[Redacted], Wade K., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021002289 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wade K.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency. Appeal No. 2021002289 Hearing No. 570-2017-00823X Agency No. HS-HQ-25902-2016 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final order 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.2 For the reasons that follow, we AFFIRM the Agency’s final order. BACKGROUND At the time of the matters at issue, Complainant was a GS-15 Management Analyst with the Agency’s Program Administration Branch located at its Headquarters in Washington, DC. From April 2015 to February 2016, he was a Supervisory Management Specialist/Chief of Staff in the Headquarters Services Division. On April 11, 2016, Complainant filed a complaint alleging discrimination and harassment based on race (Caucasian) 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 There is no indication that the Agency issued a final action in the instant matter; however, by operation of our regulations, the EEOC Administrative Judge’s decision for this complaint became the Agency’s final order 40 days after its receipt. 2021002289 2 1. On February 26, 2016, he was reassigned to work in the Executive Program Support Division (EPS) with no working title, defined duties or responsibilities, and accused of referring to his supervisor, A1, the Director, Headquarters Services Division (HSD), as a “lame duck”; and 2. On or around March 25, 2016, his position in the HSD organizational structure was unilaterally changed to staff employee of the HSD Program Administration Branch, without prior consultation with his supervisor. Complainant’s complaint was subsequently amended to include the following claims that he was discriminated against and subjected to harassment amounting to a hostile work environment based on reprisal (prior EEO activity) when: 3. On June 29, 2016, he became aware that B1, Assistant General Counsel, interfered with the processing of his EEO complaint by threatening A1, his former supervisor and primary witness, with bodily harm; and 4. On July 15, 2016, the Agency did not select him for the Executive Director, HDS position listed under Vacancy Announcement Number CHCO-16-021- 1687526. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. Pursuant to the Agency’s motion, the AJ found the following facts: in early 2016, Complainant was working in the HSD with the title of Chief of Staff. A1 (Caucasian) created this previously non- existent role for Complainant. There was no formal documentation placing Complainant into this role. In late 2015, the Agency hired S1 (Black) as its Deputy Chief Information Officer on a term-limited appointment. Prior to joining the Agency, S1 had extensive experience in the private sector working as a consultant for federal agencies, assisting them with establishing and realigning their organizations. Around February 2016, a few months into S1’s tenure, S1 was introduced to Complainant during a staff meeting. Following this meeting, Complainant and S1 had a series of encounters over the next several days. S1 stated that he became concerned about Complainant’s leadership skills. First, S1 heard that Complainant had been improperly proclaiming himself to his coworkers as the de facto head of HSD, due to the impending departures of both A1 and his Deputy Director. S1 stated that he considered Complainant’s statements to be inappropriate and demeaning to his coworkers, given that the current HSD leadership was still in place and no succession plan had been announced. Second, S1 stated that Complainant did not follow his directions regarding a printer deployment project that he had assigned Complainant. 2021002289 3 According to S1, he told Complainant to temporarily take charge of the failing project and to immediately freeze printer installation, but printers were subsequently installed anyway.3 On February 26, 2016, S1 informed Complainant that he had decided to move him out of his role in HSD and that he would be temporarily placing him in the EPS - until he could find a permanent place for Complainant as part of the ongoing realignment. A2 (Black) was the Director, EPS. Complainant remained a Supervisory Management and Program Analyst, and his pay and benefits were unaffected by his reassignment. According to S1, by March 2016, he was working to ensure that every employee was working in the actual position reflected in their position description and that every employee was performing “necessary and justifiable work.” On March 25, 2016, S1 stated that he discovered Complainant’s actual “home” within the organization was as a Supervisory Management and Program Analyst within the Program Administration Branch (PAB). This was the job and position for which he had been hired. Accordingly, S1 placed Complainant back in his original position. Complainant remained a Supervisory Management and Program Analyst, and his pay and benefits were unaffected by the second move. A3 (Black) was the Director, PAB. Regarding claim (1), the AJ found that Complainant failed to establish a prima facie case of discrimination based on his race. In addition to not identifying any comparators, the AJ noted that Complainant did not point to any evidence, which raised an inference of race discrimination with respect to his reassignment in February 2016. Complainant argued on appeal that S1’s “[o]bjective was to block him from reporting to [A1] a Caucasian SES and to subordinate him to African American GS-15s. He inexplicably and without any justification layered [him] under African American GS-15s where he was not permitted to work under his PD after removing him from the Chief of Staff position.” The AJ found that the fact that Complainant was reassigned to Black supervisors, even though there were other vacancies, did not establish a prima facie case of race discrimination. The AJ further found that, even if Complainant were to establish a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its initial reassignment of Complainant, S1’s perception that Complainant was mishandling the printer project and making disparaging remarks about his colleagues. Regarding claim (2), the AJ found that it was undisputed that Complainant was reassigned, again, from his position in ESB to a position in the PAB as a result of the Agency’s ongoing organizational realignment. The Chief of Staff (Caucasian) stated in her affidavit that Complainant’s organization was undergoing a “significant realignment” of functions. The AJ also noted that there was no dispute that the realignment involved many different employees of races different from, and the same as, Complainant. The AJ also found that Complainant had not introduced any evidence disputing the reasons for his subsequent reassignment in March 2016. 3 On the morning of February 19, 2016, S1 instructed Complainant to “freeze the deployment of printers until [the] project could get back on track.” On the evening of the 19th, however, a technician installed a printer outside of S1’s office. Based on this occurrence, S1 stated that he concluded that Complainant had not carried out his instructions to place a freeze on printer installation. 2021002289 4 Regarding claim (3), on March 7, 2016, the record indicates that Complainant contacted an EEO counselor regarding claims (1) and (2). In late May 2016, B1 learned of Complainant’s pending EEO case. B1 later contacted A1 and - according to A1 - stated that she would “kill him” if he did not “tow the management line” during the investigation. A1 stated that B1 used that expression “no less than 4 times” during the discussion. B1 denied ever threatening A1 with bodily harm. A1 stated that B1 did “not know [him] well enough to ‘kid me’ in this way.” A1 did not share his responses to the investigator with B1, and he reported the conversation to Complainant. In a subsequent June 22, 2016, email, B1 asked A1 to: Please get busy drafting your responses which I’ll be happy to review and provide red-line comments as appropriate. Remember our end state goal is to get a robust, comprehensive investigative report that fully tells our side of the story through the witnesses’ sworn declarations. My advice is that you emphasize in your responses the fact that [Complainant] was by no means the only person reassigned during this . . . . realignment. The AJ found that while Complainant framed claim (3) as a separate claim of retaliation by B1, he found it was more properly viewed as a claim of improper interference during the EEO investigative stage. Citing precedent finding that the Commission has treated such conduct not as an independently actionable claim by a complainant, but as sanctionable conduct for interfering with the EEO process, the AJ found that B1’s conduct during the EEO investigation warranted a sanction. Specifically, the AJ found that B1’s actions: [c]onstituted improper interference in the EEO process. [B1’s] communications to [A1] were wholly improper, directing him to emphasize certain parts of his testimony over others, being dismissive of some of Complainant’s complaints, and otherwise attempting to manufacture testimony. Further, there is no dispute [B1] attempted to speak with [A1] repeatedly concerning his affidavit and to get him to make changes which he did not agree with. Finally, as noted above, a review of the Agency’s privilege log indicates [B1] spoke with relevant management officials both prior to and during their interactions with the EEO investigator. As a sanction, the AJ ordered training for the Agency’s Office of General Counsel, Labor and Employment Law Division, focusing on the appropriate manner and methods that Agency representatives may use in assisting Agency managers during an EEO complaint’s investigative stage, and on the issue of sanctions for improper interference during the EEO investigative process.4 4 The Agency did not challenge the AJ’s imposition of a sanction; therefore, that matter is not at issue on appeal. We will, however, restate the AJ’s sanction order in this decision. 2021002289 5 With respect to claim (4), A1 retired from the Agency later in 2016. The Agency posted a vacancy announcement for the Director, HSD position. Complainant applied for the position. The panel interviewed 43 applicants, including Complainant. The panel members individually rated each applicant on a “Bottom-Middle-Top” scale, and then worked out a consensus score for each applicant. Each panel member had an equal voice in the selection process. The record shows that the only candidates who received “Top” consensus scores were candidates who received at least two “Top” individual scores. The record also indicates that only candidates with “Top” consensus scores moved on to the next round. Complainant only received one “Top” individual score and was not referred for an interview. The AJ found that Complainant failed to establish a prima facie case of retaliation with respect to his nonselection. The record, the AJ noted, indicated that two of the three panel members, P1 and P2, were unaware of Complainant’s EEO activity and were not located in Complainant’s organization. The AJ found that Complainant did not introduced any evidence disputing P1 and P2’s statements. Assuming the third panel member, P3, was likely aware of Complainant’s EEO activity, Complainant, the AJ found, did not introduce any evidence demonstrating that P3 influenced the panel’s decision to not refer him to a third-round interview. At most, the AJ found Complainant argued that the panel’s ratings were inconsistently applied and that his “bottom” rating should have been higher. The AJ noted, however, that a review of the panel’s ratings showed a mix of ratings, with some applicants receiving overall “bottom” ratings even though they received at least one “top” rating and other applicants receiving “middle ratings” even though they received at least one “bottom” rating. According to the AJ, “Complainant did not introduce any evidence, other than his own speculation, that he was not selected for the position at issue due to his protected activity.” In January 2017, Complainant voluntarily left the Agency for employment elsewhere within the federal government, a few months after learning that he had not been selected for the HSD Director vacancy. On appeal, Complainant raises a number of alleged errors by the AJ. Complainant argues that the AJ: failed to address his hostile work environment claim; and failed to sanction the Agency by issuing a default judgment for its untimely completion of the Report of Investigation (ROI) and for its failure to obtain an affidavit from S2, the Chief Information Officer (S1’s direct supervisor). 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 (EEO MD-110), Chap. 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 2021002289 6 parties, and ... issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). At the outset, we note Complainant argues on appeal that the Agency delayed investigating his complaint beyond the required 180-days of filing his complaint. Our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. According to Complainant, he filed his Complainant on April 11, 2016. In September 2016, he granted the investigator an additional 90 days. The Agency did not send the ROI to Complainant until April 5, 2017. Therefore, he argues that it took the Agency an additional three months to complete the investigation. According to the record, the ROI was submitted to the Agency on March 10, 2017. We find that the Agency failed to comply with the Commission’s regulations. See 29 C.F.R. §1614.108(f). There is no evidence the Agency’s approximate two-month delay in this case was attributed to contumacious conduct or bad faith; nor did it prejudice Complainant or result in an unconscionable delay in justice. Even if the delay was three months, as argued by Complainant, it would not alter our decision. As such, under the specific circumstances present, we do not find the Agency’s delay warrants the sanction of granting default judgment. While we will not impose a sanction in the present case, we remind the Agency that complying with the timeframes in the EEO process is important for the integrity of the EEO process. With respect to Complainant’s contention that the AJ should have sanctioned the Agency for not obtaining an affidavit from S2, we note the AJ’s indication that S2 was no longer a federal employee. We find no reason to sanction the Agency for how it conducted the investigation. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2021002289 7 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. We specifically note Complainant’s assertion that B1’s actions tainted the investigation due to tampering but find nothing other than mere speculation to support this contention. There is nothing to suggest that B1 comments to A1 had any negative impact on Complainant’s case. A1 did not share his responses to the investigator with B1; nor is there anything to suggest that A1 changed his answers to reflect B1’s input. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence simply did not establish that Complainant was discriminated against by the Agency as alleged. Regarding Complainant’s hostile work environment claim, 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 animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order finding no discrimination. The Agency shall comply with the sanction imposed by the AJ and restated in the Order herein. ORDER Within 90 days from the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to the Agency’s Office of General Counsel, Labor and Employment Law Division, focusing on the appropriate manner and methods that Agency representatives may use in assisting Agency managers during an EEO complaint’s investigative stage, and on the issue of sanctions for improper interference during the EEO investigative process. 2021002289 8 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021002289 9 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. 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. 2021002289 10 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 September 6, 2022 Date