0120170482
09-26-2018
Felton Z.,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
Felton Z.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120170482
Agency No. HSICE021962014
DECISION
On November 7, 2016, 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 October 10, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether Complainant established that he was discriminated against based on sex (male) and reprisal (prior EEO activity) when:
Claim A
1. Since 2012, although Complainant has requested to be reassigned to other units or sub-offices in order to pursue job opportunities given to other agents, he has been required to remain in the detention area of the Burlington office of the Boston Field Office.
2. In May 2013, Complainant was appointed to serve as an Acting Supervisory Immigration Agent (Acting SIEA), performing these duties until May 2014, without additional pay compensation.
3. In June and July 2013, while working closely with a Supervisory Immigration Enforcement Agent-1 (SIEA-1), several supervisory agents ridiculed him regarding the performance of his duties and instructed him not to criticize the Manchester, New Hampshire sub-office.
4. In April-May 2014, Complainant was denied Administratively Uncontrollable Overtime (AOU) because his supervisors did not allow him to complete the "bus run" of detainees to Newark, New Jersey.
5. In July 2014, after returning from a 45-day detail in Texas, his supervisors hired contractors to perform the work that Complainant had been previously performing, resulting in the loss of AOU pay.
6. On September 16, 2014, Complainant was physically threatened by a fellow Immigration Enforcement Agent-1 (IEA-1) and when Complainant requested that he be transferred to another office, management refused his request.
7. On September 23, October 6, and October 23, 2014, Complainant was asked to perform job duties associated with an "Acting" SIEA position.
Claim B
Whether Complainant was subjected to discrimination based on retaliation when on August 23, 2014, he discovered that there were discrepancies in his service computation date after he was reinstated, pursuant to a settlement agreement executed between the Agency and Complainant, dated January 14, 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration and Enforcement Agent at the Agency's Boston Field Office facility in Boston, Massachusetts.
Regarding Claim A, allegation 1, the Agency stated that all openings for positions involving Complainant are advertised. Position are awarded to the most senior qualified applicant per the Agency's agreement with the Union. If Complainant was not awarded a position for which he applied, it was because he was not the most senior qualified applicant.
Further, although Complainant applied for a transfer to the Manchester Office, he withdrew his request for personal reasons in May 2013. The Agency also indicated that, in September 2014, Complainant requested a transfer to the Manchester or Portland, Maine offices. The record, however, contains a September 17, 2014 memorandum from Complainant with the subject "Request for Transfer to Sub-Office due to Hostile Work Environment and Harassment." In his memorandum, Complainant requested a transfer to a Boston Field sub-office, such as Manchester or in Portland, Maine. He indicated the reason for the transfer request was because of the September 16, 2014 incident involving IEA-1. Management stated that there were no openings in either of those offices. However, the Agency indicated that a response to Complainant's transfer request had not yet been provided because they were waiting for the end of an investigation into the incident with IEA-1. The Agency contends that there is no evidence that management acted with discriminatory animus based on Complainant's sex or prior EEO activity.
Regarding allegation 2, the Agency indicated that Complainant was placed in the Acting Supervisory Immigration Agent position without receiving additional pay. He was one of three temporary appointments to that position. Agents chosen were rotated while the incumbent recovered from a stroke. While the tasks required on any given day were significant, the Agency stated that the service in the temporary position was not sufficiently long enough or onerous enough to require additional pay to any of the three Agents. There was no evidence presented by Complainant that the refusal to provide additional pay to any of the individuals who served, including Complainant, was related to Complainant's sex or prior EEO Activity.
Regarding allegation 3, that several supervisory agents ridiculed Complainant regarding the performance of his duties and instructed him not to criticize the Manchester, New Hampshire sub-office, the Agency stated that this alleged conduct did not rise to the level of harassment which would create a hostile atmosphere, nor was the conduct based on Complainant's sex or prior EEO activity.
Regarding allegation 4, the Agency indicated that its policy was changed for all Agents impacted by the duty to drive detainees and to return. The Agency stated that the change in paying for overnight accommodations was based on saving money, and was not directed toward Complainant because of this sex and/or prior EEO activity.
Regarding allegation 5, Complainant was moved and his shift was changed to accommodate a change in the use of the control room. While Complainant was on a detail, the Agency changed the use of the control room. The change placed the "Contract Deputies" in the control room. Complainant, and those similarly situated to him, were all subjected to the change. The Agency stated that the change allowed Agents to perform duties with "more law enforcement responsibilities." Complainant's job and duties were not changed. The Agency stated that the change was not based on Complainant's sex or prior EEO activity.
Regarding allegation 6, Complainant alleged that on September 16, 2014, IEA-1 "came up and
stood over me and started yelling at me and pointing his finger in a threatening way in my face." His supervisor indicated that Complainant informed her of the incident on the day it happened and that they had a "very good conversation" about it. She recalled she asked him to take his time and let her know how he wanted to proceed. She identified it as a "serious situation" and indicated that she informed her supervisor, who followed up with higher level management.
S2, Complainant's second level supervisor, became aware of the incident on the day it occurred. He directed another Assistant Field Office Director, who was lEA-l's supervisor, to prohibit contact between IEA-1 and Complainant. He also asked Complainant's supervisor to ensure that the employees were separated and kept apart and to submit a statement to the Joint Intake Center (JIC). He further asked IEA-1 and Complainant to submit memoranda about the incident. S2 indicated the JIC identified the incident as a Class 4 action, which was a lower level inquiry, and referred the matter to the field office for processing. The internal investigation was still pending at the time of the EEO investigation. As noted above, although Complainant requested a transfer to another office after the incident, no response was given to the transfer request because they were waiting for the end of investigation.
Regarding allegation 7, Complainant indicated that there was a "situation where I was asked to write up an event that is not a normal detention event. [My supervisor] did not tell me why she wanted me to do these duties." Complainant admitted that any tasks assigned to him "... were just other duties as assigned." His supervisor denied that she gave Complainant any supervisory duties. With regard to assigning tasks to Complainant, she asserted that Complainant "is one of the people that is better to be assigned a task. He gets the work done effectively and knows what he is doing. He has always been an officer that I looked for in order to get a job done right." The Agency found that Complainant failed to prove that management's reasons were pretext for discrimination based on his sex or in retaliation for prior EEO activity.
Regarding Claim B, the Agency stated that there were errors in Complainant's service computation date. The Agency stated that they had been working on correcting the problem. Complainant submitted 14 SF-50s that listed his service computation date as June 13, 2005. However, a June 10, 2010 email indicated that Complainant's "official date" was February 8, 2006. Yet, another SF-50 reinstating Complainant to a career condition appointment as a CBP Officer with an effective date of July 21, 2008, listed his service computation date as July 21, 2008. It is noted, however, in the remarks section, that "service counting toward career tenure from 07/25/05."
A coworker indicated that indicated that the issue with Complainant's service computation date has been an ongoing issue since he has known him. He stated that Complainant told him that he was supposed to "get back his original academy time," but that they are refusing to honor it.
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). 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 him to discrimination as alleged.
CONTENTIONS ON APPEAL
One appeal, Complainant, through his attorney, indicates that he is not contesting the Agency's finding of no discrimination regarding Claim A, allegations 1 - 7. The appeal only pertains to Claim B.
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").
The Commission has the discretion to review only those issues specifically raised in an appeal. Because Complainant has expressly limited his appeal to Claim B, we will not address Claim A, allegations 1 - 7 further in this decision other than to AFFIRM the Agency's finding of no discrimination regarding these matters. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, � IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
Disparate Treatment
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 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).
Regarding Claim B, the Commission does not find evidence to support an inference that the discrepancies to Complainant's service computation date is based on his sex or prior EEO activity. Accordingly, we find that he has not established a prima facie case of discrimination based on sex or reprisal. Although Complainant maintains that the Agency retaliated against him regarding the discrepancies concerning his service computation date, for the most part, his contentions are more clearly in the nature of a breach of settlement agreement claim.2
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 FAD.
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
_9/26/18_________________
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.
2 To the extent Complainant believes the Agency has violated its settlement agreement with him, he is advised to follow the procedures set forth in 29 C.F.R. � 1614.504(a).
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