[Redacted], Aurore C., 1 Complainant,v.Alejandro Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2020004163 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aurore C.,1 Complainant, v. Alejandro Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020004163 Hearing No. 460-2019-00111X Agency No. HS-FEMA-01708-2018 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s June 4, 2020 final order 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., 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 order finding no discrimination. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a Manufactured Housing Unit Leader for the Logistics Cadre during her deployment to Texas. In July 2018, she filed a complaint alleging discrimination based on race (White) and age (over 40) when: (1) on April 6, 2018, she was released from DR-4332-TX after being accused of using a racial slur to two African-American Army Corps of Engineers employees; and (2) despite being available, she has not been deployed to other disasters since being released.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. 2 Complainant withdrew the basis of age. 2020004163 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. As the Manufactured Housing Unit Leader, Complainant regularly worked with and oversaw the work of employees from the United States Army Corps of Engineers (USACE). On March 20, 2018 and March 31, 2018, Complainant reportedly called C1 and C2, two Black USACE male employees, “monkeys.” On April 5, 2018, C1 and C2 reported the incidents to their managers who contacted Agency management. Complainant met with Agency management. During the meeting, A1, Regional CADRE Coordinator, who did not know Complainant, asked her if she made the comments and if so why. Complainant, A1 noted, stated that in West Virginia, where she is from it was a term of endearment like “honeybun or sweetheart.” Complainant was informed that she would be sent home from the Texas disaster and that she would not be deployed again until the incidents had been investigated. On April 6, 2018, the Agency demobilized Complainant. On April 11, 2018, the Agency deployed Complainant to California, but on April 13, 2018, the Agency demobilized Complainant from California pending an investigation into the incident in Texas. On July 25, 2018, Complainant was terminated for conduct unbecoming a federal employee. On July 30, 2018, Complainant filed an appeal of her termination. On September 28, 2018, the Agency sustained Complainant’s termination. In her affidavit, Complainant, regarding her purported comments, stated that: I am not sure if I did or did not refer to them as monkeys. If I did, I did not mean nothing by it [sic]. The guys were 45 minutes late for an appointment and when they showed up, they said I said, ‘Where have you monkeys been?’ I am not sure if I said that or not. I was not aware that the term ‘Monkeys’ when referring to African-Americans was a racist term not until all of this happened. I would have never used that term if I thought it was a racial slur. Some of my best friends are African-Americans. My intent was not derogatory. Complainant specifically denied the assertion that she made the comment a second time to a contractor about C1 and C2. She maintained that two contractors agreed with her in writing that she never used that term to them. Complainant stated that she did not have copies of the contractors’ statements because she no longer had access to Agency email account. In her opposition, Complainant argued that she was treated differently than B1, a Housing Crew Lead from the Individual Assistance Cadre, who was not White. B1 was sent home because management discovered that, five months prior, she told a coworker about her nephews singing a song that contained a racial slur. B1 did not use the racial slur herself while telling the story. 2020004163 3 She instead used the term, “N-word.” Although B1 was sent home like Complainant, she was not terminated. The AJ found that even assuming, arguendo, Complainant established a prima facie case of discrimination, the Agency had legitimate, nondiscriminatory reasons for its actions and that the record did not contain sufficient evidence to create a genuine issue of material fact with respect to the question of pretext. On appeal, Complainant indicated that she has not seen copies of C1 and C2’s statements. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. We note in this regard that contrary to her assertions on appeal, the record indicates that C1 and C2 never provided written statements of their encounters with Complainant. They provided oral statements to their managers when they complained about having to continue working with Complainant. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. CONCLUSION Upon review of the AJ’s decision and the evidence of record, including the parties statements on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 2020004163 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004163 5 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 February 23, 2021 Date