feel
safe with the supervisor in her cubicle, and asked him to stop harassing her;
the supervisor then laughed at her and as she was leaving for the day asked
another employee, “is something funny are you feeling unsafe?;”

e. in approximately June 2016, the supervisor told the union president rumors
about her when the supervisor saw her carrying a box and said that she walked
out of her position, and the second-level supervisor told her, “I don’t know
how you can go to the Academy for the Deportation Officer at your age. I
was much younger when I went;”

2. on January 8, 2016, she became aware she was not selected for the position of
Mission Support Specialist, GS-0301-09, as advised under Vacancy Announcement
Number LAG-ER0-1534253-MD-0534;

3. on May 4, 2015, she became aware she was not selected for the position of
Supervisory Enforcement and Removal Assistant OA, GS-1802, as advertised under
Vacancy Announcement Number LAG-ER0-1305062-BTR-133;

2 Complainant’s claims involving discrimination on the basis of parental status are properly
dismissed for failure to state a claim. The Commission does not have jurisdiction over claims of
parental status discrimination. Moran v. Dep’t of Veterans Affairs, EEOC Appeal No.
01A10499 (Oct. 8, 2002).
2019002126

3
4. on August 7, 2015, she became aware she was not selected for the position of Mission
Support Specialist, GS-0301-09, as advertised under Vacancy Announcement
Number LAG-FPH-1466344-HLS-006;

5. on September 3, 2015, she became aware she was not selected for the position of
Mission Support Specialist, GS-0301,09, as advertised under Vacancy Announcement
Number LAG-OFTP-1449367-HB-488;

6. on September 4, 2015, she became aware she was not selected for the position of
Mission Support Specialist, GS-0301-09, as advertised under Vacancy
Announcement Number LAG-ERO-1465882-MD-503;

7. on January 9, 2014, she became aware she was not selected for the position of
Mission Support Specialist, GS-0301-09, as advertised under Vacancy
Announcement Number LAG-ER0-1010117-LMA-423;

8. on January 9, 2014, she became aware she was not selected for the position of
Mission Support Specialist, GS-0301-09, as advertised under Vacancy
Announcement Number ER0-1010284-LMA-424-PN;

9. on September 24, 2014, she became aware she was not selected for the position of
Mission Support Specialist, GS-1186275-LKS-142, as advertised under Vacancy
Announcement Number LAG-ER0-1186275-LKS-142.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

In its January 30, 2019 final decision, the Agency dismissed claims 1.a. – 1.c. and claims 2 – 9
for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the
Agency determined that Complainant initiated EEO Counselor contact on May 20, 2016, which
the Agency found was more than forty-five days after the alleged discriminatory events occurred.

The Agency then proceeded to address claims 1.d. and 1.e. on the merits finding no
discrimination based on the evidence developed during the investigation.3

The instant appeal followed. Complainant did not submit a brief on appeal.

3 Complainant identified her disability as lower lumbar issues. For purposes of this analysis, we
assume, without so finding, that Complainant was an individual with a disability.
2019002126

4
ANALYSIS AND FINDINGS

Untimely Claims 1.a. – 1.c. and 2 - 9

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action,
within forty-five (45) days of the effective date of the action.

With regard to the series of non-selections in claims 2-9, the record shows that the latest incident
occurred on January 8, 2016, but Complainant did not initiate contact with an EEO Counselor
until May 20, 2016, well beyond the 45-day limitation period. Complainant has not presented
any persuasive arguments or evidence warranting an extension of the time limit for initiating
EEO Counselor contact. See 29 C.F.R. § 1614.604(c).

With regard to claims 1.a. – 1.c, we recognize that Complainant is alleging that these incidents
are part of her claim on ongoing harassment. The Supreme Court has held that a complainant
alleging a hostile work environment will not be time barred if all acts constituting the claim are
part of the same unlawful practice and at least one act falls within the filing period. See National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). Here, however, we
discern no obvious connection between the events described in claims 1.a. – 1.c. which occurred
in 2014 and the later events proffered as part of her harassment claim that occurred two years
later in 2016 and involved her first level supervisor. Accordingly, we find the Agency did not
err in concluding that the earlier, untimely raised incidents were not part of the same unlawful
practice as those timely raised.

Accordingly, we conclude the Agency properly dismissed claims 1.a. – 1.c. and 2 - 9 for
untimely EEO Counselor contact.

Harassment - Claims 1.d. and 1.e.

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of her protected bases – in this case, her race, sex, color, disability
and age. Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself.

Regarding claim 1.d., Complainant asserted on May 20, 2016, her supervisor counseled her for
not providing him a copy of her virtual university transcript, After the counseling session ended,
the supervisor emailed Complainant a copy of the written counseling and then stopped by her
cubicle with the written counseling in his hand, asking her to take it, at which time she informed
him she did not feel safe with him in her cubicle, and asked him to stop harassing her.
2019002126

5
The supervisor then laughed at her and as she was leaving for the day asked another employee,
“is something funny - are you feeling unsafe?”

The record reflects that on May 4, 2016, Complainant received an email stating “The ICE Virtual
University will be shutting down on May 15th to allow ICE to transition to the new DHS
Performance and Learning Management System (PALMS).” Complainant was encouraged to
log in the website prior to May 15, 2016 to print a copy of her current transcript and complete
any mandatory courses.

The Supervisory Enforcement and Removal Assistant (supervisor) (Hispanic, dark brown, male,
over 40 years, unknown disability) acknowledged issuing Complainant a Letter of Counseling on
May 20, 2016, and “she refused to sign the acknowledgement and then walked out of my office.”
Specifically, the supervisor stated that on May 4, 2016, he instructed Complainant to provide
him a copy of her Virtual University transcript but she did not provide him the copy. On May 5,
2016, he emailed Complainant requesting a copy of her transcript. In response, Complainant
stated “the email I receive does not authorize you to have a copy of my transcript. I have printed
me a copy off for my records. Thank you.” The supervisor determined that Complainant failed
to follow his instructions.

The supervisor stated that he then contacted Labor Relations and “they recommended that I hand
deliver a copy of the Letter of Counseling to Complainant.” He stated that he went to
Complainant’s cubicle to deliver the letter and she asked him “to lay the document on her desk.
She told me she did not feel safe when this was happening. I placed the document on the desk
and left her area. I again contacted Labor and Employment Relations, who recommended that I
follow up with the Complainant in the presence of another female supervisor. When I attempted
to do so, the Complainant already left for the day.”

Regarding Complainant’s allegation that the supervisor threatened to remove her from her job if
she failed to provide him a copy of her transcript and that he refused to leave her area when she
told him she felt unsafe, the supervisor denied doing so.

Regarding claim 1.e., Complainant alleged that in approximately June 2016, the supervisor told
the union president rumors about her when the supervisor saw her carrying a box and said that
she walked out of her position, and the second-level supervisor told her, “I don’t know how you
can go to the Academy for the Deportation Officer at your age. I was much younger when I
went.”

The Unit Chief (Caucasian, white female, over 40 years, unknown disability) stated that she was
informed that the police had been called to the office by Complainant and “someone retrieved
the Complainant from her cubicle and I met with the Complainant and the officers outside in
front of the building. The Complainant did not want to talk to the officers. The officers asked
the Complainant why she had called them and she said that she did not want to talk to them. One
officer took me aside and one officer stayed with the complainant and spoke with her. I told one
officer that the Complainant had expressed fear of her supervisor.
2019002126

6
I explained that I had not witnessed [supervisor] saying or doing anything threatening. The
police left and that is the last I have heard of this incident.”

With respect to Complainant’s allegation that the Unit Chief told her “I don’t know how you can
go to the Academy for the Deportation Officer position at your age. I was much younger when I
went,” the Unit Chief denied it. Specifically, the Unit Chief stated “not in those words or in that
context. I said something along those lines in a supportive encouraging manner. I am impressed
by the complainant’s energy and motivation to move up in the agency.”

Here, Complainant simply has provided no evidence to support her claim that her treatment was
the result of her race, sex, color, disability and age. A case of discriminatory harassment is
precluded based on our findings that Complainant failed to establish that any of the actions taken
by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
2019002126

7
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.

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

November 8, 2019
Date