U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hedy B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020002188 Agency No. HS-FEMA-24920-2015 DECISION On January 22, 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 20, 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 The issue presented is whether the Agency properly determined that Complainant did not establish that the Agency had discriminated against her based on her race, sex, and prior protected EEO activity as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Reservist- Mitigation, Level/Grade E3, at the Agency’s Regional and Disaster Support Branch in Arlington, Virginia. 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. 2020002188 2 On November 5, 2015, 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 under Title VII of the Civil Rights Act of 1964 when: 1. from 2012-2015, Complainant attempted to participate in mediation, but the Agency deployed Complainant, and subsequently canceled Complainant’s attempts to mediate and bring issues to closure; 2. on May 3, 2013, management charged Complainant with “Loss of Requirement of Position,” as a result of Agency Personnel Security having determined that Complainant failed to pass her required background investigation and having adjudicated Complainant unfit for her public trust position as a Reservist; and 3. on May 28, 2015, the Reservist Program Manager issued Complainant a Notice of Termination of Appointment due to Complainant’s inability to meet one or more requirements of her position. The Agency dismissed Claims 1 and 2 but accepted Claim 3 for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI). Because Complainant withdrew her request for a hearing, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant had not proven that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Brief, among other things, Complainant asserts that the Agency delayed investigation into her complaint and that the Agency failed to timely issue a FAD. Complainant indicates that the Agency’s action has prejudiced Complainant, undermined the Commission’s ability to address unlawful discrimination, and harmed the integrity of the EEO process. Complainant requests that judgment be entered in her favor as a sanction for the Agency’s actions. The Agency did not submit an Appeal Brief. 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 (EEO MD-110), 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 2020002188 3 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Allegation of Improper Complaint Processing We note, on appeal, Complainant’s assertions that a default judgment should be entered in her favor as a sanction against the Agency for improperly processing her complaint. EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. Here, we find that the Agency failed to comply with the Commission’s regulations. In this case, the record indicates that the Agency was 548 days past the regulatory deadline to complete the investigation and provide the ROI to Complainant. Complainant requested a hearing on the matter and the Agency provided the record to the AJ. Complainant subsequently withdrew her hearing request on December 11, 2017. The AJ remanded the matter back to the Agency to issue a final decision on June 21, 2019. Following the remand of the matter, on August 21, 2019, the Agency determined that the matter required a supplemental investigation. The supplemental investigation was concluded on November 7, 2019, and the Agency issued its final decision on December 20, 2019. Although the Agency failed to timely issue its FAD, and to timely process the matter as required by regulation, we find that the Agency did not act in a manner to warrant a default judgment sanction. See, e.g., Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)); Anthony M. v. Dep’t of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020). 2020002188 4 With respect to Complainant’s request that the Commission sanction the Agency because of the length of time that it took to issue a complete final decision in this case, we decline. As noted above, the Agency determined that a supplemental investigation was required prior to issuance of its final decision. While we will not impose a sanction in the present case because we do not find that the delay in issuance of the Agency decision prejudiced Complainant’s case or resulted in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. Beatrice B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001641 (Sept. 17, 2020) (declining to issue a sanction where following a supplemental investigation, the Agency delayed in issuing a final decision for over eight months). As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decisions. Disparate Treatment - Claim 3 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). With respect to Claim 3, we find that management articulated legitimate, nondiscriminatory reasons for terminating Complainant’s appointment. The record indicated that Complainant was terminated due to an unsuitability determination made by the Office of the Chief Security Officer. 2020002188 5 The record indicates that the Agency made this determination due to information regarding Complainant’s financial credit history and a lack of response by Complainant to the Agency’s inquiry. The information reflected two outstanding delinquent financial obligations in amounts which exceeded the Agency’s financial threshold. Finding that the Agency has provided its legitimate, nondiscriminatory reason for its termination action, we turn to Complainant to establish that the Agency’s reason was pretext. Complainant argued that she provided sufficient information explaining the two delinquent financial obligations. However, the record is devoid of any evidence indicating that Complainant provided the requested information or any supporting documents to the Agency. Therefore, we find that Complainant failed to demonstrate that the Agency’s reason for her termination was pretext for discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as she alleged. 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 2020002188 6 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. 2020002188 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 September 23, 2021 Date
