[Redacted], Tessa L., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021003463 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 2021003463 Hearing No. 531-2020-00052X Agency No. HS-USCG-01057-2019 DECISION On May 31, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 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. At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-13, at the Agency’s Intelligence Information Systems Processing Center, Intelligence Coordination Center in Suitland, Maryland. On May 8, 2019, Complainant filed a formal 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: 1. On multiple dates, most recently March 25, 2019, the Intelligence Information Systems Processing Center Department Head and other officials have pressured Complainant to leave the Agency for a Joint Duty Assignment. 2. On March 20, 2019, the Intelligence Information Systems Processing Department Head 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. 2 2021003463 ordered Complainant to teach him and the Intelligence Coordination Unit (ICC) Systems Development and Integration Division Chief the basics of writing statement of works. 3. From March 15-20, 2019, the Intelligence Information Systems Processing Department Head harassed Complainant with questions challenging her competence, while she was recovering from an anxiety attack, in order to correct a statement of work created by the Department Head, ICC Systems Development and Integration Division Chief and another employee in the division. 4. On March 12, 2019, the Intelligence Information Systems Processing Department Head, yelled and shouted at Complainant that everyone in the office would review her work, including those with no involvement in the projects. 5. On March 4, 2019, Complainant was officially moved from her supervisory IT position as MAGNet team lead, series 2210 Information Technology Specialist, to an unofficial position, series II02 Contract Specialist. 6. On February 7, 2019, the Intelligence Coordination Center's Commanding Officer ordered Complainant to stop complaining about the Intelligence Information Systems Processing Division Chief and an investigation was initiated into alleged discrepancies in her timecards on I 8 different dates from six to nine months prior. 7. On unspecified dates, the Intelligence Information Systems Processing Department Head stopped by her desk to see if she arrived to work on time and prohibited her from earning credit hours or compensatory time. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On June 2, 2020, the Agency filed a Motion for Summary Judgment. The AJ held a two-day hearing from August 5-6, 2020. On April 6, 2021, the AJ issued a decision in favor of the Agency. On May 11, 2021, the Agency issued a final order adopting the AJ’s decision. The instant appeal followed. 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. 3 2021003463 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), Chap. 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. Accordingly, we AFFIRM the AJ’s bench decision and the Agency’s final order adopting it. 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. 4 2021003463 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. 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 April 20, 2022 Date