Dan H.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Aug 31, 2020

2020002093 (E.E.O.C. Aug. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dan H.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020002093 Agency No. HS-ICE-01673-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision, dated December 9, 2019, dismissing his complaint of unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Deportation Officer, GS-12, at the Agency’s Enforcement and Removal (ERO) Office in York, Pennsylvania. On August 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), color (white), age (unspecified), and in reprisal for prior protected EEO activity when: 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. 2 2020002093 1. on February 15, 2018, during a meeting, the Field Office Director (FOD) stated, “I see an awful lot of white male faces here,” and that she would be hiring females and minorities for upcoming vacancies; and 2. on August 8, 2018, Complainant withdrew himself from the selection process of a Supervisory Detention and Deportation Officer (SDDO) position due to rumors that another candidate was being selected. On December 9, 2019, the Agency issued a final decision dismissing the formal complaint for untimely EEO Counselor contact and on the alternative grounds of failure to state a claim The instant appeal followed. On appeal, Complainant averred that he was aware 45-day time limit to contact an EEO Counselor under 29 C.F.R. § 1614.105(a). However, Complainant asserted that he had contacted the EEO counselor timely because it was not until mid-October 2018 that Complainant learned the Agency selected an African American female with less experience for the SDDO vacancy. Additionally, Complainant argued he stated a claim because the FOD had complained there were too many white males in Complainant’s office and that the Agency denied him a promotion based on this. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. To establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant has not alleged that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy under the EEOC regulations. Here, Complainant’s allegations were simply too speculative to state viable claims. The FDO’s purported statement that she wanted to hire more non-Caucasians and females upset Complainant. However, beyond Complainant’s own conjecture, the Agency did not discourage Complainant from competing for the SDOO position identified above. Instead, Complainant admitted that he had withdrawn himself from consideration upon hearing “rumors” the an African-American 3 2020002093 female had been preselected. We fail to see an employment harm or a possible remedy concerning a selection decision after Complainant had chosen not to pursue it. Moreover, we find that the claims, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). CONCLUSION Accordingly, the Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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 2 Because we affirm the Agency’s dismissal for failure to state a claim, we find it unnecessary to address alternative dismissal grounds. 4 2020002093 in digital format via the EEOC’s Federal Sector EEO Portal (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 August 31, 2020 Date