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

Equal Employment Opportunity Commission

May 10, 2018

0120162120 (E.E.O.C. May. 10, 2018)

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

Todd S.,1
Complainant,

v.

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

Appeal No. 0120162120

Agency No. HS-ICE-24052-2015

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 May 11, 2016, final
decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
BACKGROUND

Complainant worked as a Paralegal Specialist, GS-0950-09, at the Agency’s Field Office in
Orlando, Florida. On July 14, 2015, Complainant filed an EEO complaint in which he alleged that
the Supervisory Paralegal Specialist, his first-line supervisor (S1), subjected him to harassment
and disparate treatment because of his race (Asian), color (Brown), and reprisal (EEO counseling
between June 12, 2014 and August 13, 2014) when:

1. From April 3, 2015 to present (August 5, 2015, date of acceptance of formal complaint),
S1 used unresolved language to hold, mislead, and contradict information on the claims
and its said justifications about the status of his performance.

2. On April 9, 2015, Complainant received a reprimand email from S1 referencing negative
performance.

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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3. On April 13, 2015, S1 used an employee in a lead position to counsel him while S1 was in
the building.

4. On April 13, 2015, Complaint received a warning from his supervisor about sharing email
containing personally identifiable information.

5. On April 27, 2015, S1 gave Complainant a poor mid-year performance review, and
informed Complainant that he was not meeting the performance objectives included in his
performance work plan.

6. On June 8, 2015, Complainant’s weekly report was labeled inaccurate.

7. On June 11, 2015, S1 encouraged Complainant to self-report himself for violating privacy.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant opted for a final agency decision on the record. Complaint File (CF)
22. In accordance with Complainant’s request, 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 him to discrimination as alleged.

Incidents (1) and (5): Complainant averred that he had a conversation with S1 in which S1 had
informed him that his Performance Work Plan (PWP) required him to process 45 cases per week,
and that he was only processing 25 cases per week. He further averred that at the same time S1
had been criticizing his performance, S1 had also told him that his performance was comparable
to that of his coworkers. Complainant also stated that in calculating his performance statistics, S1
had failed to take into account his administrative time or his administrative leave. CF 31. S1
stated that he agreed that Complainant’s PWP required him to process an average of 45 cases per
week without consideration of page count. S1 averred that Complainant processed an average 33
cases per week during the first half of the performance cycle. S1 acknowledged that he informed
Complainant that his low case count would not negatively affect the first half of his performance
because numerous factors, including the new computer system, contributed to all employees
having low production levels. S1 stated that he informed Complainant that he had nothing to worry
about and that he was evenly comparable to his colleagues. S1 further stated that he recalculated
Complainant’s case statistics after Complainant requested that he include administrative time and
leave in the calculation. CF 31

Incident (2): Complainant averred that on April 9, 2015, S1 had forwarded to him an email from
the Agency’s headquarters regarding a possible Privacy Act violation in a case for which he acted
as the processor and one of his coworkers (CW1) acted as the reviewer. CW1 was copied on the
email. S1 reminded Complainant that his lack of attention to detail was not acceptable and was
the likely cause of the Privacy Act violation. S1 also noted that this was an office-wide problem
and confirmed that he also had spoken with CW1 about the incident. CF 29, 31.
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Incident (3): Complainant averred that on April 13, 2015, S1 had ordered CW1 to verbally counsel
him about his low accuracy rate. S1 stated that CW1 had spoken with him about Complainant’s
redaction accuracy, which CW1 had observed while serving as the acting supervisor when S1 was
on leave the week before. S1 further averred that he had given CW1 permission to speak to
Complainant about the redaction situation, and stated that their conversation was not a verbal
counseling because CW1 was not authorized to counsel anyone. CW1 confirmed that he had
spoken with Complainant on April 13, 2015, and that the purpose of the conversation was to help
Complainant improve his accuracy with redacting. CW1 also emphasized that their conversation
was not a counseling. CF 32.

Incident (4): Complaint averred that on April 13, 2015, he had received a warning from S1 about
sharing email and personally identifiable information (PII). He stated that he had copied his
coworkers in his response to an email from S1 regarding the April 9, 2015 email he had received
from S1 criticizing him for allowing possible Privacy Act violations to occur through his lack of
attention to detail. S1 averred that on April 13, 2015, he sent his staff an email in which he stated:

I want to inform you that it is not appropriate to forward email traffic that is
performance, personal, etc., based to third parties without the permission of all
involved. It is not professional and could lead to potential privacy violations. If
you receive an email and are not sure if it can be forwarded on, contact the sender.

CF 29. S1 stated that Complainant violated CW1’s privacy by forwarding performance
information to third parties. S1 averred that he told Complainant that he, Complainant, should
have known that his actions could result in a violation of the Privacy Act by virtue of
Complainant’s position as a FOIA/Privacy Paralegal Specialist. CF 32.

Incident (6): Complainant averred that during the first week in June 2015, he emailed a case status
report to S1, and that on June 8, 2015, S1 responded that the report was inaccurate. S1 confirmed
that he emailed Complainant regarding his weekly case status report. S1 averred that he explained
to Complainant that his report conflicted with information S1 had about the cases. S1 also stated
that the report contradicted his guidance that each paralegal was to receive 45 cases per week and
notify him immediately if they did not. CF 32.

Incident (7): Complainant averred that on June 11, 2015, during a conversation he had with S1,
S1 suggested to him that he self-report a Privacy Act violation to the Agency’s Privacy Office. S1
acknowledged that he emailed Complainant on June 11, 2015 to encourage Complainant to self-
report his Privacy Act violation as Complainant had described. S1 explained that it was office
policy to self-report Privacy Act violations as it tended to limit adverse actions. CF 32.

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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”).

To establish a claim of discriminatory harassment Complainant must show that: (1) he belongs to
a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based on
his statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail on his harassment claim, Complainant must prove that the incidents occurred
because of a protected basis. Beyond motive, Complainant must show that S1 had subjected him
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Since Complainant has also
alleged reprisal, he must prove that S1’s actions were harmful to the point that they could dissuade
a reasonable person from making or supporting a charge of discrimination. Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC Enforcement Guidance
on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016).
Only if Complainant satisfies his burden of proof with respect to all of these elements, motive and
either hostility or chilling effect, will the question of Agency liability for discriminatory or
retaliatory harassment present itself.

Complainant established the first element of a claim of harassment by virtue of his race, color, and
previous EEO activity. We would also agree that S1’s conduct in the various incidents identified
by Complainant is unwelcome from his own subjective perspective, which is enough to satisfy the
second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr.
27, 2017).

In order to establish the third element of a claim of discriminatory harassment, Complainant must
show that in taking the actions that comprise his harassment claim, S1 relied on considerations of
Complainant’s protected bases that are expressly proscribed by Title VII. See Aldaberto P. v.
Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016).
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S1 had articulated business-related reasons for each of the incidents at issue. Regarding incidents
(1) and (5), S1 stated that Complainant was not meeting the weekly processing requirement of 45
cases, but acknowledged that no one else on the staff was meeting them either due to the
implementation of a new computer system and other reasons beyond the staff’s control. Moreover,
S1 had recalculated Complainant’s performance statistics as Complainant had requested him to
do. Concerning incident (2), Complainant’s lack of attention to detail in processing Freedom of
Information Act requests had resulted in one or more possible violations of the Privacy Act. As
to incident (3), there was no counseling by CW1 at the behest of S1. With regard to incident (4),
S1 averred that he was responding to Complainant’s possible disclosure of CW1’s PII. With
respect to incident (6), S1 had pointed out inconsistencies between Complainant’s weekly status
report and the information he had regarding the cases that Complainant had processed during the
week in question. Regarding incident (7), S1 was merely urging Complainant to follow the
Agency’s established policy encouraging employees to self-report possible Privacy Act violations
in order to minimize the likelihood of an adverse action.

In his affidavit, Complainant admitted that with the exception of incident (3) he did not believe
that any of the incidents were related to his race or color. IR 66, 72-76. As to incident (3),
Complainant stated that only the verbal guidance counseling, by which he presumably means his
conversation with CW1 about redacting accuracy, was related to his race. IR 70. As to his
allegations of reprisal, Complainant maintains with respect to incidents (1) and (5) that S1 had
demonstrated his retaliatory intent by holding him to performance standards that he does not hold
other employees to. IR 67. Regarding incident (2), Complainant stated that S1 used the April 9,
2015 reprimand as an excuse to give him a negative mid-year performance review. IR 70. As to
incident (7), Complainant averred that S1 had encouraged him to self-report because he,
Complainant, was going to “blow the whistle” on certain practices within the office concerning
arbitrary measures of work performance, and that S1 was using the implied threat of repercussions
from Privacy Act violations as a scare tactic to discourage his whistleblowing activity. IR 76.
Complainant made no effort to connect incident (7) to his earlier EEO counseling that took place
in July and August of 2014. With respect to the remaining incidents, Complainant stated that S1
engaged in the conduct described in those incidents in reprisal for his having initiated EEO
counseling in the Summer of 2014. IR 73, 75.

Beyond these speculative and conclusory assertions, Complainant has not presented affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that expose
any weaknesses, inconsistencies, or contradictions in S1’s explanations for the various incidents
to such an extent that a reasonable fact finder could rationally find those explanations unworthy of
credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20,
2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). On
appeal, however, he raises several contentions that need to be addressed. First, he argues, without
citing to any authority, that a complainant should not have to bear the burden of producing
evidence in support of his claim. Second, he contends that the investigation was flawed because
the investigator failed to secure affidavits from any of his coworkers. Both of these contentions
are incorrect. It is settled precedent that the complainant has the ultimate burden to prove that the
employer’s actions were motivated by prohibited considerations.
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If Complainant believed that there was additional evidence to be gleaned from statements made
by his coworkers, he had the option of requesting a hearing, a purpose of which is to fill in any
evidentiary gaps in the investigation. He clearly chose not to, and instead requested a final agency
decision without a hearing. As a result, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations or findings of fact after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented to us.
In terms of satisfying the third element of his harassment claim, that evidence falls far short.

We therefore find, as did the Agency, that Complainant has not established the existence of a
discriminatory or retaliatory motive on S1’s part with respect to incidents (1) through (7) listed
above. Because Complainant has not established a connection between his race, color, or previous
EEO activity and those incidents, no further inquiry is necessary as to whether they rise to the level
of harassment or constitute separate acts of discrimination under disparate treatment theory.
Tynisha H. v. Dept. of State, EEOC Appeal No. 0120141395 (March 17, 2017).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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).
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All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

May 10, 2018
Date