U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bruce B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2022001884 Agency No. HS-ICE-01315-2021 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 6, 2022, final decision 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 Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer, GS-1801-12, in the Office of Enforcement and Removal Operations (ERO) at the Agency’s Phoenix Field Office in Phoenix, Arizona. On June 4, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African- American), religion (Muslim), color (Black), and in reprisal for prior protected EEO activity when on March 31, 2021, the Deputy Field Office Director (S3) issued Complainant an official memorandum proposing to relieve him of all duties with the Phoenix Special Response Team. 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 2022001884 Aside from his regular duty assignment, Complainant was a member of the Special Response Team (SRT). The Assistant Field Office Director was Complainant’s tactical supervisor (Tactical Supervisor) as a member of the Phoenix Special Response Team. He had no supervisory relationship to Complainant regarding Complainant’s regular duty assignment. The Deputy Field Office Director was Complainant’s third-line supervisor (S3). On October 1, 2020, Tactical Supervisor sent Complainant and other individuals an email that contained the Fiscal Year 2021 Special Response Team Training Plan and schedule. The recipients were instructed to read and review the attached document and to make note of the training dates on their calendar. The training plan stated that all SRT members were required to attend the scheduled training sessions. It warned that officers who “willfully failed to meet this requirement may be relieved of SRT duties.” On January 16, 2021, Complainant and other individuals were sent an email on behalf of the Acting Field Office Director with the subject line: “Reminder of the Requirements within the ERO [SRT] Handbook.” The email addressed the Phoenix Field Office SRT officers and directed them to read the ERO SRT Policy Handbook, which was attached. The officers were instructed to send a confirmation email, stating they had read and understood the SRT Policy Handbook. Complainant sent his confirmation email on January 21, 2021, stating he read and understood the ERO SRT Policy Handbook. Since the start of the fiscal year in October 2020, Complainant did not attend any of the ERO SRT scheduled trainings. In March 2021, Tactical Supervisor submitted a memorandum to S3 stating Complainant had failed to attend or failed to provide a valid justification for not attending the scheduled trainings on: October 7-9, 2020; December 9-11, 2020; January 7-8, 2021; February 18, 2021; and March 4-5, 2021. Given Complainant’s conduct, the memorandum proposed Complainant be relieved from his SRT duties. S3 approved the recommendation and notified Complainant of his decision to relieve him of his SRT duties on March 31, 2021, Complainant stated that the SRT Team Lead and Tactical Supervisor were advised and aware of his ongoing EEO complaint against Tactical Supervisor. Complainant affirmed he had advised management he would not be working with Tactical Supervisor and had requested to telework while his EEO complaint was pending. Complainant said he was never told he missed training or was not considered excused for training, nor was he offered the opportunity to take the training on another day. Complainant cited three SRT members as comparators because they missed SRT trainings while they were suspended, however, they were not relieved of their SRT duties for missing the scheduled trainings. The three comparators were the subject of internal investigations and had been placed on administrative duties. They were required to surrender all firearms, body armor, and SRT issued equipment. Two of the comparators were restored to full duty, reissued all equipment, and began attending SRT training. 3 2022001884 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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. (Aug. 5, 2015) (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”). Disparate Treatment 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). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In particular, as explained above, Complainant was notified that he was required to attend the SRT scheduled trainings as a requirement of being an SRT official. Complainant received the Fiscal Year 2021 ERO SRT Training schedule at the start of Fiscal Year 2021. The SRT Training Plan sent to Complainant in October 2020, warned SRT members could be removed from the SRT if they failed to attend the trainings or failed to provide adequate justification for their absences. The Tactical Supervisor stated that SRT members were required to attend frequent training that covered a variety of specialized skills and equipment. The Agency used SRT for high-risk situations and SRT members needed to maintain a heightened state of proficiency and readiness. Additionally, Tactical Supervisor and S3 followed the procedures set forth in the ERO SRT Handbook. 4 2022001884 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. 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 no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. Complainant explained that he did not attend the scheduled trainings because he believed his safety was at risk if he attended the trainings with Tactical Supervisor, who he had named as a responsible management official is his prior EEO complaint. However, there is no evidence in the record to support Complainant’s assertion. Additionally, Complainant noted three SRT members as comparators because they missed SRT trainings while they were suspended, but were not relieved of their SRT duties for missing the scheduled trainings. However, these individuals are not proper comparators because their circumstances were not similar to Complainant’s circumstances. As described above, Agency officials explained that the three cited comparators did not attend the scheduled trainings due to their suspensions and the two SRT members began attending SRT training after they were restored to full duty and reissued their equipment. The third comparator remains under internal investigation. Here, Complainant was not suspended, placed on administrative duty, was always in possession of all issued SRT equipment, and by his own accord did not attend the SRT trainings. Aside from Complainant’s conclusory allegations and speculations, Complainant has failed to establish that the Agency’s reasons for pretext for discriminatory or retaliatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, 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 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 that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 5 2022001884 CONCLUSION Therefore, after a careful review of the record, including arguments on appeal, and arguments and evidence not specifically discussed in this decision, 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 6 2022001884 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 27, 2023 Date
