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

Equal Employment Opportunity Commission

Apr 12, 2022

Appeal No. 2021005275 (E.E.O.C. Apr. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fred Z.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2021005275 Hearing No. 570-2021-00223X Agency No. HS-ICE-01706-2018 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 26, 2021 final order concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS- 13-08, at the U.S. Embassy in Mexico City, Mexico. Complainant claimed that on March 22, 2018, he received an email from his supervisor (S1) who requested that he call him. The email was part of an email chain concerning several people who had expressed interest in submitting information to Headquarters/International Operations regarding the Deputy Attaché’s (S2) performance. Complainant stated that when he called S1, S1 asked if he received a request to generate a letter on behalf of S2 and Complainant responded that he had. Complainant testified that S1 informed him that it would not be a good idea for him to sign that letter. 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. 2021005275 2 Complainant claimed that since he was attempting to rotate back to the United States from Mexico and had submitted his top five picks for offices to return to, he felt that it might not fare well for him if he were to sign that letter. Complainant stated that he told S1 that the letter was nothing more than an attempt to demonstrate to International Operations the work that had been accomplished by S2. Complainant affirmed that S1 stated that he understood, but then again informed him that it would not be beneficial for him at that point of ending his five-year tour in Mexico and trying to make it back to one of those top five locations, if he took part in that effort. Complainant testified that he took S1’s statement as a threat regarding his rotation back to the United States. Complainant claimed that he was never clear on the various policies pertaining to rotating back to the United States. Complainant alleged that this lack of clear policy allowed management to define it as they wished with no justification for decisions. Complainant claimed that the process allowed for the manipulation of an employee as demonstrated in communications between him and management. S1 affirmed that he was not involved in the rotation process and deferred to the Agency’s policy and the International Operations management for how the rotation was handled. S1 asserted he did not warn Complainant about the rotation process and his conversation with Complainant centered on the letter of support, which he had not seen nor had any knowledge as to who wrote the letter. Complainant claimed that S1’s statement that it would not be beneficial for him to provide a statement regarding S2’s performance was reinforced by Unit Chief who told him not to “make any waves.” Complainant claimed that he was harmed when agents with less time in country were scheduled to leave before him and were provided personnel notifications of their reassignment verbally by management and he was the last Agent to be notified. The Union Chief denied telling Complainant to not make any waves; rather, he was only aware that agents were given the opportunity to list preferred office locations and that to his understanding, Complainant was placed in a location that he requested. Complainant was provided the date of on or around July 6, 2018, for his transfer to the United States. Complainant claimed that he was informed on March 26, 2018, that he was ineligible to retest for GS-14 promotion. The Unit Chief, Strategic Initiatives stated she explained to Complainant that he had last taken the test in July 2017 and that he was not eligible to retest due to the one-year retest policy. On April 17, 2018, Complainant was interviewed as part of a managerial inquiry. Complainant claimed that this was part of the hostile work environment that existed as part of S1’s threat toward him. S1 denied any knowledge of Complainant being subjected to a managerial inquiry. The Assistant Special Agent-in-Charge stated that Complainant was not the subject of the management inquiry and that Complainant was interviewed as a witness to the events subject to the management inquiry. 2021005275 3 Complainant claimed that on May 7, 2018, he received an email from the Supervisory Special Agent (SSA), in which SSA informed him that it had come to his attention that S1 was intending to counsel him regarding leave abuse. Complainant testified, however, that the counseling never occurred. S1 affirmed that Complainant was not counseled or scheduled to be counseled by him regarding abuse of leave. On August 3, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Caucasian), national origin (Polish), and age (44) when: 1. on March 22, 2018, Complainant felt threatened about his rotation back to the United States; 2. on March 26, 2018, agents who had lesser time than Complainant were scheduled to leave for their reassignments prior to Complainant; 3. on March 26, 2018, Complainant became aware he could not take the GS-14 test; 4. on April 17, 2018, Complainant was interviewed as part of a management inquiry; and 5. on May 7, 2018, Complainant became aware he was going to be counseled about abuse of leave. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ found that Agency management articulated legitimate, nondiscriminatory reasons for its actions. For example, with respect to claim (2), although Complainant alleged that agents who had lesser time than him were scheduled to leave for their reassignments before him, he failed to provide specific evidence identifying the agents who were treated more favorably, a description of the reassignments they were granted, and the approximate dates of occurrence. As to claim (3), Agency management explained that Complainant was not allowed to take the GS-14 promotion test because he took the test in July 2017 and was not eligible to retake the test until July 2018 due to the Agency’s one-year policy. For all remaining claims, the AJ found that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 2021005275 4 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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 has 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 in Complainant’s favor. Complainant failed to demonstrate that the Agency officials in this matter harbored discriminatory or retaliatory animus or that the legitimate, nondiscriminatory reasons provided by the officials were pretext for unlawful discrimination or reprisal. Furthermore, the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. The evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, managerial discipline, and general workplace disputes and tribulations. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021005275 5 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. 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. 2021005275 6 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 April 12, 2022 Date