Gary K.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120181541 (E.E.O.C. Aug. 8, 2019)

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

Gary K.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120181541

Agency No. HSICE003142014

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 14, 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. 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 a Senior Intelligence
Research Specialist, GS-13 at the Agency’s Office of Homeland Security Investigations facility
in Miami, Florida.

On November 25, 2013, management issued Complainant a performance appraisal for Fiscal
Year 2013 (FY13). Management assessed Complainant’s performance as “Achieved
Expectations,” with 3.42 as his overall score for FY13. Thereafter, on December 2, 2013,
management issued Complainant a Letter of Counseling.

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 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (Hispanic) and age (46) when:

1. On November 25, 2013, management issued Complainant a mediocre rating on his
performance appraisal.

Complainant also alleged that the Agency subjected him to discrimination and a hostile work
environment based on national origin (Hispanic), age (46), and in reprisal for current EEO
activity when:

2. On November 25, 2013, management denied Complainant the opportunity to grieve
his performance appraisal.
3. On December 2, 2013, management forced Complainant to sign a Letter of
Counseling.
4. On February 19, 2014, Complainant learned that his supervisors discussed with others
his discrimination complaint, thereby breaching the confidentiality of Complainant’s
EEO complaint and other grievances.

The Agency conducted an investigation of Complainant’s complaint and subsequently issued a
final decision finding no discrimination. Complainant appealed that decision to the EEOC and
argued the Agency had failed to provide him with the notice of his right to request a hearing. See
EEOC Appeal No. 0120151798 (August 2, 2017). In the decision, this Commission found the
record was devoid of any notice of transmittal of the report of investigation, notice of
Complainant’s right to request a hearing, or evidence that Complainant was in actual receipt of
any such notices. Id. This Commission vacated and remanded the complaint to the Agency with
orders to issue to Complainant a copy of the report of investigation and notify Complainant of
his right to request a hearing and decision from an EEOC Administrative Judge (AJ) or to
request an immediate final decision from the Agency. Id.

Thereafter, the Agency provided Complainant with a copy of the report of investigation and
notice of his right to request a hearing before an AJ. When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. Complainant filed the
instant appeal.

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,
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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”).

In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially 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. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department 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 pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, assuming arguendo Complainant established a prima facie case of discrimination, we find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual. Specifically, regarding Claims 1
and 2, Complainant was jointly rated by the Supervisory Intelligence Research Specialist (SIRS)
and the Chief Intelligence Officer (CIO) as “Achieved Expectations” for FY13. SIRS and CIO
both stated that Complainant rated lower in two criteria which lowered his overall score.
However, after discussing his performance, SIRS and CIO elected not to rate him so low as to
bring his score down to “Unacceptable” even though they both said his performance warranted
the lower rating. As a basis for their decision, both SIRS and CIO cited to Complainant’s failure,
and ultimate removal, from the role of liaison with a mail handling facility. Complainant was
also noted to submit reports of poor quality that required SIRS and others to review and improve
prior to publishing Complainant’s reports. Additionally, SIRS and CIO both denied they
attempted to prevent Complainant from grieving his performance appraisal. The record included
an email dated November 29, 2013, from CIO informing Complainant of his options regarding
contesting his performance appraisal.

Regarding Claim 3, the record establishes the Letter of Counseling was issued to address
Complainant’s behavior towards SIRS and CIO following his receipt of the performance
appraisal in violation of the Code of Conduct. Specifically, Complainant called SIRS on her
government issued cell phone after normal business hours on November 25, 2013. When SIRS
did not answer, Complainant called her home phone at 9:42 p.m. and spoke to her for over an
hour in a discourteous and demanding manner. Additionally, the Letter of Counseling addressed
Complainant’s refusal to obey a direct order from CIO as well as disrespectful behavior towards
CIO on November 25-26, 2013. CIO denied that he forced Complainant to sign the Letter of
Counseling. Complainant has provided no evidence to support the nexus between his EEO
activity or protected basis and the Letter of Counseling.

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Finally, with regard to Claim 4, SIRS and CIO denied having discussed Complainant’s EEO
complaint, or any of Complainant’s grievances, with anyone who did not have a need to know of
Complainant’s activities. Specifically, SIRS stated that if an employee had knowledge of
Complainant’s EEO activity, it would have been the result of eavesdropping. SIRS stated she
takes precautions, such as closing her door, when confidential matters are discussed in her office.
Thus, we find that Complainant has not shown by a preponderance of the evidence that his
confidentiality was breached.

In this case, Complainant has also failed to provide any evidence that similarly situated
employees outside of his protected class were treated differently from him. We find that
Complainant failed to establish that the actions taken by the Agency were based on
discriminatory animus. Because we find that Complainant failed to show by a preponderance of
the evidence that the Agency’s actions were motivated by discrimination, we also find that
Complainant failed to show he was subjected to a discriminatory hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.

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
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(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 8, 2019
Date