U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estelle H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020002315 Agency No. HS-ICE-02576-2017 DECISION On January 24, 2020, 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 December 30, 2019, 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. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against based on race, sex, and retaliation as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Intelligence Research Specialist (Reports Officer), GS-0132-13 at the Agency’s Homeland Security Investigations (HSI) facility in Washington, District of Columbia. On December 20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity 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. 2020002315 2 under Title VII of the Civil Rights Act of 1964 when on August 16, 2017, Complainant was told she would not be receiving a promotion to the next grade level (GS-14). Complainant indicated that her promotion was delayed in the fiscal year at issue, alleging that she should have been promoted because it was time for her annual promotion. Complainant alleged that her supervisor, the Assistant Section Chief (ASC) told her that he did not believe that Complainant was ready to be a GS-14. Complainant also alleged that ASC provided no further information about the delayed promotion. Complainant asserted her disagreement with ASC’s assessment, arguing that she performed all required work to the level of other GS-14 personnel in the section. Complainant alleged that her sex and race were factors in her delayed promotion because the section was predominantly composed of Caucasian males. Complainant asserted that she was unaware of any other specific employees who were treated more favorably. Complainant however identified another employee (E1), a Caucasian male, who had received a promotion when Complainant had not. Complainant also acknowledged that she subsequently received a promotion to GS-14. ASC acknowledged that Complainant was eligible for a promotion on August 6, 2017. ASC however remarked that Complainant had a history of poor work performance and conduct issues. ASC also noted that Complainant had falsely claimed overtime on one of her timecards and subsequently had her access to classified systems suspended for that conduct. ASC added that Complainant’s inability to access the systems made her unable to perform the duties listed in her position description until July 2017, about one month before the August 2017 alleged promotion delay. ASC stated that he also personally observed and documented multiple conduct issues throughout the performance period, such as Complainant not responding to assignments; Complainant’s tardiness; and Complainant not executing her assigned duties. ASC remarked that a totality of these factors resulted in Complainant’s failure to faithfully execute the duties that would be required of her at the GS-14 level, indicating that this was the reason for Complainant’s delayed promotion. ASC maintained that Complainant’s protected classes were not factors in Complainant’s delayed promotion. ASC also acknowledged that E1 had received a promotion, noting that E1 was a high performer. In rebuttal, Complainant stated that ASC made inaccurate statements about her being tardy, about her performance, and about some of her conduct. Complainant also stated that ASC thought of her as marginalized because she is an African American female. Complainant refuted ASC’s statement that he lacked confidence in her ability, stating that there was no reason for ASC’s lack of confidence in her ability other than that Complainant is a black female and he is a white male. 2020002315 3 Documentary evidence includes an Employee Performance Plan and Appraisal Forms for the Performance Appraisal Period October 1, 2016, to September 30, 2017, for E1 (signed by E1’s identified rating official/supervisor who is not ASC) showing a rating of 4.13 - Exceeded Expectations on E1’s Performance Appraisal Rating Summary and Calculation Sheet. Also included is Performance Appraisal Rating (signed by Complainant’s identified rating official/supervisor, ASC) showing that Complainant was rated 3, Achieved Expectations. The record contains documentation from ASC detailing Complainant's misconduct since 2016, including two counseling’s by ASC: one for failure to perform prescribed duties in November 2016, and one for failure to follow orders in March and April 2017. Also included in the record is an updated Performance Work Plan (PWP) in which ASC states that Complainant had only been working approximately two weeks (prior to August 2017) because her access to classified systems had been suspended. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Statements, among other things, Complainant asserts her belief that the Agency erred in concluding that no discrimination was found, indicating that the finding was based on falsified facts. Complainant asserts that she timely completed all assigned tasks; that she followed all instructions; and that she was a high performer. Complainant also asserts that she worked in a predominantly male environment, indicating that the Agency’s failure to hire more than two females, systemic racism, and her prior EEO filing were the bases for her non- promotion. In its Appeal Brief, among other things, the Agency reasserts explanations for its decision that no discrimination occurred. The Agency requests that the Commission affirm its FAD. STANDARD OF REVIEW 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”). 2020002315 4 ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s delayed promotion. ASC explained, and the record reflects, that Complainant was not promoted due to performance and conduct issues which impacted Complainant’s ability to meet the required performance at Complainant’s desired GS-14 level. In an effort to show pretext, Complainant identified E1, asserting that E1 had received a promotion when she was not. However, E1 is not similarly situated to Complainant. To be "similarly situated," the employee with whom the Complainant seeks to compare herself must have reported to the same supervisor, been subject to the same standards governing discipline, and engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it. See Dfelio v. Soc. Sec. Admin., EEOC Appeal. No. 0320120013, (Jun. 5, 2012) (citing Jones v. Dep’t of the Interior, EEOC Appeal No. 05950175 (Jun. 7, 1996)). Here, E1 performed at a higher level than Complainant; nothing in the record indicates that E1 had performance and conduct issues; Complainant’s performance appraisal showed that she was not a high performer like E1; and the record reflects that both employees had different supervisors. Therefore, E1 is not a proper comparator Complainant also contested the FAD, indicating that its determination was erroneously based on alleged falsified testimony provided by ASC. However, Complainant failed to present any evidence to support this information; and the record contains documentary evidence that corroborates ASC’s testimony. Complainant also failed to present any evidence to support her contentions on appeal indicating that she was not promoted due to the Agency’s failure to hire more than two females, systemic racism, and her prior EEO filing. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. 2020002315 5 We note Complainant’s remaining contentions on appeal. However, because Complainant did not request a hearing or avail herself of the discovery process which would have allowed for an examination of the credibility or lack thereof of ASC’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us. We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence that discrimination occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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). 2020002315 6 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 July 14, 2021 Date
