0120160518
06-12-2018
Kyle S.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement (ICE)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kyle S.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement (ICE)),
Agency.
Appeal No. 0120160518
Hearing No. 560-2015-00048X
Agency Nos. HSICE023482013 and HSICE0099592014
DECISION
On December 3, 2015, 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 28, 2015 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.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Detention and Deportation Officer at ICE Air Operations (IAO) at a Kansas City, Missouri facility of the Agency. On September 21, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (American Indian2), sex (male), age (50 at time of incident), and reprisal for prior protected EEO activity (prior EEO complaints since 2006) when:
1. on July 23, 2012, the Agency failed to select Complainant for a Detention and Deportation Officer (DDO) position, GS-15, Vacancy Announcement LAG-ERO-659387-MA-156,3
2. on July 19, 2013, Complainant learned that the Agency did not select him for a Supervisory DDO position, Vacancy Announcement LAG-ERO-878166-DM-214 (Vacancy 214) New Orleans, Louisiana,
3. on April 25, 2013, Complainant learned that the Agency did not select him for a Supervisory DDO position, Vacancy Announcement LAG-ERO-805288-SAC-040 (Vacancy 040) Salt Lake City, Utah, and
4. on February 13, 2013, Complainant learned that the Agency did not select him for a Supervisory DDO position, Vacancy Announcement LAG-ERO-732419-LKS-058 (Vacancy 058) Mesa, Arizona.
On February 10, 2014, Complainant filed an individual complaint alleging the Agency subjected him to hostile work environment harassment based on sex and age when:
5. on August 26, 2013, Complainant received a management-directed reassignment notification memorandum, relocating Complainant to Mesa, Arizona effective May 1, 2014, and
6. as of August 28, 2013, Complainant was negatively referred to in an inter-office email. 4
The Agency conducted an EEO investigation for each complaint.
Investigation
Complainant's Statement
For claims (2) through (4), Complainant stated that the Agency did not conduct interviews of best qualified candidates, and that violated the Leadership Career Progression for Law Enforcement handbook. Complainant stated that he is better qualified than the selectees because he is "an articulate, meticulous professional with drive and tenacity, exemplary communication skills, and a strong ability to identify and capitalize on the individual strengths and talents of my team to advance our goals and the [Agency] mission." Complainant added that he has over 26 years of leadership experience, 30 years of law enforcement experience, and he graduated from the Federal Bureau of Investigation Leadership Development Institute. Further, for claim (4), Complainant stated that he has direct experience as Deputy Assistant Director for Air Operations.
Agency's Response
The Deputy Executive Associate Director (S1) (Caucasian, American of European descent married to Italian-American, male, 51 at time of incident, and prior EEO affiant) stated that he was a member of the Career Board that reviews the resume of the recommended candidate and decides whether to concur with the recommendation. S1 stated that the Assistant Director for the selecting division is the one who reviews all resumes and recommends a candidate to the Career Board. For Vacancy 214, S1 stated that the Assistant Director of Field Operations (S2) made the recommendation. S1 stated the selectee was a noncompetitive applicant based on his experience as the New Orleans Field Office Director (FOD) and his broad 25-year service record. For Vacancy 040, S1 stated that S2 was the recommending official, and the selectee was a noncompetitive applicant based on experience as an FOD and a broad 17-year service record. Regarding Vacancy 058, S1 stated that he does not recall the convening of a Career Board and the selectee was a reinstatement to the General Services (GS) Schedule from the Senior Executive Service (SES). S1 stated that he signed the reinstatement for the selectee to the Air Unit Chief position on behalf of the Executive Associate Director. S1 stated the selectee was formerly an SES FOD and had 25 years of service. The record contains a memorandum, dated February 5, 2013, approving the request of the selectee for reinstatement to the GS schedule.
S2 (Caucasian, European-American married to Pacific Islander, male, 45 at time of incident, and prior EEO affiant) stated that he was the recommending official and a Career Board member. For Vacancy 214, S2 stated that selectee's prior experience as New Orleans and Los Angeles FOD and 25 years of law enforcement service made him the best qualified candidate. For Vacancy 040, S2 stated that the selectee was the most qualified based on experience as a Deputy FOD, multiple detail assignments, and 17 years of law enforcement service. S2 stated that he was not involved in the selection for Vacancy 058.
S1 stated that the Agency issued a directed reassignment because IAO was co-located to Kansas City to work with another organization, but as of October 2010, it no longer worked with that organization. Hence, the Agency no longer had an operational reason to keep IAO in Kansas City and could move its 11 government positions and 11 contractor positions to a central location in Mesa, Arizona. S1 stated, for flexibility, IAO-Kansas City employees also had the option to transfer to Enforcement and Removal Operations (ERO) at Headquarters in Washington, DC. The record contains an undated letter to Complainant, titled Notification of Management-Directed Reassignment, detailing options due to the IAO-Kansas City closure. Attached to that letter was an election form, on which Complainant chose directed reassignment to Mesa or Washington. Complainant signed the election form September 9, 2013, and stated the selected options may be viable pending the resolution of an active EEO complaint or civil action.
The Deputy Assistant Director for IAO (S3) (male, 52 at time of incident) stated that he exchanged emails with a Section Chief (S4) about a night flight that IAO cancelled unnecessarily and he was frustrated because S4 refused to provide a justification for the cancellation. S3 stated that he thought the email chain was privileged communication between two managers, but S4 shared the email with Complainant who then forwarded it to other employees. S3 stated the email was about S4's obstinance.
Post-Investigation
Following each EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested hearings initially, but, on August 26, 2015, asked for consolidation of the complaints and withdrawal of the hearing requests. On August 31, 2015, the assigned AJ issued an Order for Issuance of Final Agency Decision and Appeal Rights for the two complaints. Subsequently, for both complaints, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed.
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").
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 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 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For claims (2) and (3), the Agency stated that the selectees for the positions-at-issue were non-competitive applicants based on relevant experience and broad law enforcement service records. For claim (4), the Agency stated the selectee was a former SES FOD who had 25 years of law enforcement service and asked to be reinstated to the GS Schedule. The selectee was reinstated to GS through the position-at-issue.
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
Further, to the extent Complainant alleged that the actions discussed in (5) and (6) created a hostile work environment, we conclude that a finding of harassment is precluded here also because Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The Agency stated that it reassigned staff from IAO-Kansas City to either Mesa, Arizona for operational reasons or Washington, DC for flexibility for reassigned employees. Further, the Agency stated that the email Complainant references in (6) was not about Complainant, but was about a poorly-handled work matter and the stubbornness of the relevant supervisor in explaining the matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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 (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
June 12, 2018
__________________
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 Complainant alleged that the Agency discriminated against him because he is married to a woman of West Indies Indian national origin.
3 After an extensive procedural history, it was determined that claim (1) was processed under a prior EEO complaint (Agency No. HS-ICE-22919-2012), and would not be processed with the instant matter. EEOC reviewed claim (1) in Kyle S. v. Dep't of Homeland Security, EEOC Appeal No. 0120141745 (May 27, 2016).
4 The February 10, 2014 individual complaint was originally a class complaint on which an EEOC Administrative Judge denied class certification on January 17, 2014. Subsequently, the Agency informed Complainant of his right to pursue his allegations individually.
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