U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamila R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021003016 Hearing No. 540-2019-00366X Agency No. HS-ICE-00053-2017 DECISION 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 17, 2021, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 worked as a Deportation Officer, GL-1801-7 at the Agency’s Enforcement and Removal Operations facility in Phoenix, Arizona. On August 9, 2016, Complainant attended Basic Immigration Enforcement Training Program (BIETP) at the Federal Law Enforcement Training Academy (FLETC). During her training she suffered an injury to her right wrist. 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. 2021003016 2 On September 22, 2016, Complainant failed the firearms training portion of her final assessment. In accordance with Agency policy, she was allowed remedial training but failed retests on September 29, 2016, and October 3, 2016. On October 4, 2016, the Agency informed Complainant of her removal from BIETP and the Deportation Officer position as a result of her firearms qualification failure. On October 28, 2016 and November 8, 2016, Complainant requested reconsideration of her removal from training asserting that her in-training injury was the cause of her failure. The Agency subsequently offered Complainant reassignment to the lesser graded position of Enforcement and Removal Assistant, which she voluntarily accepted on December 8, 2016. On January 12, 2017, Complainant filed an EEO complaint alleging discrimination based on national origin (Hispanic), sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. On October 4, 2016, Complainant was reassigned from a Deportation Officer position to an Enforcement and Removal Assistant position. 2. On October 4, 2016, management denied Complainant the opportunity to return to the ICE Officer Basic Training after she failed firearms training. 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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 30, 2020, motion for a decision without a hearing and issued a decision without a hearing on February 11, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that 2021003016 3 an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Upon review we find that the record in the present case was fully developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Assuming Complainant established a prima facie case of discrimination, we find that she failed to show by a preponderance of the evidence that the Agency’s asserted legitimate reasons for its actions were pretext for discrimination. The Agency asserts that Complainant was removed from BIETP and offered a lesser graded position because she failed to meet the requirements of the Deportation Officer position. The record shows that Agency policy states that employees who do not successfully complete BIETP training will be terminated from the position and are ineligible to return to the training unless they reapply and are selected under a different vacancy announcement. Agency policy also provides that employees in training who suffer from medical conditions or injuries and are unable to successfully complete training will be returned to their official duty station and must coordinate retraining upon medical clearance. Complainant has not shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. She generally asserts that the Agency’s actions were based on her national origin, sex, and disability because “there is no other explanation,” and the Agency has previously permitted other individuals of a different national origin, sex, and/or disability second chances to pass the firearms requirement despite the policy precluding it. However, Complainant has failed to identify any such individuals. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Furthermore, Complainant stated she believes her disability was a factor in the Agency’s actions because it is the reason she did not pass her firearm test. While Complainant has not alleged that she was denied a reasonable accommodation for her injury, she asserts that the Agency treated her disparately because male trainees that failed to complete the training program due to injury were allowed to remain in the Deportation Officer position and retake training. Notably, there is no evidence to show Complainant followed the Agency process for reapplying to the position under a different vacancy announcement or rescheduling training once she was injured. 2021003016 4 The evidence shows that Complainant was treated in accordance with Agency policy and she has failed to identify any similarly situated comparators that were treated more favorably. Similarly, Complainant has failed to provide any evidence to suggest that the Agency’s actions were retaliatory. Thus, we find that Complainant failed to show by a preponderance of the evidence that the Agency’s actions were motivated by discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing the AJ’s decision finding no discrimination. 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. 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). 2021003016 5 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. 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 December 6, 2021 Date
