Maximo S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Mar 22, 2018

0120161295 (E.E.O.C. Mar. 22, 2018)

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

Maximo S.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120161295

Agency No. HS-CIS-23961-2015

DECISION

On March 15, 2016, 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 14, 2016, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Immigration
Services Officer II (ISO-II), GS-1801-12, in Fresno, California.

On July 7, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to
a hostile work environment on the bases of sex (male), religion (atheist), and in reprisal for prior
protected EEO activity when between January 2014 and April 10, 2015:

1. For the Performance Plan and Appraisals received in October or November 2014,
the Supervisory Immigration Services Officer (SISO) rated female coworkers as
better performers.2

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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2. The SISO treated female coworkers in a friendlier manner.
3. The SISO gave more detailed instructions to female coworkers.
4. The SISO issued Complainant a memorandum of counseling for failure to follow
instructions.

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). In accordance with Complainant’s request,
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.

Regarding claim (1), the Agency notes the SISO stated she gave Complainant an “Achieved
Expectations” rating; however, she did not believe that his performance was even up to that
level. The SISO explained that Complainant made basic errors, complained that he could not
complete tasks because they were too difficult, “missed stuff” on his denial decisions, and had
files returned to him for correction multiple times. The SISO noted that on at least three
occasions, she offered to help Complainant, asked if he would like to have an assigned mentor,
spoke to him about completing an Individual Development Plan, and informed him that his
performance was not meeting the “Achieved Expectations” level. The Section Chief (SC) added
that “it was a generous rating.” The Agency noted that in addition to Complainant, the SISO
rated three male and five female employees on the Performance Plan and Appraisal rating period
in question. The Agency noted that the SISO rated all five female employees “Exceeded
Expectations,” she rated two male employees “Exceeded Expectations,” and she rated one male
employee “Achieved Expectations.” The Agency stated these ratings were not so
disproportionately favorable to female employees as to suggest that the SISO acted in a
discriminatory manner.

Regarding claim (2), Complainant alleged that the SISO gave “more friendly treatment” and
“more of a mutual respect” to female officers. Complainant stated that the SISO welcomed
discussions with female officers and told them where to look for things, but told Complainant to
“just look it up.” The SISO asserted that she assisted all employees who needed help and treated
them with the same respect and friendliness.

Regarding claims (3) and (4), Complainant asserted that it “seem[ed] like” the SISO gave more
detailed instructions to female officers, while she routinely directed Complainant to answer his
own questions. The SISO stated she mentored several male employees, and had provided advice
to Complainant numerous times. The SISO asserted, however, that all officers were responsible
to conduct their own research and, if an experienced officer asked simple questions, the SISO

2 The Agency noted claim (1) was a discrete act that was not independently actionable because it
was not timely raised with an EEO Counselor. The Agency considered claim (1) as part of
Complainant’s overall harassment claim. Complainant has not challenged the dismissal of claim
(1) on appeal as a discrete act and we shall therefore not address that dismissal.
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would ask that person to research it his or her self. The SISO noted that officers needed to
conduct independent research in order to achieve acceptable performance ratings.

The Agency noted that Complainant identified a specific example of the SISO’s failure to give
adequate instructions. Complainant stated that on March 10, 2015, the SISO left Complainant a
file with an email message instructing him to work on the file while the SISO was on leave for
10 days. The Agency noted the message directed Complainant to update the Section Chief with
the status of the file by March 13, 2015. The Agency stated the email further stated that the file
needed to be addressed and that Complainant should take necessary action as soon as possible.
Complainant asserted that the SISO failed to give any further instructions on the file. The
Agency noted Complainant admitted that during the SISO’s 10-day leave, he did not take any
action on the case, did not contact the Section Chief about the status of the case, and did not
think about reaching out to the Section Chief or the SISO to inquire about the file.

The Agency noted that when the SISO returned, she issued Complainant a Counseling Memo for
failure to follow instructions with respect to the incomplete case file. Complainant stated that he
believed the SISO issued the memo partly because of his sex, and partly to make an example that
employees should be respectful toward authority. The SISO stated that her instructions to
Complainant were specific and included the word “urgent:” however, when she returned from
vacation, Complainant had not done any work on the file. The SISO recalled Complainant
claimed that he did not know which file the SISO was referencing; however, the SISO asserted
that since it was a matter of urgency, he should have contacted the Section Chief and let her
know. The SISO noted that she had previously counseled Complainant verbally for failure to
follow instructions. The Section Chief noted that the Counseling Memo was an appropriate
consequence, as Complainant had repeatedly failed to follow direct orders and had a history of
disregarding instructions and rules.

Regarding his claim of discrimination based on religion, the Agency noted Complainant asserted
only that the Field Office Director was Catholic, which was a religion known for being “strict
and punitive,” and that “his upbringing and faith and education [in Divinity] makes him strict
and gives him an overly punitive personality.”

The Agency stated that even if Complainant’s claims occurred as alleged, he failed to prove that
he was subjected to conduct sufficiently severe or pervasive to constitute harassing behavior.
The Agency stated that although Complainant may have subjectively perceived the Agency
subjected him to a hostile work environment, the incidents described do not rise to the level of
severity and pervasiveness for which Title VII can offer relief.

On appeal, Complainant claims the Agency did not consider the strict and overly punitive actions
by the Field Office Director. Complainant states the Field Office Director’s actions were clearly
due to his religion as evidenced by his comparing his staff to Sunday School children.

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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”).

Upon review, we find that Complainant failed to prove he was subjected to harassment or
discrimination. Regarding Complainant’s contention that the SISO treated female coworkers in
a friendlier manner and gave more detailed instructions to female coworkers, the SISO stated
that she was not friendlier with female employees and stated she treated all employees with the
same respect and friendliness. The SISO stated that she did not give female employees more
detailed instructions. She explained that she mentored several male employees. She stated that
officers were responsible for conducting their own research and were not to ask the same
question repeatedly. The SISO noted that if an officer who was more experienced asked simple
questions and she felt it was because they were lazy or trying to prove a point, she would ask
them to research it.

In addition, we note that nine employees also provided affidavits regarding Complainant’s
allegation that the SISO treated female employees more favorably. Person 1 (female ISO) stated
she saw the SISO “equally friendly yet professional with all employees” and stated that the SISO
did not give preferential treatment to female employees.

Person 2 (female ISO) stated that the SISO was not friendlier with female employees and did not
give more detailed instructions to female employees.

Person 3 (female ISO) stated she was not present when the SISO interacted with male employees
and thus, did not know whether the SISO was friendlier or gave more detailed instructions to
female employees.

Person 4 (male) was an Immigration Services Clerk, Immigration Services Assistant, and ISO
during the relevant time. Person 4 stated that he did not feel the SISO was friendlier or gave
more detailed instructions to female coworkers.

Person 5 (male ISO) stated that while working under the SISO it was common to wait in line
outside her office for a chance to review a file with her. He stated that there were many
instances where, after waiting for several minutes for his turn, his turn with the SISO would be
interrupted by a female coworker wanting to discuss an issue with the SISO.
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Person 5 stated it was the general consensus among some of his male colleagues that the SISO
spends more time assisting female employees. Person 5 stated that the SISO treats her male
employees adequately, although it seems that a preference is given to female employees.

Person 6 (male ISO) stated that the SISO was friendlier with female employees and has been
seen assisting female staff for extended periods of time. He stated that he had not received poor
treatment from the SISO, the Field Office Director, or the Section Chief. He stated that he did
feel that he was treated differently by the SISO and a few isolated times by the Section Chief.
He explained that treatment by the Section Chief may have been due to information conveyed by
the SISO based on work assignment or a view of underperformance by Person 6. Person 6 stated
that treatment by the SISO though not considered poorly, could possibly have been due to a lack
of experience and a sense of superiority due to her position as a supervisor.

Person 7 (male ISO) did not feel that the SISO was friendlier with female employees. Person 7
stated he did not witness enough interactions with other employees to determine whether the
SISO gives females more detailed instructions. Person 7 noted that all the supervisors at Fresno
are busy but, he believed the SISO took the appropriate time to provide him instructions.

Person 8 (male ISO) stated he was unaware of the SISO’s interactions with female employees.
He stated that the SISO gave him sufficient instructions and was unaware of a time when he had
not been provided detailed instructions.

Person 9 (male ISO) stated he did not feel that the SISO gave preferential treatment to females
and stated she seemed to be fair with all employees. Person 9 stated that the SISO did not give
females more detailed instructions. He stated that the SISO gave him detailed instructions. He
stated that the SISO always gave good instructions and was open for follow up questions.

Upon review, we find that Complainant failed to show by persuasive evidence that the SISO
treated female coworkers in a friendlier manner or gave more detailed instructions to female
coworkers. Even if true, we do not find that the friendlier treatment or better instructions rose to
the level of severity to constitute a hostile work environment (we find no other incidents were
discriminatory) or any discrete harm. In addition, Complainant did not show the SISO’s actions
regarding performance ratings or issuing Complainant a memorandum of counseling for failure
to follow instructions to be motivated by discriminatory animus.

Complainant alleged that on two occasions during an all-hands staff meeting, the Field Office
Director referred to Officers as children or children in his Sunday School class. The SISO stated
that the Field Office Director made this statement. Assuming this comment was made twice at
an all-hands staff meeting, as alleged by Complainant, we find it is not supportive of a hostile
work environment based on religion. We find Complainant failed to meet his burden to
demonstrate by a preponderance of the evidence that he was subjected to a hostile work
environment based on his sex, religion, or protected EEO activity.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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
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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

March 22, 2018
Date