0120120847
08-28-2013
Michael A. LeBellot, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Michael A. LeBellot,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120120847
Agency No. HS-CIS-00082-2011
DECISION
Complainant filed an appeal from the Agency's October 25, 2011, final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Asylum Officer at the Agency's Miami Asylum Office of US Citizenship & Immigration Services, in Miami, Florida.
On December 16, 2010, Complainant filed an EEO complaint alleging that the Agency harassed him and discriminated against him on the bases of race (Caucasian), sex (male), religion (Christian), age (60), and reprisal for prior unspecified EEO activity, when:
1. From October 2009 through December 2010, the Director, Miami Asylum Office (Director) and four Supervisory Asylum Officers (SAOs) scrutinized and criticized Complainant's work, spoke to him in a condescending manner and removed him from special projects; and
2. On October 26, 2010, management issued Complainant a "Fully Successful" rating on his performance appraisal for Fiscal Year 2010.
The record shows Complainant's duties include conducting interviews with individuals seeking asylum in the United States. He began his position in 2006, and up until the fall of 2009, Complainant received excellent and outstanding performance evaluations. In 2009, a new Director was appointed. Complainant believed that the new Director took the Agency in a wrong "new direction" with an emphasis on customer satisfaction and a strong emphasis on granting visa requests. Complainant had been openly critical of the practice of granting the "fraudulent" requests. Complainant's supervisor found Complainant was being "insensitive and inappropriate" in his questioning of rape victims.
In addition, Complainant had a series of four different supervisors, which created a discontinuity in his supervision. Three of the four were women. Complainant believed that the female officers were treated more favorably by the supervisors. One of his supervisors rolled her eyes at Complainant during the work discussion, but later apologized. Complainant stated that the male supervisor had a reputation for "his excessive and compulsive need to return cases to officers" for unwarranted revisions.
In March of 2010, the Director called Complainant into a meeting with her and accused Complainant of being insubordinate to his supervisors and criticized his character.
On March 31, 2010, and again on November 10, 2010, management removed Complainant from a special project.
On October 26, 2010, Complainant received three "Fully Successful" ratings on his performance appraisal which resulted in his receiving a "Fully Successful" rating for the fiscal year 2010. On October 27, 2010, Complainant sought EEO counseling.
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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency found that Complainant's interview techniques, analysis, and technical skills did not meet management standards. The performance rating was based on numerical standards calculated using the number of cases returned for errors, combined with other data.
With regard to the harassment claims, the Agency found that Complainant failed to establish that management's actions were motivated by discriminatory or retaliatory animus. The Agency concluded that management cancelled Complainant's assignment to St. Thomas because the Director determined that Complainant should remain in the office because he failed to perform at a successful level. The Agency reasoned that Complainant failed to produce evidence showing unlawful harassment or proof that the Agency subjected him to conduct based upon his race, religion, sex, age or prior EEO activity.
This appeal followed.
ANALYSIS
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").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Even assuming Complainant has established a prima facie case on all bases, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Complainant has failed to show by a preponderance of the evidence that the Agency's reasons are a pretext for discrimination. Complainant has not challenged the Agency's explanations that management perceived his performance as not meeting its standards and that all asylum officers were closely monitored and scrutinized. In addition, the record shows that others outside of Complainant's protected groups were subjected to the same level of scrutiny.
In addition, harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently severe or pervasive. Cupo v. U.S. Postal Serv., EEOC Appeal No. 0120113688 (January 31, 2013). To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class: (2) he was subjected to harassment involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In this case, Complainant failed to produce any evidence to show that he was subjected to harassment because of his protected classes. Rather, Complainant conceded that all of the alleged incidents took place after management instituted a new direction favoring the granting of asylum requests. Complainant disagreed with the new "getting-to-yes" approach. Even if we were to reject the Agency's reasons, the record shows that all Asylum Officers were closely scrutinized and subjected to the same conditions. The preponderance of the record supports the finding of no unlawful discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
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 tends 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
August 28, 2013
__________________
Date
2
0120120847
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120847