0120102490
11-29-2011
Juan N. Rocha, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Juan N. Rocha,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120102490
Agency No. HS-05-ICE-000710
DECISION
On May 27, 2010, Complainant filed an appeal from the Agency’s April 30,
2010, final decision 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts
the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the record is adequately developed
to allow a determination on the merits of Complainant’s complaint;
and (2) whether Complainant established that the Agency subjected him to
discrimination and hostile work environment harassment on the bases of
race, national origin, age, and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Senior Special Agent, GS-1811-13, at the Agency’s
Office of Investigations in Los Angeles, California. On October 7,
2004, Complainant contacted an EEO Counselor. On December 2, 2004,
Complainant filed an EEO complaint alleging that the Agency subjected him
to discrimination and harassment on the bases of race (Hispanic/Latino),
national origin (Spain/Portugal/Mexico), age (43), and reprisal for
prior protected EEO activity (October 7, 2004 EEO Counselor contact) when:
1. From August 23-27, 2004, management denied him the opportunity
to attend an Undercover Operations Training Conference;
2. In September and October 2004, while serving as the Acting Group
Supervisor of the Financial Group, management denied him resources,
equipment, and personnel;
3. On October 6, 2004, management did not select him for
a Supervisory Criminal Investigator (Group Supervisor) position,
GS-1811-13/14, advertised under Vacancy Announcement Number ACD MSP II
2004-0239-D2 (10 vacancies);
4, From October 17 to November 19, 2004, management:
a. Refused to assign him to one of the non-financial groups in the office;
b. Transferred his open cases to other personnel;
c. Removed his call sign from the office roster;
5. Since October 2004, management:
a. Made derogatory remarks about the merits of his EEO complaint;
b. Failed to respond appropriately to a potential death threat
against him from the subject of an investigation;
6. In November 2004, management denied his request to transfer to
an office in Florida;
7. In November 2004, management denied his request to transfer
to the Joint Terrorism Task Force (JTTF) and the High Intensity Drug
Trafficking Area (HIDTA) units;
8. Since his assignment to the Compliance Group in November 2004,
management excluded him from meetings, excluded him from activities
associated with his case work, and subjected his work to excessive
scrutiny;
9. In December 2004, management denied him the opportunity to participate
on a field review team visiting the Houston, Texas office; and
10. In December 2004, management did not select him for a GS-13
Acting Group Supervisor position in the Benefit Fraud Group.
At the conclusion of the 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 EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination and
harassment as alleged.
Regarding claims 1- 4, 6, 7, 9, and 10, the Agency analyzed those
claims under a disparate treatment framework. The Agency found that
Complainant failed to prove that the legitimate, nondiscriminatory reasons
articulated by management were a pretext for unlawful discrimination.
Regarding claims 5 and 8, the Agency analyzed those claims under a
harassment framework. The Agency found that Complainant failed to show
that the alleged unwelcome conduct was based on his race, national origin,
age, or prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant initially contended that the record was not
adequately developed with respect to claims 3, 6, and 10. Next,
Complainant asserted that the Agency’s final decision failed to address
claims 5, 8, and another claim involving the Assistant Special Agent in
Charge’s (ASAC-1) criticism of his work ethic and disparagement of his
professional reputation.1 Finally, Complainant disputed the legitimate,
nondiscriminatory reasons articulated by management in claims 1- 3,
4c,2 and 6 - 10. In response, the Agency requested that we affirm its
final decision.
ANALYSIS AND FINDINGS
Standard of Review
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 EEO MD-110,
at Ch. 9, § VI.A. (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”).
Adequacy of the Record
Our regulations provide that an agency shall develop an impartial and
appropriate factual record upon which to make findings on the claims
raised by the written complaint and define an appropriate factual record
as one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred. 29 C.F.R. § 1614.108(b). While the
agency has an obligation under 29 C.F.R. § 1614.108(b) to develop an
impartial and appropriate factual record, a complainant can also cure
defects in an investigation, after reviewing the ROI, by notifying the
agency (in writing) of any perceived deficiencies in the investigation
or by requesting a hearing before an AJ. EEO MD-110, at Ch. 6, § XI;
Ch. 7, § I.
On appeal, Complainant argued that the record was not adequately developed
in claims 3, 6, and 10. Regarding claim 3, Complainant asserted that
the EEO Investigator did not contact named witnesses who heard the
Assistant Special Agent in Charge (ASAC-2) state that Complainant was
the most qualified candidate for the Financial Group Supervisor position.
Regarding claim 6, Complainant asserted that the Agency refused to provide
personnel records showing that three other agents transferred during the
same period. Regarding claim 10, Complainant asserted that the Agency
refused to provide personnel records showing that the selectee had less
than a year of experience and had never been in the Benefit Fraud Group.
Complainant’s Appeal Brief, at 2-4.
Initially, we note that Complainant chose not to take advantage of
the above-mentioned opportunities to cure any defects in the instant
investigation. Moreover, as explained below in our analysis of claims
3, 6, and 10, our review of the record finds that the Agency’s
investigation is sufficient for a reasoned determination on the merits
of Complainant’s claims.
Disparate Treatment – Claims 1 - 3, 4c, 5b, 6, 7, 9, 10
To prevail in a disparate treatment claim absent direct evidence of
discrimination, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of
establishing a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802
n.13. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to prove,
by a preponderance of the evidence, that the reason proffered by the
agency was a pretext for discrimination. Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).
Claim 1 – Exclusion from Undercover Operations Training Conference
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated a
legitimate, nondiscriminatory reason for its actions. Specifically, the
Group Supervisor (GS) averred that Complainant did not hold a position
related to the daily management of the Undercover Operations Group.
In addition, GS averred that Complainant was leaving the group the
week after the conference and that the training was irrelevant to his
new assignment. Further, GS averred that the four agents who attended
the conference were himself, the current Undercover Program Manager,
the former Undercover Program Manager, and the Undercover Record-keeper.
ROI, Ex. 11, at 3.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate,
by a preponderance of the evidence, that the Agency’s reason was
a pretext for discrimination. In an attempt to establish pretext,
Complainant argued on appeal that he did not leave undercover operations.
Specifically, Complainant asserted that, when he transferred to another
group, he took with him an investigation that figured prominently
in undercover operations. In addition, Complainant asserted that the
group he transferred to was part of the undercover “umbrella” and was
therefore operating within undercover operations. Complainant’s Appeal
Brief, at 1.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national origin,
age, or reprisal discrimination. In so finding, we note that Complainant
did not dispute GS’s explanation that Complainant, unlike the other
attendees, was not involved with the daily management of the Undercover
Operations Group. In addition, the record contains no evidence that
Complainant’s new assignment, even if related to undercover operations,
was in a managerial capacity.
Claim 2 – Denial of Resources, Equipment, and Personnel as Acting
Group Supervisor
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the alleged bases, we find that the Agency
articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, the Deputy Special Agent in Charge (DSAC) averred that
Complainant requested additional resources such as computers, desks,
and parking spots, but that his group’s logistical requirements were
no more deficient than other newly established groups resulting from the
mergers of investigators from the Immigration and Naturalization Service
(INS) and the U.S. Customs Service (Customs).3 ROI, Ex. 12, at 10-11.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for discrimination. In an attempt to establish pretext, Complainant
argued on appeal that management was “disingenuous” in describing
the resources he requested. Specifically, Complainant asserted that his
requests did not concern computers or desks, but instead concerned office
space, gun safes, parking spots, desk chairs, and filing room space.
Complainant’s Appeal Brief, at 2.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national origin,
age, or reprisal discrimination. In so finding, we note that Complainant
disputed the Agency’s explanation with respect to the type of resources
he requested, but not with respect to the reason for not providing him
additional resources. Beyond his mere disagreement with the provision
of resources, we find that Complainant has not provided evidence that
the allocation of resources was discriminatory.
Claim 3 – Non-Selection for a Group Supervisor Position
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions.
Regarding Complainant’s non-selection for the Financial Group Supervisor
position, ASAC-2 averred that he recommended the selectee over Complainant
because: (1) the selectee was widely recognized by supervisors and peers
as the superior leader; (b) the selectee had six years of experience
with the Agency compared to Complainant’s three-year tenure; and
(c) the selectee’s broad background included investigating major,
transnational criminal organizations and leading several multi-agency
initiatives. ASAC-2 acknowledged that Complainant possessed a more
extensive financial background than the selectee, but averred that
he viewed leadership ability as the most important qualification for
the position. ROI, Ex. 10, at 3-4.
Regarding Complainant’s non-selection for the other nine Group
Supervisor positions, the Special Agent in Charge (SAC) averred that
Complainant was considered for the one vacant position in the Financial
Division because his expertise was in financial investigations.
In addition, SAC averred that each position had somewhat different
responsibilities and therefore management tailored its selections to
the specific vacant positions.4 ROI, Ex. 9, at 2.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate,
by a preponderance of the evidence, that the Agency’s reasons were
a pretext for discrimination. In an attempt to establish pretext,
Complainant made several arguments on appeal. First, Complainant
noted that the Agency’s final decision erroneously addressed only
his non-selection for the Financial Group Supervisor position and did
not mention other non-selections. Second, Complainant argued that SAC
admitted he was ranked second or third, yet he was not selected for any
of the 10 positions. Third, Complainant asserted that he had seven years
of experience with the Agency, not three years. Fourth, Complainant
asserted that the selectee for the Financial Group Supervisor position
did not have any experience in financial investigations. Complainant’s
Appeal Brief, at 2.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reasons were a pretext for race, national origin,
age, or reprisal discrimination. As to Complainant’s first argument,
we note that, despite the omission in the Agency’s final decision,
SAC’s affidavit did address the other non-selections. ROI, Ex. 9,
at 2. As to Complainant’s second argument, we note that SAC’s
statement referred only to Complainant’s ranking for the Financial
Group Supervisor position, not for all the positions. Id. As to
Complainant’s third argument, we note that ASAC-2’s statement referred
to the years of experience Complainant had with the Agency as of 2004,
when the non-selection occurred. ROI, Ex. 10, at 4. Complainant’s
application reflects that he began his employment with the Agency
in 2001. ROI, Ex. 27, at 8. As to Complainant’s fourth argument,
we note that Complainant had previously stated that the selectee had
one year of experience in financial investigations. ROI, Ex. 8, at 3.
In addition, we emphasize ASAC-2’s testimony that he prioritized
leadership ability/experience over financial investigations experience.
ROI, Ex. 10, at 4.
Moreover, Complainant appears to argue that his non-selection may
have been motivated by other nondiscriminatory reasons – such as
favoritism or office politics – unrelated to race, national origin,
age, or reprisal. Regarding his non-selection for the Financial Group
Supervisor position, Complainant averred that he “was the superior
choice yet [ASAC-2] made the opposite recommendation because there was no
other position remaining for [the selectee], a member of the [‘Friends
of Fred’].” ROI, Ex. 8, at 20. According to Complainant, “Friends
of Fred” was a workplace clique involving the Associate Special Agent
in Charge, who had extreme influence and made certain that his friends
advanced. Id. at 21. Regarding his non-selection for the other nine
Group Supervisor positions, Complainant averred that ASAC-2 “explained
that the ‘party line’ would be that I would be considered but in
actuality I would not for political reasons. [ASAC-2] was specifically
referring to group supervisor positions for legacy INS groups but later
made the same references to other legacy Customs areas.” Id. at 26.
While we are not convinced that pre-selection occurred, we note that
pre-selection is not a per se violation of the anti-discrimination
statutes; there must be a demonstration that the pre-selection was
based on a prohibited basis. The record evidence does not support the
conclusion that, more likely than not, Complainant was not selected
because of his race, national origin, age, or prior EEO activity.
Claim 4c – Removal of Call Sign from Office Roster
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
a legitimate, nondiscriminatory reason for its actions. Specifically,
DSAC averred that he had not finalized Complainant’s new group
assignment, which would determine the call sign. In addition, DSAC
averred that he was waiting for Complainant to express his preference
for a group assignment after Complainant indicated wanting to transfer,
but Complainant was on extended leave at the time. ROI, Ex. 12, at 9.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for discrimination. In an attempt to establish pretext, Complainant
argued on appeal that he was not on extended leave. In addition,
Complainant asserted that other agents on extended leave or transferring
to new groups kept their call signs. Complainant’s Appeal Brief,
at 2-3.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national origin,
age, or reprisal discrimination. In so finding, we emphasize that
DSAC explained it was the combination of Complainant’s upcoming group
transfer and his absence on leave that resulted in the removal of his
call sign. We note that Complainant did not dispute that he was about to
transfer groups. While Complainant disputed that he took extended leave,
the record reflects that Complainant took a significant amount of leave
(152 hours) during the six-week period. ROI, Ex. 19, at 1-3.
Claim 5b – Response to Potential Death Threat
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
a legitimate, nondiscriminatory reason for its actions. Specifically,
ASAC-2 averred that when he learned of the potential death threat5 in May
2004, he directed GS to determine whether there had been a credible threat
issued and whether Complainant was the intended target. In addition,
ASAC-2 averred that the Agency offered Complainant additional protective
options while determining whether he was the subject of the threat.
Finally, ASAC-2 averred that further investigation resulted in informant
information and recorded telephone conversations that established
Complainant was not the subject of the threat. ROI, Ex. 10, at 4-5.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate,
by a preponderance of the evidence, that the Agency’s reason was
a pretext for discrimination. In an attempt to establish pretext,
Complainant argued that management failed to launch a timely and
thorough investigation. In addition, Complainant asserted a death
threat against a Caucasian agent in his unit generated a faster and more
detailed investigation by management. Further, Complainant asserted
that management would have taken the threat more seriously if it had
been against an agent who had not filed an EEO complaint. ROI, Ex. 8,
at 49-53.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national origin,
age, or reprisal discrimination. The record contains a threat assessment
report by the Agency of the potential threat. ROI, Ex. 20, at 1-7.
Beyond his bare assertions, Complainant provided no evidence that the
Agency responded differently to a death threat against a Caucasian agent
or that his EEO activity affected the Agency’s response.
Claim 6 – Denial of Transfer Request to a Florida Office
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
a legitimate, nondiscriminatory reason for its actions. Specifically,
SAC averred that she denied Complainant’s transfer request because
of staffing concerns. SAC explained that, due to a hiring freeze, she
did not have the ability to backfill vacancies if she allowed agents to
transfer offices. In addition, DSAC averred that transfer requests were
only approved if another agent transferred to the Los Angeles office as
part of a “swap.” ROI, Ex. 9, at 3; Ex. 12, at 8.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for discrimination. In an attempt to establish pretext, Complainant
argued on appeal that three other agents (unnamed) were allowed to
transfer offices during the same period. Complainant’s Appeal Brief,
at 3.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national origin,
age, or reprisal discrimination. In so finding, we note that Complainant
did not dispute the Agency’s explanation that transfers were allowed
only as part of a “swap.” Beyond his bare assertions, Complainant
provided no evidence that management approved the transfer of agents
from the Los Angeles office outside of the “swap” policy.
Claim 7 – Denial of Transfer Request to JTTF and HIDTA Units
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
a legitimate, nondiscriminatory reason for its actions. Specifically, SAC
averred that Complainant’s skills would benefit ICE more in an ICE-only
group. SAC explained that both of those assignments were non-ICE led
investigations, where ICE agents worked for non-ICE supervisors and ICE
violations were not necessarily the primary focus of the investigations.
In addition, SAC averred that those units did not require additional
ICE personnel. ROI, Ex. 9, at 5.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for discrimination. In an attempt to establish pretext, Complainant
argued on appeal that 98% of the JFFT enforcement actions were based on
ICE authorities and violations, agents were transferred into the units
after he was told there was no space, and he was told that SAC denied
his transfer because of his EEO complaint. Complainant’s Appeal Brief,
at 3-4.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national origin,
age or reprisal discrimination. Beyond his bare assertions, Complainant
provided no evidence that additional agents transferred to the units after
he was told there was no space. During this period, no agents transferred
to JTTF and one agent transferred to HIDTA – but only as part of a swap,
which did not increase the number of agents at HIDTA. ROI, Ex. 22, at 7.
Claim 9 – Denial of Participation on Field Review Team
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
a legitimate, nondiscriminatory reason for its actions. Specifically,
SAC averred that the field review team assignment involved bookkeeping
duties and Complainant no longer had bookkeeping responsibilities in
the Los Angeles office. In addition, SAC averred that she recommended
the current bookkeeper because participation on the team would provide
valuable experience that the agent could use back in the Los Angeles
office. Further, DSAC averred that Complainant’s duties at the
time were unrelated to the team’s review of undercover financial
investigations. Finally, DSAC averred that he expected team members
to bring back ideas relevant to their home assignments and the team
assignment was not relevant to Complainant’s home assignment. ROI,
Ex. 9, at 4; Ex. 12, at 11-12.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate,
by a preponderance of the evidence, that the Agency’s reason was
a pretext for discrimination. In an attempt to establish pretext,
Complainant disputed DSAC’s statement that he expected the field review
team members to bring back ideas relevant to their home assignments.
Specifically, Complainant argued that the agent recommended in his place
had already requested and was granted transfer to the Las Vegas office.
Complainant’s Appeal Brief, at 4.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reason was a pretext for race, national
origin, age or reprisal discrimination. Beyond his bare assertions
that the recommended agent was about to transfer, Complainant provided
no evidence that the Agency acted on a discriminatory basis. We note
that Complainant did not dispute the other reasons provided by SAC and
DSAC for not recommending him for the team.
Claim 10 – Non-Selection for Acting Group Supervisor Position
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the alleged bases, we find that the Agency articulated
a legitimate, nondiscriminatory reason for its actions. Specifically,
the Assistant Special Agent in Charge (ASAC-3) averred that the selectee
had extensive experience working benefit fraud cases. In addition,
SAC averred that the selectee was in the group at the time and had
experience conducting such investigations. Further, SAC averred that
acting supervisors usually came from within the group in question. ROI,
Ex. 9, at 4; Ex. 14, at 3.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for discrimination. In an attempt to establish pretext, Complainant
argued on appeal that the selectee had less than a year of experience
and had never been in the Benefit Fraud group. In addition, Complainant
asserted that ASAC-3 later recruited him for the group to replace the
selectee and stated that it was not his decision to choose the selectee.
Upon review, we find that Complainant failed to show that, more likely
than not, the Agency’s reasons was a pretext for race, national origin,
age, or reprisal discrimination. Beyond his bare assertions, Complainant
provided no evidence that the Agency acted on a discriminatory basis.
Specifically, we note that ASAC-3 did not mention in his affidavit
that the selectee was unqualified or that he did not want to choose
the selectee. In addition, Complainant appears to argue that his
non-selection may have been motivated by another nondiscriminatory
reason – office politics – unrelated to race, national origin, age,
or reprisal. For instance, Complainant averred that the acting position
was another example of pre-selection by management of legacy INS agents
for vacancies in legacy INS groups. ROI, Ex. 8, at 46.
Harassment – Claims 1-10
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (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;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or 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).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's circumstances. EEOC Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002,
at 6 (Mar. 8, 1994) (Guidance).
Upon review, we find that Complainant failed to establish a claim of
actionable harassment. Specifically, we find that Complainant did not
prove, by a preponderance of the evidence, that the actions complained
of were based on his race, national origin, age, or prior EEO activity.
Regarding Complainant’s contention that he was subjected to a hostile
work environment with respect to claims 1 - 3, 4c, 5b, 6, 7, 9, and
10 in his complaint, we find, under the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), that Complainant’s
claim of hostile work environment must fail. See Guidance. A claim
of hostile work environment is precluded by our findings above that
Complainant failed to establish that any of the actions taken by the
Agency were motivated by discrimination. See Oakley v. U.S. Postal Serv.,
EEOC Appeal No. 01982923 (Sept. 21, 2000).
Regarding claims 5a and 8, we find that, beyond his bare assertions,
Complainant provided no evidence that the actions complained of were
based on his race, national origin, age, or prior EEO activity. As to
claim 5a, management denied making derogatory remarks about the merits
of Complainant’s EEO complaint. Specifically, SAC averred that she did
not assert to any employee that Complainant’s allegations were baseless.
ROI, Ex. 9, at 5. In addition, GS averred that SAC and DSAC did not make
any negative comments about Complainant’s EEO activity. ROI, Ex. 11,
at 3. As to claim 8, Complainant offers nothing more than speculation
that any exclusion from meetings/casework or excessive scrutiny of his
work occurred because of discriminatory reasons.
In this case, much of the record consists of testimonial evidence from
Complainant and various management officials. We note that a hearing
“provides the parties with a fair and reasonable opportunity to
explain and supplement the record and, in appropriate instances, to
examine and cross-examine witnesses.” EEO MD-110, at Ch. 7, § I.
Had Complainant requested a hearing, he would have had the opportunity
to cross-examine the Agency’s witnesses and the AJ could have made
credibility determinations based on the testimony. As Complainant
chose not to request a hearing, we do not have the benefit of an
AJ’s credibility determinations after a hearing; therefore, we can
only evaluate the facts based on the weight of the evidence presented
to us. We are simply not persuaded, based on the record before us,
that Complainant has shown that management’s actions were based on
his race, national origin, age or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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.
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
___11/29/11_______________
Date
1 Regarding claims 5 and 8, we remind Complainant that the Agency
addressed them in its harassment analysis. Agency’s Decision, at 9.
Regarding the claim involving ASAC-1, we note that it was not an accepted
claim in the Agency’s April 25, 2005 Acceptance Letter. In addition,
there is no indication that Complainant’s complaint was amended to
include such a claim or that Complainant notified the Agency that the
accepted claims were incorrect. Accordingly, we decline to address
this claim.
2 Regarding claims 4a and 4b, we decline to address them in this decision
because Complainant did not contest them on appeal. The Commission
exercises its discretion to review only the issues specifically raised
on appeal. Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § IV.A. (Nov. 9, 1999).
3 INS and Customs combined to form the Immigration and Customs Enforcement
(ICE) agency in March 2003.
4 The record reflects that the other Group Supervisor positions were
in the Alien Criminal Apprehension Program, JTTF, Arms and Strategic
Technology Investigations, Benefit Fraud, and Port Security. ROI,
Ex. 12, at 6.
5 The record reflects that the potential death threat was made by the
subject of a criminal investigation where Complainant was the lead agent.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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