Darius C.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120182133 (E.E.O.C. Nov. 6, 2018)

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

Darius C.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120182133

Hearing No. 560-2015-00059X

Agency No. HS-ICE-02253-2013

DECISION

On June 5, 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
April 12, 2018, final decision concerning his equal employment opportunity (EEO) complaint.
He alleged 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 Agent, GS 1801 - 12 at the Agency’s Kansas City Operations Section
of ICE Air Operations (IAO) Unit in Kansas City, Missouri.

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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On March 28, 2014,2 Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of “race” / national origin (Hispanic), sex (male)3, age
(42) and reprisal for prior Title VII EEO activity, 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. On approximately August 26, 2013, management disregarded Complainant’s request,
based on his wife’s pregnancy, for special consideration to delay his directed
reassignment; and
3. From August 28, 2013 and continuing, an interoffice e-mail referred to Complainant
negatively.

The pertinent record reveals the following facts.

Claim 1 – Directed Reassignment

During the relevant period, ICE employed Complainant as a Supervisory Immigration
Enforcement Agent, GS-1801-12 in the Kansas City Operations Section of IAO. He reported to
the Acting Section Chief (Acting SC) (non-Hispanic Caucasian, Male, 48) (S1). His second line
supervisor was the IAO Unit Chief (UC) (non-Hispanic Caucasian, female, 45) (S2).

On September 26, 2012, the ICE’s Executive Associate Director (EAD) (male, national origin
and age undisclosed), approved a memorandum sent by the Assistant Director for Repatriation
(AD/R, male, age undisclosed) through the then-current Deputy Executive Associate Director
(Deputy EAD-1 (male, “YOB: 1961”), requesting approval to relocate IAO full-time employees
(FTEs) from Kansas City to the Arizona Removal Operations Coordination Center (AROCC) in
Mesa, Arizona. Investigation File (IF) at 203, 206, 370 – 372.

On August 26, 2013, the then-current Acting Assistant Director, Repatriations, issued a
memorandum to Complainant, notifying him of his directed reassignment to Mesa, due to the
closing of the IAO office in Kansas City and the consolidation of IAO in Kansas City and the
consolidation of IAO with the Enforcement and Removal Operations (ERO) in Mesa. The
memorandum informed Complainant that the reassignment would have no impact on his current
position, occupational series, or grade, and that he had until September 9, 2013, to decide
whether to accept the reassignment, or to be considered for any placement opportunity available
in the Kansas City ERO sub-office for which he was qualified. IF at 1, 31, 221, 225, 281-282.

2 The Agency notified Complainant that it considered the instant formal complaint to have been
filed on February 10, 2014, based on the date of the Final Order that CRCL issued on March 4,
2014, implementing the AJ’s decision dismissing the class complaint.
3 Complainant also alleged a violation under the Pregnancy Discrimination Act, based on his
wife’s pregnancy at the time of the issuance of the reassignment notice. The Agency accepted
his claim of sex discrimination (male).
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On September 4, 2013, the Deputy Assistant Director of IAO in Mesa (DAD/Mesa, non-
Hispanic Caucasian male, 51) sent the Acting SC an email seeking an explanation for the Kansas
City IAO’ staff’s cancelation of a “loop flight.”

Complainant averred that he, and his co-workers, raised the allegations of prohibited
discrimination twice – on the day the notices of reassignment were issued (August 26, 2013) and
in their notice of the class discrimination complaint, delivered to management on September 13,
2013. Complainant challenged the credibility of management’s explanation based on the need to
consolidate operations since some were offered the option to relocate to Washington, DC and
argued that management’s failed to review the financial cost-effectiveness of moving operations
and personnel to Mesa.

On September 16, 2013, the Chief of Staff, ICE Air Operations (IAO) Unit (Kansas City), acting
as Class Agent for a class of employees that included Complainant, initiated contact with an
Equal Employment Opportunity (EEO) Counselor.

Employees were told that there would be no forced IAO moves to Mesa (other than a Deputy
Assistant Director position) and voluntary moves, along with bonuses may be offered.

On September 9, 2013, Complainant notified management of his election to be considered for a
Deportation Officer position in the Kansas City ERO sub-office, contingent on his retention of
his GS-14, step 6, grade and salary. IF at 123 – 124. Complainant also requested a delay in
relocating, based on his “wife’s pregnancy condition.”

On June 2, 2014, however, Complainant notified management of his decision, declining the
management-directed reassignment to Mesa, Arizona. Instead, he sought consideration for a
lateral transfer to a non-managerial GS-1801-12 Deportation Officer (DO) position in the Kansas
City ERO sub-office. IF at 140, 300 – 301. On June 26, 2014, management notified
Complainant of his assignment to the Kansas City Kansas City ERO sub-office, effective June
29, 2014.

According to the Workforce Profile of the ICE Air Operations Unit, as of August 2013, there
were ten male employees. All of the men were over age 40. Eight of the employees were
identified as having engaged in protected EEO activity. Exhibit F1b. Two of the ten had no prior
EEO activity. The Washington, DC (Headquarters) unit had sixteen employees. Of the 16
employees, ten were over age 40. There were seven women, all over age 40. Of the nine men, six
were under age 40. Two Washington DC IAO employees were identified as having engaged in
protected EEO activity. The Washington, DC. Unit was not forced to relocate.
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Claim 2 – Hostile Work Environment

On September 4, 2013, the DAD/Mesa sent Complainant an email seeking an explanation for the
Kansas City IAO’s staff’s cancellation of a “loop flight” that was needed to transport detainees
from an overcrowded facility in Bakersfield, California, to a facility with available beds. The
cancellation of the flight happened unexpectedly. The DAD/Mesa expressed his dissatisfaction
with the “loop flight” cancellation and with IAO’s staff’s behavior. IF at 301 – 304. The email
was shared with Complainant.

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).

Agency Decision

The Agency dismissed claim 2, regarding the sex discrimination pregnancy claim, for failure to
state a claim. The Agency reasoned that Complainant was not alleging discrimination because of
his own status as a male and because he did not allege that he was treated differently than
similarly-situated female prospective parents because of his sex.

Next, the Agency concluded that Complainant failed to prove that the Agency’s decision to
consolidate its personnel in one location was designed to negatively impact members of
Complainant’s protected classes. In addition, the Agency did not find that the disparity in
average ages between the impacted employees of the respective offices was sufficiently
significant to demonstrate pretext. The Agency concluded that, ultimately, Complainant failed to
produce preponderant evidence to demonstrate that the reassignment was based on his sex,
national origin, or age, or to discredit management’s explanation for his notice of a directed
reassignment. This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant requests that the Office of Federal Operations issue a Judgment as a
Matter of Law in Complainant’s favor. Complainant maintains that discrimination was
established by the fact that the Commission had to order the Agency to issue a Final Agency
Decision and based on the length of the delay in issuing the Decision. Complainant also states
that the Agency clearly demonstrated its extreme bias and prejudice towards the eight males in
the Kansas City Office when it elected to issue the Management-Directed Reassignment to them,
but not to the employees located in the Washington, DC office, “albeit the Agency’s explanation
was consolidation.” Complainant did not challenge the dismissal of the portion of his
pregnancy-based sex discrimination claim.
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The Agency maintains that Complainant failed to rebut its articulated reasons and did not show
that the subject email was sufficiently severe to establish an unlawful hostile work environment.

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”).

Initially, we note that Complainant’s claim of race discrimination (Hispanic) actually presents a
claim of national origin discrimination.

Next, because Complainant did not address the dismissal of a portion of his sex discrimination
claim, on appeal, we consider the matter waived.

Alleged Sex, “Race,” Age and Reprisal Discrimination

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
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. See 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. See Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by
a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Complainant stated in his affidavit that he believed that he was negatively impacted by the
Agency’s decision to consolidate its staff and reassign him to another location, especially in light
of his wife’s pregnancy at the time and due to reprisal.

Even assuming that Complainant established the elements of his prima facie claims, the Agency
articulated a legitimate, non-discriminatory reason for its actions. The record shows he was
reassigned due to the reasons leading to the consolidation of ERO’s Air Operations to Mesa,
Arizona.
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For purposes of our analysis, we will assume that the reassignment process would have been
benefited by having a management plan for the reorganization and a better-informed
management team and that Complainant, and other staff, received insufficient information,
which led to a hostile work environment and stress. There was insufficient evidence, however,
that this directed reassignment was due to his protected bases. The action impacted all of the
employees in the unit, who happened to be all men. The actions impacted employees with no
prior EEO activity, as well as those with prior EEO activity. In addition, the proposed
reassignment was announced on September 26, 2012, and had begun in 2011. That was prior to
the time when Complainant or Complainant’s representative participated in any EEO activity.

Although Complainant questioned the wisdom and cost-effectiveness of the Agency’s decisions,
he did not offer sufficient evidence that the offered reasons were a pretext for unlawful
discrimination. While we are inclined to agree with Complainant’s assessment of the situation,
we do not attribute the cause of the directed reassignment to be unlawful animus.

Similarly, with regard to the hostile environment claim, we find that, to the extent there was a
hostile work environment, the record does not show that it was based on Complainant’s sex,
national origin, age, or any prior EEO activity on his behalf.

We find, therefore, that Complainant failed to show, by a preponderance of the evidence, that the
Agency discriminated against him based on his sex, race / national origin, age or prior EEO
activity. We further find that the Agency’s Decision is supported by the record.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding for the reasons stated herein.

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 tends 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.
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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.
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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

November 6, 2018
Date