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

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2021002673 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2021002673 Agency No. HS-HQ-00855-2020 DECISION On April 5, 2021, 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 March 30, 2021 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 with XTec, Incorporated, a private firm which provided services to the Agency at its Headquarters in Washington, D.C. Complainant worked as a Project Manager within the company’s Government Initiatives Division. On February 28, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (American), sex (female), and color (Dark Brown) when: 1. on an unspecified date, the Director, National Security Services Division (Director) criticized Complainant and repeatedly inquired about JIRA (an item-tracking 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. 2021002673 2 software) assignment updates, a promotion ceremony, and Complainant not speaking to him in the hallway; and 2. on January 16, 2020, Director terminated Complainant’s employment from her contract position as an Administrative Assistant or Project Manager. In support of Claim (1), Complainant claimed that the Director asked her to provide updates on his staff assignments from JIRA, and she provided the updates three times a week. However, Complainant alleged the Director harassed her by repeatedly asking her how many people would attend a deputy’s promotion ceremony even after she said she did not know. Complainant also referenced a morning incident when she passed by the Director in the hallway and nodded her head to say hello, but the Director accused her of not acknowledging him. Complainant argued that she was discriminated against because she was the only black female Project Manager and that there is a stereotype “that blacks are lazy and dumb.” Complainant “know[s] this is the reason why [the Director and others] targeted me.” In response, the Director denied that he or anyone else subjected Complainant to harassment. Rather, the Director attested that he received multiple negative comments regarding Complainant’s work performance and that the Director’s supervisor asked that the contractor provide a different employee. The Director acknowledged the morning incident and explained that he had said “good morning” to Complainant, but she did not respond and only smiled and kept walking. The Director told Complainant that it was appropriate to respond to coworkers when they talk with her, and Complainant said “good morning.” The parties continued on their way. The record contains affidavits from other employees in which they all deny that Complainant was subjected to harassment. In Claim (2), Complainant alleged that the Director gave her no reason for termination other than “it just wasn’t working.” Complainant argued that the Director’s reason was unprofessional and not work related. Complainant reiterated that she believes that she was terminated because the Agency thinks she is “a dumb lazy black American female.” The Director acknowledged having several discussions with XTec management about work Complainant needed to complete but insisted that Complainant’s employment status was between her and XTec. A Supervisory Security Specialist (CW1) worked alongside Complainant and asserted that he saw nothing out of the ordinary with respect to the Director’s treatment of Complainant. CW1 noted that the Director was having difficulty getting information from Complainant and sought to assist. However, CW1 was also unable to help. CW1 noted that tasks “assigned to her were constantly unacceptable and had to be reworked.” CW1 eventually stopped asking Complainant to perform tasks. 2021002673 3 A supervisor from XTec worked onsite at the Agency as Complainant’s first-line supervisor (S1). S1 received comments from Complainant and the Director and observed that the situation appeared to be that of “a supervisor struggling with a subordinate that didn’t understand the tasks being provided.” S1 said that once Complainant was unable to perform the duties as requested, the Agency notified XTec that they no longer needed Complainant’s support. XTec had no other work for Complainant, so her employment was terminated. The record contains an affidavit from another Program Analyst, who asserted that Complainant was not proficient in her job. The Director’s supervisor, the Executive Director, stated that she observed Complainant conducting personal business on her computer while on duty. 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). In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant submitted over a dozen statements on appeal, some within the 30-day filing period prescribed by our regulations. Complainant argued, among other things, that the Agency failed to follow protocol in addressing her work performance and removal. Further, Complainant contends that several documents are missing from the record. Complainant also raises additional events that she considers to be illegal. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). As an initial matter, we note that Complainant claimed on appeal that several relevant documents are missing from the record. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. We note that Complainant chose not to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. The Commission determines that the investigation was properly and adequately conducted. 2021002673 4 Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant 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. Corp. 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, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, non-discriminatory reasons for Complainant’s termination in that she was not performing the work as requested, and her performance was substandard. The Director cited numerous comments from supervisors, co-workers, and others who reported that Complainant was not following instructions, had trouble completing tasks correctly, and was not responsive to training. As a result, Agency management recommended the contractor provide a different individual to provide support. The contractor subsequently terminated Complainant’s employment because it did not have another position for her. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a claim of discriminatory harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work 2021002673 5 environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. At most, Complainant provides her personal speculation that stereotypes played a role in the Agency’s actions, but Complainant provides no further evidence and we can discern none. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. As a result, the Commission finds Complainant has not shown she was subjected a discriminatory hostile work environment. 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). 2021002673 6 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. 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. 2021002673 7 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 28, 2022 Date