U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2021000525 Agency No. HS-CIS-01848-2018 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated August 13, 2020, finding no discrimination concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Immigration Service Officer (SISO), GS-13, at the Agency’s Texas Service Center in Dallas, Texas. On July 25, 2018, Complainant filed her complaint alleging a hostile work environment based on race (Black), color (dark), sex (female), age (over 40), and disability when: 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. 2021000525 2 From January 1, 2018, to May 7, 2018, she was subjected to harassment when an identified SISO (her colleague (C1)) raised his voice, used vulgar language, pointed in her face, arched his shoulders while yelling as if he was about to hit her, made disparaging remarks about her abilities while stating that he is superior because he is Puerto Rican, and made insulting remarks about women. 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). Complainant did not request a hearing. The Agency issued a final decision finding no discrimination. Complainant indicated that she was a 90% disabled veteran of the armed services. She also indicated that she had a lifting injury and was suffering from torn muscles and ligaments in her shoulder. Complainant stated that C1, Puerto Rican, male, harassed her saying, “I’m a man; let me do it, she can’t do it.” Complainant also indicated that C1 made insulting remarks about women to her face that they were dumb and did not know how to do their job. Complainant’s supervisor (S1) stated that during his team meetings, Complainant and C1 always had heated conversations but never yelled at each other. S1 often told them both to talk through things and calm down if they started elevating the conversation during the meetings. S1 indicated that Complainant never reported that she was subjected to harassment by C1 prior to May 7, 2018. The record indicates that on May 7, 2018, S1 and his SISOs (Complainant, C1, C2, and C3) held a meeting in C2’s office relating to the office production and workloads. At the end of the meeting, after S1 left C2’s office, Complainant and C1 had a verbal confrontation. C2 and C3, who witnessed the incident, indicated that Complainant and C1 initially exchanged a few words after the meeting, but it quickly turned into a yelling match in which both were losing control of their emotions. C1 told Complainant that “You should look at your team because they are not producing; they are always on the list, look at their numbers.” Complainant then told C1, “You don’t tell me that my team is not producing, especially in front of the Chief.” C1 then got within inches of Complainant’s face and said, “[M]aybe you should pay close attention to your team.” Complainant then told C1, “You don’t come up to my face; I will not let you talk to me like that again.” Then, their conversation escalated into a yelling match; C1 raised his right hand and began pointing his index finger at Complainant; and C1 had his other hand clinched in a fist. C3, witnessing this event, then took C1 by the arm and moved C1 into the hallway. C2 and C3 indicated that they did not witness or were aware of any other incident where C1 raised his voice at Complainant or made insulting remarks to her. After hearing loud voices, S1 came back to C2’s office. S1 saw C3 escorting C1 out of the office and Complainant yelling to the effect that C1 had no right to tell her that she did not know how to manage her people. After both Complainant and C1 had calmed down, S1 had a meeting with them and reminded them to treat each other professionally with respect and with due consideration. C1 apologized to Complainant for his conduct. Upon S1’s request, they shook hands. Complainant acknowledged that C1 apologized afterward and told her he was at fault for losing his temper. 2021000525 3 S1 reported the incident to Complainant’s second level supervisor (S2). A couple days later, S2 gave both Complainant and C1 a cease and desist order. Further, C1 was removed from Complainant’s workplace and reassigned away from Complainant’s team. Complainant acknowledged that she had not had any further interaction with C1 since then. The Agency indicated that its Office of Security and Integrity investigated the incident by interviewing about 56 employees, including Complainant and the individuals involved in the incident. The Agency stated that C1 was subsequently disciplined as a result of the incident and C1 then stepped down from his supervisory position to a senior officer position. Complainant appealed from the Agency’s 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 (EEO MD-110), Chap. 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"). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In the case of coworker harassment, as here, an agency is responsible for acts of harassment in the workplace where the agency knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1614.11(d); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). 2021000525 4 In the instant case, there is no evidence that the Agency knew of C1’s harassment as Complainant alleged prior to the May 7, 2018 altercation. On May 7, 2018, after the altercation, S1 met with both Complainant and C1 and talked to them about treating each other professionally. C1 apologized to Complainant for losing his temper and Complainant accepted his apology. A couple days later, S2, upon S1’s report of the incident, ordered Complainant and C1 to cease and desist and stay away from each other and removed C1 from Complainant’s workplace and reassigned C1 away from Complainant’s team. Complainant did not have any further incident with C1. Further, Complainant has not claimed that the Agency’s corrective actions against C1 was ineffective. After a review of the record, we find that the Agency took immediate and appropriate corrective action concerning Complainant’s harassment claim against C1. Thus, we find that there is no basis for imputing liability to the Agency for the alleged harassment. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021000525 5 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. 2021000525 6 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 November 17, 2021 Date
