[Redacted], Betty A., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2020001404 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Betty A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2020001404 Hearing No. 480-2018-00455X Agency No. HS-CIS-02037-2017 DECISION On December 6, 2019, 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 November 5, 2019, 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., For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a probationary Immigration Services Officer, GS-1801-09, at the Agency’s Field Office in Las Vegas, Nevada. On September 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of national origin (Palestinian), religion (Muslim), color (Brown), and in reprisal for prior protected EEO activity 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. 2020001404 2 1. management did not provide Complainant an introduction to the office, as others were introduced; 2. management did not train Complainant the way others were trained; 3. management did not create a centrally billed account (CBA) for Complainant, because they believed she did not deserve the job; 4. management denied Complainant time off to take care of her husband with a serious health condition; 5. management disparaged Complainant when she voiced political opposition to an executive policy and questioned whether she could do the job even though she assured them that she would follow policy; 6. when Complainant disclosed her national origin, her security stamp was taken away and investigations into her family began; 7. Complainant was questioned about her national origin; and 8. on the same day she was questioned about her national origin, her employment was terminated. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 1, 2019, motion and issued a summary judgment decision on October 1, 2019. In the decision, the AJ accepted S1 and S2’s statements and concluded that Complainant failed to provide evidence that their reasons for their actions were pretext for unlawful discrimination or reprisal. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues the AJ inappropriately issued a decision without a hearing because there are genuine issues of credibility. Complainant points out that her supervisors’ (S1 and S2) testimony conflicts with record evidence. Further, the Agency’s written reasons for her termination conflict with S2’s assertion that Complainant was “not a good fit” for the office. Complainant notes that a witness provided testimony disputing S1 and S2’s testimony. In response, the Agency maintains the AJ correctly granted summary judgment. Among other arguments made on appeal, the Agency agrees with the AJ’s finding that S1 was credible regarding his statement that he did not know Complainant was married and regarding other aspects of S1’s knowledge of Complainant’s background. The Agency maintains that Complainant cannot prove discrimination or a hostile work environment and minimizes Complainant’s reference to S2’s characterization of her skin color as “pale.” 2020001404 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. After a careful review of the record, we find that the AJ improperly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ's issuance of a summary judgment was inappropriate. For example, in Complainant’s July 10, 2017 termination letter, the same day her probationary period was scheduled to expire, management stated it was terminating Complainant during her probationary period because (1) she failed to follow her supervisor’s instructions to fill out daily time sheets; (2) she demonstrated unprofessional and disruptive behavior during a staff meeting on April 27, 2017; (3) she demonstrated a disregard for Agency policy when she failed to safeguard a government laptop; and (4) she demonstrated a lack of candor when she denied having monthly review sessions with her supervisor. Complainant, along with testimonial support, has demonstrated that there are genuine issues of credibility as to management’s testimony and blanket statements regarding these reasons. With respect to Complainant’s performance and monthly meetings, Complainant’s first-level supervisor’s (S1) testimony requires further inspection. Complainant insisted that these monthly meetings discussing her performance did not happen. The Supervisory Immigration Services Officer (SISO1) attested that she corroborated that the meetings did not happen by looking at e- STEP and failing to discover entries that would have been made had the meetings happened. An inspection of a printout from e-STEP provided for the record contains a date of April 7, 2017 but contains three entries with a date occurring after April 7, 2017. Moreover, three of the entries were made on a Tuesday, Complainant’s day off, a Sunday, and a holiday. We cannot take these entries at face value considering SISO1’s testimony. Furthermore, Complainant’s second-level supervisor (S2) said that she received a complaint from Complainant that S1 was not holding monthly meetings with her. S2 then met with S1, who said that he had these meetings and documented them. S2 believed that Complainant’s claim had no foundation and was not made in good faith and used this incident as the basis for alleging Complainant lacked candor. 2020001404 4 Again, Complainant challenges these claims stating that she only had one documented performance review, her mid-year evaluation, which did not reflect any performance shortcomings. Complainant has also raised inconsistencies in her training and initial introduction to the office compared to other employees and pointed to several contradictions in S1’s statements. SISO1 also provided other testimony tending to cast in dispute S1 and S2’s assertion that Complainant was a problematic employee; S1 said, from the start, that he did not think Complainant was going to work out and that he did not like her, and S2 said that Complainant was a “bozo.” Further, SISO1 believed Complainant’s termination for failing to sign in and out on the sign-in sheet to be “a set-up with no basis in fact” and as soon as Complainant became aware of the requirement, she began signing in. S2 accused Complainant of disobeying direct instructions by failing to return government equipment to its assigned location. S2 asserted that after she directed Complainant to take her personal items home and told her that she could not move into a cubicle, S2 discovered that Complainant moved a laptop from one cubicle into a room, and moved the laptop assigned to that room into an overhead cabinet. In response, Complainant apologized for any misunderstanding and explained that she believed she was assigned the laptop at the cubicle. However, because another employee was assigned the cubicle, Complainant moved to a vacant room based on S2’s prior instructions. Complainant then sought to secure her laptop in the room. SISO1 thought S2’s criticism was unfair and made no sense since everyone in the office was required to secure their laptops. In addition, regarding her conduct during the April 2017 meeting, S1 had accused Complainant of standing against the wall and using her cell phone during the entire meeting. SISO1 noted that S1 held his staff meetings at 7:00 a.m., but Complainant did not arrive on duty until 7:30 a.m., which meant that the meetings were usually over before she arrived. SISO1 further added that S1 is “one of the biggest offenders of cell phone use during staff meetings.” Complainant also claimed that management officials took away her security stamps following comments she made about a policy implemented by the then-President of the United States banning travel to the United States from certain countries that were predominantly Muslim. These stamps allow an employee the ability to adjudicate sensitive matters. S1 stated that an officer’s background check must be completed before the officer can be issued security stamps and speculated that management mistakenly issued Complainant security stamps after she completed training on the assumption that she had cleared her background check. Although Complainant’s background investigation was being conducted by another agency, there is some indication that Complainant was being subjected to a more rigorous background investigation than is customary since there is email evidence that Complainant would have been subjected to a Level 3 background investigation, but the Agency elevated her investigation to a Level 5 without explanation. 2020001404 5 We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have “a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.” See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar.26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are simply too many unresolved issues which require resolution through a hearing, including an assessment as to the credibility of the various witnesses. Therefore, summary judgment in favor of the Agency should not have been granted. CONCLUSION Therefore, after a careful review of the record, including the Agency's arguments on appeal, Complainant’s response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final order and REMANDS the matter for a hearing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Los Angeles District Office within fifteen (15) calendar days from the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Los Angeles District Office. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020001404 6 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020001404 7 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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. 2020001404 8 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 August 30, 2021 Date