U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stevie R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021003048 Agency No. HS-ICE-02448-2018 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 29, 2021, final decision concerning his 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Detention and Deportation Officer, GS-1801-13 at the Agency’s Enforcement and Removal Operations facility in Pittsburgh, Pennsylvania. On October 9, 2018, Complainant filed an EEO complaint alleging that the Agency harassed him based on his parental status and in retaliation for prior protected EEO activity when: 1. On or about June 27, 2018, Complainant received an email from Deputy Field Office Director-1 (DFOD-1) reprimanding him for not knowing the rules for his leave approved under Family and Medical Leave Act (FMLA). 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. 2021003048 2 2. On or about August 17, 2018, Complainant became aware that he was not selected for an Assistant Field Office Director position.2 3. On or about October 29, 2018, Complainant received his year-end performance appraisal that contained an inflammatory and accusatory statement. 4. On March 25, 2019, Assistant Field Office Director-1 (AFOD-1) came to Complainant’s office to emphasize that he was going to a Holocaust training. Subsequently, Complainant found out that DFOD-1 was the selecting official for the referenced training. 5. On April 5, 2019, DFOD-1 undermined Complainant’s ability to carry out his task by second guessing his decision when in fact AFOD-1 had instructed and confirmed that he was the one asking Complainant to complete that particular task in that manner. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. 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, at Chapter 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”). Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing 2 Complainant’s nonselection claim was dismissed as an untimely discrete act pursuant to 29 C.F.R. § 1614.107(a)(2); however, it is considered in the context of Complainant’s hostile work environment claim. To the extent that Complainant may possibly be challenging the dismissal of this discrete act, we find that this claim was properly dismissed for untimely EEO Counselor contact since it was not raised until the filing of the complaint (which was more than 45 days after Complainant claimed to have discovered the alleged discrimination). 2021003048 3 McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); “Enforcement Guidance on Harris v. Forklift Systems, Inc.”, EEOC Notice No. 915.002 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993). The Supreme Court has stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII’s purview.” Harris, 510 U.S. at 22. The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. Id.; see also Toney E. v. U.S. Postal Serv., EEOC Appeal No. 2019005346 (Nov. 5, 2019). To prove a case of a hostile work environment, complainant must show: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his protected status; (4) that the harassment affected a term, condition or privilege of employment; and (5) that the agency knew or should have known of the harassment. 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.,” supra. As an initial matter, parental status is not among the protected bases covered by Federal EEO laws and therefore it is not within our purview. 29 C.F.R. § 1614.101(a). Accordingly, discrimination based on parental status is dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). We find that Complainant failed to demonstrate that the incidents as alleged rendered his work environment hostile or that any alleged incident was motivated by retaliation. The evidence shows that AFOD-1 was selected for an Assistant Field Office Director position and DFOD-1 was involved in the hiring process. An EEO complaint was filed by another employee challenging the selection, and Complainant submitted an affidavit in support of the claim. Complainant asserts that the actions of AFOD-1 and DFOD-1 toward him are part of an attempt to discredit, intimidate, and diminish his career potential and growth. He asserts they are related to his EEO activity because the harassment reportedly escalated after he submitted his statement. Although Complainant points out several instances where management’s actions may be perceived as inequitable or unnecessary, he has not identified any evidence that suggests that their actions were motivated by retaliation. In addition, the Commission finds that none of the allegations were sufficiently severe or pervasive to constitute a hostile work environment under the law. The Commission has long held that Title VII is not a civility code. Rather, the statute prohibits “only behavior so objectively offensive” as to alter conditions of employment. 2021003048 4 See Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 23. In this case, the behavior did not reach that level. CONCLUSION The Agency’s decision 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. 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. 2021003048 5 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 23, 2021 Date
