0120142618
12-19-2016
Genaro D.,1 Complainant, v. Jeh Johnson, 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
Genaro D.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120142618
Hearing No. 520201100143X
Agency No. HSICE0114102011
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order 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 Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Throughout the relevant time frame, Complainant worked as an Immigration Enforcement Agent ("IEA") (GS-9) at the Agency's Office of Enforcement and Removal in Latham, New York.
On or around June 20, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (associated with an individual with a disability - wife's pregnancy) and familial status (parent)2 when:
1. In September 2010, his first-line supervisor, the Supervisory Detention and Deportation Officer ("S1"), dismissed his concerns regarding an armed inmate and a coworker's alleged unprofessional behavior;
2. In October 2010, S1 did not give him a time-off award;
3. In January 2011, S1 failed to timely process his request for leave under the Family Medical Leave Act ("FMLA"); and
4. On April 8, 2011, S1 directed him to recode 5 hours of claimed overtime as compensatory time.
Complainant filed a new complaint alleging that S1 retaliated against him for filing his initial complaint (Claims 1 through 4). The Agency added and investigated the following claims of discrimination and harassment on the basis of reprisal only:
5. On June 30, 2011, S1 directed him to code his time and attendance record in a manner contrary to proper procedure;
6. On July 29, 2011, S1 unduly scrutinized him when she directed him to call and/or text message her with respect to an arrest; and
7. On August 10, 2011, S1 informally counseled and scolded him.
The Agency also granted Complainant's request to amend his second complaint (Claims 5 through 7) to include the following additional reprisal claim:
8. On October 18, 2011, he learned that management lowered element ratings in his annual performance appraisal for the rating period October 1, 2011, to September 30, 2011.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge ("AJ"). Complainant timely requested a hearing.
As an initial matter, the AJ dismissed the matters raised in Claims 1 - 4 for untimely contact with an EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. � 1614.105(a)(1). With regard to Complainant's reprisal claims (Claims 5-8), the AJ issued a decision by summary judgment in favor of the Agency.
In reaching a decision on Complainant's reprisal allegations in Claims 5 through 8, the AJ found that the record developed during the investigation established the following undisputed facts:
Complainant began working for the Agency in 2007, and became an Immigration Enforcement Agent ("IEA") in October 2008. Complainant's initial complaint (Claims 1 through 4) named S1 (female), a Supervisory Detention and Deportation Officer, who had been his first line supervisor since December 2008, as the management official responsible for the alleged discrimination. Within weeks of filing his initial complaint, Complainant alleges that S1 retaliated by scrutinizing his work and holding him to stricter standards than his colleagues, particularly with regard to his responsibilities on the Criminal Alien Program ("CAP") team.
In June 2011, S1 allegedly forced Complainant to breach time and attendance protocol after he used "official time" (as opposed to his own leave) to meet with his attorney about EEO matters per EEOC regulations. See 29 C.F.R. � 1614.605(b). As the Agency's payroll software lacked an option for official time, Complainant submitted official time as "administrative leave." In June 2011, S1's supervisor instructed her to label Complainant's official time "regular time" going forward because "administrative leave" was incorrect. By then, S1 already approved 23.5 hours of official time for Complainant, so based on the timing of his complaint, Complainant argues S1's new "insistence" that he label official time as "regular time" instead of "administrative leave" to be motivated by retaliation.
In July 2011, after assigning Complainant as the case agent (lead officer) to arrest a CAP target, with his coworker ("C1") as backup, S1 instructed Complainant both by email and in person to call or text her as soon as he made the arrest. As the assigning officer, S1 had an interest in knowing the custody status of the individuals she assigns her team to arrest. Complainant alleges that S1 because she did not also instruct C1 to call her. The case agent, in this instance Complainant, is responsible for notifying the assigning officer upon making an arrest. According to S1, it was "general knowledge and practice" that if a case agent cannot make the call, it becomes the backup officer's duty, and Complainant could have delegated the task to C1 so long as he ensured S1 received notification.
In August 2011, while the office was short staffed, S1 assigned Complainant as the case agent with C1 as backup for two court arrests located in separate counties. The record indicates that upon taking an individual into custody, officers were required to complete the tasks on the "Local Alien In-Processing Worksheet" ("the check list"). Given the workload that day, and that Complainant had to leave the office early due to childcare responsibilities, he and C1 completed "what was necessary" of the required paperwork for processing each arrest. According to C1, who had more experience with such paperwork than Complainant, "[i]t was common practice in that office . . . to complete that part of the arrest process [at issue here] the next morning."
The next day, a fellow Supervisory Detention and Deportation Officer called S1 to tell her that Complainant and C1 did not complete the check list for either of the two arrests she assigned. S1 verbally counseled him for failing to complete the check list for processing each arrest. According to S1, Complainant initially blamed a coworker who was not involved the arrests, then cited his early departure (of which she had not been notified). Complainant recounts attempting to "explain" to S1 that he acted in accordance with standard practice among officers, which S1 refuted with the task list. Complainant then revealed that he did not fully understand how to use the booking system or complete detention folders, both integral aspects of the in-take process. Complainant allegedly stated that he was "not going to act like a child and ask [his coworkers] for help." When S1 pointed out that she had been in the office that evening, Complainant could not explain why he did not ask her for assistance, or why he did not notify her that he needed to leave before completing the paperwork. S1 states that she counseled Complainant that this was "a matter of recognizing when assistance in needed in order to accomplish the task at hand timely and accurately." By contrast Complainant characterizes the meeting as a "scolding" for what he and C1 understood to be a "regular practice" in their office. Both Complainant and C1 received "fully successful" ratings on their PAs in October because of their failure to properly process the paperwork for the August arrests.
Based on these facts, the AJ concluded Complainant failed to prove that he was subjected to unlawful retaliation as alleged. The Agency issued a final order adopting the AJ's conclusion. The instant appeal followed.
ANALYSIS
Dismissal of Claims 1 through 4
EEOC regulations provide that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits within our regulations. See 29 C.F.R. �1614.107(a)(2). Pursuant to 29 C.F.R. � 1614.105(a)(1), a discrimination complaint should be brought to the attention of an Equal Employment Opportunity ("EEO") Counselor within 45 days of the date of the matter alleged to be discriminatory or, for personnel actions, within 45 days of the effective date of the action.
Here, Complainant first contacted an EEO counselor concerning the matters raised in Claims 1 through 4 on April 21, 2011. Claims 1 through 3 describe discrete incidents that occurred well outside the 45-day limitation period. On appeal, Complainant does not provide any reason for the delay in seeking EEO counseling. As such, we find these claims (1 - 3) were properly dismissed as untimely.
On appeal, Complainant characterizes the allegations in Claims 1 through 8 as comprising a single claim of ongoing harassment, and essentially argues that Claims 1 through 3 must be considered timely because Claims 5 through 8 occurred during the filing period. We disagree. Claims 5 through 8 allege different bases of discrimination than Claims 1 through 3, and each set of claims were subject to separate applicable filing periods.
While Claim 4 appears to have been timely raised, it should be dismissed as moot, pursuant to 29 C.F.R. �1614.107(a)(5), because Complainant already successfully pursued the matter via the negotiated grievance process, a process which permits raising claims of discrimination. According to the record, Complainant was reimbursed for the same 5 hours of travel time he alleges he is owed in Claim 4. Moreover, we note that Complainant elected to file his grievance on Claim 4 in May 2011 prior to filing his formal EEO complaint on the same matter in June 2011. See 29 C.F.R. �1614.107(a)(4).
Claims 5 through 8
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, a hearing is required.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here, while complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with sufficient specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
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 or she 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 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, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding Complainant's harassment allegations, it is well settled that harassment based on an individual's sex or reprisal for prior EEO activity are actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) s/he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) s/he was subjected to unwelcome conduct related to his/her membership in those classes and his/her prior EEO activity; (3) the harassment complained of was based on [bases] and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The alleged discrimination in Claim 5, S1's instruction for Complainant to label his "official time" as "regular time" instead of "administrative leave" on his timesheet is not sufficiently severe or pervasive, even when considered with Claims 6 through 8, to constitute harassment. Further, Claim 5 fails to state a claim of discrimination under our regulations because Complainant does not show how the change in labeling his "official time" constituted a harm or loss with respect to a term, condition, or privilege of his employment. 29 C.F.R. � 1614.107(a)(1); Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We agree with the AJ's observation that it is "irrelevant how the time was labeled." On appeal, Complainant does not dispute that neither his pay nor employment was impacted by the label change. Even if Claim 5 did state a claim of discrimination, the record supports S1's legitimate nondiscriminatory reason for her actions; namely that she was acting to correct a previous labeling error, on the instruction of a supervisor. On appeal Complainant fails to demonstrate how this was pretext for discrimination or harassment.
The Commission has previously held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences which are not sufficiently severe or pervasive to constitute harassment, unless the incidents occurred to harass complainant for a prohibited reason, here retaliation for prior EEO activity. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Complainant has not demonstrated that the Agency's proffered legitimate nondiscriminatory reasons for its actions in Claims 6 and 7 were pretext for retaliation. In Claim 6, S1's legitimate nondiscriminatory reason for instructing Complainant to call her upon making an arrest was so that she could be kept aware of whether a target she was responsible for was in custody. Complainant erroneously argues on appeal that S1 used the arrest as pretext to "single him out" for additional scrutiny because she did not also instruct C1 to call her after they made the arrest. The record shows that S1 was acting in accordance with Agency protocol, having assigned Complainant as the case agent for the arrest, with C1 as "backup." The case agent, rather than the backup agent, is responsible for ensuring the supervisor is notified when an arrest was made. Additionally, a supervisor's request for an update on a task she assigned constitutes a common workplace occurrence insufficient to constitute harassment.
In Claim 7, Complainant characterizes the alleged discriminatory act, verbal counseling administered by his female supervisor, as a "scolding," implying (among other things) a lack of rationality that is not supported by the record. S1 cites Complainant's failure to complete paperwork related to the August 9, 2011 arrests as her legitimate, nondiscriminatory reason for the verbal counseling, which Complainant contends was pretext to "single him out." According to Complainant, his colleagues routinely left before completing the same paperwork, yet unlike him, they were not "scolded." Yet, by Complainant's own account, S1 "disagreed" (i.e. corrected him) when he tried to "explain" that leaving prior to completing the intake checklist was considered acceptable. Assuming arguendo that this was standard practice among Complainant's colleagues, the Agency provided documentation indicating that official policy required IEAs to complete the items on the intake checklist upon taking an individual into custody. Moreover, the verbal counseling concerned reasons specific to Complainant that arose from his failure to complete the paperwork. S1's account of the verbal counseling, which Complainant does not dispute on appeal, provides that Complainant revealed critical gaps in his knowledge of responsibilities fundamental to his position, on the relevant evening he left early without informing S1, and he voiced an ongoing refusal to ask for help that S1 addressed and focused on in the counseling. Such instruction and admonishment, without disciplinary action describes a common workplace occurrence. As with Claim 6, Complainant's allegations in Claim 7, lacking sufficient evidence of pretext, do not constitute discrimination or harassment.
Claim 8, unlike the previous claims, identifies how complainant was harmed by the alleged discriminatory act, a "fully successful" rating on his annual PA, which was significantly lower than the previous year. Complainant alleges that all six "deficiencies" S1 cited as the reasons for the "fully successful" rating arose from the August 9, 2011 arrests. On appeal, Complainant argues, that S1 used the PA as pretext to hold him to stricter standards than his colleagues by citing multiple instances from one "event" as "deficiencies." Despite Complainant's contentions on appeal there is no evidence that this is prohibited; we also see no evidence that S1 "counted" the same incidents more than once. Complainant's alternate argument that he was "singled out" is contradicted in the record because S1 awarded the same "fully successful" rating to C1 based on the same single "event." We find it especially significant that Complainant does not deny the accuracy of the "deficiencies" S1 cited in his PA. Like his other claims, Claim 8 describes dissatisfaction a supervisor acting within the scope of her authority rather than discrimination.
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 final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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 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. The requests 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 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
December 19, 2016
__________________
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 None of the statutes this Commission enforces include familial status as a protected class.
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