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

Equal Employment Opportunity Commission

Oct 23, 2018

0120182017 (E.E.O.C. Oct. 23, 2018)

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

Hal T.,1
Complainant,

v.

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

Appeal No. 0120182017

Hearing No. 560201500046X

Agency No. HS-ICE-02254-2013

DECISION

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 March 23, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Program Analyst / Aviation Safety and Standardization Officer at the Agency’s ICE Air
Operations, Enforcement and Removal Operations facility in Kansas City, Missouri.

On February 10, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male), age (53), and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record when:

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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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; and
2. 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

On September 26, 2012, the ICE’s Executive Associated Director (EAD), (male, 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 all IAO full-time employees (FTEs)
from Kansas City to the Arizona Removal Operations Coordination Center (AROCC) in Mesa,
Arizona. Investigative File (IF) at 177, 320-322.

Employees were told that there would be no forced IAO moves to Mesa (other than a Deputy
Assistant Director position). The employees were also told that bonuses may be offered.

On August 26, 2014, the Acting Assistant Director, Repatriations (Acting AD/R), (male, over
40) 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 with
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 and eligible. IF at 1, 31, 196, 197, 249 – 250.

Complainant was not eligible for a placement opportunity in the Kansas City ERO sub-office,
since these opportunities were limited to Deportation Officers (DO) vacancies, for which only
law enforcement officers (LEOs) were eligible. Complainant was not a law enforcement
employee.

On September 9, 2013, Complainant notified management of his election to accept the
management-directed reassignment to Mesa, with an entry-on duty-date of July 27, 2014. IF at
152, 252.

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. IF, Exhibit F1b. Two of the ten had no
prior EEO activity.

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The Washington, DC. Unit was not forced to relocate. 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.

Claim 2 – Hostile Work Environment

On September 4, 2013, the DAD/Mesa sent the “Acting SC” 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. The Acting
SC shared the email with his subordinates, including Complainant. IF at 159, 212).

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 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 three offices was sufficiently significant to demonstrate pretext. The
Agency concluded that “ultimately Complainant failed to produce preponderant evidence to
discredit management’s explanation for his directed reassignment or to demonstrate that it was
based on his sex or age.”

With regard to the reprisal claim, the Agency noted that the subject email was sent 12 days
before the Class Agent initiated contact with an EEO Counselor and the email expressed the
manager’s dissatisfaction with Complainant’s previous responses to his inquiries.2

CONTENTIONS ON APPEAL

On appeal, Complainant requested that the Commission issue a Judgment as a Matter of Law in
Complainant’s favor and find the Agency discrimination against Complainant due to the
Agency’s delay in issuing a final agency decision. Complainant’s appeal was filed prior to the
time that the Agency issued its decision on March 23, 2018.

2 Complainant was one of eight individuals who brought a class complaint. Class certification
was denied and the individuals were permitted to file individual complaints.
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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”).

Sex Discrimination / Retaliation and Age 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. 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 Complainants representative participated in any EEO
activity.

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 no evidence, however, that this
was due to his protected bases.

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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.

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, age, or any
retaliatory animus.

Although Complainant questioned the wisdom of the Agency’s decisions,3 he did not offer
evidence that the offered reasons were a pretext for unlawful discrimination. As Complainant
candidly acknowledged, it was his belief that he was not treated the same because he was not a
law enforcement officer. 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.

We find that Complainant failed to show, by a preponderance of the evidence, that the Agency
discriminated against him based on his sex, age, or any prior EEO activity.

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. 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).

3 Complainant questioned why the Agency did not alleviate the relocation by simply allowing
Kansas City employees the option to remain in place and work out of the Kansas City Sub-
Office, rather than implement a decision to close the entire office.
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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

October 23, 2018
Date