Shayne K.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120182670 (E.E.O.C. Aug. 8, 2019)

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

Shayne K.,1
Complainant,

v.

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

Appeal No. 0120182670

Hearing No. 540201600122X

Agency No. HSICE025842015

DECISION

On August 15, 2018, 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
July 18, 2018, final order concerning his equal employment opportunity (EEO) complaint. He
alleged 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Criminal
Investigator, Special Agent (HSI), GS-1811-13, at the Agency’s ICE facility in Saudi Arabia.

On December 12, 2014, Complainant made contact with an EEO Counselor based on the
October 31, 2014 denial of his request for a Voluntary Separate Maintenance Allowance. On
April 7, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), national origin (Middle Eastern), religion
(Islam), and age (47) when, on October 31, 2014, Complainant became aware that his request for

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.
0120182670

2
a Voluntary Separate Maintenance Allowance (“VSMA”) was denied, while other employees
received the VSMA.

The pertinent record reveals the following undisputed facts. From October 25, 2010 through
July 10, 2014, Complainant was stationed overseas in Saudi Arabia with the Agency’s Homeland
Security Investigations (“HIS”), Office of International Affairs. Complainant brought his family
(wife and two children) to Saudi Arabia when he first deployed in October of 2010. When
Complainant arrived in Saudi Arabia in October of 2010, he learned that his supervisor was
being paid VSMA. He did not request Voluntary Separate Maintenance Allowance (VSMA) at
that time.

A Separate Maintenance Allowance (“SMA”) is described by the State Department as “a benefit
for an employee stationed overseas who is required to maintain family members at locations
other than his / her overseas post of assignment due to: (a) dangerous, notably unhealthful, or
excessively adverse living conditions at the post, (b) for the convenience of the Government, or
(c) because of the special needs or hardship involving the employee or family member.”

Although ICE uses the State Department regulations as guidance, both the approval and the
criteria used for approval are within ICE’s discretion. Approvals for SMAs usually involve
hardship circumstances in which the employee was separated from his or her spouse or other
dependents due to health, safety, or negative environment concerns.

Around December of 2012, Complainant’s wife and daughter returned to the United States,
because Complainant’s wife wanted to finish her nursing studies. Complainant requested a
VSMA. Complainant’s supervisor told Complainant that the Agency would not offer that benefit.
At the time, Complainant believed that his supervisor (Caucasian) was receiving the benefit.

During the summer of 2014, Complainant again renewed his request for VSMA. The Manager
at International Operations Headquarters with oversight for ICE offices in the Middle East
received Complainant’s initial request for the VSMA allowance. The Manager (Chinese-
American) acknowledged that he had met Complainant, but he states that he did not know
Complainant’s age, race, religion or national origin.

The Manager stated that VSMA is an allowance that is made available at the discretion of the
parent agency. The Manager recommended that Complainant’s request for VSMA be denied,
based on the standing practice that no VSMA requests in Saudi Arabia have been approved by
ICE Headquarters for any employee posted in Saudi Arabia during the time period noted. The
Manager also cited the reason that Complainant had cited in his request (that his wife voluntarily
wanted to return to the United States to resume her nursing studies). The Manager averred that
the final decision for VSMA is made by either the Assistant Director or Deputy Assistant
Director of International Operations.

Based on the criteria used by ICE, management determined that Complainant was not entitled to
the payment of VSMA. Complainant received official notification of the denial on June 24,
0120182670

3
2014. Complainant stated that he also received a subsequent “final decision” on October 31,
2014.

The requests of three other employees, who requested VSMA during the 2012 / 2013 time
period, were initially denied. Two were Caucasian. One was Native American. Two were older
than Complainant. As a result of an EEO complaint settlement, however, one of the comparator
employees was permitted a VSMA. The record shows that the only exception to the Agency’s
policy was when the Agency granted a VSMA, as a benefit provided in a settlement of an age
discrimination complaint, or for employees located in Mexico.2

On August 18, 2014, after returning to the United States, Complainant sent a complaint to the
Office of Professional Responsibility Joint Intake Center, complaining about the denial of
VSMA. Complainant did not contact the Agency’s EEO Office regarding the denial of VSMA
until December 12, 2014.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 22,
2017, motion for a decision without a hearing and issued a decision without a hearing on June
14, 2018.

The AJ Decision

The AJ found that the claim should be dismissed as untimely. The AJ noted that Complainant did
not make contact with the Agency’s EEO Office until December 12, 2014, but he had been told
in December 2012, that VSMA was not offered by the Agency, but suspected that his Caucasian
supervisor was receiving VSMA. The AJ also reasoned that Complainant received a direct
rejection of his VSMA request via email on June 24, 2014, and still failed to make timely contact
with an EEO Counselor.

Next, the AJ stated, assuming that the claim was timely, the Agency asserted legitimate,
nondiscriminatory reasons for the challenged action. The AJ found that Complainant did not
directly address the Agency’s proffered legitimate reason by disputing that ICE’s approval is
discretionary and that his wife and child voluntarily left so that the wife could pursue her nursing
degree. The AJ found that there were no genuine issues of material fact or credibility which
required a hearing regarding the Agency’s stated reasons. The AJ granted judgment for the
Agency.

2 The only approved VSMA requests were approved for employees assigned to Mexico, who
elected to have their families return to the United States due to increasing crime and safety issues
within Mexico or for the health reasons of their dependents.
0120182670

4
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged. This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that his claim is timely, because he received a “final decision on
October 31, 2014” and that he did not have a reasonable suspicion of discrimination until that
date. Next, Complainant argues that “the Agency’s proffered reasons are plainly pretext for its
race, national origin, religious, and age discrimination against Complainant because of its
obvious deviation from policy and contradictory statements.” He then states the Agency
“confused voluntary separate maintenance allowance with involuntary separate maintenance
allowance.” For a “voluntary separate maintenance allowance,” the policy also says “special
needs” may include “career, health, educational or family considerations.” He stated that the
Agency correctly followed the policy for his coworkers, but did the exact opposite for
Complainant, which is a question of fact.

In response, the Agency states that his claim was untimely and that its Final Order should be
affirmed.

ANALYSIS AND FINDINGS
Initially, we find the claim was timely presented because Complainant made EEO contact within
45 days of his receipt of the final decision on his request.
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). 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).

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, 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.
0120182670

5
at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Burdine, 450 U.S. at 256.

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. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

We will assume for purposes of our analysis that Agency management was aware of
Complainant’s race and age, when Complainant was denied a VSMA allowance.3 The record
shows, however, that the Agency also denied VSMA requests for others not in Complainant’s
protected groups.

Even assuming that Complainant established his prima facie claims for purposes of analysis, we
find that the Agency articulated legitimate reasons for its actions. The granting of the VSMA was
discretionary and the Agency determined that Complainant was not entitled to the benefit.

In order 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 a complainant 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.

In this case, however, Complainant has failed to establish such a dispute regarding the Agency’s
stated reasons. Complainant acknowledged that his wife voluntarily wanted to return to the
United States. It is undisputed that the denial was based on the Agency’s determination that his
request was not deemed “hardship or health related.” Even construing any inferences raised by
the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor on his discrimination claims. It is not enough to withstand summary
judgment to debate whether the Agency has a uniformly applied policy that clearly states what
benefits are available to its employees, by location, and the criteria for receiving those benefits.

3 The individual who denied the VSMA acknowledged that he met Complainant, although he
denied knowing his race, national origin, age or religion.
0120182670

6

Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ
correctly determined that the entry of summary judgment was appropriate.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Order.

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 tends 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.
0120182670

7
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 8, 2019
Date