U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2021002463 Agency No. HS-HQ-01305-2020 DECISION On March 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 5, 2021, 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. At the time of events giving rise to this complaint, Complainant worked as an Attorney-Advisor at the Agency’s Legal Counsel Division (LCD), Office of the General Counsel (OGC) in Washington, D.C. On July 7, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (African- American), color (Black), and age (1960) when: 1. for performance year fiscal year (FY) 2016, on an unspecified date, management rated him .05 points short of the highest performance level and refused to reconsider a higher level; 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. 2021002463 2 2. at the conclusion of the performance period for FY 2017 and for FY 2018, management refused to provide Complainant with a final performance rating; 3. from May 2018 through April 2019, management failed to respond to Complainant’s numerous requests to perform a detail; 4. from October 31, 2019, through January 14, 2020, management refused to provide Complainant with a performance appraisal despite repeated requests; 5. on January 14, 2020, management proposed a lower performance rating for FY 2020 than Complainant’s prior ratings, despite significant improvements; 6. from January 29, 2020, through March 18, 2020, management ignored a request to confirm Complainant’s employment that was required to complete his application for membership to the Maryland Bar; 7. on March 20, 2020, in a memorandum addressed to the Agency’s Office of Civil Rights and Civil Liberties (CRCL), management reduced Complainant’s duties and responsibilities without reflecting those changes in his performance standards, setting him up for a lower rating in FY 2020; and 8. on June 10, 2020, after informing management of his interest in helping to diversify the Agency’s OGC intern selection, Complainant was informed that he was not selected to serve on the OGC intern hiring committee. After its investigation into the complaints, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. Complainant requested a final Agency decision. Therefore, the Agency issued a final decision finding no discrimination. This appeal followed. Complainant did not provide an appellate brief. The Agency requests that the Commission affirm its final decision. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (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”). 2021002463 3 Regarding the merits of the matter, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment based on his race, color, and age as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory reasons for its various actions were pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981). In this matter, Complainant repeatedly argued that the Agency’s actions were based solely on his protected classes. However, based on our review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and Complainant has failed to demonstrate such reasons were pretext for discrimination. There is no evidence that the events raised were connected to any of his protected classes. Regarding claim 1, Complainant argued that management rated him at 4.45 and refused to reconsider the rating. The Assistant General Counsel of Strategic Oversight (Assistant General) noted that during the relevant time, she was behind a “fire wall” and had to rely on client feedback for evaluations. Report of Investigation (ROI) at 209. One such client was the Deputy Officer CRCL (Deputy Officer). The Deputy Officer had previously raised concerns regarding Complainant’s work with the Assistant General, and this impacted the Assistant General’s rating, which she felt was generous. ROI at 415. When Complainant questioned the rating, the Deputy Officer considered the request, and ultimately declined to increase the rating. ROI at 209-11. Regarding claims 2 and 4, the Deputy Officer acknowledged that she did not provide Complainant his performance appraisals but stated that she did complete the ratings. ROI at 214. The Deputy Officer explained that she did not provide the ratings to any attorneys, and that Complainant was not singled out. Id. The Deputy Officer asserted that she did not provide the ratings due to an overwhelming amount of work obligations and personal hardship. Id. at 213-14. Similarly, as to claim 6, the Deputy Officer did not intentionally ignore a request to confirm his employment but that the matter unintentionally was overlooked. Complainant further alleged in claim 7 that his duties were reduced in order to set him up for a lower rating in FY 2020. The Principal Deputy stated that the February 7, 2020, Memorandum was issued to better align work goals and had no purpose in adversely affecting any employee in the office. ROI at 324. The Deputy Chief detailed the extent of the Memorandum and its intentions for the office. ROI at 325. In claim 5, Complainant also asserted that management lowered his FY 2020 rating despite improvements. The Deputy Officer provided Complainant with 4.2 rating, which she determined after a consideration of his work as a whole, including a successful detail in FY2019. ROI at 220. The Deputy Chief noted that Complainant’s rating was slightly lowered but still rated him as Exceeded Expectations. Id. 2021002463 4 Regarding claim 3, Complainant asserted that management denied his requests for a detail. The Chief of Staff (Chief) stated that workload constraints and operational management are all considered in granting requests. ROI at 286. The Chief noted that at the time, a peer was on detail which meant understaffing; and the client office Complainant was working in would need to be supportive of the request. Id. The Chief noted that Complainant had served on more details than any other attorney in the office and that the delay was based solely on operational management. ROI at 288. The Chief stated that while delayed, the request was ultimately granted. Id. Regarding claim 8, Complainant asserted that once he demonstrated interest in helping to diversify the intern selection process, he was informed that he could not serve on the Agency’s intern selection committee. The Chief stated that he solicited attorneys from each division for suggestions on the creating a unified intern hiring process. ROI at 303. The Chief stated that while he knew Complainant was interested, he did not realize it had such importance to him. Id. The Chief asserted that had he known he would have invited Complainant to serve. Id. The Chief believed Complainant’s time would have been better served elsewhere. ROI at 304. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Burdine, 450 U.S. at 253. An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). We find that Complainant has offered no evidence that any of the reasons provided by the Agency were pretextual. Therefore, we find that Complainant failed to show that he was subjected to disparate treatment. Hostile Work Environment Regarding the allegation of a hostile work environment, we find that the final decision also correctly identified the legal standard for Complainant to prove that he was subjected to hostile work environment as set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), where the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. 2021002463 5 We note that with regard to retaliatory harassment, Complainant only needs to show that such actions are the type of action that would dissuade a reasonable employee from making or supporting a charge of discrimination. See Burlington N. & Santa Fe R.R. Co. v. White, 548 U. S. 53 (2006); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016); Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). As an initial matter, we find that Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish the actions taken by the Agency was motivated by discriminatory animus with regards to claims 1 through 8. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Based on Complainant’s submissions and the record as whole, we find that the examples provided in his complaint, taken together, do not demonstrate that the alleged events occurred because of his protected bases. 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 finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021002463 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002463 7 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 July 5, 2022 Date
