[Redacted], Margorie L., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2019005722 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margorie L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Secret Service), Agency. Appeal No. 2019005722 Hearing No. 570-2018-00096X Agency No. HS-USSS-01091-2017 DECISION On August 21, 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 26, 2019, final order 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 order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly found, following a hearing, that Complainant was not discriminated against based on color, race, sex, and reprisal (prior EEO activity) as alleged. 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. 2019005722 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Uniformed Division Officer, LE-01, at the Agency’s Foreign Missions Branch in Washington, D.C. On April 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when, on January 18, 2017, Complainant received a decision of suspension for seven calendar days without pay, effective March 5-11, 2017, from the Deputy Assistant Director (DAD1) of the Office of Integrity for "Negligence in the Performance of her Official Duties," Offense Code 1.8 of the Table of Penalties. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing and the AJ held a hearing on September 5, 2018. The instant matter was consolidated with another of Complainant’s EEO complaints identified as EEOC Case No. 570-2017-00547X, Agency No. HS-USSS-25315-2016. However, based on testimony provided in the consolidated hearing, the AJ determined that the matters should be bifurcated into two separate decisions. As such, the AJ separated the instant matter from EEOC Case No. 570-2017-00547X, Agency No. HS-USSS-25315-2016. Regarding the instant case, the AJ found that the preponderant evidence failed to show that Complainant was subjected to discrimination. The AJ issued a decision on September 12, 2018. Following the hearing, the AJ determined that Complainant was issued a Notice of Proposed Suspension, and subsequently a seven-day suspension, when she was found using her vaping device while at her post. Complainant expressed disagreement with being suspended because, as she indicated, she believed she did not violate any policy by using the vaping device. She asserted that it is not in the Agency’s policy that employees are prohibited from possessing or using such a device. Complainant also asserted that she was not negligent in the performance of her duties. Complainant asserted her belief that her race, color, sex, and previous EEO activity were factors in the seven-day suspension because other Uniformed Officers/Special Agents cited for negligence in the performance of their duties received lesser or no discipline for their actions. As comparators, Complainant identified a Special Agent who she indicated made allegedly inappropriate statements and transferred, but not disciplined. Complainant also identified an unnamed Uniformed Officer (Caucasian female) who, she indicated, was watching her personal cellular phone while a fence jumper was on the grounds. However, the Uniformed Officer did not receive any disciplinary action. 2019005722 3 Complainant indicated that several unnamed Caucasian, male Uniformed Officers chewed tobacco while on post. Complainant asserted that such conduct is a prohibited act according to the policy, but none received disciplinary action. Complainant alleged that a second DAD (DAD2) has stated that he was aware of officers chewing tobacco but, Complainant indicated, he took no action. Yet, Complainant asserted, she was disciplined for using a vaping device. DAD1 testified that he enforced the discipline consistently and uniformly after receiving a report from Complainant’s former first-level supervisor (S1). DAD1 stated that the report from S1 indicated that Complainant had been smoking from a vaping device while on duty. DAD confirmed that he had no prior negative interactions with Complainant and no reason to discipline her in an impermissible and biased manner. DAD also testified that Complainant was the only officer that he was aware of that used a vaping device on post. DAD2, affirmed by the Deputy Chief Integrity Officer, explained that two white males and two black males received suspensions ranging from three to five days for Negligence in the Performance of Official Duties; and one white female received a Letter of Reprimand for the same conduct during the July 2016 through May 2017 timeframe. DAD2 indicated that his decision to issue the alleged discipline to Complainant was based on the documentation he received as it related to the vaping incident. The AJ found, based on the record, that Complainant was disciplined because she violated a neutral Agency policy, adding that DAD1’s testimony was credible. Likewise, the AJ noted that nothing from the evidentiary or in-person testimony would indicate that Complainant was treated differently from similarly situated employees outside of her protected bases on the particular occasion at issue. The AJ noted Complainant’s admission that she indeed used the vaping device. The AJ observed that Complainant’s main contention was that she did not violate the Agency’s policy by vaping at post. The AJ also noted Complainant’s assertion that her disagreement was with whether vaping constituted a proper Agency violation. In that regard, the AJ indicated that Complainant’s contention and disagreement with whether vaping constituted a proper Agency violation was not discrimination. The AJ also indicated that the Commission is not the appropriate forum to address the type of dispute arising from Complainant’s disagreement. Therefore, the AJ asserted, Complainant was unable to point to a proper comparator who was disciplined differently. Instead, the AJ observed, Complainant relied on mere assertions and self-serving statements to prove her claim. The AJ stated that while Complainant may have been frustrated with the Agency’s policy regarding vaping, managers are given wide discretion to manage the operational needs of the Agency. Consequently, the AJ asserted, there is no indication that the management officials involved in the alleged particular incident were motivated by a discriminatory animus. The AJ concluded that based on a full review of the record and the testimony provided, no reasonable factfinder could resolve the claims in Complainant’s favor. 2019005722 4 When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL In her Appeal Briefs, Complainant indicates that the separation of the instant matter from her claim in EEOC Case No. 570-2017-00547X, Agency No. HS-USSS-25315-2016 was a legal error and should be reversed. Complainant explains that in that case, she had alleged that the discriminatory act of disciplining her in 2015, directly impacted the penalty imposed on her regarding the discipline at issue in the instant case because the first instance of discipline in 2015, served as an aggravating factor in determining the penalty imposed in the instant case. Complainant also asserts that the instant case should be remanded for further processing for that reason. In its Appeal Brief, the Agency states that Complainant failed to raise any specific evidence or legal arguments that disturb the undisputed material facts or legal conclusions in the AJ’s Decision. The Agency requests that the Commission affirm the AJ’s decision granting summary judgment in its favor. STANDARD OF REVIEW 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. Nat’l Labor Relations Bd., 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 EEO MD-110, Chapter 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS AJ’s Bifurcation of Complaints On appeal, Complainant contests the AJ’s determination regarding her companion case. Complainant indicated that, but for the first discriminatory act in EEOC Case No. 570-2017- 00547X, Agency No. HS-USSS-25315-2016, Complainant's penalty for the discipline in the instant case would not have been so severe. The AJ noted that the record in the instant complaint was fully developed. 2019005722 5 Importantly, that the matters before the AJ involved unconnected events. Therefore, a decision can be made based on the facts of this case without consolidating it with EEOC Case No. 570- 2017-00547X, Agency No. HS-USSS-25315-2016. More importantly, an Administrative Judge has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJ's wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). As such, we do not find that the AJ’s separation of the two complaints constituted a legal error. Disparate Treatment 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). Assuming Complainant has established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue. Specifically, management stated that Complainant was issued the seven-days suspension for violating agency policy when she was found vaping at her post. Complainant does not challenge that she committed the violation. She in fact admitted that she was using her vaping device at post. 2019005722 6 Complainant express disagreement with the Agency’s position, questioning whether vaping constituted a proper Agency violation. However, Complainant has not shown that the Agency’s reason for the disciplinary action was pretext for discrimination. Evidence of pretext can take the form of discriminatory statements or past personal treatment attributable to agency officials, comparative or statistical data showing differences in treatment, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Rick G. v. Dep’t of Agric., EEOC Appeal No. 0120143263 (Mar. 3, 2016). We find no such evidence here. Complainant’s disagreement with the policy at issue does not constitute pretext for discrimination. Therefore, her claims fail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s 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 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. 2019005722 7 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. 2019005722 8 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 July 19, 2021 Date