Ross R.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Dec 20, 2018

2019000051 (E.E.O.C. Dec. 20, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ross R.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Request No. 2019000051

Appeal No. 0120162491

Hearing No. 430-2016-00152X

Agency No. HSICE009912011

DECISION ON REQUEST FOR RECONSIDERATION

Both Complainant and the Agency timely requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162491
(July 25, 2018). EEOC regulations provide that the Commission may, in its discretion, grant a
request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. §
1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. §
1614.405(c).

Complainant worked as a Criminal Investigator, Special Agent, GS-1811-13, at the Agency’s
Office of Investigations in Norfolk, Virginia. Complainant filed a formal complaint alleging that
the Agency discriminated against him and subjected him to a hostile work environment on the
bases of race (African American) and reprisal as evidenced by multiple incidents including, inter
alia, when since November 2009, he and his spouse have been assigned to different Virginia

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.
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offices, he was made aware that his second level supervisor (S2) gave an African American
employee malt liquor; he heard about an employee referring to an African American Agent as
“the big Black shiny guy;” a coworker commented that she did not expect his spouse to be
married to an African American man; his theories about “international fraudulent document
organization” were dismissed and not acted upon, but six months later, management pursued
investigation of just such an organization; between March 16 and 18, 2011, management did not
“give appropriate attention” to his case involving a corrupt Agency official and exhibited no faith
in his investigative and decision making abilities; he learned of a racially inappropriate
photograph on a co-worker’s personal cell phone; he was told that he and his wife could not be
control and second agents on a confidential file nor could married agents be designated as the
primary and secondary agents for a source; he was reassigned from Newport News, Virginia, to
Norfolk, Virginia; and he became aware that he was not advised of an investigation into the
alleged theft of informant-related money.

The complaint was investigated and Complainant requested a hearing. An EEOC Administrative
Judge (AJ) issued a summary decision finding no discrimination. However, in Appeal No.
0120132731 (September 10, 2015), the matter was remanded for a hearing. Thereafter a second
AJ (AJ-2) held a hearing. Following the hearing, AJ-2 found that the incidents cited by
Complainant were insufficiently severe or pervasive to establish a hostile work environment.
While finding evidence that the office was wrought with racial insensitivity, stereotyping, office
gossip, and personality conflicts, AJ-2 determined that most of the incidents involving other
employees happened before Complainant joined the office. The AJ concluded, based on the
evidence gathered during the investigation and presented during the hearing, that Complainant
failed to demonstrate he personally was subjected to discrimination, reprisal, or a hostile work
environment as alleged.

Our prior decision agreed with the AJ-2 in that Complainant did not witness most of the racially
insensitive incidents alleged, that he learned of the conduct second or third hand, he did not work
at the Norfolk office when the offensive conduct occurred, and the offensive behavior was not
directed towards him. In sum, the prior decision found that AJ-2’s determination that
Complainant did not show he was subjected to discrimination or a hostile work environment was
supported by the evidence of record. However, the decision agreed with AJ-2’s findings that the
Norfolk office was rife with offensive and hostile behavior. Thus, the prior decision ordered
training, instructed the Agency to consider disciplining several identified Agency employees,
and to post a notice.

Both Complainant and the Agency filed requests for reconsideration. The Agency objected to
the Order, stating the Commission had no authority to Order such actions given the finding of no
discrimination. Complainant objects to the finding of no discrimination or harassment, and the
fact that he was not granted any relief such as attorney’s fees. However, upon review, we find
that the lengthy prior decision correctly lays out the facts, legal justifications, and reasons for
reaching its conclusion.

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We emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material
fact or law, or will have a substantial impact on the policies, practices, or operations of the
Agency. Neither the Agency nor Complainant has not done so here.

After reviewing the previous decision and the entire record, the Commission finds that the
requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the requests. The decision in EEOC Appeal No. 0120162491 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

The Agency shall comply with the Order as set forth below.

ORDER
I. Within 90 days from the date this decision is issued the Agency is ordered to
provide eight hours of in-person or interactive training to all employees at the
Office of Investigations, Assistant Special Agent-in-Charge Office in Norfolk,
Virginia, specifically with regard to employees’ protections against race-based
harassment.
II. Within 60 days from the date this decision is issued, the Agency shall consider
taking disciplinary action against S2 and SA-1. If the Agency decides not to take
disciplinary action, it shall set forth its reason for its decision not to impose
discipline. If the identified employees are no longer employed by the Agency, the
Agency shall furnish proof of the date of separation. The Commission does not
consider training to be disciplinary action.
III. The Agency shall post a notice in accordance with the paragraph entitled “Posting
Order.”
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
POSTING ORDER (G0617)
The Agency is ordered to post at its Office of Investigations, Assistant Special Agent-in-Charge
Office, Norfolk, Virginia facility copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted both in hard copy and
electronic format by the Agency within 30 calendar days of the date this decision was issued,
and shall remain posted for 60 consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The Agency shall take reasonable steps to
ensure that said notices are not altered, defaced, or covered by any other material.
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The original signed notice is to be submitted to the Compliance Officer as directed in the
paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of
the expiration of the posting period. The report must be in digital format, and must be submitted
via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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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 20, 2018
Date