Paul F.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Apr 9, 2019

2019000930 (E.E.O.C. Apr. 9, 2019)

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

Paul F.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 2019000930

Hearing No. 540-2016-00014X

Agency No. HS-ICE-02238-2015

DECISION

On November 3, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 2, 2018 final order 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2

BACKGROUND

During the period at issue, Complainant worked as a Detention and Deportation Officer, GS-
101-14, at the Agency’s Immigration and Customs Enforcement Air Operations (IAO)
Enforcement and Removal Operations (ERO) in Mesa, Arizona.

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.

2 The record does not contain a copy of the Agency’s November 2, 2018 final order. The
Agency has acknowledged issuance of such an order, implementing the findings of an
Administrative Judge. We therefore determine that despite the absence of the final order, we
have sufficient documentation of record to make a determination on the instant appeal.
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On January 12, 2015, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race (Caucasian), national origin (American
Indian), sex (male), color (white), age (over 40), and in reprisal for prior EEO activity when:

1. On October 31, 2014, he received an unfair performance evaluation. He was
reassigned from Kansas City, Missouri to Mesa, Arizona in August 2014, and his
evaluation was given by his new supervisor covering a period of less than 60 days.
He was also evaluated based on the same Performance Work Plan given to him by his
supervisor in Kansas City although his position title and duties changed after the
reassignment.

2. On October 21, 2014, he was notified that his travel voucher for relocation expenses,
filed on September 16, 2014, would not be adjudicated.

After an investigation, the Agency provided Complainant with a copy of the investigative file,
and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter,
the Agency issued a Motion for Summary Judgment. On October 4, 2018, the AJ issued a
decision by summary judgment in favor of the Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.

During the relevant period, Complainant served as a Detention and Deportation Officer for the
ICE Air Operations (IAO), Enforcement and Removal Operations (ERO) in Kansas City,
Missouri and Mesa, Arizona.

In claim 1, Complainant asserted that on October 31, 2014, he received an unfair performance
evaluation.

The AJ noted Agency policy requires an employee to be on a performance plan for a minimum
of 90 days to receive a rating of record.

On October 30, 2014, the Acting Unit Chief issued Complainant an overall annual performance
rating of “Exceeded Expectations” for Fiscal Year (FY) 2014 based on his rating of record for
the performance period October 1, 2013 to September 30, 2014. “Exceeded Expectations” is the
second-highest possible rating, and one step higher than “Achieved Expectations.”

The Acting Unit Chief did not issue Complainant a new performance work plan when
Complainant transferred from Kansas City to Mesa in July 2014. Complainant retained the same
Detention and Deportation Officer GS-1801-14 IAO position in Mesa that he held in Kansas
City, and the new appraisal period did not begin until October 1, 2014.

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The Acting Unit Chief (Caucasian, white male, over 40, unknown national origin/prior protected
activity) stated that while Complainant’s position never changed, he gave him a “Exceeded
Expectations” rating. The Acting Unit Chief stated at that time Complainant “performed his
duties at an acceptable level.”

Complainant asserted that a named Headquarters Officer (Employee 1) received a higher
appraisal for FY 2014 than him. The Acting Unit Chief stated that Employee 1 received a higher
appraisal because “her performed at a higher level than [Complainant].” Moreover, the Acting
Unit Chief stated that Complainant’s race, national origin, sex, color, age and prior protected
activity were not factors in his decision to give Complainant an “Exceeded Expectations” rating.

The Unit Chief (Caucasian, white female, over 40, unknown national origin/prior protected
activity) stated that she was the concurring official concerning his “Exceeded Expectations”
rating for the relevant period. Furthermore, the Unit Chief stated that she did not discriminate
against Complainant based on his race, national origin, sex, color, age and prior protected
activity.

In claim 2, Complainant alleged that on October 21, 2014, he was notified that his travel voucher
for relocation expenses, filed on September 16, 2014, would not be adjudicated.

On August 26, 2013, the Agency notified Complainant and other full-time employees at IAO in
Kansas City of a management-directed reassignment because the Agency was consolidating the
IAO in Mesa. The notice advised that the reassignment would not have an impact upon the
employee’s position, series or grade.

In preparation for the transfer and to ensure finding and reimbursement, Complainant notified the
Agency in a Transfer Questionnaire Form that he would not require temporary quarters on his
permanent change of station (PCS) from Kansas City to Mesa because he owned a motor home.
Complainant did not request funding for parking his motorhome in Mesa on the Transfer
Questionnaire Form.

On July 27, 2014, the Agency reassigned Complainant from Kansas City to Mesa. In Mesa, the
Acting Unit Chief and Acting Deputy Assistant Director became Complainant’s new first and
second supervisors. Complainant remained a Detention and Deportation Officer, GS-181-14, in
both Kansas City and Mesa, and did not have any formal change in his title or promotion.

On September 16, 2014, Complainant submitted a travel voucher to the Agency to be reimbursed
for temporary quarters expenses. On October 8, 2014, the Agency denied Complainant’s request
for reimbursement for 30 days of Temporary Quarters Subsistence Expenses (TQSE) “because
you indicated that you did not need [temporary quarters] on your transfer questionnaire because
you had a motor home.”

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On October 21, 2014, the Agency notified Complainant that it could not adjudicate his request
for a temporary quarters travel voucher submitted in September 16, 2014, because Complainant
was not authorized to incur temporary quarter expenses on his official travel authorization.

Complainant appealed the Agency decision not to reimburse him for temporary quarters
relocation expenses to the Civilian Board of Contract Appeals, and on April 20, 2015, the Board
affirmed the Agency decision.

The Supervisory Accountant, Immigration Customs Enforcement, Office of Chief Financial
Officer (African-American, American, black male, over 40, unknown prior protected activity)
stated at the time, Complainant was a Permanent Change of Station (PCS) ERO employee
authorized to relocate at government expense on March 24, 2014. The Supervisory Accountant
explained “because of the required separation of duties in government financial management,
FinOps Dallas oversees all of ICE’s relocations between the ICE Program offices and its
employees. FinOps Dallas serves as the liaison between the ERO Program Budget Office and
[Complainant].”

The Supervisory Accountant stated that Complainant’s travel voucher could not be adjudicated
because we had no legal authority to adjudicate the travel voucher claim. [Complainant] did not
have a legal valid authorization on his travel orders to incur temporary quarter expenses.”

Further, the Supervisory Accountant noted that in his PCS Transfer Questionnaire form,
Complainant “clearly indicated he did not need any temporary quarters at his new duty station.
The ‘I have a motor home’ question related to the question of whether he needed temporary
quarters at his current duty station. There is a difference between these two questions. It is not
the PCS team’s responsibility to reasonably gauge what an employee’s intentions are. In
addition, [Complainant’s] official travel authorization was forwarded to him on April 22, 2014,as
he did not begin his official travel until late July 2014. [Complainant] had approximately 90
days to make contact with his PCS Coordinator or ERO about him not having a temporary
quarters allowance authorized on his travel orders. He did not take any action.”

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final order, adopting the AJ’s decision.

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

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988).
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A fact is “material” if it has the potential to affect the outcome of the case. In rendering this
appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s
final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at
Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.

Here, however, Complainant failed to establish such a dispute. Even construing any inferences
raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor.

A claim of disparate treatment is examined under the three-party 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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination or unlawful retaliation.

Moreover, to the extent that Complainant claims he was harassed, we conclude that a case of
harassment/hostile work environment is precluded based on our finding that Complainant failed
to establish that any of the actions taken by the agency were motivated by his race, national
origin, sex, color, age or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal
No. 01982923 (Sept. 21, 2000).

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.
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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. 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.
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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

April 9, 2019
Date