U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yvette H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020000751 Hearing No. 540-2017-00256X Agency No. HS-ICE-27319-2016 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 October 13, 2019,2 final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. 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 EEOC regulations state that an Administrative Judge’s (AJ) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The AJ issued her decision on September 3, 2019, and there is no evidence that the Agency issued a final order; as such, the AJ’s decision became the Agency’s final action on October 13, 2019. In addition, while Complainant’s September 26, 2019, appeal was premature, the Commission finds that her appeal is now ripe for adjudication, as the AJ’s decision became the Agency’s final action on October 13, 2019. 2020000751 2 ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant at the Agency’s Phoenix Office of Chief Counsel in Elroy, Arizona. Complainant stated that, from March 2016, through September 2, 2016, she was subjected to sexual, misogynistic, and anti-gay comments from coworkers, which made her uncomfortable. Complainant stated that one coworker (CW1) (male, heterosexual) made sexual comments about women and their bodies. Complainant stated that another coworker (CW2) (male, heterosexual) discussed his belief that his brother was gay, which he said was against Christianity. Complainant stated that a third coworker (CW3) (male, heterosexual) made a comment about someone’s name and the “obvious gay implication.” Complainant also stated that she received “looks” when she wore shorts to an office outing to a baseball game, which made her uncomfortable. Report of Investigation (ROI) at 61-62. Complainant stated that she did not inform her first-line supervisor (S1) (female, heterosexual) of these comments, but that she notified S1 that the work environment was affecting her ability to concentrate due to constant socializing. ROI at 63. On September 2, 2016, S1 issued Complainant a Notice of Probationary Termination. S1 noted that, on May 9, 2016, she conducted a 90-day performance evaluation and informed Complainant that her court submissions contained an unacceptable number of errors, and provided eight examples. S1 stated that, during the three-plus months following her 90-day evaluation, Complainant continued to make an unacceptable number of errors, despite a decrease in her workload due to a measles quarantine. S1 stated that efforts to work with Complainant did not sufficiently improve her performance. ROI at 168-72. On November 8, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to: 1. harassment (sexual and non-sexual) based on sex (female, transgender, bi-sexual, gender identity)3 when, from March 2016, to September 2, 2016, she was subjected to her 3 In Bostock v. Clayton Cty, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020000751 3 coworkers’ repeated sexual, misogynistic, and anti-gay comments, and a culture of behavior that made her feel uncomfortable; and 2. discrimination based on sex when on September 2, 2016, she received a Notice of Probationary Termination and her employment with the Agency was terminated, effective September 2, 2016. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s May 20, 2019 motion for a decision without a hearing and issued a decision without a hearing on September 3, 2019. The AJ found that Complainant admitted that she did not report the alleged discriminatory comments or treatment until after she was terminated from her employment. The AJ also noted that Complainant did not produce evidence that she was treated differently than similarly- situated employees outside of her protected class.4 The AJ determined that the Agency’s motion identified the accepted claims, undisputed facts, applicable legal standards, and grounds for a decision without a hearing, and she adopted the motion in its entirety to grant summary judgment in favor of the Agency on all claims. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant filed the instant appeal but did not submit a brief in support of her appeal. The Agency did not respond to Complainant’s appeal. STANDARD OF REVIEW 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. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the 4 The AJ noted that Complainant identified a comparator who transferred to another Agency location, but that Complainant had not requested a transfer. 2020000751 4 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”). ANALYSIS AND FINDINGS Decision without a Hearing We first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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). We carefully reviewed the record and find that it is adequately 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 did not provide any arguments on appeal, and a review of the record does not reveal any disputes of material fact. As such, we find that the AJ properly issued a decision without a hearing. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2020000751 5 We find that Complainant is a member of a statutorily protected class. However, the record does not support a finding that she was subjected to the complained-of conduct, as described by Complainant. CW1, CW2, and CW3 denied making the alleged comments. ROI at 124, 128, 132. In addition, four witnesses provided statements, including those who had cubicles near Complainant’s cubicle, and none corroborated Complainant’s allegations. CW1, CW2, CW3, and the four witnesses also disagreed with Complainant’s assertion that there was a culture that supported sexual, misogynistic, or anti-gay comments, and no one witnessed any employee make these types of comments. ROI at 124, 128, 132-3, 119-120, 136-7, 140-1, 152-3. Even assuming that Complainant was subjected to sexual, misogynistic, and anti-gay comments due to her protected class, which unreasonably interfered with her work performance or created a hostile work environment, Complainant stated that she did not inform management officials of these comments. Complainant stated that she informed S1 that she had trouble focusing because of “constant socializing” and that S1 spoke with CW1, who commented that S1 asked CW1 to stop being in Complainant’s work area. ROI at 63. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep’t Of Air Force, EEOC Request No. 05920194 (July 8, 1992). Here, Complainant did not report the complained of comments to management officials, and S1 stated that she never heard complaints about such comments from Complainant or any other employee. ROI at 102. Further, we find that S1 took appropriate corrective action in response to Complainant’s concerns of “constant socializing” when she spoke with CW1 and offered to move Complainant to a different cubicle, which Complainant declined. ROI at 103. As such, we find that Complainant did not establish that the Agency subjected her to sexual, or non-sexual, harassment based on sex. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020000751 6 If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for terminating Complainant’s employment during her probationary period. S1 stated that she decided to terminate Complainant's employment due to her poor performance; specifically, an inability to adequately prepare evidentiary packets and repeated mistakes in submissions, despite receiving feedback and additional training and assistance. ROI at 106. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). In her affidavit, Complainant stated that she had no evidence that she was terminated because of her sex or sexual orientation. ROI at 67. We find that Complainant only made bare assertions that the Agency discriminated against her, which are insufficient to prove pretext or that its action was discriminatory. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). The record shows that Complainant disclosed to S1 that she is transgender. ROI at 65, 101. However, there is no evidence that S1 was motivated by Complainant’s transgender status, sexual orientation, or gender identity. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on sex when it terminated her employment during her probationary period. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action on the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on sex. 2020000751 7 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). 2020000751 8 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 June 9, 2021 Date
