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

Equal Employment Opportunity Commission

Feb 21, 2018

0120152186 (E.E.O.C. Feb. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vito E.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120152186 Hearing Nos. 480-2015-00149X, 480-2015-00148X, 480-2015-00147X2 Agency Nos. HS-ICE-01922-2009, HS-ICE-05363-2009, HS-ICE-01124-2010 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 7, 2015, finding no discrimination concerning his complaints 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision. BACKGROUND In his complaints, filed on March 11, 2009, June 23, 2009, and August 2, 2010, Complainant alleged discrimination based on age (over 40)3 and in reprisal for prior EEO activity when: (1) On unspecified dates, he was denied reassignment to unspecified investigations. 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 The record indicates that Hearing Nos. were formerly identified as 480-2012-00707X, 480- 2012-00708X, and 480-2012-00538X, respectively. 3 The record indicates that the basis of age applied only to claims (1) through (10). 0120152186 2 (2) Between April 13, 2008, and August 3, 2008, he did not receive an SF-50 documenting his tenure as Acting Group Supervisor, Group 3, Office of Investigations, Las Vegas, Nevada, nor was he compensated at the GS-14 level. (3) On August 3, 2008, he was removed from the position of Acting Group Supervisor. (4) From September 16, 2008, to September 25, 2008, he was not selected to attend a Worksite Enforcement and Critical Infrastructure Protection Investigations Course, WSEIP 0802. (5) From October 21, 2008, to October 30, 2008, he was not able to attend Undercover Operatives School, UCOS 0901. (6) On October 24, 2008, he submitted a memorandum through official channels to the Special Agent in Charge (SAC) in which he requested to speak with the SAC; however, he received no response. (7) On October 29, 2008, he became aware that he was not selected for the position of Group Supervisor, GS-1811-14, Office of Investigations, Las Vegas, Nevada, as advertised under Vacancy Announcement Number (VAN) DAL-159011-OI-MP-PJB. (8) On November 3, 2008, management failed to advise him that criminals identified him and his assigned government vehicle. (9) On November 3, 2008, he was denied the opportunity to attend Defensive Tactics School, DTI-B0901. (10) On November 24, 2008, he learned that his request for annual leave for the period December 20 - 22, 2008, was denied. (11) On March 25, 2009, he learned that he was the subject of two administrative inquiries. (12) On April 28, 2009, he was precluded from attending an ICE (Immigration and Customs Enforcement) Special Agent in Charge Los Angeles Advisory Committee Meeting due to a dispute regarding his travel plans. (13) On May 14, 2009, he received a mid-cycle performance review that contained inaccurate and unfair statements about his job execution. (14) On November 26, 2009, his Assistant Special Agent in Charge, his second level supervisor (S2), denied his request to be excused from two temporary duty assignments (TDY) in Houston, Texas. 0120152186 3 (15) On March 23, 2010, S2 did not approve his request to travel to Los Angeles, California, on March 24, 2010. On April 30, 2009, the Agency dismissed claims (1) - (4) for failure to state a claim and/or due to untimely EEO Counselor contact pursuant to 29 C.F.R. §§ 1614.107(a)(1) and/or (2), respectively. Therein, the Agency indicated that the dismissed claims would be considered as background information to support the accepted claims. The Agency accepted claims (5) - (15) for investigation. After completion of the investigation of the accepted claims, Complainant requested a hearing but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). Regarding claim (1), Complainant claimed that on unspecified dates, he was denied reassignment of unspecified investigations. The Agency stated that Complainant was requested to specify the incidents and its dates but failed to do so. On appeal, Complainant does not contest this. Thus, we find that the Agency properly dismissed claim (1) for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Regarding claims (2), (3), and (4), Complainant claimed that the alleged incidents occurred from April 13, 2008, through September 25, 2008, concerning his Acting Group Supervisor assignment and not being selected to attend Worksite Enforcement and Critical Infrastructure Protection Investigations Course. The record indicates that Complainant contacted an EEO Counselor regarding these discrete actions on December 4, 2008, which was beyond the 45-day time limit set by the regulations. Upon review, we find that under a “reasonable suspicion” standard (as opposed to a “supportive facts” standard), Complainant reasonably should have suspected discrimination at the time of the alleged incidents (before all the facts that would support a charge of discrimination have become apparent). See 29 C.F.R. §1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, we find that the Agency properly dismissed claims (2), (3), and (4) due to untimely EEO Counselor contact. Turning to claims (5) - (15), after a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated 0120152186 4 legitimate, nondiscriminatory reasons for the alleged incidents. At the relevant time, Complainant was employed by the Agency as a Senior Special Agent, GS-1811-13, Office of Investigations, in Las Vegas, Nevada. Regarding claim (5), S2 indicated that he did not have any record that Complainant requested to attend the Undercover Operatives School at the relevant time. Regarding claim (6), Complainant claimed that on October 24, 2008, he submitted a memorandum through official channels to the SAC in which he requested to speak with him at his convenience regarding his pursuit of higher duty responsibilities within the SAC. Complainant claimed that he did not receive any response to his request. Complainant’s Acting Group Supervisor, his then first level supervisor (S1), stated that he received the memorandum from Complainant and he approved the memo by initialing and then placed it in a government envelope and hand delivered it to S2. The record reflects that S1, via Routing and Transmittal Slip, forwarded Complainant’s memo to S2 on October 24, 2008. S2 stated that he forwarded the same to the Acting Deputy SAC on October 29, 2008, and he did not know why Complainant did not receive any response concerning his memo. The record reflects that on October 29, 2008, S2 sent an electronic message to the Acting Deputy SAC concerning Complainant’s pursuit of higher duty responsibilities and the memo at issue via facsimile. The SAC stated that he did not recall receiving the Complainant’s memo at issue. Regarding claim (7), Complainant claimed that he applied but the SAC did not select him for any of three vacant Group Supervisor, GS-14 positions in Las Vegas under the Special Agent Promotional Assessment. Complainant indicated that his promotional score was 98 out of 100, he received rank 3 out of 81 eligible on the referral list, and he had served as Acting Group Supervisor from April 13, 2008, to August 4, 2008. The SAC indicated that he was the approving official for the vacancies at issue. The SAC acknowledged that Complainant ranked highly on the certified eligible list but the rank was not as important as his consideration of the leadership potential of agents. Specifically, the SAC stated that there was no panel or interview for the selection process and his selection decision was based on what he heard out in the field regarding the leadership potential of various agents. He indicated that he was looking for candidates with outstanding and well-known reputations. The SAC indicated that he had no role for Selectee #1’s selection and the selection was made by Headquarters. Regarding Selectee #2, who worked in the Denver office, the SAC stated that he selected him because: he wanted to bring in someone from “the outside” due to the systematic performance problems in the Las Vegas office; he was looking for an extremely high performer; and he made calls about Selectee #2 and found out that 40% of the cases that came out of the Resident Agent in Charge office was a result of Selectee #2’s work. The SAC stated that he selected Selectee #3, who was recommended by S2, because he heard outstanding things about Selectee #3 from several sources including that: Selectee #3 was a 0120152186 5 highly decorated, consistent performer; he had served as Acting Group Supervisor for two years; and he demonstrated his ability to perform the functions of that position. Complainant indicated that he did not know who was selected for the positions or their qualifications. We find that Complainant failed to show that his qualifications for the positions were plainly superior to Selectee #1, #2, or #3’s qualifications, as SAC stated, above. Regarding claim (8), S1 indicated that on November 3, 2008 (Monday), he received a call at 10:30 a.m. from S2 that Complainant and two other agents who conducted surveillance on identified drug dealers on Saturday might had been compromised the day before (the agents’ vehicle could be identified) and to change out their vehicle for the surveillance. S1 stated that he called the two agents about the situation and told them to change out their vehicle for the surveillance. S1 stated that he immediately attempted to contact Complainant by mobile but was unsuccessful. After two more attempts, stated S1, he was able to contact Complainant and informed him of the situation. One of the two agents stated that all of the agents, including Complainant, were put at risk at the relevant time. Regarding claim (9), the SAC indicated that he did not recall seeing Complainant’s name as being recommended for the training at issue. Regarding claim (10), S2 stated that early to middle of November 2008, the office was conducting a wire intercept and extensive surveillance operations and leave was tentatively cancelled for everyone due to operational commitments and staffing issues. Complainant does not contest this. S2 indicated that on December 17, 2008, the intercept was terminated and Complainant was made aware of that fact on that day. Complainant acknowledged that his leave request for the period December 20-22, 2008, was initially denied but was ultimately approved on December 19, 2008. Complainant also acknowledged that on October 15, 2008, S1 approved his request for “use or lose annual leave” for 56 hours from December 23, 2008, through January 4, 2009. Regarding claim (11), S2 indicated that in May 2008, he received information regarding some alleged misconduct on the part of Complainant, i.e., disclosing immigration matters to his friend and consuming alcohol before driving his government owned vehicle, and he, thus, reported that information to the Office of Professional Responsibility (OPR). S2 stated that it was his responsibility to report certain employee misconduct to the OPR and during the previous two years, he notified OPR regarding a total of eleven employees. The record indicates that after the inquiries, OPR determined the reported claims were unsubstantiated and no further action was taken against Complainant as a result. Complainant does not dispute this. We note that Complainant did not show that he was treated less favorably than a similarly situated employee under similar circumstances. Regarding claim (12), S2 indicated that on March 18, 2009, Complainant submitted a travel authorization for travel to the Los Angeles meeting at issue. He then discussed the mode and days of travel with Deputy Acting SAC and it was decided that Complainant should fly in and 0120152186 6 out in one day, instead of driving from Las Vegas to Los Angeles as Complainant suggested. Complainant indicated that he already had preapproved sick leave scheduled for April 27, 2009, a day before the April 28, 2009 meeting to attend a doctor appointment in Los Angeles area and he was planning to drive to his doctor’s appointment on April 27, 2009, and attend the meeting on the next day. S2 stated that on three different occasions on April 1, 13, and 17, 2009, he instructed Complainant to change his mode of travel to fly in and out on the same day but Complainant refused to do so. S2 also indicated that Complainant contacted another manager not in his chain of command requesting guidance on travel to the meeting at issue in an attempt to change the instruction he was already given. Complainant acknowledged this. Complainant’s then first level supervisor (SS1), who was identified as Selectee #2 in claim (7), indicated that at the relevant time in April 2009, he received a notification from S2 that Complainant would have to amend his travel authorization to fly in and out of Los Angeles on the day of the meeting (April 28, 2009). When he told Complainant of this, stated SS1, Complainant told him that he needed to get a physical exam in Los Angeles on the day before the meeting and he would be on annual leave on the day after the meeting. SS1 indicated that when he discussed Complainant’s foregoing plan to S2, it was pointed out that Complainant could be considered in travel status and the government could be liable for him. S2 told SS1 that he would not authorize the travel as requested by Complainant. SS1 further stated that a few days before April 28, 2009, Complainant told SS1 that he decided not to attend the meeting at issue due to the case he was just assigned which required a lot of attention. Complainant does not dispute SS1’s foregoing statement. Regarding claim (13), SS1 indicated that he prepared Complainant’s mid-cycle performance review at issue based on his personal observations of Complainant’s work product and performance after consulting with S1, Complainant’s former first level supervisor, since he became Complainant’s supervisor on January 26, 2009. Specifically, SS1 pointed out in the evaluation, among other issues, that Complainant: needed to improve his time and case management; his work performance statistics were below standards for a Senior Special Agent; and he should focus on generating and working to completion good, viable criminal cases. SS1 also pointed out that Complainant failed to pursue the opportunity to work with the Nevada Department of Motor Vehicles in conducting investigations into foreign nationals who had fraudulently obtained state of Nevada identification documents although he was approved to do so. Complainant does not dispute the foregoing statement. S2 indicated that he concurred with SS1’s evaluation and believed it to be a fair representation of Complainant’s performance during the evaluation period. S2 also indicated that the mid-cycle performance evaluation was intended to improve Complainant’s performance and to motivate him. Regarding claim (14), S2 indicated that after discussing Complainant’s request to be excused from two TDYs in Houston, Texas, with Deputy SAC and after a review of his reasons for the excuse, i.e., mostly based on his personal reasons, S2 decided to deny the request. The record indicates that Complainant requested to be excused from the TDY at issue because of the 0120152186 7 pending sale of his residential property, his doctor’s appointments, his ongoing personal legal litigation, and his caseloads. S2 stated that other agents were also required to go on these assignments and from the list he received he estimated that approximately 50 agents were required to travel on the TDYs. S2 indicated that TDY assignments were made on a rotating basis among the three groups in the office. For the TDY at issue, S2 (Group 3 supervisor) recommended Complainant as his top candidate. Complainant claimed that Agent #1 in his group volunteered for the TDY at issue but management decided not to send Agent #1 and instead Complainant was forced to go. The record indicates that on November 17, 2009, SS1 sent S2, via electronic mail, a list of his five agents, including Complainant, who could attend the TDY detail at issue. Therein, SS1 noted that none of his five agents, including Complainant, wanted to go except Agent #1 but he further noted that Agent #1 should not go because he had important cases that could not be left unattended for 4 to 6 weeks of TDY details (November 30, 2009, through December 19, 2009, and January 4, 2010, through January 25, 2010). SS1 indicated that with cases and backlog in mind, he put Complainant’s name on the top of the TDY detail list. The record reflects that via electronic messages, S2, prior to his denial of Complainant’s request, asked SS1 again why Agent #1, who volunteered to go, should not go. In response, SS1 reconfirmed the fact that his office could not afford to have Agent #1 be away for the TDYs due to the important nature of his assigned cases. Regarding claim (15), Complainant indicated that on March 11, 2010, he received an email from Los Angeles ICE Mission Support tentatively scheduling him for a structure oral interview on March 24, 2010, in Long Beach for a GS-14 position. Complainant stated that on March 16, 2010, he made travel arrangements through a Los Angeles contracted travel agency to travel from Los Vegas to Long Beach via Los Angeles after reviewing cost constructive savings to the government. Complainant stated that when SS1 was told of Complainant’s travel arrangements on March 17, 2010, SS1 indicated that S2 had ordered him to fly directly to Long Beach and to take a taxi to the interview site in Long Beach. Complainant’s request to fly in and out of Los Angeles instead of Long Beach was never approved. Complainant stated that on March 23, 2010, his attempt to get travel arrangements to fly to Long Beach that would accommodate his interview on March 24, 2010, was unsuccessful and he, thus, was forced to reschedule his interview date. SS1 indicated that Agent #2 in his office was also scheduled to interview in Long Beach on March 24, 2010. Complainant does not dispute this. SS1 stated that he advised S2 of the interviews and S2 recommended both employees fly on Jet Blue into Long Beach and take a taxi to the interview site and return to Las Vegas that evening. SS1 stated that he told both employees, including Complainant, the travel instructions as S2 ordered. S2 stated that Agent #2 submitted her travel request as instructed, i.e., flying to Long Beach, and it was approved. Specifically, S2 indicated that Complainant was not denied his travel request at issue; rather he was instructed to amend his travel arrangements to fly into Long Beach. S2 stated that flying to Long Beach was the standard pattern and practice utilized by Las Vegas 0120152186 8 employees when traveling to the Long Beach office which was only about fifteen minutes from the airport. S2 indicated that although Complainant was provided with instruction on the mode of travel by his management, he refused to comply. Complainant does not show that he was treated less favorably than a similarly situated employee under similar circumstances. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding his claim of harassment, we find that Complainant failed to establish that any of the conduct was related to any protected basis of discrimination. After a review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 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). 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 0120152186 9 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. 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). 0120152186 10 FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 21, 2018 Date