0120181947
08-21-2018
Avery R.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Avery R.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120181947
Hearing No. 560-2015-00056X
Agency No. HS-ICE-01085-2014
DECISION
On May 16, 2018, 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 March 8, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Immigration Enforcement Agency, GS-1801-12 at the Agency's Immigration and Customs Enforcement (ICE) Air Operations, Enforcement and Removal Operations facility in Kansas City, Missouri.
On October 30, 2013, Complainant filed an EEO class complaint as the class agent. The matter was forwarded to an Equal Employment Opportunity Commission Administrative Judge (AJ) who dismissed the class complaint finding that the class failed to meet the prerequisites. The Agency accepted the AJ's decision. Complainant was provided with the right to pursue his complaint as an individual complaint.
On April 28, 2014, Complainant filed his individual complaint alleging that the Agency discriminated against him on the bases of sex (male), age (42), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On August 26, 2013, Complainant received notification of his management-directed reassignment, relocating him from Kansas City, Missouri to Mesa, Arizona, effective May 1, 2014.
2. From August 28, 2013, and continuing, an interoffice email referred to Complainant negatively.
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. 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.
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 - Claim (1)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As to the reassignment alleged in claim (1), the Agency indicated that it was due to the consolidation of the ICE Air Operations Unit in Kansas City with the Agency's Enforcement and Removal Operations in Mesa, Arizona. The notification for the consolidation explained the rationale of the Agency: the Agency no longer had a relationship with an entity in Kansas City which had been the reason for the ICE Air Operations Unit being located in Kansas City; a majority of flights to the ICE Air Operations Unit come from the Arizona Removal Operations Coordination Center (AROCC) which is located in Mesa, Arizona; and the AROCC facility had enough unoccupied office space to accommodate the entire ICE Air Operations staff of full-time employees. Therefore, the Agency decided to consolidate operational functions and leadership in a central location in Mesa, Arizona. Based on the closing of the ICE Air Operations in Kansas City, Complainant was informed that he would be reassigned to the same position in Mesa, Arizona or he would be considered for placement opportunity if available in a sub office in Kansas City for which he was qualified. On September 4, 2013, Complainant accepted the reassignment to Mesa, Arizona to be effective October 6, 2013. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for Complainant's reassignment to Mesa, Arizona. Complainant failed to provide any evidence to show that the reasons provided by the Agency for the reassignment constituted pretext based on his age, sex, and/or retaliation for his prior EEO activity.
Harassment - Claim (2)
It is well-settled that harassment based on an individual's [basis] is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) s/he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) s/he was subjected to unwelcome conduct related to his/her membership in those classes and his/her prior EEO activity; (3) the harassment complained of was based on [bases] and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant asserted that he was subjected to harassment pertaining to an email shared with his office. On September 4, 2013, the Deputy Assistant Director of facility in Mesa, Arizona, sent an email to the Acting Section Chief of the facility in Kansas City seeking an explanation for the staff's cancelation of a "loop flight" needed to transport detainees from an overcrowded facility in Bakersfield, California, to a facility with available beds. An email conversation ensued culminating in the Deputy Assistant Director's email expressed his dissatisfaction with the "loop flight" cancelation and the ICE Air Operation's staff's behavior. The Acting Section Chief shared the email with his subordinates. The email made references to the staff as "obstinate and obnoxious" and characterized the cancellation of the "loop flight" as "idiotic." Upon review, we find that Complainant failed to show that sharing the email was sufficiently severe or pervasive to establish a claim of harassment. Further, Complainant did not establish that the alleged event occurred because of his sex, age, and/or prior EEO activity. Accordingly, we find that Complainant failed to show that he was subjected to harassment as alleged.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 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 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
August 21, 2018
__________________
Date
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.
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