U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shamika P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020003988 Hearing No. 450-2015-00079X Agency No. HS-ICE-00874-2017 DECISION On June 9, 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 June 9, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mission Support Specialist, GS-0301-11, at the Agency’s Enforcement and Removal Operations Field Office facility in Dallas, Texas. On May 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to non-sexual harassment her on the bases of race (African- American and color (light-skinned) when, on January 17, 2017, Complainant’s supervisor came behind her, closed her office door, and shook and pointed her finger at Complainant while 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. 2020003988 2 yelling that she would write her up. This interaction occurred after Complainant completed an assigned task but not in the way her supervisor had instructed. Her complaint further alleged that the Agency unlawfully retaliated against her for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when the following events allegedly occurred: a. On February 13 and 14, 2017, and March 7, 8, 15, and 21, 2017, Complainant requested training on the Concur Travel System, but no training was provided. b. On April 25, 2017, Complainant’s supervisor issued her a poor Mid-Cycle Progress Review and her supervisor informed her that she did not believe Complainant was performing at her grade level and would talk to someone about reducing Complainant’s pay to reflect a lower grade. The Agency accepted these claims and conducted an investigation into the matter. Claim 1 The investigation showed that Complainant contends that her supervisor (Supervisor) subjected her to discrimination and unlawful harassment based on Complainant’s race and color when Supervisor came up behind Complainant, closed Supervisor’s office door, and shook and pointed her finger at Complainant. Complainant states Supervisor threatened to write Complainant up, told Complainant she was not performing at grade level and Supervisor would check to see what could be done, and would not listen when Complainant tried to explain. Complainant believes Supervisor treated her this way because Complainant is the only African-American in her group and she is treated worse than the others. Complainant indicates she is afraid she is going to receive a downgrade per Supervisor’s comments. Supervisor states she informed Complainant that Complainant needed to submit a PCTW to have contractors move furniture into Complainant’s new office before Complainant went on leave for three days. Supervisor states she advised that the PCTW needed to be approved by budget and Complainant needed to contact the vendor. Supervisor indicated that she had instructed Complainant to submit the PCTW and Complainant did not disagree, complain, or make any remarks or suggestions such as having someone submit the PCTW for her. Supervisor contends the PCTW was submitted by another employee in another unit to another supervisor and Complainant failed to inform Supervisor as to what had transpired. She states that Complainant failed to follow her instructions. Supervisor states that as the supervisor for the unit, she reviews and approves all PCTW for her staff. Supervisor contends that on the date in question, she asked Complainant to come into her office and with her office door open, she asked Complainant about the status of submitting a request to procure the services of an outside vendor (PCTW) to have Complainant’s furniture moved. Supervisor avers she did not have a conversation with Complainant behind closed doors and at no time did she shake or point her fingers at Complainant or yell at Complainant. 2020003988 3 Supervisor does acknowledge that on a difference occasion, during Complainant’s mid-year review, Supervisor held up her hand and told Complainant to let her talk and to listen to her. Claims 2a and 2b For these claims, Complainant contended that in February and March 2017, she repeatedly requested training and her requests were ignored or denied; and on April 25, 2017, Supervisor issued her a poor Mid-Cycle Progress Review and informed Complainant that she was not performing at grade level and she would talk to someone about reducing Complainant’s pay to reflect a lower grade. Regarding her training complaint, Complainant avers that Supervisor told her to read some manuals and call the Help Desk. She also states this occurred shortly after she engaged in EEO activity. Complainant states Supervisor was aware of Complainant’s EEO activity because Supervisor participated in the mediation. Complainant states that her employment was affected because it takes her longer to do her job duties and it is hard for her to perform successfully. In terms of her Mid-Cycle Review complaint, Complainant states that on April 25, 2017, Supervisor tried to get her to sign the Mid-Cycle Progress Review before she had a chance to review it. After reviewing it, Complainant states she did not agree with the review; her background is in budget; Management moved Complainant to the position even though Complainant did not request it and did not have experience with the CONCUR Travel System; she was not provided the requisite training despite requesting it several times; and she had several other job duties that required her attention. Supervisor detailed a number of trainings and/or training opportunities provided to Complainant. She also stated that the topic of reducing Complainant’s grade was never discussed during her Mid-Cycle Progress Review or at any other time. Supervisor states she was not aware of Complainant’s EEO activity at the time of these actions. 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 timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing. The Agency responded that it supported the issuance of a decision without a hearing. Complainant requested an extension, which was granted, and timely filed a response. After giving the parties adequate time to respond, the AJ issued a decision by summary judgment in favor of the Agency on May 7, 2020. The Agency subsequently issued a final order on June 9, 2020 adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Neither Complainant nor the Agency filed a brief on appeal. 2020003988 4 ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Claim 1 Complainant’s allegations in Claim 1, that Supervisor came behind her, closed her office door, and shook and pointed her finger at her while yelling that she would write her up, give rise to a claim of discriminatory harassment. To establish a claim of discriminatory harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 statutorily protected classes; (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 to the employer. 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). 2020003988 5 Therefore, in order to establish her harassment claim, Complainant must show that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person†in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The allegations in Claim 1 involve only a single incident. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Even taking Complainant’s allegations as true, we cannot find that the single incident in question is so severe as to alter the conditions of Complainant’s employment. Further, we have consistently held that the EEOC regulations are not to be used as a general code of civility. Rather, the regulations forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.†Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); accord Vore v. Indiana Bell Telephone Co., 32 F.3d 1167 (7th Cir. 1994) (noting that Title VII does not create a right to work in a pleasant environment; merely one that is free from discriminationâ€). Thus, we conclude that Complainant’s allegations are insufficiently severe or pervasive to establish a claim of discriminatory harassment. For these reasons, Claim 1 fails. Claims 2a and 2b In Claim 2, Complainant alleged that she was subjected to reprisal for prior EEO activity when she was denied training and issued a “poor†progress review. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Even assuming arguendo that Complainant could prove her prima facie case for reprisal, her claim still fails, as the Agency has identified legitimate, nondiscriminatory reasons for its conduct. Although Supervisor denied having denied Complainant’s requests for training, she explained that there was no official policy for CONCUR training other than what is available as webinars, a yearly requirement in PALMS, and a PowerPoint presentation that she created and gave to staff. 2020003988 6 She detailed Complainant’s training activities from January to July 2017, noting that Complainant was directed to CONCUR training websites on January 30 and April 12; on February 2, Supervisor emailed Complainant PowerPoint presentations; on February 13, Supervisor met with Complainant and provided individual instruction; on May 4, Complainant completed FATA training; on May 11, Complainant attended the 8-hour PowerPoint presentation; on May 17, Complainant completed Travel Card training (webinar); on July 10, an Officer was scheduled to train Complainant one hour per day with travel processing, but Complainant took unscheduled sick leave on July 10 and 11, and, the training was rescheduled to the week of July 17, but Complainant took unscheduled leave on July 17 and 21. Regarding Complainant’s progress review, Supervisor explained that reducing Complainant’s grade was never mentioned, but performance issues and problems were discussed, prior to the progress review. She noted that Complainant was counseled on several performance areas, including the need for better communication, keeping Supervisor informed of her daily work, needing to take initiative to create contact outside sources, and a lack of providing guidance to co-workers. Although Complainant has alleged Supervisor acted in reprisal, she has failed to establish a nexus between these alleged events and her prior EEO activity. Therefore, Claim 2 fails. CONCLUSION Based on a thorough review of the record, we AFFIRM the AJ's decision without a hearing, finding no discrimination, which became 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). 2020003988 7 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). 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. 2020003988 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 November 17, 2021 Date
