U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edgardo D.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Executive Office for Immigration Review (EOIR)), Agency. Appeal No. 2020003893 Hearing No. 510-2018-00017X Agency Nos. EOI-2016-00059 & EOI 2016-00061 DECISION On June 24, 2020, Complainant prematurely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a June 3, 2020 EEOC Administrative Judge’s (AJ) decision on his joined equal employment opportunity (EEO) complaints of 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal was perfected when the Agency adopted the AJ’s decision in its July 9, 2020 final order. 29 C.F.R. § 1614.403(a). BACKGROUND Complainant was employed by the Agency as a Legal Assistant (Court), GS-0986-08, at the Orlando Immigration Court in Orlando, Florida. On November 3, 2015, Complainant filed EEO complaint EOI-2016-00059 (“Complaint 1”) alleging that the Agency subjected him to discrimination and a hostile work environment based 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. 2020003893 2 on his race (African-American), sex (male), and reprisal (prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act) when on October 22, 2015: • He got a mid-year review by his first line supervisor (“S1” - Hispanic, female, Supervisory Legal Assistant) that negatively and falsely characterized his professionalism and customer service with a list of untrue and twisted distortions; and • He was not permitted to give evidence refuting the mid-year review. On November 5, 2015, Complainant filed EEO complaint EOI-2016-00061 (“Complaint 2”) alleging he was subjected to discrimination and a hostile work environment on the above bases and age (49) when on October 22, 2015: • He got his mid-year review in a conference room rather than in S1’s office; • His second line supervisor (“S2” - Caucasian, male, Court Administrator) was present in the conference room. Following separate EEO investigations on Complaints 1 and 2, Complainant requested a hearing on each before an EEOC Administrative Judge (AJ), and they were later joined. The Agency filed a motion for summary judgement, which Complainant opposed. The AJ granted the motion and found no discrimination without a hearing, and the Agency adopted this decision in its final order. The instant appeal followed the AJ’s decision. In the mid-term review, S1 assessed Complainant’s performance as “at a successful level or higher.” Complainant contended he unfairly did not receive a rating of Excellent or Outstanding. The AJ found it uncontroverted that EOIR employees do not receive a rating of record at their mid-year review. In the narrative portion of Complainant’s mid-year review, S1 wrote for the critical performance element of “Customer Service” that he needed to communicate with attorneys and return telephone calls, for the critical performance element of “Establish, Update, Maintain and Process Record of Proceedings and Case Records” he needed to keep up with motions - not hold them, and not sign nor let orders sit overnight on his desk, and for the critical element of “Legal and Technical Support” he needed to be a team player by limiting his cell phone and internet usage. S1 also wrote that Complainant should continue his hard work and continue to strive for excellence. The AJ found that Complainant only contested the assessment of his Customer Service. In support his claim that the mid-year review was falsely critical, Complainant pointed to a September 2015 letter by a defendant to an immigration judge complimenting her handling of his case for nearly five years, and expressing, without a name, his “thankfulness… to your direct assistant, who was always very friendly and correct in handling my affairs.” 2020003893 3 Complainant started assisting this judge in June 2014, when he was hired by EOIR. He alleged that on October 22, 2015, S2 refused to accept this letter, explaining it “failed… as creditable” evidence. Report of Investigation (ROI) Complaint 1, Bates No. 10 (EEO complaint) and Bates Nos. 90 - 91, at ¶¶ 24 - 27 (Complainant’s affidavit). The AJ found assuming Complainant tried to submit this letter, it would not have changed his rating since none is given at the mid-year review, nor refuted he needed to better communicate with attorneys and return telephone calls since it only concerned his interaction with a defendant in court. Mid-year reviews are typically given in a first line supervisor’s office. Complainant’s mid-year review was in a lower conference room away from his peers and others, giving privacy. Complainant acknowledged the conference room gave privacy. The AJ found that management choose the conference room to assure privacy, not to harass or discriminate. Typically, mid-year reviews are given with only the evaluator (S1) and person receiving it present. The AJ found that S2 was present because he had a responsibility to closely monitor things between Complainant and S1 since Complainant’s misconduct with S1 was abusive and caustic, and his disciplinary issues. In his rebuttal investigatory affidavit, made after reviewing S1, S2, and a third management official’s affidavits, Complainant countered these affidavits had lies and inconsistent statements. The AJ found this did not rebut S1 and S2’s explanations for why S2 was present at the mid-year review.2 On appeal, Complainant argues that S2 admitted treating him differently. He cites portions of S2’s investigatory affidavit that acknowledges reviews are normally done in the evaluator’s office with only the evaluator (S1) and person being evaluated present, and Complainant got different treatment on these things. Complainant “respectfully questions” whether there can be equal justice where Agency counsel and the AJ are white. He argues there are genuine issues of material fact entitling him to a hearing, citing, for example, S2’s admission that he was treated differently. In reply, the Agency argues its final order should be affirmed. 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. 2 We take administrative notice that Complainant was removed on May 14, 2016, for improper conduct. The charge had eight specifications that occurred from about February 2016 to April 7, 2016, all or most of which concerned Complainant’s inappropriate behavior toward S1 including mocking her, laughing at her in a condescending manner, and once blocking her in a hallway. After a hearing, the Merit Systems Protection Board (MSPB) made an initial decision on May 15, 2018, sustaining the charge, upholding all eight specifications, and affirming Complainant’s termination. MSPB No. AT-0752-17-0123-I-1. 2018 WL 2307245. Complainant filed a petition to review with the Board, which is still pending. 2020003893 4 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). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. To prevail on his disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., OLC Control #EEOC-CVG-1194-5 (Mar. 8, 1994). 2020003893 5 We agree, for the reasons found by the AJ, that the Agency took all its actions for the reasons it gave, not because of Complainant’s race, sex, age, or reprisal for prior EEO activity. We add that Complainant’s previous position was as a Legal Assistant, GS-07, with the Agency’s U.S. Attorney’s Office for the Southern District of Florida. S1 interviewed Complainant, stated she learned his race and sex then, and recommended or made the decision to hire him in June 2014. S2 also interviewed Complainant. ROI Complaint 1, Bates No. 114 (S1 affidavit at ¶¶ 9, 11 and Bates No. 111 (S2 supplemental affidavit). This makes it less likely that S1 would later discriminate against him based on his race and sex. Also, other than the mid-year review itself, the allegations in Complainant’s complaints are so mild it is unlikely they were intended to be negative or hurtful. The Agency’s final order is AFFIRMED. 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. 2020003893 6 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. 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 March 3, 2022 Date
