0120142450
07-20-2016
Sanda N.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sanda N.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120142450
Hearing No. 510-2013-00208X
Agency No. HS-ICE-21691-2012
DECISION
On June 27, 2014, Complainant filed an appeal from the Agency's June 2, 2014, final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant worked as the Deputy Chief Counsel with the Chief Counsel's Office in Miami, Florida. On April 5, 2012, Complainant filed an EEO complaint alleging that the Principal Legal Advisor (PLA), the Deputy Principal Legal Advisor (DPLA), and the Field Legal Operations Director (FLOD) had all discriminated against her on the bases of race (Caucasian), national origin (Hispanic-Cuban), sex (female), and age (52) by laterally reassigning her to the non-management position of Senior Attorney, effective November 14, 2011.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ assigned to the case entered an order on April 4, 2014 remanding the Complaint to the Agency on the grounds that Complainant failed to comply with her discovery orders. In accordance with the AJ's order, 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 her to discrimination as alleged. On appeal, Complainant contends that the AJ abused her discretion by forcing her to produce documents that were not in her possession, by failing to warn her that her complaint could be dismissed, and by not ordering lesser sanctions than dismissal.
According to a report prepared by the Agency's Office of Professional Responsibility dated September 13, 2010, Complainant, as a supervisory attorney, had acted in an inappropriate manner toward the Assistant Chief Counsel in May of 2009. The report described and documented how Complainant had wrongly accused the Assistant Chief Counsel of fraudulently signing the Chief Counsel's name on her time sheet. The report also documented Complainant publicly discussing performance issues of a subordinate, interfering with the recruitment process of a Deputy Chief Counsel, and making inappropriate statements about the performance of other managers in the Office of Chief Counsel. IR 86-104. The DPLA averred that when the Assistant Chief Counsel brought the matter to her attention, she referred the Assistant Chief Counsel's complaints to the joint intake center of the Office of Professional Responsibility. IR 84. On November 4, 2011, after receiving the report, the FLOD notified Complainant by memorandum that he would be reassigning her from her supervisory position as Deputy Chief Counsel to the non-management position of Senior Attorney, effective November 14th. IR 47-48, 73-74, 77-78. Other than the referral of the matter to the Office of Professional Responsibility by the DPLA and the reassignment of Complainant by the FLOD, all three officials testified in their declarations that they had no involvement in the matter. IR 73-74, 80, 83-84.
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").
At the outset, we address Complainant's contention that the AJ abused her discretion in remanding her complaint to the Agency. The Commission's regulations empower AJs to take whatever actions are appropriate, up to and including dismissal of a complaint, when a Complainant fails without good cause to respond fully and in a timely fashion to her orders. Marquitta B. v. United States Postal Service, EEOC Appeal No. 1020140518 (December 17, 2015). Any such action taken by an AJ pursuant to her responsibility for adjudicating the complaint will not be disturbed unless it was so clearly against reason or the evidence as to constitute an abuse of discretion. Id., citing Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 6, 2012). According to the AJ's dismissal order, Complainant failed to comply with her orders to respond to the Agency's interrogatories and requests for medical documentation. We agree with the Agency that the AJ provided the requisite notice in the initial acknowledgment and order dated March 27, 2013, and that the evidentiary record overwhelmingly establishes that the Complainant failed to comply with the AJ's discovery order. The AJ's decision was entirely consistent with Commission precedent and the evidentiary record, and was clearly within the scope of her regulatory authority to conduct the hearing. We therefore find that the AJ did not abuse her discretion in terminating the proceeding and returning the matter to the Agency for final disposition.
The Commission cannot second-guess an Agency's decisions involving personnel assignments unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). To prevail, Complainant would have to prove, by a preponderance of the evidence, that the PLA, the DPLA, and/or the FLOD were motivated by unlawful considerations of her race, sex, national origin, or age in connection in connection with the Agency's decision to remove her from her managerial post and laterally reassign her to a Senior Attorney position. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
In circumstantial-evidence cases such as this, Complainant can establish the existence of an unlawful motivation by presenting documents or sworn testimony from other witnesses tending to show that the reasons articulated by the PLA, the DPLA and the LOD for demoting her were pretext, i.e., not the real reason but rather a cover for discrimination on the bases of race, sex, national origin, or age. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).
When asked by the EEO investigator why she believed that the PLA, the DPLA, and the FLOD had discriminated against her in connection with her reassignment out of her management position, Complainant replied that all three wanted to promote a less qualified and less experienced African-American male attorney into her position. IR 62-63. Beyond this assertion, however, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanations given by the PLA, the DLPA, or the FLOD in connection with her reassignment or which call their veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of any of these officials concerning her lateral reassignment from Deputy Chief Counsel to Senior Attorney.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
7/20/2016
Date
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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