[Redacted], Jane B.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jan 15, 2020

Appeal No. 2019002644 (E.E.O.C. Jan. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jane B.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019002644 Hearing No. 530-2015-00172X Agency No. HS-ICE-01274-2014 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 28, 2019 final order concerning her complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Management and Program Analyst, GS-343-14, in the Immigration and Customs Enforcement, and Removal Operations, Mission Support Unit at the Baltimore Field Office in Baltimore, Maryland. On August 25, 2014, Complainant filed an EEO complaint, which was subsequently amended, alleging discrimination and harassment by the Agency. 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. 2019002644 2 Complainant alleged she was subjected to discrimination and harassment on the bases of race (African American), sex (female), and in reprisal for prior EEO activity when: 1. From January to May 2014, while serving on the grand jury, she continued to receive assignments, which she was expected to complete in a timely manner; and management required her to copy the Deputy Field Office Director on all work assignments. 2. On May 14, 2014, management required her to complete work that accumulated during her four-month service on the grand jury, assigned her administrative duties, to be supervised by a lower-graded employee, isolated her, and did not allow her to perform duties that were part of her job as the Contracting Officer’s Representative (COR). 3. On June 18, 2014, the Acting Assistant Field Office Director (AAFOD) verbally reprimanded her for alleged failure to follow two direct orders on June 4 and did not advise her that she was entitled to Union representative. 4. Effective September 16, 2014, the AAFOD removed her as the COR from a government contract. 5. On September 17, 2014, the AAFOD asked her friend and coworker to contact her because the AAFOD had received an email that she was suicidal; and the AAFOD disclosed Complainant’s personally identifiable information to individuals without a need to know. Complainant alleged she was subjected to discrimination in reprisal for prior EEO activity when: 6. On September 16, 2014, management ordered her not to speak to the contractor on the contract from which she had been removed, but to continue performing duties in connection with the contracts without being named in it. 7. On September 16, 2014, she received a lower than expected performance rating of 3 (“Achieved Expectations”). 8. On October 6, 2014, the Field Office Director issued her a Letter of Reprimand. 9. On October 22, 2014, management warned her not to have any contact with staff members outside the Baltimore Field Office. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. 2019002644 3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2019002644 4 A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019002644 5 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 January 15, 2020 Date