Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Mar 9, 2015

0120122954 (E.E.O.C. Mar. 9, 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
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120122954

Agency No. HS-09-ICE-005165

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
June 4, 2012 final Agency 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mission Support
Specialist in the Agency’s Office of Investigations in Salt Lake City, Utah. On January 22,
2009, Complainant filed an EEO complaint in which she alleged that a management official
(M1) had discriminated against her and subjected her to a hostile work environment. On
February 9, 2009, the Agency’s Office of Investigations initiated an investigation into whether
M1 had created a hostile work environment for his employees. This investigation was initiated
after statements from other employees, and not in response to Complainant’s EEO complaint.
Management selected the Denver Field Office Group Supervisor (GS1) to travel to Utah to
conduct interviews with employees about M1’s conduct.

Between March 2 and 4, 2009, GS1 interviewed several employees focusing strictly on
whether M1 treated employees in a hostile, humiliating, or offensive manner. GS1 was
scheduled to interview Complainant on March 2, 2009; however, Complainant’s representative
sent GS1 an email shortly before the scheduled interview expressing concerns about the
investigation interfering with Complainant’s EEO complaint and requesting that he be present
for the interview. GS1 met with Complainant and rescheduled the interview. GS1 emailed
Complainant that same evening in response to Complainant’s representative’s email expressing
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disappointment that Complainant considered not appearing for the interview. GS1 clarified to
Complainant that her EEO complaint and this investigation were separate matters, that
Complainant had every right to proceed with her EEO complaint, and that neither she nor
management wanted to interfere with her right to utilize the EEO process. GS1 further
explained that she simply wanted to ask questions about Complainant’s experience with M1,
that Complainant was not the subject of the investigation, and that the investigation’s purpose
was to assess whether there was a basis for disciplinary action against M1. GS1 informed
Complainant that since she was not the subject of the investigation, her representative would
not be allowed to be present during the interview and reminded Complainant that she had a
duty to cooperate in the Agency’s investigation. Complainant believed that GS1 was accusing
her of not cooperating in the Agency’s investigation.

Complainant was interviewed on March 3, 2009, but she refused to answer questions that she
believed related to her EEO complaint. Complainant considered GS1’s denial of her request
for representation and questions to be intimidating. On March 18, 2009, GS1 submitted a
report finding that the hostile work environment allegations against M1 were unsubstantiated.
GS1 noted, however, that the investigation had been stymied by factors including
Complainant’s refusal to answer any questions that may have had implications with her EEO
complaint.

After Complainant’s interview on March 3, 2009, Complainant’s representative sent an email
to the Acting Assistant Secretary of the Agency alleging that Complainant had been retaliated
against during GS1’s interview. On March 18, 2009, the Assistant Special Agent-in-Charge
(ASAC) contacted Complainant to conduct a follow-up interview based on her representative’s
accusations. Complainant alleges that during this interview ASAC intimidated her and
attempted to discourage her from filing EEO complaints.

On March 18, 2009, ASAC submitted a report finding no evidence of unprofessional behavior
by GS1 during her interview with Complainant. ASAC noted that GS1 intentionally set up a
non-confrontational interview environment, allowed Complainant ample time to collect her
thoughts, and asked Complainant the same questions she asked of all other witnesses she
interviewed. ASAC added that GS1 informed Complainant that the investigation was only into
M1’s conduct and was separate from Complainant’s EEO complaint. Finally, ASAC
confirmed that no other interviewee raised any concerns about GS1’s behavior. As a result,
ASAC found that Complainant’s allegations were unfounded.

On August 10, 2009, Complainant filed a second EEO complaint alleging that the Agency
discriminated against her and harassed her in reprisal for prior protected EEO activity when:

1. On or about March 2, 2009, the investigator assigned to conduct a Management
Referral investigation accused Complainant of not cooperating;

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2. On or about March 3, 2009, the investigator assigned to conduct a Management
Referral investigation did not allow Complainant to have representation during
questioning;

3. On March 18, 2009, a management official commented that it was not in
Complainant's best interest to proceed with her previously filed EEO complaint.

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. When Complainant did not respond within the timeframe provided in
29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially dismissed claims (1) and (2) pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. The Agency reasoned that the claims represented
a collateral attack on the Agency’s Management Referral investigative process and that
Complainant should have raised her challenges to those actions within the proceeding itself.
Next, the Agency determined that management articulated legitimate, non-retaliatory reasons
as to its actions and that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been retaliated
against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant challenges the Agency’s dismissal of claims (1) and (2). Next,
Complainant argues that GS1 retaliated against her by first accusing her of not appearing for an
investigative interview and not participating in an official Agency investigation. Complainant
contends that she appeared as scheduled, but left pending review of her request for
representation. Additionally, Complainant alleges that GS1 conducted the interview as a
harassing and hostile interrogation, and did not allow her to answer the questions.
Complainant argues that ASAC told her during his investigation that it was not in her best
interest to proceed with her EEO complaint. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS
Dismissed Claims (1) and (2)

As an initial matter, the Commission will address the Agency’s dismissal of claims (1) and (2).
The Commission notes that federal agencies are legally obligated to investigate complaints of
harassment. Because of this legal obligation, a claim that arises from an Agency's
investigation of a complaint of harassment fails to state a claim. See Rogers v. Dep't of Def.,
EEOC Request No. 05940157 (Feb. 24, 1995). Thus, the Agency properly dismissed these
claims as discrete acts; however, the Commission will treat these allegations as part of
Complainant’s overall retaliatory harassment claim.
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Hostile Work Environment/Reprisal

To establish a claim of harassment, Complainant must show that: (1) she is a member of 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. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16. 1998); 29 C.F.R. § 1604.11. 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, 510 U.S. at 21. The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris

The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in
protected activity.
).
Burlington N. and Santa Fe Ry. Co. v. White

In this case, Complainant has not shown that retaliatory animus motivated the Agency's
actions. Claims (1) and (2) center around a series of emails about Complainant’s participation
in an investigative interview with GS1. Complainant’s representative sent GS1 an email the
morning of Complainant’s interview stating his concerns about the investigation interfering
with Complainant’s EEO complaint and expressing his wish to attend the interview. ROI, Ex.
3, at 25-26. GS1 briefly met with Complainant that morning, but rescheduled the interview
for the next day. GS1 sent Complainant an email that evening indicating that she got the
impression from Complainant’s representative’s email that Complainant had considered not
appearing for the interview.
, 548 U.S. 53 (2006).
Although petty slights and trivial annoyances are not actionable, adverse actions such as
reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance
Manual on Retaliation, EEOC Number 915.003 (May 20, 1998).
Id. at 22. Further, GS1 explained to Complainant that the
investigation and her EEO complaint were separate matters, assured her that management did
not want to interfere with her EEO complaint in any way, and emphasized that she simply
wanted to ask Complainant about her experience with M1 to determine whether there was a
basis to discipline M1. Id. at 22-23. GS1 reiterated to Complainant that she was not the
subject of the investigation, and as such, she was not entitled to have a representative present.
Id

. at 23. The record is clear that Complainant appeared for the rescheduled interview and
GS1 did not accuse Complainant of failing to report for the interview in her final investigative
report or to any management official. ROI, Ex. 6.
Finally, as to claim (3), ASAC stated that he called Complainant only to investigate the
accusations that Complainant’s representative raised in his email to the Acting Assistant
Secretary of the Agency. ROI, Ex. 6, at 2. ASAC denied saying or doing anything to
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discourage Complainant from participating in the EEO process. Id. at 3. In addition, ASAC
denied telling Complainant that she should never have involved her EEO representative; rather,
ASAC maintained that he simply informed Complainant that she could not have her
representative present during his interview. Id. At the conclusion of his investigation, ASAC
concluded that GS1 had not acted unprofessionally or improperly in her interactions with
Complainant, the investigation strictly focused on M1’s conduct and Complainant was merely a
witness, and that management acted appropriately to address the hostile work environment
allegation without interfering with an ongoing EEO investigation. Id

. at 12-13.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing; therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds that there is no persuasive evidence in the record that Complainant's prior protected EEO
activity played a role in any of the Agency's actions. As a result, the Commission finds that
Complainant has not established that she was subjected to a retaliatory hostile work
environment as 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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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,
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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.

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
March 9, 2015