U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Xavier P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2022000767 Hearing No. 410-2019-00372X Agency No. HS-ICE-01268-2018 DECISION On November 23, 2021, 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 October 20, 2021, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer, GS-1801-12, at the Agency’s Federal Law Enforcement Training Center facility in Charleston, South Carolina. On May 7, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American & Caucasian) and color (brown) when: 1. On February 17, 2018, Complainant was ordered to exit his vehicle at the facility and was accused of disrespecting an officer; 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. 2022000767 2 2. On February 20, 2018, Complainant was subjected to questioning regarding the incident three days prior; and 3. On February 28, 2018, Complainant was informed that his tentative offer for the Supervisory Detention and Deportation Officer, GS-13 position, at the San Diego Filed Office, advertised under vacancy announcement number LAG-FSD-1 0085930-MP-DN, was rescinded. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s January 31, 2020, motion for a decision without a hearing and issued a decision without a hearing on September 20, 2021. Specifically, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that such articulated reasons were pretextual. The record shows that Complainant, along with other classmates, was returning to the facility in a vehicle that was stopped at one of the entrance gates and the occupants were asked to produce identification. For unknown reasons the ID card belonging to one member of the group did not scan properly and an argument subsequently ensued between the guard and some members of the returning group. The guard subsequently ordered Complainant to exit the vehicle and more heated discussion ensued. Eventually the group were permitted to pass through the gate and enter the facility. Three days later, Complainant and another member of the group were questioned about the incident by the Unit Chief (Chief: Caucasian, white). Unit Chief subsequently contacted the San Diego Field Office where Complainant had been given a tentative offer for the Supervisory Detention and Deportation Officer position and told that office about the incident, whereupon the tentative job offer was rescinded. With regard to claim 1, the AJ found, the Agency maintained that the guard who ordered Complainant out of the vehicle was not an Agency employee, nor was he acting on the Agency’s behalf. With regard to claim 2, the AJ found that Complainant averred that he did not believe Chief’s questioning of him about the incident to be based on his race or color. With regard to claim 3, the AJ found that management officials averred that the action was based on Complainant’s inappropriate behavior and not on his protected bases. The AJ further found that Complainant failed to show that the Agency’s articulated reasons were pretextual. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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). 2022000767 3 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. Upon review of the record, we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Disparate Treatment With regard to Complainant being ordered to exit the vehicle he was traveling in (claim 1) and being subjected to questioning about the incident (claim 2), we find that such claims do not state valid claims of disparate treatment because Complainant has not shown he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to claim 3, however, we find that Complainant states a valid claim of disparate treatment. Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2022000767 4 This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination when the tentative offer for the Supervisory Detention and Deportation Officer position was rescinded. We next find that the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to the actual rescission of the offer, the San Diego Field Office Director (FO Director: Caucasian, white) averred that the reason he rescinded Complainant’s job offer was because: On February 23, 2018, I received an email message that included an investigative report from security staff at the [facility] titled [sic] “Civil Disobedience.†The report stated that upon contact with security officers at the main gate of the [facility] the Complainant made profanity-laced comments to security staff and demonstrated unprofessional behavior. As a result, the Complainant was verbally counseled by [Unit Chief] . . . who also reported that the Complainant did not accept responsibility, appeared to be untruthful about alcohol consumption, and was disrespectful by rolling his eyes. With regard to Unit Chief sending the email to the San Diego Office, Unit Chief averred that he did so because he personally knew one of the Assistant Field Office Directors at the San Diego Field Office and that “as a former AFOD, it was my professional duty to give her the information concerning a future employee she'd be working with in the near future.†Unit Chief, however, denied being involved with the decision to rescind the job offer. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to Unit Chief sending the email about Complainant, Complainant avers that Unit Chief did not contact Complainant’s Seattle Field Office but instead contacted the San Diego office, which was not in Complainant’s chain of command but was where Complainant had recently been offered the promotion. Furthermore, Complainant argues, Unit Chief described Complainant’s appearance to FO Director “in an unfriendly and unprofessional manner.†Additionally, Complainant notes that Unit Chief claimed that Complainant had falsely denied drinking that night, whereas Complainant maintains that on the contrary he admitted to Unit Chief that he had had four beers but denied that he was drunk at the time of the incident with the guard. 2022000767 5 Complainant further argues that he was the only one involved in the incident who Unit Chief reported to management, and that Unit Chief judged him to not be “supervisory material†without knowing of his background where he had already served as a supervisor in a prior position. Such arguments, however, do not establish, by a preponderance of the evidence, that Unit Chief’s articulated reason for sending the email to the San Diego Field Office is a pretext, or that Unit Chief harbored discriminatory animus towards Complainant’s protected bases. Unit Chief explained that he did not send any notification to Complainant’s chain of command in the Seattle office because there was no requirement that he do so. Unit Chief further averred that the reason he notified the San Diego Field Office was because, based on his brief exposure to Complainant, he felt that Complainant was not “supervisory material.†Even assuming he was completely wrong about that, and was unaware of Complainant’s prior supervisory experience, that does not establish that Unit Chief’s articulated reason for his action is pretextual. As for Complainant being the only member of the four employees involved in the gate incident who were reported on by Unit Chief, Complainant has not shown that the other three members of his party also had recently accepted Supervisory positions. If they had not, Unit Chief would have no reason to contact their recent hiring office to warn them that, in his view, the employee was not “supervisory material.’ In other words, Complainant has not shown that he, as an employee recently offered a supervisory position, was otherwise similarly situated with the three other members of his party in the vehicle stopped at the security gate. With regard to FO Director rescinding the job offer, Complainant argues that the incident was not deemed serious enough to warrant disciplinary action and “they did not find that I did anything wrong†yet despite that, the job offer was rescinded. Complainant further argued that a similarly situated Caucasian Deportation Officer (Comparator) who had applied and been accepted for a Supervisory Deportation Officer at the San Diego filed office did not have his offer rescinded despite the fact that he was under investigation for his involvement in a motor vehicle accident where he struck and injured a pedestrian. FO Director, however, noted that: This is not a comparator since the individual did not engage in similar misconduct. [Comparator] was in a vehicle accident during the course of his official duties and since the local police found him to be at fault corrective action was taken. In contrast the Complainant displayed inappropriate behavior unbecoming of a law enforcement officer. In his rebuttal, Complainant averred that: According to a law suit filed April 29, 2016, [Comparator] was driving on July 12, 2014, in an unmarked car, without the lights or sirens activated while working with the National Police Department in California. He struck a pedestrian which was crossing in a marked cross walk which resulted in serious and permanent injure [sic]. [Comparator] was accused of making false statements during the investigation, conspiring with other law enforcement officers to prepare and file a 2022000767 6 falsified accident investigation report, both to federal and local law enforcement. As a result, [Comparator] is currently being sued as the case is set to go to trial on February 26, 2019. While under investigation for these allegations, [Comparator] was promoted to [Supervisor] on August 21, 2015, in the San Diego Field Office while [FO Director] was the Director and eventually transferred and was placed in Austin, TX before he retired. Complainant, however, has not shown that FO Director was aware of all the allegations against Comparator, nor whether the accusations against Comparator were sustained or whether he was ultimately exonerated. Furthermore, given the fact that FO Director was the selecting official who selected Complainant for the Supervisory position while being aware of his race and color, that does not support the argument that he harbored discriminatory animus against Complainant based on race and/or color. For the above reasons we find that Complainant has not shown, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretextual or that Agency officials harbored discriminatory animus against Complainant’s protected bases. Harassment We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile work environment when he the tentative offer for the Supervisory Detention and Deportation Officer position was rescinded, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment including such a claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such a claim is precluded based on our finding that Complainant failed to establish that the actions taken by the agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment: he was ordered to exit his vehicle by a security guard at the facility and was accused of disrespecting the guard; and he was subjected to questioning by Unit Chief regarding the incident. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022000767 7 Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.†The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.†Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on his protected bases. Accordingly, Complainant has not shown that harassment occurred. On appeal, Complainant argues that the AJ erred in granting summary judgment because material issues of fact remain. We note, however, that the issues of fact raised by Complainant address minor specific details about exactly what happened during the February 17, 2018 incident at the facility’s entrance gate and who said what to whom. However, because we find that Complainant has not shown that the Agency’s actions on that day either involved or were based on his protected bases, we find such details to not be material to the issue of whether or not harassment based on race or color occurred. Nor do we find the issue of whether or not Complainant knew the guard was not a direct Agency employee to be material. While we agree with Complainant on appeal that the Agency has not provided a legitimate nondiscriminatory reason for the guard’s action in ordering Complainant out of the vehicle, we note that having found that Complainant failed to show he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy, see Diaz, with regard to that claim, we further found that he fails to state a valid claim of disparate treatment. Since Complainant failed to state a claim, the Agency is not required to articulate a legitimate nondiscriminatory reason justifying its action. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing that discrimination occurred, and we AFFIRM the final order. 2022000767 8 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. 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). 2022000767 9 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 March 27, 2023 Date
