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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022000019 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cecile T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2022000019 Agency No. HS-ICE-01820-2020 DECISION On October 3, 2021, 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 August 31, 2021, final decision 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 AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer at the Agency’s Enforcement and Removal Operations Division in the Atlanta Field Office in Charlotte, North Carolina. On August 25, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On June 25, 2020, and June 30, 2020, the Assistant Field Office Director rescinded Complainant's approved weather and safety leave; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is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. 2022000019 2 2. On August 6, 2020, management included negative comments on Complainant's Fiscal Year (FY) 2020 (FY2020) performance work plan; 3. On September 25, 2020, Complainant’s supervisor directed her to report all issues related to defensive tactics/training to him despite not previously requiring this communication; 4. On October 19, 2020, Complainant received a rating of “Excellent” instead of “Outstanding” for FY2020; and 5. On January 7, 2021, Complainant’s supervisor directed her husband to transport a detainee who tested positive for COVID-19, placing Complainant at risk of exposure. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that Complainant failed to prove by a preponderance of the evidence that she was discriminated against based on her national origin or sex. The Agency also determined that Complainant failed to show reprisal discrimination. To this end, the Agency provided legitimate, nondiscriminatory reasons for each of Complainant's enumerated claims. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant argues that the Agency erred in the conclusions set forth in the FAD that there was no evidence that management's reasons for its actions were false or unworthy and that there was no evidence in the record supporting her claims. In response, the Agency argues that the FAD should be affirmed. 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 Chap. 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 careful review of the record, we find that the Agency FAD accurately recounted the relevant facts. The final decision also correctly identified the legal standard for Complainant to prove that she was subjected to sex and reprisal discrimination. 2022000019 3 Concerning her allegations of disparate treatment discrimination, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they 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. 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. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Both on appeal and in the FAD, the Agency has considered all of the circumstances and found that there was no discriminatory intent regarding Complainant’s treatment. The record does not show that Complainant was subject to discrimination, nor is there additional evidence on appeal which would support such a contention. The Commission reiterates that Complainant bears the burden, at all times, to prove the Agency's actions were due to discriminatory animus. Rather, the Commission is an impartial arbiter of the facts held within the file. Upon review of the file, we have found no reason to invalidate the findings in the FAD. In Complainant's appeal, she has merely speculated as to discriminatory intent on the part of management but has not provided evidence of discriminatory bias. Although Complainant contends that her leave request was rescinded due to discrimination, the Agency's legitimate nondiscriminatory reason continues to hold weight: namely, the Agency clarified that while Complainant's weather-related leave was initially approved, in retrospect it was determined that as Complainant was approved for teleworking, she was not eligible for weather related leave. Complainant has not shown his behavior to be pretextual. Regarding retaliation, Complainant argues that the Agency failed to consider the temporal proximity of the events to Complainant's prior protected activity. Despite these arguments, the record indicates that the Agency had legitimate, nondiscriminatory reasons for the comments in Complainant's FY2020 work plan as well as for her rating of “excellent.” The Agency also provided that Complainant was required to provide updates to her supervisor. Complainant reported that this was belittling in her view, however, she has not provided evidence which would suggest that the requirement was discriminatory. Finally, the record indicates that Complainant's spouse was the officer on duty on the date that the COVID-19 positive detainee needed to be moved. Complainant has not provided conflicting evidence. Based on a thorough review of the record and considering all arguments on appeal, we find that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2022000019 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). 2022000019 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 January 26, 2023 Date