Todd S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionMay 10, 20180120162120 (E.E.O.C. May. 10, 2018) Copy Citation 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. 0120162120 2 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. 0120162120 3 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. 0120162120 4 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 lawâ€). 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). 0120162120 5 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. 0120162120 6 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). 0120162120 7 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. 0120162120 8 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 Copy with citationCopy as parenthetical citation