Demetria L.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Oct 26, 2018

0120172222 (E.E.O.C. Oct. 26, 2018)

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

Demetria L.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120172222

Agency No. HSCBP271952016

DECISION

On June 9, 2017, 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
May 24, 2017, final decision concerning her 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an International Trade
Specialist, GS-1101-13 at the Agency’s Commercial Targeting and Enforcement Directorate in
the Office of International Trade in Washington, D.C.

On December 23, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of race (African-American) when on September 14, 2016,
she learned that her request to be permanently reassigned to the Strategic Enforcement Branch
(SEB) was denied.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
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 her to discrimination as alleged.

The Agency determined that management had articulated legitimate, nondiscriminatory reasons
for denying Complainant’s request to be permanently assigned to the SEB. The Agency explained
that while the Executive Director of the Commercial Targeting and Enforcement Directorate
(CTE) was amenable to granting Complainant’s request, the Executive Director nevertheless
instructed Complainant to submit a formal written request through her chain of command to allow
the impacted branch chiefs and division directors to act on the request. The Agency indicated that
Complainant’s Division Director at the Commercial Analysis Division (permanent duty station)
denied her request for reassignment because there were insufficient personnel in the division to
handle increased mission requirements. In finding no discrimination, the Agency found that
Complainant failed to prove by a preponderance of the evidence that management’s legitimate,
nondiscriminatory reasons were pretext for discrimination based on race.

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”).

On appeal, Complainant challenges the Agency’s claim that increased mission requirements and
lack of personnel necessitated her return to the Commercial Analysis Division.2

In response, the Agency asserts that Complainant failed to establish a prima facie case of
discrimination because she could not show that she was treated differently from individuals who
were not a member of her protected class. The Agency also asserts that even if Complainant could
establish a prima facie case of discrimination, she could not show that the Agency’s articulated
legitimate, nondiscriminatory reasons were pretext for discrimination.

2 To the extent that Complainant wishes to raise additional new claims, the Commission has held
that it is not appropriate for a complainant to raise new claims for the first time on appeal. See
Shela O. v. Dep’t of the Army, EEOC Appeal No. 0120113826 (Dec. 18, 2015) (citing Torres v.
U.S. Postal Serv., EEOC Appeal No. 01934108 (June 10, 1994)). Should she wish to pursue these
claims, Complainant is advised to timely contact an EEO counselor to begin the administrative
process.
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To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must establish a prima facie case by demonstrating that she 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). 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. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983).

The record reflects that the Agency articulated legitimate, nondiscriminatory reasons for denying
Complainant’s request for reassignment. The Agency explained that at the time of Complainant’s
request, her permanent duty station (Commercial Analysis Division) was deficient in resources
and personnel. The Agency indicated that Complainant’s Division Director at her permanent duty
station denied the request for reassignment because of increased mission requirements in the
division.

Although Complainant asserts that the denial of her request was discriminatory, we are disinclined
to find merit in such argument. In this regard, we note that that the solicitation for the temporary
duty assignment expressly indicated that the SEB detail was temporary in nature, not to exceed
120 days, and could be terminated at any time. The solicitation also indicated that the assignment
conferred no promotion potential beyond the employee’s current grade level. We agree with the
Agency that Complainant has not presented any evidence showing she was treated differently than
any other detailee to the SEB. Additionally, she has not shown that the Agency’s articulated
legitimate, nondiscriminatory reason for the denial of her request was a pretext for discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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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.
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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
October 26, 2018
Date