Natalie S.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120181062 (E.E.O.C. Aug. 7, 2019)

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

Natalie S.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120181062

Agency No. HS-CIS-26193-2016

DECISION

On February 5, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 5, 2018 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.

BACKGROUND

During the period at issue, Complainant worked as a Supervisory Operations Support Specialist,
GS-0301-13 at the Agency’s Potomac Service Center (PSC) in Arlington, Virginia. Complainant
had been employed as an Operations Support Specialist (OSS) at the Agency’s Nebraska Service
Center (NSC) from 2013 until leaving for the PSC on a detail on January 11, 2016.

On May 31, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on sex (female) and in reprisal for prior EEO activity
when:

1. beginning in April 2015 through March 2016, she was subjected to harassment when
management removed the property custodian role, made fun of her in meetings,
denied her a transfer to a different position, and did not select her for the position of

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.
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Immigration Services Officer, GS-12, advertised under Vacancy Announcement
Number CIS-1559388; and

2. on August 22, 2016, she was informed she was not selected for the position of
Supervisory Operations Support Specialist (Finance) at the Nebraska Service Center
(NCS), advertised under Vacancy Announcement Number CIS-1727348.2

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 5, 2018 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of

2 The record reflects that claim 2 was later amended to the instant formal complaint.
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Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v.
Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Regarding claim 1, Complainant asserted that beginning in April 2015 through March 2016, she
was subjected to harassment when management removed the property custodian role, made fun
of her in meetings, denied her a transfer to a different position, and did not select her for the
position of Immigration Services Officer, GS-12, advertised under Vacancy Announcement
Number CIS-1559388.

The Supervisory Immigration Officer (male, unknown prior protected activity) at NCS stated
that he was Complainant’s supervisor from April 2013 until November or December 2014 when
management hired a new supervisor and thereafter assigned him to serve as Complainant’s
supervisor. The former supervisor explained the determination to remove the title of Property
Custodian from Complainant to him was made by the Section Chief. Specifically, the former
supervisor stated the “workload of the property team was growing so I requested and received
authorization to hire two additional employees.”

The Director, NSC (male, unknown prior protected activity) stated that he chose Complainant to
serve as a Property Custodian for approximately at least six months in 2015. The Director stated
at that time, the NSC was located in the Star Building and in the Highlands Building, “with a few
people also in the Denney Building. The amount of work had been growing and clearly required
us to hire more people, including a second OSS-2 besides Complainant to handle the work.” The
Director stated that management hired the new Operations Support Specialist (“OSS-2”) and
assigned him to the Highlands Building with Complainant responsible for the Star Building and a
few employees in the Denney Building.

Further, the Director stated that he wanted Complainant and OSS-2 “each to have the title of
Property Custodian, but Headquarters refused, saying the NSC could have only one person with
that title. For that reason, I decided to make [former supervisor], who already was Property
Supervisor, the Property Custodian for all of the buildings. He was a GS-13 and a higher grade
that Complainant and [OSS-2].” The Director stated that he explained to Complainant that the
former supervisor would have the title but she would be in charge of property at the Star and
Denny Buildings. The Director also stated that he met with Complainant several times “to
explain my rationale for making the change but she refused to accept my explanation. She told
me she felt betrayed and that she deserved to have the title of Property Custodian.

Complainant asserted further that management denied her a transfer to a different position. The
Director recalled having a discussion with the Chief of Staff concerning Complainant’s request
to be reassigned non-competitively to an Immigration Services Officer position and “I do not
recall Complainant asking for a transfer to an Immigration Services Analyst position.
Complainant had made her request based on her allegation of harassment by [former supervisor].
However, neither [Chief of Staff] nor I could find any evidence of wrongdoing on the part of
[former supervisor]. Complainant wanted reassignment to a journeyman-level ISO position but
really was not qualified because she had not adjudicated any immigration forms.” Moreover, the
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Director stated that Complainant’s request was denied because she would be taking away
opportunities from others who should be allowed to complete for these positions.

With respect to Complainant’s non-selection for the position of Immigration Services Officer
position advertised under vacancy announcement CIS-1559388, the Supervisory Immigration
Services (female, unknown prior protected activity) stated that she volunteered to be a member
of the interview panel (“member”). She explained that the interview panel asked each candidate
the same six questions. The member stated that at the conclusion of each interview, the Panel
Chair collected all of the notes from the panel members and that the panel did not prepare
selection recommendations.

Further, the member stated that Complainant did not protest the fact that she was a member of
the interview panel and “I had absolutely no information at that time or at any time about
Complainant making harassment allegations against my husband [former supervisor] or against
[Director].”

The record reflects that from November 30, 2015 through December 9, 2015, the Agency
announced the vacancy announcement at the NSC. At that time Complainant applied and
received an interview.

The Special Assistant (male, unknown prior protected activity) stated that when management
received the various Certificate Lists from Human Resources, he sent out an email to the
candidates letting know them they received their names for consideration and that they would be
included in our initial selection process. The Special Assistant stated that in the initial
notification, all candidates, including Complainant, were notified that NSC planned to fill up to
50 positions.

The Special Assistant stated that according to his records, Complainant was interviewed by
telephone. The Special stated that he entered the scores of all candidates and “after the score
were entered, they were weighted and added together to calculate a final score” and the final
score was then ranked from highest to lowest. The Special Assistant explained that the
candidates who did not score above the minimum threshold (.6500) were moved from the
selection consideration.

Moreover, the Special Assistant stated that Complainant scored above the minimum threshold
and received a final score of .8450. However, “she, along with approximately 22 other
candidates (who scored above the minimum threshold), did not rank within the top 50 scores.
When the list was sent to the Director for final selection determination, the Director selected the
top 50 candidates.”

Regarding claim 2, Complainant alleged that on August 22, 2016, she was informed she was not
selected for the position of Supervisory Operations Support Specialist (Finance) at the NSC,
advertised under Vacancy Announcement Number CIS-1727348.

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The Special Assistant stated that he and the primary led on the selection process maintained a
database for the selection process. The Special Assistant stated that at the end of July 2016, the
Agency received the certificate lists from Human Resources and he notified the candidates that
they were being considered for the Supervisory Operations Support Specialist position. The
Specialist Assistant also noted that the 5- member panel was asked to review the candidate
resumes and score them on specific criteria related to the duties/responsibilities of the subject
position “such as experience with federal procurement procedures, property management
regulations/processes, etc.”

Following a review of the candidates’ resumes, the panel scored for six individually rated areas
and “the highest and lowest score from the panel for each of the six areas was removed and only
the three remaining scores were used to calculate the candidate’s Resume Review score. Based
on the records I have available, the Complainant scored above the minimum threshold on the
resume review (.6500). Her exact resume score was .6857, which ranked her #9 when compared
to all candidates. As was explained in the initial notification that [Complainant] received, only
the candidates with the top 7 resume scores would advance to the interview.”

The Special Assistant stated that as a result, Complainant did not advance to the interview stage
of the selection process and was not selected for the subject position.

Harassment/Hostile Work Environment

Complainant has also alleged that her non-selection, in combination with other incidents
identified as claim 1 in her formal complaint, created a discriminatory hostile work environment.
To provide 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 basis – in this case, her sex and prior protected
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself. Here, as discussed below, Complainant simply has
provided inadequate evidence to support her claim that her treatment was the result of her sex
and prior protected activity.

With respect to claim 1, Complainant alleged that the former supervisor harassed her when he
said “Squirrel, squirrel!” while she was speaking at a staff meeting and accused her of working
too fast and trying to make OSS-2 look bad. However, the former supervisor stated that he does
not recall making the comment while Complainant was speaking during a staff meeting and “I
deny ever telling Complainant she was working too fast or to slow down. I did ask Complainant
to train [OSS-2], who went over to the Star Building to receive training from her. However,
[OSS-2] was self-motivated and generally received whatever guidance he needed from
Headquarters.”

The Director stated that he had no reason to believe the former supervisor ever harassed
Complainant because “I looked into the incidents she brought to me and found no support for her
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claims of harassment.” The Director stated that after receiving Complainant’s complaint, he
spoke with the former supervisor and “asked him to be mindful of his tone and tenor both
towards Complainant and towards everyone.”

In addition, the Director recalled Complainant claiming the former supervisor had told her she
was “working too fast,” and he looked into the matter and learned from the former supervisor
that “there had been an inventory of employees’ property with all employees required to bring
items to a table to be reviewed by [OOSS-2] and Complainant. He explained that the plan was to
handle employees in one building and then go to another building. Complainant declined to help
out at the Highlands Building, and instead, worked on her own inventory at the Star Building.”

In summary, as detailed above, responsible Agency officials articulated legitimate,
nondiscriminatory reasons for the disputed actions, which were not pretextual. Moreover,
Complainant is unable to meet her burden of proving a discriminatory and/or retaliatory motive
concerning the incidents making up her claim of a hostile work environment.

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
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within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 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

August 7, 2019
Date