0120131747
07-21-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120131747
Hearing No. 520-2011-00170X
Agency No. HS-ICE-01033-2010
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 13, 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Agency's final order, which fully implemented the Equal Employment Opportunity Commission Administrative Judge's (AJ) finding that Complainant did not demonstrate that he was subjected to reprisal and/or a hostile work environment, is AFFIRMED.
ISSUE PRESENTED
Whether the AJ properly issued a decision without a hearing which found that Complainant was not subjected to reprisal and/or a hostile work environment?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent/Criminal Investigator, GS-13 for the Agency's Intellectual Property Group in New York, New York. On July 21, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when:
1. In March 2010, he was removed as Case Agent on case NY08NR09NY0016;
2. Effective April 4, 2010, he was suspended for six (6) calendar days;
3. In April 2010, his parking spot was reassigned to another employee;
4. On April 29, 2010, he received a mid-year performance review in which he was faulted for submitting reports in an untimely manner; and
5. On June 23, 2010, his undercover New York State driver's license expired and a new one was not issued.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. Prior to the hearing, the Agency submitted a motion for a decision without a hearing and Complainant responded to and opposed said motion. The AJ found that there were no material facts at issue and issued a decision without a hearing finding that Complainant did not establish that the Agency subjected him to reprisal and the incidents complained of were not sufficiently severe or pervasive to rise to the level of a hostile work environment.
Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim no. 1, Complainant was removed as the Case Agent from the case because he was consistently late in documenting case activities in the Report of Investigation (ROI), he failed to report funds received during undercover operations, and he failed to document pertinent case information. Regarding claim no. 2, Complainant was suspended for six days because he exhibited conduct unbecoming a law enforcement officer when he pulled his gun on man who was in a car as the man was dropping someone off at the airport. The Agency's investigation found that Complainant failed to follow Agency policies for conducting vehicle stops and he failed to alert local law enforcement, or contact his immediate supervisor of his activities.
With respect to his parking spot being assigned to another employee, claim no. 3, the Agency maintained that there was no written policy which indicated that those with the most seniority got parking spots. The spots were assigned based on operational needs and seniority and when Complainant left for a seven month detail; his spot was reassigned to someone that worked in the building. The Agency maintained that there were several other places where Complainant could have parked and that he at no time was without a parking space. Moreover, within a month of Complainant's return he was assigned a parking spot in the building. Regarding claim no. 4, where it was noted in Complainant's performance review that he submitted reports in an untimely manner, the Agency explained that Complainant routinely turned in his investigation reports in an untimely manner including one report that was more than six months delayed. He had been advised on at least two occasions that documents needed to be uploaded within 30 days. Finally, with respect to claim no. 5, his undercover driver's license, the Agency explained that Complainant was not a certified undercover officer. Therefore, he had limited use of an undercover license. Complainant agreed that he could not recall any instance where he needed the undercover identification and could not recall that any of his investigations were hindered by not having the undercover identification. Also, Complainant never requested a new license when his expired. In fact, he indicated that he "no longer had any interest in it."
The Agency maintained that the managers involved in all of these claims indicated that they were unaware of Complainant's prior EEO activity. Based on the evidence, the AJ found that, even assuming, Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not demonstrate that the reasons were pretext for discrimination. Furthermore, the AJ found that the incidents at issue were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, in pertinent part, that the AJ erred in finding that there was no genuine issue of material fact in dispute. Complainant contends that his removal as Case Agent had an adverse impact on him. Removal from the investigation resulted in the loss of credit for all of his work and other agents received greater recognition and awards for the case. Complainant maintains that removal is usually a method to punish the Case Agent and in this instance it resulted in embarrassment in the eyes of his fellow agents, since it could be perceived that he could not successfully follow through with an investigation. Complainant maintains that he did not believe the reason given for the case removal as during his 10-year career with the Agency he often and routinely submitted ROIs weeks and sometimes months after an occurrence, and had never been disciplined, penalized or counseled, because this was an accepted practice within the Agency.
With regard to his suspension, Complainant maintains that he believed that he was in danger so he pulled his weapon. Complainant maintains that the investigation regarding this matter was negligently conducted and his suspension was therefore based on reprisal. Complainant also contends that, historically, parking spots were assigned based upon seniority. He maintains that he was not told why his spot had been reassigned. Complainant contends that the reassignment of the parking spot had an adverse impact upon him. He explains that a senior agent being denied privileges and benefits of seniority causes junior agents to regard that agent in a lesser light as one who is not respected by management. Therefore, the junior agent avoids the more senior agent as much as possible. This causes an agent to be isolated and ridiculed. The isolation also causes the affected agent to struggle to get any assistance from junior agents and the lack of such support causes the agent to not be able to effectively conduct investigations, leading to an unproductive career and reputation.
Complainant further maintains that, with regard to his mid-year performance review where he was faulted for submitting ROIs in an untimely manner, there was no Agency requirement that states the time within which ROIs have to be submitted during an ongoing investigation. Finally, with respect to his undercover driver's license, Complainant maintains that not having an undercover driver's license affected his ability to do his job. It limited what he could do and forced him to rely on other agents to accomplish tasks involved in investigations, such as vehicle rentals and bank deposits of illicit funds, and he could not perform any undercover role.
Complainant argues that he did not have to allege a material change in his work conditions to state a claim and in the alternative he alleged that he was sufficiently aggrieved. He also maintains that the Agency's motion for summary judgment should have been denied.
In response, the Agency asserts that Complainant suffered no adverse employment action with respect to claims 1 and 3, and therefore they should be dismissed for failure to state a claim. Specifically, the Agency contends that with respect to claim 1, that taking Complainant off of a single case for failure to timely report his work does not rise to the level of an adverse employment action. Complainant remained in his position as a Special Agent and remained in the same investigative group. Also, with regard to claim 3, the Agency maintains that the failure of the Agency to provide Complainant with a parking spot in the building did not affect a term or condition of employment. At best, this was a relatively minor inconvenience. Further, with respect to claim 5, the Agency reiterates that Complainant never bothered to renew his undercover license.
With respect to claim 2 the suspension and claim 4 the midyear performance review, the Agency asserts that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination or that the incidents were severe or pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). The Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above and Complainant failed to show that the reasons were pretext for discrimination or that discriminatory animus was involved in any of these claims.
With respect to Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 order, because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Moreover, we find that Complainant has not articulated any material facts that are at issue. Simply disagreeing with the AJ's findings is not enough to create a genuine issue of a material fact.1
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.
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
_7/21/15_________________
Date
1 We note that, in addressing the AJ's issuance of a decision without a hearing, a complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex v. Catrett, 477 U.S. 317, 324 (1986).
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0120131747
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131747