Kandi M.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120141615 (E.E.O.C. Jan. 29, 2016)

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

Kandi M.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120141615

Hearing No. 543-2010-00029X

Agency No. HS-ICE-01223-2007

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
February 20, 2014 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mission Support
Specialist at the Agency’s Office of Investigations, at the Randolph Road Office in
Albuquerque, New Mexico. On January 17, 2007, Complainant called her second-level
supervisor (S2) and informed him that she was sick. Complainant was absent from work from
January 17-19, 2007. On January 22, 2007, S2 informed Complainant that she was required to
provide a doctor’s note since she had been absent for three consecutive days. Complainant
emailed the Agency’s Administrative Officer (AO) for clarification on the sick leave policy.
AO informed Complainant that the Agency’s policy was to require documentation after three
consecutive days of medical-related absences. On January 23, 2007, Complainant’s first-level

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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supervisor (S1) reminded Complainant that she had not submitted medical documentation in
support of her sick leave and warned her that she would be charged absence without leave
(AWOL) for those days.

On February 1, 2007, Complainant met with S1 and S2 regarding several issues including her
failure to provide a doctor’s note in support of her three-day absence, her reassignment to the
Agency’s Harper Road Office, her purchase of office supplies, and the implementation of a
task list with assignment due dates. The next day, S1 sent an email to Complainant again
stating that Complainant was being reassigned to the Harper Office because another program
was slated to occupy her space in the Randolph Office and that she should vacate her space in
the Randolph Office by 2:00 p.m. that day. The email also again informed Complainant that if
she failed to provide a doctor’s note for her January 17-19, 2007 absence, S1 would consider it
a willful failure to follow a direct order and insubordination.

On February 15, 2007, Complainant submitted a request for 88 hours of advanced sick leave.
Complainant’s request was denied on February 26, 2007. In addition, on February 26, 2007,
Complainant was notified that her time and attendance record was being amended to reflect
that she was AWOL on January 17-19, 2007.

On April 10, 2007, Complainant was selected for a position as a Detention and Removal
Assistant in the Agency’s Detention and Removal Operation. Given that Complainant was out
of the office on leave without pay (LWOP), Complainant was given an entry-on-duty date of
May 13, 2007, contingent upon her returning to the office.

On April 11, 2007, Complainant received a five-day proposed suspension for conduct
unbecoming, insubordination, and AWOL. Complainant returned to the office on April 24,
2007. Complainant responded to the proposed suspension on April 25, 2007. On May 24,
2007, Complainant was informed that the charges in the proposed suspension were
substantiated and that she would be suspended for five days. In addition, Complainant’s entry-
on-duty date to the Detention and Removal Operation Office was approved for May 26, 2007.

On June 13, 2007, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the basis of
race/national origin (Hispanic)2

when:
1. Between February and May 2007, Complainant was threatened with discipline,
required to empty out her desk and move her belongings, accused of
misappropriating office supplies, given strict deadlines to perform her duties, and
accused of poor performance;

2 The Commission notes that the term “Hispanic” typically denotes national origin rather than
race. However, herein the Commission acknowledges Complainant's self-identification of her
race as Hispanic.
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2. In a letter dated February 26, 2007, Complainant was notified that she was being
charged as Absent Without Leave (AWOL) for the period of January 17 through 19,
2007, after failing to provide a doctor's note for a three-day absence, even though
this is not required of other employees;

3. On February 26, 2007, Complainant’s request for advanced sick leave was denied;

4. On May 4, 2007, Complainant was notified that she would be suspended for five
days during the period from May 14 through 18, 2007, arising out of a disciplinary
proposal received on April 11, 2007;

5. Management unnecessarily delayed Complainant's entry on duty dale (EOD) from
April 15, 2007 to May 26, 2007, for a position for which she was selected with the
Office of Detention and Removal.

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions in claims (1), (2), (4), and (5). More specifically, as to claim (1),
Complainant was warned on at least three occasions that her failure to comply with
performance-related instructions could lead to disciplinary action. For example, Complainant
was advised to provide a doctor’s note pursuant to the Agency’s sick leave policy in support of
her request for sick leave for her three-day absence. In addition, Complainant was advised
that she failed to respect the chain of command and contacted AO directly. Finally, S1 and S2
stated that Complainant was previously assigned several tasks that she failed to complete in a
timely manner or not at all. S2 affirmed that he repeatedly asked Complainant to dispose of
old/outdated excess property and to archive closed files, tasks that Complainant either never
completed or attempted.

Additionally, Complainant was required to empty out her desk and to move her belongings
from the Randolph Office to the Harper Office because she had been reassigned there and the
space she occupied at the Randolph Office was scheduled to be occupied by another Agency
program. Finally, S1 and S2 denied accusing Complainant of misappropriation; rather, they
both stated that they merely advised Complainant that she was obligated to use caution and
good judgment when ordering office supplies in light of their discovery of an abundance of
office supplies when Complainant submitted an additional order for supplies.

With regard to claim (2), S2 stated that Complainant’s AWOL status resulted from her refusal
to adhere to the Agency’s policy to provide a doctor’s note for sick absences totaling three or
more consecutive days. With respect to claim (4), Complainant was suspended (a) for
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unbecoming conduct when, on February 1, 2007, she refused to be seated in a meeting when
ordered to do so by S1; (b) for insubordination when she refused to provide a doctor's note to
substantiate her request for sick leave when ordered to do so by S2; and (c) for being placed on
AWOL.

As to claim (5), Complainant was selected for a Detention and Removal Assistant position with
an initial entry-on-duty date of April 15, 2007. Complainant was out on sick leave at the time.
Complainant returned to work on April 25, 2007, but went out again on sick leave soon
thereafter. Complainant did not complete her exit obligations until May 25, 2007, and she was
released to the Detention and Removal Operations on May 26, 2007.

The Agency determined that Complainant failed to show that the Agency’s reasons for its
actions were pretext for unlawful discrimination as to claims (1), (2), (4), and (5). Further,
the Agency found that the all of the alleged incidents were insufficiently severe or pervasive to
establish a hostile work environment. As a result, the Agency found that Complainant had not
been subjected to a hostile work environment or discriminated against as to these claims.

However, the Agency found that management failed to articulate a legitimate,
nondiscriminatory reason for denying Complainant’s request for advanced sick leave as alleged
in claim (3). Complainant requested 88 hours of advanced sick leave for her incapacitation and
doctor’s appointments for her ongoing medical issues. Complainant was informed by S1 that
her request was denied, but was given no reason for the decision. S1 stated that she forwarded
the request to the Assistant Special-Agent-in-Charge (ASAC) and received a handwritten note
from ASAC denying the request. ASAC indicated that he relied on the advice of the Agency’s
Labor-Management Relations Office who advised him against approving the advanced sick
leave. The Agency noted, however, that the record did not reflect whether the Labor-
Management Relations Office provided ASAC with any reasons to disprove the request. AO
stated that she was told by ASAC that Complainant’s advanced sick leave request was denied
“due to issues concerning leave;” however, the Agency found that the record contained no
evidence that Complainant was ever counseled regarding the amount of sick leave used or
accused of abusing sick leave prior to denying her request. As a result, the Agency concluded
that management failed to articulate a legitimate, nondiscriminatory reason for denying
Complainant’s request for advanced sick leave. Accordingly, the Agency found that
Complainant had shown that management discriminated against her based on her race/national
origin as to claim (3).

To remedy the discrimination, the Agency ordered training and consideration of disciplinary
action for the responsible management officials and to post a notice. In addition, the Agency
provided Complainant with instructions to submit any additional evidence in support of her
entitlement to compensatory damages and attorney’s fees and costs. Complainant subsequently
filed the instant appeal.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that she was singled out and subjected to stringent leave
procedures. Complainant asserts that management falsely accused her of not completing tasks
and misappropriating office supplies to discredit and harass her. Additionally, Complainant
argues that management’s reasons for her suspension are false and inaccurate. For example,
Complainant argues that she was not insubordinate during the February 1, 2007 meeting, and
claims that S2 was hostile towards her and made her feel intimidated, humiliated, and
threatened. Accordingly, Complainant requests that the Commission reverse the FAD and find
that the Agency discriminated against her as to all claims.

ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510U. S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis – in this case,
race/national origin. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself.

Here, Complainant asserted that based on her protected classes, management continuously
subjected her to a hostile work environment based on several incidents where Agency officials
took actions that seemed adverse or disruptive to her. The Commission concludes that the
alleged incidents at issue in their totality are insufficiently severe or pervasive to establish a
hostile work environment. Further, as discussed below, Complainant failed to show that the
incidents alleged in claims (1), (2), (4), and (5) were based on discriminatory animus.

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Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that, assuming arguendo that Complainant established
a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory
reasons for its actions as to claims (1), (2), (4), and (5). More specifically, as to claim (1), S1
stated that she and S2 met with Complainant on February 1, 2007, to discuss several topics of
concern. ROI, Ex. 7, at 2. S1 confirmed that during this meeting, Complainant displayed a
very defensive and obstinate demeanor. Id. S1 advised Complainant that she needed to move
out of her space at the Randolph Office because another program would be taking over that
area. Id. at 2-3. In addition, S1 advised Complainant that she needed to use discretion in
ordering supplies in the future to ensure that the Agency’s money was being spent wisely. Id.
at 3. S1 made Complainant aware that she had observed that supplies in the Harper and
Randolph Offices were in abundance and that new items did not need to be ordered until others
were reduced. Id. S1 further informed Complainant that her sick leave request for January 17
– 19, 2007, had been denied due to her failure to present the required documentation. Id.
While Complainant argued that she did not need to supply the requested medical
documentation, S1 informed her that if she did not adhere to the Agency’s policy, her behavior
could be considered willful failure to follow a direct order and insubordination. Id. Finally,
S1 and S2 discussed Complainant’s failure to complete previously discussed tasks and her
failure to follow Agency policy when she contacted AO without going through the appropriate
chain of command. Id. at 3-4.

With respect to claim (2), S1 affirmed that Complainant was charged with AWOL on January
17 – 19, 2007, after failing to provide a doctor’s note in support of her three-day absence in
violation of the Agency’s sick leave policy. ROI, Ex. 7, at 6. S1 denied that Complainant
was singled out and noted that other employees, including her, have been required to provide
medical documentation after consecutive absences of three days or more. Id. at 7. AO
confirmed that in her 10 years of employment with the Agency, all employees have been
required to submit a doctor’s note for absences for more than three consecutive days. ROI,
Ex. 9, at 4. AO added that employees have been briefed several times in staff meetings about
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this policy. Id. AO noted that it was the responsibility of timekeepers (such as Complainant)
and supervisors to ensure that the policy was followed. Id.

Regarding claim (4), the record indicates that Complainant was issued a proposed suspension
for her behavior during the February 1, 2007 meeting with S1 and S2, her failure to provide
medical documentation in support of her three-day absence as requested, and for AWOL.
ROI, Ex. 24, at 1-2. Complainant responded to the proposal, but the Acting Special Agent-in-
Charge upheld the charges in the proposed suspension. ROI, Ex. 11, at 5; ROI, Ex. 24.

As to claim (5), Complainant accepted a Detention and Removal Assistant position in April
2007, and the Detention and Removal Operations requested an entry-on-duty date of April 15,
2007. ROI, Ex. 5, at 48. Complainant was out on leave at the time, and S1 informed her that
she needed to first complete several exit obligations with the Harper Office prior to being
released, including turning in any outstanding property or credentials and wrapping up
uncompleted projects to ensure the continued operations of the office. Id. at 74-75.
Complainant completed the necessary exit obligations and was subsequently released to begin
in the Detention and Removal Operations Office on May 27, 2007. Id. at 54-56.

As Complainant chose to withdraw her request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that discriminatory
animus was a factor in its actions. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
as alleged as to claims (1), (2), (4), and (5).

However, with regard to claim (3), the Commission agrees with the Agency that management
failed to articulate legitimate, nondiscriminatory reasons for denying Complainant’s request for
advanced sick leave. The record indicates that Complainant’s request for advanced sick leave
was forwarded to ASAC, and he denied the request based on advice he received from the
Labor-Management Relations Office. ROI, Ex. 10, at 4. No specific reason was provided for
the denial. Consequently, the Commission finds that the Agency failed to articulate a
legitimate, nondiscriminatory reason for denying Complainant’s request for advanced sick
leave.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s finding of no discrimination as to claims (1), (2), (4), and (5). In addition, the
Agency’s finding of discrimination as to claim (3) is AFFIRMED. To the extent that it has not
already done so, the Agency shall comply with the Order as set forth below.

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ORDER (C0610)

The Agency is ordered to take the following remedial action:

1. Within 90 days of the date of this decision, the Agency shall conduct EEO training
for the responsible management officials involved in the above-referenced
complaint. At minimum, these individuals must undergo 4 hours of sensitivity
training and 16 hours of EEO training with a focus on manager responsibilities to
prevent disparate treatment in violation of Title VII especially with respect to
race/national origin.

2. The Agency shall consider taking appropriate disciplinary action against all
responsible management officials still employed by the Agency. The Commission
does not consider training to be disciplinary action. The Agency shall report its
decision to the Compliance Officer. If the Agency decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left the Agency's
employment, the Agency shall furnish documentation of the departure date(s).

3. The Agency shall conduct a supplemental investigation on the issue of
Complainant's entitlement to compensatory damages, and afford her an opportunity
to establish a causal relationship between Agency’s discrimination and her
pecuniary and non-pecuniary losses, if any. Complainant will cooperate in the
Agency's efforts to compute the amount of compensatory damages, and will provide
all relevant information requested by the Agency. For guidance on what evidence is
necessary to prove pecuniary and non-pecuniary damages, the parties are directed to
EEOC Enforcement Guidance: Compensatory and Punitive Damages Available
Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov).
The Agency will issue a final decision on the issue of compensatory damages. 29
C.F.R. § 1614.110. The final decision shall contain appeal rights to the
Commission. The Agency shall submit a copy of the final decision to the
Compliance Officer at the address set forth herein.

4. The Agency shall post the notice referenced in the paragraph below entitled,
“Posting Order.”

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include evidence
that the corrective action has been implemented.

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POSTING ORDER (G0914)

The Agency is ordered to post at the Randolph Road Office copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall
be posted both in hard copy and electronic format by the Agency within 30 calendar days of
the date this decision becomes final, and shall remain posted for 60 consecutive days, in
conspicuous places, including all places where notices to employees are customarily posted.
The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or
covered by any other material. The original signed notice is to be submitted to the Compliance
Officer at the address cited in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission's order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. §
1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §
1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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:

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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, P.O. Box 77960, Washington, DC 20013. 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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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

January 29, 2016
Date