U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daisy W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2020002360 Hearing No. 440-2018-00255X Agency No. HS-CIS-01051-2017 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 7, 2020, 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 an Immigration Officer (IO), GS-1801-13, at the Agency’s Chicago Field Office's Fraud Detection and National Security Unit (FDNS) facility in Chicago, Illinois. During the relevant time, Complainant applied for two Supervisory Immigration Officer (Supervisory IO) positions. Complainant declined an interview for one of the vacancies and was not selected for the second vacancy. Complainant alleged Agency management harassed him and discriminatorily issued him a negative performance review and denied telework requests. 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. 2020002360 2 On March 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to a hostile work environment on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when, from November 16, 2016, through October 2017: 1. Management caused Complainant to decline her opportunity to interview for a position as Supervisory IO, under Vacancy Announcement (VA) CIS-1865163- D14-FDS, because a member of the interview panel had previously discriminated against her. 2. A Supervisory IO had divulged a conversation with Complainant to another Supervisory IO. 3. Management denied Complainant's request for an additional telework day. 4. USCIS notified Complainant that she was not selected for the Supervisory IO position under VA CIS-1605263-D14-FDS.2 5. Management required a meeting with Complainant before and after each telework day. 6. Management limited communications between Officers. 7. Management threatened Complainant with a write-up for insubordination. 8. Management issued Complainant negative comments in a progress review related to her performance. 9. Management removed Complainant from all collateral duties. 10. Management delayed the review of Complainant's work, and unfairly criticized her work to delay the timelines on her cases. 11. Management issued Complainant a negative 2017 Performance Plan and Appraisal. 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 requested a hearing but subsequently withdrew her request. At Complainant’s request, the AJ dismissed her complaint from the hearings unit and remanded the complaint to the Agency for issuance of a final agency decision. On January 7, 2020, 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 her to discrimination or harassment as alleged. Complainant filed the instant appeal. 2 The Agency dismissed Claim 4 as a discrete act for untimely EEO Counselor contact. The Agency noted in the final decision that Claim 4 was analyzed as a part of Complainant's hostile work environment allegation. Complainant does not challenge the dismissal of Claim 4 as a discrete act on appeal and we shall therefore not address that dismissal. 2020002360 3 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”). Complainant failed to provide any evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. With regard to Claims 1 and 2, the Agency articulated that after a member of the interview panel was unable to continue with the interview process due to jury duty, another Agency employee served as a replacement. Complainant declined to interview for the position upon learning that the replacement was a part of the panel. Complainant provided no evidence of discriminatory animus or evidence to establish pretext with regard to Claim 1 or 2. As to Claim 4, the record established Complainant was not the best candidate in the pool of applicants. Complainant failed to provide any evidence that the Agency’s decision not to select her was based on her protected status or that she was demonstrably the superior candidate. With regard to Claims 3 and 5, management reviewed Complainant's January 2017 request to telework an additional day, along with the requests of two other coworkers to do the same. Complainant’s request, and the requests of all other Chicago Field Office employees, were denied because of the Agency’s stated need for consistent in-office staffing for conducting site- visits in pairs. Moreover, the May 2017 policy that required employees to discuss, on the day prior to their scheduled telework day, what planned cases and work projects would be completed while teleworking applied to all teleworking IOs, not just Complainant. With regard to Claims 6-11 alleging harassment in the workplace, Complainant failed to provide any evidence that the Agency’s actions were based on discriminatory animus. In an April 2017 staff meeting, the FDNS Chief requested that IOs restrict their conversations with one another to no longer than 30 minutes, because his responsibility was to ensure that duty time would be used for mission-related purposes (Claim 6). This policy was instituted for all IOs staff, not just Complainant. In May 2017, Complainant’s supervisor, a Supervisory IO, inquired whether Complainant refused to assist a fellow employee in executing Complainant’s duties as Point-of-Contact (POC) for Letterhead Memorandum (LHM), which was a responsibility that the FDNS Chief had assigned her (Claim 7). Complainant denied refusing to assist another employee but protested to Supervisory IO regarding her role as POC and told Supervisory IO that she had promised Complainant that Complainant would be removed from that duty. 2020002360 4 Supervisory IO informed Complainant that Complainant's protest about her responsibility might rise to the level of insubordination. Complainant provided no evidence this conversation about her duties or potential insubordination was related to her protected status. With regard to Claims 9 and 10, Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for reviewing her work and removing some of her duties. FDNS Chief stated after Complainant repeatedly complained about her collateral duties taking up too much of her time, FDNS Chief reviewed her assigned collateral duties and determined they were episodic and by no means full-time or so work intensive that they affected her regular work. However, FDNS Chief decided to remove these duties after Complainant complained and he did not want these duties to be the excuse for Complainant not completing her regular duties or impacting her performance. It was at Complainant’s request that these collateral duties were reassigned. With regard to management reviewing her work, the record establishes that contrary to Complainant’s assertion, it was Complainant who fell behind on her work and submitted work with errors. When asked to correct her work, Complainant took much longer than necessary or what was typical for her. For Claims 8 and 11 regarding her performance review, Complainant failed to provide any evidence of discriminatory animus on the part of Agency officials in charge of her performance review. In July 2017, Supervisory IO met with Complainant and detailed her progress review of her work. The progress review indicated areas where Complainant’s work needed improvement. Complainant argues she was reviewed negatively based on her performance of collateral duties. Contrary to Complainant’s assertion that she was issued a negative 2017 Performance Plan and Appraisal, Supervisory IO stated Complainant was issued “Achieved Expectations” which was a rating reflecting Complainant’s annual performance and not a negative rating. Supervisory IO detailed how when she met with Complainant in July 2017, she was doing well, but her performance started to decline thereafter. FDNS Chief stated that he reviewed Supervisory IO's assessment of Complainant's performance and agreed that Supervisory IO's assessment of Complainant's job performance was accurately reflected in the rating Complainant received. We find that there is no indication that the progress review or appraisal were motivated by discrimination. Looking at the complaint as one complaint of harassment, we find that the alleged conduct did not amount to a discriminatory hostile work environment and we find no evidence that the alleged harassment was motivated by discrimination. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or harassment occurred. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 2020002360 5 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). 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. 2020002360 6 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 May 19, 2021 Date