Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Feb 12, 2015

0120133044 (E.E.O.C. Feb. 12, 2015)

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

Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120133044

Hearing No. 520-2013-00056X

Agency No. HS-CBP-21633-2012

DECISION
On August 13, 2013, Complainant filed an appeal from the Agency’s July 19, 2013 final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq

. Our review is de novo. 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 National Import
Specialist at the Agency’s facility in New York, New York. On February 23, 2012,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the basis of reprisal for his prior protected EEO activity when on November 23, 2011,
he learned that he would not receive an employee performance award because his name had
not been placed in nomination for the award.

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 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 Summary Judgment
and issued a decision on June 19, 2013.

The record reveals that the Agency and the Union negotiated an agreement to establish a Joint
Awards Committee. The Committee included three manager representatives and three union
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representatives. The Committee forwarded its award recommendations to a designated Agency
official for a final decision. The award nomination process allowed for self-nominations and
submissions from both management and coworkers.

On February 17, 2011, the Branch Manager issued Complainant a letter of reprimand for: (1)
failure to follow instructions; and (2) sending inappropriate/unprofessional e-mails. On May
23, 2011, this letter of reprimand was rescinded, and the Branch Manager issued a new letter
of reprimand which only referenced the charge of inappropriate/unprofessional e-mails. On
June 9, 2011, Complainant filed an EEO complaint which claimed that he had been subjected
to reprisal when he was issued the letter of reprimand. The EEO complaint was dismissed
because a grievance had been filed on the same matter.

On August 19, 2011, the Branch Manager sent an office-wide e-mail to employees concerning
the performance awards program. He informed employees that due to time constraints, they
were strongly encouraged to nominate themselves and their peers. A subsequent e-mail on
September 9, 2011, notified the employees that the deadline to file nominations was September
30, 2011.

The AJ found that Complainant established a prima facie case of reprisal. The AJ also found
that the Agency articulated legitimate, nondiscriminatory reasons for Complainant not being
nominated for, and therefore not receiving, a performance award. The AJ observed that the
Branch Manager indicated that had he not recused himself, he would not have nominated
Complainant due to the letter of reprimand he issued Complainant for sending unprofessional
e-mails. 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.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of reprisal with regard
to not being nominated for a performance award. The Agency explained that Complainant was
not nominated because he did not nominate himself and he was not nominated by management
or any of his coworkers. Although Complainant asserts that the Branch Manager retaliated
against him for prior protected activity by recusing himself from deciding the question of
whether to nominate Complainant for an award, the award nomination process allowed for
self-nominations and submissions from coworkers and management officials who had not been
recused. Thus, the recusal had no affect on Complainant’s name not having been placed in
nomination. There is no evidence that unlawful retaliation contributed to Complainant’s failure
to receive a nomination.

CONCLUSION
The Agency’s determination in its final order that no discrimination occurred is AFFIRMED.

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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).
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.

0120133044

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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

Date
February 12, 2015