Alline B.,1 Complainant,v.Elaine C. Duke, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Oct 19, 2017

0120150625 (E.E.O.C. Oct. 19, 2017)

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

Alline B.,1
Complainant,

v.

Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120150625

Hearing No. 570-2010-00728X

Agency No. HS-ICE-07640-2008

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s October 20, 2014 final order 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Employee and
Labor Relations Consultant as a contract employee in the Agency’s Office of Human Capital in
Washington, D.C. Complainant became a contractor with STG International (STG) in 2003, and
was placed with the Agency in October 2003. Complainant’s labor category while working with
the Agency was Human Resources (HR) Specialist VI. In March 2006, Complainant and several
co-workers were discussing the Agency’s upcoming move to a new office location. Complainant
and a co-worker both expressed unhappiness with moving to the same floor as political
appointees. The Supervisory Management/Program Analyst (S1), who served as the Contracting
Officer’s Technical Representative (COTR), overheard the conversation and told employees “If

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.
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you don’t like it, you can find a job somewhere else.” On another occasion, S1 entered the office
and stated “Good morning, contract staff.” Complainant complained to the Director of the
Office of Human Capital about S1’s comments. The Director counseled S1 verbally and issued
him a Letter of Warning. Additionally, the Director temporarily removed S1 from the COTR
role.

In June 2008, S1 informed STG that Complainant’s timesheet was incorrect. STG requested that
Complainant review her timesheet for any errors. STG then confirmed to S1 that Complainant’s
timesheet was correct.

In July 2008, Complainant contacted the EEO Director stating that she wanted to file an EEO
complaint regarding S1’s alleged harassment. On July 11, 2008, the EEO Director emailed
Complainant informing her that the Director would be having a meeting the next week regarding
changes related to contractors and the COTR position. On July 15, 2008, a new COTR (COTR-
2) assumed the position.

In January 2009, STG sent a letter to the Contracting Officer proposing a different labor category
mix than the one stated in the Agency’s initial solicitation. STG proposed two Program Manager
III positions and three HR Senior Specialist VI positions instead of the Agency’s requested five
HR Senior Specialist VI positions. The Director denied the request for Program Manager III
positions. In July 2009, STG requested that Complainant be moved to a Program Manager III
position. The Agency denied the request.

On November 19, 2009, S1 had a conference call with STG officials. During the conference
call, S1 informed the STG officials that its failure to follow correct procedures in requesting a
change in the labor category mix resulted in Complainant filing an EEO complaint against him.
On January 11, 2010, STG removed Complainant from the Agency contract and placed her at
another Agency.

On December 11, 2008 (and amended on October 12, 2009), Complainant filed a formal
complaint alleging that the Agency discriminated against her on the bases of race (African-
American), sex (female), and in reprisal for prior protected EEO activity as evidenced by
multiple incidents including, inter alia, the Contracting Officer's Technical Representative (S1)
commented that Complainant could find a new job if she was dissatisfied with newly-assigned
office space; S1 commented “Good morning, contract staff;” S1 stated that contract staff would
not receive the same office equipment as government employees; S1 inquired with STG
International Staffing whether Complainant’s time sheet was inaccurate; Complainant claims to
be the only independent contractor whom STG did not give a monetary award; management
denied a request to change Complainant’s position classification/labor category; and S1
mentioned Complainant’s pending EEO complaint during a conference call with representatives
from STG.2

2 Complainant withdrew two additional claims on November 18, 2010.
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On February 24, 2009, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. Specifically, the Agency determined that
Complainant was not an Agency employee, but rather an employee of an independent contractor
assigned to the Federal agency - STG. Complainant appealed and, in Complainant v. Dep’t of
Homeland Sec., EEOC Appeal No. 0120091884 (July 7, 2009), the Commission reversed the
dismissal and remanded the complaint for further processing based on a finding that
Complainant was a joint employee of the Agency and STG.

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on May 21, 2014, and issued a decision on
September 16, 2014.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to the
comment about looking for work elsewhere, the AJ determined that S1 was making the comment
to the group of employees present and not Complainant. As to S1’s “good morning” comment,
the record showed that S1 said “good morning, federal staff; good morning, contract staff” or
words to that effect. The AJ determined that S1 plainly addressed two groups based on their
employment status, i.e., federal employees and contract staff, and not based on their protected
classes. Moreover, S1 did not treat the groups differently; rather, he made the same statement to
both groups.

As to her claim that S1 stated that contract employees would not get the same equipment as
federal employees, the record showed that Complainant received the same equipment as federal
employees. Further, S1 did not have final decision-making authority on equipment purchases.
Additionally, pursuant to Agency policy, COTRs are not authorized to provide any government-
owned or leased property, equipment, or supplies other than those specifically identified in the
contract and authorized by the Contracting Officer. Complainant was provided a scanner, a
second computer monitor, and access to CyberFeds as she requested. With respect to her
timecard claim, the Agency asserted that S1 apologized after STG confirmed that Complainant’s
hours were correct. The Agency explained that S1 addressed the issue with STG directly
because it was a contract billing issue, that it was promptly resolved the same day, and that it was
not unusual to have billing errors with STG billing invoices. S1’s duties included reviewing
invoices for accuracy, and he regularly verified invoices with the contracting company and not
the employee. S1 testified that he never discussed the apparent discrepancy with Complainant
because the Contracting Officer advised him that it was a good practice “not to engage directly
with employees, but to run everything through the company.” At the direction of the Director
who received an inquiry concerning this incident from the EEO Investigator handling
Complainant’s case, S1 later contacted STG to confirm that the incident had been resolved.

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As to her claim regarding awards, the Agency explained that it had no control over STG’s
decision not to give Complainant an award. STG independently and with its own funds decided
to give awards to three of its employees. S1 and COTR-2 had no input or connection with
STG’s decisions regarding awarding its contractors. Agency employees never recommended
that certain individuals receive awards and did not direct STG to deny Complainant an award.

With regard to Complainant’s position classification/labor category, Agency officials explained
that Complainant was not made a Program Manager III because the change was contrary to the
agreed-upon contract provisions between STG and the Agency. STG twice asked S1 to change
Complainant’s labor category and S1 denied the requests because Complainant’s duties did not
match the Program Manager III category, there was inadequate funding, and there was no need
for a Program Manager III on the task order. STG took the step of proposing that the Agency
change its labor mix by naming the specific contractors that it wanted to promote internally;
however, the Agency never requested or agreed to adding a Program Manager III to its Office of
Human Capital.

Finally, with respect to S1’s conference call with STG, S1 testified that he was contacted by an
EEO Investigator in November 2009, and realized that he was being accused of being
responsible for an alleged refusal to change Complainant’s work category to Program Manager
III. S1 testified that he decided to contact STG to discuss its failure to follow proper procedures
when submitting requests to modify a contract. S1 explained to STG officials that changes to a
labor category must go through the Contracting Officer and not a COTR. S1 testified that he
informed STG that Complainant had accused the Agency of discrimination because it failed to
change her labor category though, as a COTR, he was powerless to do so. S1 testified that he
made the remark to demonstrate to STG that it should not approach him to change STG
contractor labor categories because doing so subjected the Agency to potential liability. S1
testified that STG already knew about the EEO complaint when he initiated the conference call.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order
fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in disallowing two of her witnesses from
testifying at the hearing who would have had firsthand knowledge regarding the harassment and
discrimination she received. Further, Complainant argues that the AJ made several erroneous
factual determinations including finding that S1’s “good morning” remark was not based on
discriminatory animus and that S1 and COTR-2 did not make the decision to deny her request to
upgrade her position classification. Complainant contends that the record shows that she was
subjected to discrimination and reprisal. Accordingly, Complainant requests that the
Commission reverse the final order. The Agency submitted a brief in opposition to
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Complainant’s appeal in which it urged the Commission to affirm its final order implementing
the AJ’s decision finding no discrimination.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. See 29 C.F.R. § 1614.405(a).

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Ch. 9, at § VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on her protected classes, management subjected her to a hostile
work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment. The Commission finds that substantial record
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evidence supports the AJ’s determination that Complainant has not shown that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. For example, with regard to S1’s comment about the Agency’s new building
location and his “good morning” remarks, substantial record evidence supports that neither
comment was directed at Complainant specifically; rather, S1 was addressing a group of
employees present on each occasion. Hr’g Tr., at 202-05. As to S1’s comment about office
equipment, the record reveals that Complainant received the office equipment she needed to
perform her duties and S1 did not have final approving authority for equipment purchases or who
was provided what equipment. ROI, at 138-39; Hr’g Tr., at 209-12. Regarding the timecard
error, S1 testified that he contacted STG because he initially believed that the Agency had been
billed for two more hours than Complainant had worked in May 2008. Hr’g Tr., at 215. STG
confirmed to S1 that Complainant’s hours were correct and S1 apologized after determining that
he had made an error. Id. at 216. S1 testified that he received erroneous invoices several times a
year from STG and it was his practice to contact the contracting company regarding these issues,
not engage directly with the employee. Id. at 215-18.

As to awards, S1 and COTR-2 both testified that they had no role in STG’s decisions regarding
its awards. Hr’g Tr., at 167, 220. The Director testified that the Agency made no
recommendations to STG regarding awards and those decisions were made internally by STG.
Id. at 146. With regard to her position classification/labor category, S1 testified that he informed
STG twice that the Agency did not require a Program Manager III at the time and that the proper
procedure for requesting a labor category change was through the Contracting Officer. Hr’g Tr.,
at 221-22. COTR-2 later approached the Director about STG’s request to change Complainant’s
labor category and the Director denied the request because the Agency did not have a
requirement for that type of work. Id. at 153. Finally, regarding the conference call, S1 testified
that he contacted STG to explain that changes to a labor category must go through the
Contracting Officer and not a COTR. Id. at 227. S1 testified that he informed the officials that
their failure to follow proper procedures in an attempt to promote Complainant had now left the
Agency subject to potential liability issues. Id. at 227. S1 testified that he did not try to affect
Complainant’s employment status or interfere with the contract, and actually asked that
Complainant not be moved when an STG official informed him in January 2010, that there was a
priority need to move Complainant and another contract employee elsewhere in the Agency. Id.
at 229.

After reviewing the record and considering the arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and her factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
has not shown that she was subjected to a discriminatory or retaliatory hostile work environment.
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We additionally find that the AJ did not abuse her discretion when she denied the testimony of
two of Complainant’s proposed witnesses. We note that Complainant did not choose to testify
on her own behalf.

Furthermore, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency’s reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that
Complainant has not established that she was subjected to discrimination, reprisal, or a hostile
work environment as to all claims alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported by
the record.

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
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(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. 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

October 19, 2017
Date