U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Todd P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022001810 Hearing No. 460-2021-00356X Agency No. HS-CIS-00298-2021 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 26, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Services Officer (ISO) II, GS-1801-12, with the Humanitarian and Employment Adjustment Team (HEAT) at the Agency’s Texas Service Center in Irving, Texas. 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. 2022001810 2 On December 24, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male), disability (Post Traumatic Stress Disorder), age (70), and reprisal (prior protected EEO activity) when, on October 22, 2020, management issued Complainant a rating of “Unacceptable” on his Fiscal Year 2020 (FY 2020) Performance Plan and Appraisal (PPA). 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. 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). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. FACTUAL BACKGROUND Complainant claimed that he was subject to unlawful discrimination and reprisal when he received an “Unsuccessful” rating on his FY 2020 PPA. The PPA consisted of five core competencies. In three of the five core competencies, Complainant received a performance rating of “3,” “Achieved Expectations.” In two of the five, Complainant received a performance rating of “1,” “Unacceptable.” Complainant claimed that contrary to his teammates' averages, upon which his performance was often compared, he issued Requests for Evidence (RFE) to over 95 percent of his cases and denied 90 percent of those applications after the petitioner responded. He indicated that management was cognizant that it required an average of two to four hours to prepare an RFE and four to six hours to draft a denial. Complainant stated he has had some complicated RFEs that have taken six hours to draft and complex denials that have taken eight hours. He asserted that by contrast, that it only takes about 20 minutes to approve an application. Complainant stated that without sending an RFE or writing a denial, an ISO can complete their mandatory three files per day in a little over an hour. He contended it would require him to violate his oath of allegiance that he would well and faithfully discharge the duties of the office to ignore the fact that over 90 percent of the applicants do not qualify for the visa benefit requested. Complainant asserted that instead of objectively assessing his contributions to the Agency’s mission, management sought to make him conform to its desired subjective standard of producing numbers of completions rather than adhering to a performance standard that would allow him, and likely the rest of his unit, to do their jobs and support the Agency’s mission. He alleged that this monolithic approval culture prevented officers from making an independent judgment on the merits of an application based upon the evidence in the file not the arbitrary standard of how many cases must be completed today to meet management's minimum "numbers” expectations. 2022001810 3 Complainant’s first-line supervisor (S1) explained that Complainant’s duties and responsibilities for FY 2020 related to the adjudication of I-129L petitions. She indicated that she was the rating official for Complainant’s 2020 rating, while Complainant’s second-line supervisor (S2) was the reviewing official. S1 stated that Complainant received a rating of “Unacceptable Due to a Performance Goal or Competency Being Rated Unacceptable.” She indicated Complainant was not providing timely adjudications, did not independently manage his workload, and did not maintain a professional tone in his written correspondence. S1 also stated that Complainant could have improved his rating by providing more timely adjudications as detailed in his PPA, independently managing his workload, and maintaining a more professional tone throughout his written correspondence (specifically denial letters). S1 stated that she does not understand Complainant’s claim of “inflated numbers.” She asserted that all officers within HEAT are held to the same standard (completion of three cases per day/15 cases per week). S1 also stated this standard was based on historical data, and the numbers were standards set by Headquarters. S2 concurred that Complainant could have improved his 2020 rating by adjudicating cases in a timely manner, maintaining his workload, and applying the assistance and adjudicative tips provided to him. S2 added that on numerous occasions, Complainant’s cases had to be reassigned when it was clear that he would not be able to timely adjudicate them within the processing deadlines. S2 stated Complainant’s unsuccessful performance, as it related to delivering services to meet customer needs in a timely manner, has disrupted the Agency’s workflow and assignment process. He indicated that due to Complainant’s ongoing inability to independently manage his workload of 15 cases a week, he was not able to participate in the Agency’s automatic distribution process during this fiscal year. S2 stated that as a result of Complainant’s inability to independently manage a premium caseload, when he transitioned to telework due to the COVID-19 pandemic, he was assigned non-premium processing cases only. He also stated that S1 manually ordered and assigned Complainant’s work throughout the fiscal year in order to manage his workload, which was time consuming and required additional resources. S2 affirmed that not being able to provide adjudication in a timely manner hindered the mission of the Agency. S2 confirmed that Complainant was provided once a week mentoring from a senior officer and/or his supervisor, starting January 14, 2020. He noted that with senior assistance, Complainant was able to complete a case within a short period of time. S2 stated, however, that when working independently, it took Complainant, on average, 6.19 hours per action during the month of October 2019, 7.77 hours per action during the month of November 2019, and 7.18 hours per action during the month of December 2019. 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 2022001810 4 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 Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). For purposes of this decision, we assume Complainant established a prima facie case of discrimination on the alleged bases. We find that the testimonial and documentary evidence support the Agency’s articulated legitimate, non-discriminatory explanation for Complainant’s “Unacceptable” performance appraisal as discussed more fully above. Complainant takes issue with the use of efficiency rates as a metric in measuring an employee’s work performance. The record shows that management has applied the same standards across the board to all similarly situated employees regardless of protected status. Further, the preponderance of the testimonial and documentary evidence establishes that Complainant was provided mentorship and guidance to improve his proficiency. According to one mentor, Complainant’s problem was simply that he was slow. In addition, the evidence in the record supports the conclusion that Complainant’s slow processing time could be attributable to the Complainant’s non-work-related social visits. 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. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency's actions. 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. 2022001810 5 Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, 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). CONCLUSION Accordingly, 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. 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. 2022001810 6 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. 2022001810 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 March 2, 2023 Date
