Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120131215 (E.E.O.C. Apr. 23, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120131215

Hearing No. 570-2011-00997X

Agency No. HS-CIS-00110-2011

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated January 11,
2013, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision finding of no discrimination.

BACKGROUND
In her complaint, dated January 4, 2011, Complainant alleged discrimination based on national
origin (Hispanic) and age (over 40) when on October 15, 2010, she was issued a notice of five-
day suspension between October 18 – 22, 2010. After completion of the investigation of the
complaint, Complainant requested a hearing but on May 7, 2012, an EEOC Administrative
Judge (AJ) denied the request because she failed to comply with the AJ’s orders and the AJ
remanded the case to the Agency to issue a final Agency decision. Complainant does not
contest this. The Agency, accordingly, issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut.

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. (November 9, 1999) (explaining that the de novo
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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”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged suspension. Complainant’s supervisor indicated that she issued a
proposed 10-calendar-day suspension on August 3, 2010, for failure to follow proper
procedures and inappropriate conduct and creating a hostile work environment. Specifically,
the supervisor stated that Complainant left her workstation on May 5, 2010, and June 18,
2010, without permission; she continued to come to the office during non-duty hours outside of
established time periods on a number of occasions in April – July, 2010; she questioned an
employee to the point of harassment on July 31, 2009; and she was rude, disrespectful, and
raised her voice to her supervisors and her coworkers creating a hostile work environment on a
number of occasions in July – November, 2009. Thereafter, on October 6, 2010, Complainant
orally responded to the proposal indicating that although she did not deny the incidents
described therein, she believed there was some exaggeration. After considering the proposal
and the response, Complainant’s chief issued the decision to suspend her for 5 calendar days
on October 15, 2010.

Upon review, we find that Complainant failed to show that the Agency’s articulated reasons
were a mere pretext for discrimination. We find that Complainant failed to show that she was
treated less favorably than a similarly situated employee under similar circumstances.
Complainant retired on March 23, 2013, which is not a live issue in the instant case. Based on
the foregoing, we find that Complainant failed to show that the Agency’s action was motivated
by discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 23, 2014