Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120121535 (E.E.O.C. Jun. 20, 2013)

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

Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120121535

Hearing No. 530-2010-00002X

Agency No. HS-09-ICE-001323

DECISION

On February 8, 2012, Complainant filed an appeal from the Agency’s January 25, 2011, final
order 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physical Security
Specialist (Law Enforcement and Security Officer), GS-0180-12, at the Agency’s Federal
Protective Services (FPS) located in Wilkes Barr, Pennsylvania. During the relevant time,
Complainant’s first level supervisor was the Supervisory Specialist (S1). Complainant’s
second level supervisor was the District Manager (S2). Complainant’s third level supervisor
was the Regional Director (S3).

Complainant filed an EEO complaint dated February 23, 2009, alleging that the Agency
discriminated against him on the bases of age (over 40) and in reprisal for prior protected EEO
activity when:

1. Despite Complainant’s previously stated objections, by electronic mail message dated
September 3, 2008, Complainant was directed to monitor guard training in the presence
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of a coworker whom Complainant accused of previously fabricating information about
him.

2. On October 30, 2008, Complainant became aware that his fiscal year 2008 performance
evaluation documented that he bypassed the chain of command and refused to execute
an assignment.

On April 9, 2009, the Agency accepted issue (2) for processing. The Agency dismissed issue
(1), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The
Agency noted issue (1) involved a discrete action which occurred on September 3, 2008;
however, Complainant did not make contact with the EEO Office until November 12, 2008.
Thus, the Agency found Complainant did not timely raise this matter with an EEO Counselor.

At the conclusion of the investigation on the accepted issue, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on December 16, 2011.

In her decision, the AJ noted that on August 14, 2008, S1 directed Complainant via electronic
mail to monitor firearm training for the contracting guards, which was part of Complainant’s
job duties and responsibilities. The AJ noted that between August 14, 2008, and September
10, 2008, Complainant and S1 exchanged electronic mail messages wherein Complainant
refused to participate in monitoring the firearms training due to a prior ongoing dispute with
the Agency’s contract staff. The AJ noted that S1 warned Complainant that his failure to
comply with the directive could result in disciplinary action. The AJ noted that thereafter
Complainant sent an electronic mail message agreeing to comply with S1’s directive; however,
Complainant indicated he was doing so under “duress.”

The AJ noted that on October 30, 2008, S1 issued Complainant his fiscal year 2008
Performance Review for the review period running from October 1, 2007, to September 30,
2008. The AJ noted that while Complainant received a successful rating, S1 stated in the
review that: “Your recent refusal to accept an assignment, and bypassing the chain of
command caused an added work and an undue hardship for the District. So in the future
please give your chain of command the opportunity to resolve any and all issues that may arise,
and discuss any issues you may have with your assignments prior to refusing them.” The AJ
noted that Complainant acknowledged receipt of his performance evaluation, but challenged
S1’s comments regarding the failure to follow the chain of command.

The AJ found that assuming arguendo that Complainant established a prima facie case of
discrimination, the Agency articulated legitimate, non-discriminatory reasons for its actions
which Complainant failed to show was a pretext for discrimination. The AJ noted the Agency
contended that Complainant’s actions were noted in his performance evaluation because he
failed to follow the chain of command when he complained about alleged ongoing problems
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with contract employees and because he was previously counseled about failing to follow the
chain of command. The AJ noted the Agency stated S1 referenced Complainant’s refusal to
follow a directive because Complainant sent him an electronic mail message refusing to
perform his duties and responsibilities as ordered.

The Agency subsequently issued a final order on January 25, 2011. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

On appeal, Complainant states that during the first days of September 2008, S1 and S2
instructed him to monitor firearms training for Tarheel Security. Complainant explains that he
advised them that Person A would be attending the training. Complainant states he told them
that he was reluctant to interact with Person A as she had provided fabrications previously
which defamed, demoralized, and were used to have him removed from the position of
Contract Officers Technical Representative. Complainant notes that on September 4, 2008, S1
called him a third time directing him to monitor the training, and he states he again expressed
reluctance. Complainant states on September 10, 2008, he received a letter of direction from
S1 instructing him to monitor the qualifications, which noted that, “Failure to comply with this
direct order will subject you to disciplinary action up to and including removal from federal
service.” Complainant states that on September 11, 2008, he submitted a response that he
would comply under “duress.” Complainant claims that due to the threat of termination and
Regional management’s failure to acknowledge his concerns, he sent electronic mail messages
emailed to the Director for FPS and the Assistant Secretary for ICE regarding his concerns.
Complainant argues his reluctance to monitor training on September 13, 2008, was due to a
valid concern that Person A would fabricate additional claims to discredit him. Finally,
Complainant claims that although he submitted a discovery list to the Agency’s Attorney, he
failed to provide the information that would result in a finding on Complainant’s behalf by
EEO.

In response to Complainant’s appeal, the Agency notes that in this case Complainant again
went outside of the chain of command by directly contacting ICE's Assistant Secretary and
FPS Director. The Agency also notes Complainant was previously warned in a prior
performance appraisal that it was improper to go outside of his chain of command. The
Agency also states Complainant's supervisor noted his refusal to follow a directive as
evidenced by Complainant emailing him that he refused to perform his duties and
responsibilities as ordered. That Agency states that in order to stress the importance of chain
of command, it was appropriate for the Agency to place a comment again in Complainant's
performance appraisal when he failed to do so. The Agency states the comment did not affect
Complainant's overall rating. The Agency states that Complainant has failed to show that the
Agency's articulated reasons for its actions are a pretext for discrimination.

Additionally, the Agency notes Complainant raises in his appeal an issue concerning discovery.
However, the Agency states it never received a formal discovery request from Complainant.
The Agency acknowledges that in response to its own discovery requests, Complainant did
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include questions in his response, but the Agency states it did not believe his questions were a
discovery request. The Agency states that even if Complainant intended these misplaced
questions to serve as his discovery requests, he never filed a Motion to Compel when the
Agency did not respond.

ANALYSIS AND FINDINGS

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 Chapter 9, § VI.A. (November 9, 1999) (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”).

At the outset, we note that Complainant does not challenge the Agency's dismissal of issue (1).
The Commission has the discretion to review only those issues specifically raised in an appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10
(November 9, 1999). Accordingly, we will not address the dismissal of issue (1) in this
decision.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute. Additionally, we find the record in the present case
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was fully developed. With regard to Complainant’s contention regarding discovery, we find
Complainant has not indicated that what he sought to discover, even if true, would lead to a
material fact being at issue. In the present case, the Agency articulated legitimate, non-
discriminatory reasons for including the comment at issue in Complainant’s performance
appraisal. We note that in his deposition, Complainant stated that he did not believe the
comments were placed in his appraisal because of his age. Upon review, we find Complainant
failed to show by a preponderance of evidence that the Agency’s actions were based on his age
or in reprisal for his prior protected EEO activity. Moreover, we note Complainant does not
challenge the actual rating he received in his appraisal.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 20, 2013
Date