U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gia M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security (DHS Citizenship and Immigration Services), Agency. Appeal No. 2019005527 Agency No. HS-CIS-00952-2018 DECISION On August 7, 2019, 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 July 2, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Officer, GS-9, at the Agency’s U.S. Citizenship and Immigration Services (USCIS) at the Nebraska Service Center in Lincoln, Nebraska. On March 19, 2018, Complainant filed an EEO complaint alleging that she was subjected to discriminatory harassment by her supervisor on the bases of her sex (female/sexual orientation) and disabilities (diabetes, kidney disease and vision impairment) from November 2, 2017 to January 31, 2018. In support of her harassment this claim, Complainant raised the following allegations: 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. 2019005527 2 1. the Supervisory Immigration Services Officer (SISO-1) returned Complainant’s cases for correction and brought up some issues about her work in their monthly one-on-one meeting; 2. SISO-1 raised her voice and showed anger towards Complainant; 3. on December 12, 2017, SISO-1 greeted Complainant with “Hi, Miss Thing;” and 4. the Associate Center Director denied Complainant’s request to be reassigned to another supervisor. The Agency accepted the complaint and conducted an investigation. In summary, the evidence developed during that investigation shows the following facts. Complainant described herself as a 60-year-old white gay female, who was physically disabled. Complainant had worked for the Agency for more than eighteen years. She asserted she had enjoyed a good working relationship with her previous supervisors and management. On October 29, 2017, she was assigned a new supervisor. Complainant named this new supervisor, the Supervisory Immigration Service Officer (“SISO-1”) (female, heterosexual) as the official who was harassing her. Complainant’s second-level supervisor was the Section Chief (female, heterosexual) and third-level supervisor was the Associate Center Director (female, heterosexual). Complainant stated that her problems with the new supervisor began on day one, within hours of the new supervisor meeting Complainant. Complainant says the SISO-1, “nitpicked at issues and returned cases for unnecessary corrections.” SISO-1 averred that she returned work that she thought needed revision. The record does not show any adverse personnel actions or any negative references in her work record due to the returned work. On November 20, 2017, SISO-1 twice returned a final revocation decision to Complainant. After Complainant resubmitted it, SISO-1 noted that Complainant did not analyze the evidence or address the fraud findings. Complainant disagreed. After the first month, Complainant went to the Section Chief to complain about her treatment and showed the Section Chief the notes and files on her work, but Complainant believed that “nothing changed.” The Section Chief spoke to SISO-1 about improving her relationship with Complainant. Two weeks later, on December 12, 2017, at the end of her shift, SISO-1 walked up to Complainant and said, “Hello, Miss Thing.” SISO-1 acknowledged that she greeted Complainant as alleged, but she averred she corrected herself once she sensed she “was being overly familiar.” Complainant stated that she “called her out” and the supervisor retracted her words. The next day, Complainant went to the Section Chief and told her things were worse since their previous discussion. On December 13, 2017, the Section Chief emailed the Associate Center Director to inform her that Complainant had spoken to her and was upset. 2019005527 3 Complainant explained that SISO-1 offended her and “things weren’t any better.” She told the Associate Center Director that Complainant asked to move to another team or leave the unit. The Associate Center Director denied Complainant’s request to leave the unit. The Associate Center Director said she believed that Complainant and SOSI-1 could reconcile their differences. She also stated there was a policy not to move employees based on personality conflicts. However, in March 2018, Complainant was assigned to a different team. Complainant subsequently applied for an early medical retirement from her position. 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’s decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency reasoned that management articulated a legitimate nondiscriminatory reason for its actions. The supervisor made changes that she thought were required to protect the quality of the work. The Associate Center Director denied Complainant’s request for reassignment. The Associate Center Director stated that after reviewing the concerns and discussing the matter with the Section Chief and others, she made the decision not to reassign Complainant. She stated that she generally does not reassign employees for issues with their supervisor and was confident that both Complainant and SISO-1 could work out their issues in time. The Agency concluded that Complainant had not shown the reasons to be pretext masking discrimination. This appeal followed. On appeal, Complainant contends that SOSO-1’s changes to her work product were unwarranted and cited the fact that sometimes management agreed with Complainant that some of the changes were unnecessary. She stated that “after all her years, one person destroyed it all.” She claimed the Agency failed to protect her against all of this happening. In response, the Agency states that incidents did not raise to the level of harassment and there was no evidence of an adverse action being taken against Complainant. 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 2019005527 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex, sexual orientation or disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). We will assume for purposes of our analysis that Complainant is a qualified individual with a disability and that Agency management was aware of Complainant’s sex and disabilities, when the events at issue occurred. The management officials, however, deny any knowledge of Complainant’s sexual orientation. We find that the responsible management officials articulated legitimate reasons for the disputed actions. The supervisor was responsible for assuring the quality of the work and made the changes that she deemed warranted. The record shows the supervisor was also critical of the work of other employees not in Complainant’s protected groups. The Section Chief also counseled the new supervisor regarding improving her relationship with Complainant. Complainant’s request to be reassigned was denied because the Associate Center Director believed that SISO-1 and Complainant would be able to work out their differences and it was her policy not to move employees where there were personality conflicts. In this case, Complainant cannot prevail in her claim of discriminatory harassment because she has failed to produce evidence to establish that her sex, sexual orientation or disability played any role whatsoever in the disputed events. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record does not show that the disputed actions were sufficiently severe or pervasive to establish a hostile work environment in violation of Title VII. We recognize that the term “Miss Thing” may carry negative connotations, but in the context of the facts of this case, we do not find that the single utterance is sufficient to prove unlawful discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 2019005527 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). 2019005527 6 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 April 19, 2021 Date
