[Redacted], Ria T., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2022000506 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ria T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2022000506 Hearing No. 570-2015-01191X Agency No. HS-ICE-02307-2015 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 1, 2021, final decision concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Enforcement Removal Assistant at the Agency’s Office of Enforcement and Removal Operations, Washington Field Office in Fairfax, Virginia. On February 18, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Hispanic),2 national origin (Puerto 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. 2022000506 2 Rican), sex (female), and color (dark) from July 23, 2014, through October 16, 2014, culminating in Complainant failing the Agency’s Academy at the Federal Law Enforcement Training Center. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed, and Complainant submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. 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 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”). Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, herein the Commission acknowledges Complainant’s self-identification of her race as Hispanic. 2022000506 3 In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Kozak v. United States Postal Service, EEOC Appeal No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Appeal No. 0120083387 (Feb. 4, 2010). Such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and … that the victim in fact did perceive to be so.” Id. We find that Complainant belongs to protected classes based on her color, national origin, race, and sex, and that she was subjected to unwelcome conduct. However, we find that Complainant largely makes broad assertions that she was treated differently than those outside of her classes, but she fails to connect most of the complained of conduct to one of her protected categories. For example, Complainant alleged that she was threatened with dismissal; not offered make-up classes; not allowed to walk when running; and called stupid when she was not wearing ear protectors. ROI at 81-4. On appeal, Complainant asserts that an Instructor (“Instructor 1”) stated that she should not call any friends at Headquarters because “we don’t like those kind of people,” which set the tone for a discriminatory hostile work environment.3 However, Complainant offers no explanation or evidence to prove that any statement about “those kind of people” referred to her color, national origin, race, or sex. Complainant also argues that she was instructed to perform pushups in a manner where, if her breasts did not touch the block; her butt was sticking out; or her legs or lower body touched the floor, the pushup would not count. She avers that this was discriminatory because the white female employee and the male employee were not given the same instruction. However, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). 3 We note that Complainant’s appeal brief cites to an affidavit that Complainant refused to sign. ROI at 137. Instead, Complainant submitted an alternative affidavit, which she had notarized, because she claimed that the affidavit prepared by the EEO Investigator was missing important details and information. ROI at 80, 117. We find that Complainant’s unsigned rejected affidavit should not be considered as evidence, and we will only consider Complainant’s signed notarized affidavit as her testimony. 2022000506 4 Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, there is no evidence that the work-related instructions regarding the proper form for pushups were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. In addition, Complainant asserts that the Firearms Instructor grabbed her weapon during training, and that she feared that he would shoot her; and he called her stupid. However, Complainant did not establish that the Firearms Instructor’s actions were because of her color, national origin, race, or sex. Complainant also contends that the Firearms Instructor’s comment about her small hands was discriminatory because they are often characteristics of women. However, the Firearms Instructor simply noted that Complainant had small hands with very little hand strength, with no reference to Complainant’s sex. ROI at 219. We find that Complainant’s argument that a comment about small hands was connected to her sex is without merit, and there is no evidence that these incidents of alleged harassment were due to a protected basis. Complainant also argues that another Instructor (“Instructor 2”) accused her of being special for wearing a duty belt, and he cut the belt and threw it on the ground. Complainant avers that she thought Instructor 2 was going to stab her, and that this action involved her protected classes because she was singled out. However, Complainant offers no more than conjecture that this incident occurred because of her protected classes. Complainant cites to some examples that can be reasonably tied to a protected basis, such as when Instructor 1 spoke to her in Spanish and asked if she understood what he said in English. ROI at 82. However, we find that this isolated incident was not severe to rise to the level of unlawful harassment. Complainant also asserts on appeal that, Instructor 1 stated that the class would need to keep running because of the “girls,” but Complainant did not include this allegation in her signed affidavit. In addition, Complainant avers that the Unit Chief stated that men look down on Hispanic women and they needed to have thicker skins if they want to be law enforcement officers. The Unit Chief explained that he informed Complainant that female officers needed to prepare to encounter subjects from all over the world; many from cultures that do not view women as equal to men. The Unit Chief added that, female officers need to understand that this puts them at a greater risk that their male counterparts may not face, and they should be prepared. ROI at 212. We find that the Unit Chief had a nondiscriminatory reason for his comments to warn Complainant of the challenges of being in a law enforcement position, and that his statement that others may view women differently does not prove that the Unit Chief exhibited a discriminatory animus against women. 2022000506 5 In response to Complainant’s contention that the Unit Chief instructed her to “hang out with the guys,” the Unit Chief stated that he encouraged Complainant to socialize with her classmates to build rapport and trust with her fellow officers. Id. Complainant asserted that the Unit Chief’s instruction to socialize meant that she was to become the “class whore,” but we find that a suggestion to become friendlier with colleagues does not reasonably mean that the instruction was to become a “whore.” ROI at 83. In her complaint, Complainant alleged that male trainees were treated more favorably, but she only speculates that the difference in treatment was due to her protected classes. It is undisputed that Complainant continuously struggled throughout the training, such that she needed remedial classes. ROI at 86. The Unit Chief averred that Complainant was a marginal student, and that her perception of being treated differently may be from the constant and persistent instruction required for her to meet the minimum standards. ROI at 211. We find that the record supports that others reacted to Complainant’s performance during the training. For example, Complainant complained of harassment by a classmate while running. ROI at 92, 229. The classmate averred that he was trying to motivate Complainant and said something to the effect of, “come on, you can do it, we’re almost there,” and Complainant later told him that she wanted to punch him in the face. ROI at 202. Another classmate offered that other students would console Complainant when she complained that she was being targeted because she was a Hispanic female, but that he did not agree, and the instructors were trying to push Complainant and encourage her so that she could pass because she needed extra help. ROI at 207. In looking at the totality of the circumstances, it is undisputed that Complainant perceived the actions to be offensive, but we find that a reasonable person would understand that the complained of conduct was due to the rigorous nature of the training course to become a law enforcement officer, and not based on one of Complainant’s protected categories. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on her color, national origin, race, or sex. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. 2022000506 6 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. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her color, national origin, race, and sex, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s Academy failure. The Agency issued a notice removing Complainant from the training program for failing the remedial physical abilities assessment (PAA) on October 16, 2014, following her probation for failing the final PAA on October 14, 2014. ROI at 677. The Unit Chief explained that he witnessed Complainant drop the dummy during her PAA, and she failed to complete the PAA within the designated time. As such, Complainant was terminated from the training. ROI at 212, 214. On appeal, Complainant argues that the Agency’s proffered reasons provide insufficient clarity and are blanket denials, and as such, they do not meet the Agency’s burden to articulate a legitimate, nondiscriminatory reason. However, we disagree and find that the Agency’s reasons are specific and explain Complainant’s removal from the training based on her failure to successfully complete the PAA. We also find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant asserts that she established pretext for discrimination based on her examples of discriminatory treatment by management. However, as noted above, Complainant’s unsupported contentions that the Agency’s actions were due to her protected classes, rather than her struggles with meeting the demands of the training, are insufficient to establish pretext for discrimination. Further, Complainant does not dispute that she dropped the dummy, and failed to complete the PAA within the allotted time, in her appeal. Accordingly, we find that Complainant did not establish that the Agency subjected her to discrimination based on her color, national origin, race, or sex when it removed Complainant from the Academy. 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 that Complainant did not establish that she was subjected to discrimination or harassment as alleged. 2022000506 7 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 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. 2022000506 8 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. 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 December 13, 2022 Date