U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Derrick P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021000327 Hearing No. 520-2010-00320X Agency No. HS-ICE-25033-2016 DECISION On October 16, 2020, 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 September 16, 2020, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 an Immigration and Customs Enforcement (ICE) Mentoring Program Manager, GS 14 at the Agency’s ICE Headquarters in Washington, D.C. On December 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (56), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was 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. 2021000327 2 subjected to numerous incidents of harassment, including but not limited to: his second-line supervisor, the Chief of Staff (CoS) for the Office of Training and Development, offered him no feedback on his Individual Development Plan; he was removed from his temporary duty reassignment to a supervisory position and returned to his nonsupervisory position; his November 2013 and February 2014 performance appraisals contained negative narratives and led to him being excluded from receiving performance evaluation bones; his supervisors, the CoS and the Unit Chief (UC), revoked his telework agreement; the UC assigned him a 2015 annual performance rating of “Achieved Expectations” and a total numerical score that left him ineligible to receive merit pay; and the UC repeatedly scolded him in a harsh and demeaning manner in front of other employees.2 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). Complainant timely requested a hearing but subsequently withdrew his request. Prior to the issuance of the final decision, the Agency determined that a supplemental investigation was necessary. The supplemental investigation was completed on May 29, 2020 and thereafter, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that, with respect to the discrete claim of Complainant’s 2015 performance appraisal, the Agency articulated legitimate, nondiscriminatory reasons for its action and Complainant did not submit any evidence to support his assertions of pretext. The decision also found that Complainant had not established that he was subjected to a hostile work environment because the incidents taken together were neither severe nor pervasive enough to constitute a hostile work environment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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. (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”). 2 The Agency dismissed all of Complainant’s claims except his claims regarding his November 2015 performance evaluation as discrete acts of discrimination on the grounds of untimely counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). See Report of Investigation (ROI) at 58-60. The Agency noted that they would be considered as evidence of a hostile work environment. 2021000327 3 Sanctions Complainant contends the Agency should be sanctioned for its delay in not issuing its decision in a timely manner, noting that the Agency waited almost two years before determining that a supplemental investigation was necessary, further delaying the issuance of its decision, which also was not issued in a timely manner following the completion of the supplemental investigation. EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). Here, Complainant withdrew his request for a hearing on September 17, 2018 and the AJ remanded the case for the Agency to issue its final decision on January 7, 2020. Thereafter, the supplemental investigation was completed on May 29, 2020 and the final decision was issued on September 16, 2020. We find that the delay was not unreasonable under the circumstances and sanctions are not warranted. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). To the extent Complainant attributes bad faith to the Agency’s decision to conduct a supplemental investigation and thereby extend the time in which to issue its final decision, there is no evidence in the record to support his assertions and absent any evidence in the record, we decline to attribute such bad faith to the Agency. Adequacy of the Investigation Complainant has challenged the adequacy of the investigation. Investigations of discrimination complaints are governed by 29 C.F.R. § 1614.108 and the instructions contained in the Commission's EEO MD-110. See EEO MD-110, Chap. 6 (“Development of Impartial and Appropriate Factual Records”). An adequate agency investigation is one that is developed impartially and contains an appropriate factual record. 29 C.F.R. § 1614.108(b). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” 29 C.F.R. § 1614.108(b); EEO MD-110, Chap. 6, § § I, IV.B., IV.C. An investigator must be unbiased, objective and thorough. Id. at § V.C. The investigator must obtain all relevant evidence from all sources regardless of how it may affect the outcome. Id. at § V.D. We note that Complainant’s first-line supervisor, the UC, was not interviewed during the initial investigation because she had retired prior to the investigation being conducted and the investigator was not able to obtain her current contact information. See Report of Investigation (ROI) at 133. 2021000327 4 We find that the investigator made a good faith effort to contact the UC and the failure to interview her does not indicate that the investigation was inadequate. We further reject Complainant’s contention that the Agency did not adequately investigate his reprisal claim. Complainant’s argument appears to be limited to the fact that the investigation did not sufficiently inquire into the details of Complainant’s prior EEO activity. We emphasize, however, that the Agency did not dispute that Complainant had prior EEO activity and therefore, a specific investigation into the nature of Complainant’s prior EEO activity was not necessary. Moreover, we find that the Agency’s investigation and its decision adequately summarized Complainant’s prior EEO activity. We find that, under the circumstances of this case, the record is adequately developed such that we can draw conclusions as to whether discrimination occurred. Untimely Counselor Contact We will also briefly address the Agency’s dismissal of all of Complainant’s alleged incidents of harassment except the November 2015 performance evaluation as discrete acts of discrimination. 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. To the extent Complainant provided an estimate of the timing of the occurrence of the alleged incidents, many of Complainant’s alleged incidents of harassment occurred in 2012 and 2013 and Complainant first contacted an EEO counselor on November 10, 2015. See ROI at 31. Complainant has not presented any justification to delay or toll the time limit. We therefore find that the Agency properly dismissed Complainant’s claims except for his allegations concerning his November 2015 performance evaluation for untimely counselor contact. Complainant’s Allegations of Discrimination Contrary to Complainant’s argument on appeal, we find that the Agency’s decision accurately recounted the relevant material facts and correctly identified the legal standards to prove that Complainant was subjected to disparate treatment on the basis of his race, age, or reprisal. The CoS stated that the UC gave Complainant an “Achieved Expectations” on his 2015 Annual Performance Appraisal because he “met his goals,” and the UC found that he was “non- responsive in his communications.” See ROI at 109. Complainant disputed his performance evaluation, insisting it included inaccurate information. We note, however, that Complainant did not provide any evidence to support his assertions and Complainant’s subjective opinion of his own performance is not sufficient to establish pretext or otherwise cast doubt on the Agency’s reasons. See Complainant v. Dep’t of Housing and Urban Dev’t, EEOC Appeal No. 0120122630 (March 9, 2015). While it is clear that Complainant disagrees with the Agency’s explanations, mere disagreement with an Agency’s actions does not establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). 2021000327 5 We further find that the Agency’s decision correctly identified the legal standards to prove that Complainant was subjected to a hostile work environment and correctly found that Complainant failed to establish that he was subjected to a hostile work environment as alleged. To the extent Complainant challenges the Agency’s failure to adequately consider the opinions of several of his coworkers that the UC’s demeanor was generally harsh and seemed particularly belittling to African-American employees, we note that neither Complainant’s subjective assertion that the UC’s demeanor was harsh nor Complainant’s coworkers’ personal opinions are sufficient to establish an objectively offensive hostile work environment as required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII’s purview.”). While it is clear that Complainant had issues with the UC’s management style, EEO laws do not protect an employee against adverse treatment due to a supervisor’s personality quirks or autocratic attitude. See Domingo M. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020004044 (Dec. 2, 2020). Moreover, there is no evidence to indicate a nexus between Complainant’s protected EEO activity and the UC’s treatment of him; rather, the evidence indicates that Complainant perceived the UC’s demeanor to be harsh and belittling even before Complainant engaged in his protected activity. We therefore affirm the Agency’s finding that Complainant did not establish that he was subjected to a hostile work environment due to any of his protected bases. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that he was subjected to discrimination as alleged. 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). 2021000327 6 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. 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. 2021000327 7 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 September 15, 2022 Date
