U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyoko H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2022001528 Agency No. HS-ICE-01380-2019 DECISION On January 25, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 20, 2021 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 relevant time, Complainant worked as a Deportation Officer at the Agency’s Enforcement and Removal Operations (ERO), Houston Field Office in Huntsville, Texas. On June 20, 2019, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency subjected her to discriminatory harassment based on her race (African American), color (Black), sex (female), and reprisal for prior protected EEO activity when: 1. In February 2016, a Supervisory Detention and Deportation Officer (SDDO) denied Complainant’s request to temporarily suspend Administratively Uncontrollable Overtime (AUO). 2. From April 2016 to April 2017, a SDDO tracked Complainant’s every move. 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. 2022001528 2 3. On September 6, 2016, a SDDO wrote Complainant up for dropping her phone in a puddle. 4. In April 2017, a SDDO changed Complainant’s Performance Work Plan rating so that it would remain “Excellent.” 5. In April 2017, a SDDO required Complainant to submit proof that she was adopting a child before approving her leave. 6. In July 2017, a SDDO set a new release date for a medically challenged detainee under Complainant’s supervision. 7. On March 9, 2018, Complainant was denied a detail to Corpus Christi. 8. In April 2018, a SDDO denied Complainant overtime. 9. On May 22, 2018, Complainant was denied the opportunity for an Intelligence detail. 10. On or around June 10, 2018, two SDDOs spread rumors that Complainant was having a negative impact upon the office. 11. On July 20, 2018, a SDDO denied Complainant a training opportunity. 12. On August 22, 2018, a SDDO emailed Complainant and told her to lower her voice. 13. On September 26, 2018, a SDDO locked up files so Complainant could not gain access to them. 14. On September 27, 2018, a SDDO ordered Complainant to transfer files through RAILS, knowing she did not have access to the system. 15. On October 3, 2018, Complainant was told she was cheap and was told to buy a pair of headphones to listen to music. 16. On October 23, 2018, Complainant received a lowered “E” rating on her Annual Performance Review. 17. On December 14, 2018, a SDDO denied Complainant’s request to assist with the removal of a female detainee. 18. From December 2018 to present, Complainant has been denied a vehicle to perform her duties. 2022001528 3 19. On January 7, 2019, Complainant was not allowed to change the date and time of her training session. 20. On January 29, 2019, Complainant was assigned the duties of her co-worker, an Enforcement and Removal Assistant (ERA). 21. On March 8, 2019, Complainant was not allowed to adjust her shift. 22. On May 1, 2019, a SDDO refused to explain the negative comments that were placed in Complainant’s mid-term PWP. 23. On May 1, 2019, a SDDO failed to request a vehicle for Complainant even though there were several vehicles available. 24. On October 28, 2019, Complainant was released from her Acting SDDO position earlier than expected. 25. On November 13, 2019, a SDDO advertised Complainant’s Violent Criminal Alien Section (VCAS) position, while she was on leave, even though she was told the position was permanent. 26. On November 23, 2019, the SDDO failed to provide her a vehicle even though several were available. 27. On December 26, 2019, Complainant was notified she was not selected for the SDDO position in Huntsville, Texas, and Complainant believes the non-selection is due to negative recommendations made by upper management regarding her former filing. 28. On January 8, 2020, Complainant was subjected to the “cat’s paw theory” when a co- worker refused to print required labels. 29. On January 8, 2020, Complainant’s supervisor refused to acknowledge her ideas in a meeting, continually cutting her off mid-way through her comments and stated “next.” 30. On January 8, 2020, Complainant learned her supervisor was providing assistance to other staff, but not to Complainant, sabotaging her success. Following the investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). 2022001528 4 Complainant timely requested a hearing but subsequently withdrew her request on June 24, 2021. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).2 The instant appeal followed. ANALYSIS AND FINDINGS Untimely Raised: Claims 1 - 6 As note above, in footnote 2, the Agency dismissed the first six claims for untimely EEO Counselor contact. Complainant has not addressed this dismissal on appeal. We determine that the reasons the Agency provided for the dismissal of these claims was proper, and we will therefore not further address these claims. Disparate Treatment: Claims 21, 24 and 27 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 a complainant to prevail, he or she must first establish a prima facie case 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). burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, as here, 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 Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2 The record reflects that the Agency dismissed claims 1- 6 for failure to initiate timely contact with an EEO Counselor. Although Complainant alleges a continuing claim of harassment, almost a one-year gap existed between the last allegation raised in claims 1 - 6, and the remaining allegations beginning in March 2018. 2022001528 5 Regarding claim 21, Complainant requested the Acting SDDO adjust her shift on March 8, 2019, to work 10:00 a.m. to 6:00 p.m. instead of 9:00 a.m. - 5:00 p.m., in order to attend a doctor’s appointment. SDDO-2 (Mexican American, brown, male) explained that he denied the request and asked Complainant to use sick leave because she could not specify what time she would come to work. Regarding claim 24, SDDO-2 explained Complainant’s acting SDDO assignment was scheduled to end on November 1, 2019, but Complainant accepted a foreign escort assignment scheduled for October 29,2019 through November 3, 2019. Consequently, Complainant’s acting assignment ended a few days early, and SDDO-2 did not offer to extend the assignment. Regarding claim 27, Assistant Field Office Director (AFOD-2) (Caucasian, white, male) stated that the panel reviewed and scored the applications separately based on the identified rating elements. AFOD-2 stated that Complainant’s resume was confusing because she combined the positions of Immigration Enforcement Agent and Deportation Officer into one job and one description. AFOD-2 stated in qualifying for GS-13 Supervisor Detention and Deportation Officer, it was important to show work experience at the Deportation Officer, GS-12 level. The panel did not identify Complainant among the final top candidates who received an interview. After careful consideration of these three claims, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the proffered explanations for the disputed actions were a pretext designed to mask an unlawful discriminatory or retaliatory motivation. Harassment/Hostile Work Environment To prove her harassment/hostile work environment 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 a protected basis - in this case, her race, color, sex or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claims 8 and 10, Complainant did not offer any evidence that these incidents actually occurred. The record reflects that Complainant was never denied a request for overtime in April 2018. While Complainant alleged that two SDDOs and an ERA spread negative rumors about her, she failed to present evidence supporting this assertion. Regarding Complainant’s claim concerning the denial of a detail to Corpus Christi (claim 7), the evidence shows the detail opportunity was limited to employees assigned to Detained Operations. At that time, Complainant did not work in the Detained Operations, so she therefore did not meet eligibility criteria. 2022001528 6 In addition, the record reflects that on May 22, 2018, Complainant was denied an Intelligence detail (claim 9) because the protocol had not been followed. However, no one was selected for the detail. On July 20, 2018, Complainant was denied a training opportunity (claim 11) because she again failed to adhere by the required protocol and because the training was unrelated to her line of duties. On August 22, 2018, the SDDO-4 emailed Complainant to lower her voice after verbally asking her several times previously to either close her door or to step outside because of her screaming and use of profanity while on personal phone calls inside her office. Similarly, SDDO-4 told Complainant to buy headphones and gave her a set of headphones due to her constant screaming while on personal calls or playing loud music. (Claims 12 and 15). Complainant claimed that on September 26, 2019, a named SDDO locked away the files that did not require any actions at the time in the file library because they contained sensitive privacy information. The record shows the subject files remain accessible between 7:00 am and 3 p.m. The next day, SDDO assigned Complainant to enter cases in the RAILS system after she notified SDDO that she did not have any work. In July 2018, Complainant was informed that she maintained her access to RAILS and to contact ERA if she did not have access to RAILS. (Claims 13 and 14). On October 23, 2018, Complainant questioned the accuracy of the “Excellent” rating SDDO-4 gave her and asserted she had documentation to merit a higher rating (claim 16). Complainant indicated when she asked why she did not receive an Outstanding rating, SDDO-4 responded that he had to send her an email every week to remind her about her time sheet. Complainant admitted, however, that her rating was later changed to an Outstanding after she requested a review and reconsideration first through the Acting Assistant Officer (AOIC) (Caucasian, white, male) and then through Deputy Field Office Director (Caucasian, white, male). Complainant alleged that on December 14, 2018, a Deportation Officer asked whether Complainant could travel to Houston to assist with the removal of a female detainee. However, this request was denied based on operational reasons (claim 17). Specifically, Complainant was serving as a VCAS officer at that time, and SDDO-2 wanted Complainant to focus on learning the new responsibilities as a VCAS officer. SDDO-6 stated that he does not recall any requests for a home-to-work vehicle from Complainant and he could not locate any written request from Complainant (claims 18, 23, and 26). On January 7, 2019, Complainant was not allowed to change the date and time of her training session due to operational needs and the need for an equal balance of attendees between two training sessions (claim 19). 2022001528 7 On January 29, 2019, Complainant was assigned the duties of her co-worker, an Enforcement and Removal Assistant (claim 20). SDDO-2 acknowledged Complainant was assigned the duties in question. SDDO-2 explained, however, that the duties in question were under the purview of a pilot program and position which Complainant was serving. SDDO-2 noted, moreover, that the pilot program was a new program, and that as a consequence, some responsibilities were still being “worked out.” Complainant alleged that on April 30, 2019, an SDDO-2 refused to explain the negative comments that were placed in her mid-term Performance Work Plan (claim 22). SSDO-2 said he had received complaints from other officers about Complainant having inappropriate conversations at work and alerted Complainant to these concerns at the mid-term in order to correct her conduct if needed. On November 13, 2019, a SDDO advertised her VCAS position while she was on leave, even through she was told the position was permanent (claim 25). AOIC explained that Complainant began a temporary 1-year VCAS detail sometime in December 2018 in which was an experiment within the Huntsville Office to determine if a permanent position was warranted. He noted that Complainant was not permanently assigned to VCAS unit until January 6, 2020. In addition, SDDO-2 acknowledged the VCAS position was posted on or around November 13, 2019, as it was only equitable to put it out to all officers for the permanent position. Complainant stated that it was her understanding of the “Cat’s Paw Theory” is when a supervisor with improper bias influences an unbiased decision-maker into making a negative employment decision. She claimed that ERA refused to print labels for her, stating that SDDO-2 told her not to (claim 28). SDDO stated if Complainant was referring to UPS shipping labels, he instructed ERA to print those only if the T-file was available. In addition, the SDDO-2 stated the instruction he gave to ERA applied to anyone requesting a label without furnishing a T-file, not just to Complainant. On January 8, 2020, her supervisor refused to acknowledge her ideas in a meeting, continually cutting her off mid-thought and stating “Next.” (Claim 29). SDDO-2 denied cutting off Complainant but acknowledged that he said “Next” to give others a chance to speak. He explained that VCAS officers were bringing up examples of when they needed help from his personnel. Complainant stated that on January 8, 2020, she learned ERA was providing assistance to other staff but not to her, sabotaging her success (claim 30). SDDO-2 explained ERA was available to help VCAS officers when possible, but that her primary functions are those pertaining to IHRP. Moreover, SDDO-2 indicated these issues were discussed and resolved at the January 8, 2020 meeting. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management’s style that left Complainant feeling aggrieved. 2022001528 8 However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to management's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that Agency management was motivated by discriminatory or retaliatory animus. The evidence of record fully supports the conclusion that Complainant’s claim of harassment is precluded based on the findings that she 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 or unlawful retaliation occurred. 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 2022001528 9 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. 2022001528 10 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 7, 2022 Date
