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

Equal Employment Opportunity Commission

Aug 2, 2018

0120161673 (E.E.O.C. Aug. 2, 2018)

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

Wilbert R.,1
Complainant,

v.

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

Appeal No. 0120161673

Hearing No. 451-2015-00091X

Agency No. HS-ICE-00076-2014

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 17, 2016, finding no discrimination
concerning his 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed at the Agency as
a Special Agent, GS-1811-12, at the Agency’s Immigration and Customs Enforcement (ICE)
Homeland Security Investigations, Assistant Special Agent in Charge (ASAC) office in
McAllen, Texas.

On April 10, 2014, Complainant filed his complaint alleging discrimination based on race
(Caucasian) and in reprisal for prior EEO activity when he was subjected to a hostile work
environment in that:

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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(1) Since August 2011, his supervisor (S1) has treated him differently, accusing him in front
of other law enforcement officers of being racist and hating Mexicans, and otherwise
making derogatory and racist remarks to him.

(2) In March 2012, S1 made derogatory remarks to him for submitting a workers’
compensation claim for injuries sustained while attempting to stop an absconding,
undocumented alien.

(3) In June 2012, S1 sent out an unauthorized email under Complainant’s name and from
Complainant’s computer, stating Complainant’s coworker “suck” and comparing the
McAllen office to the Detroit office.

(4) During June 2012, S1 repeatedly stated to him how he disliked the McAllen office and
was miserable there, in an effort to persuade him to resign from ICE, and thereafter
assigned him to the investigative team as a punishment.

(5) In October 2013, S1 sent, by email, negative comments regarding his annual
performance, and thereafter, on October 29, 2013, assigned him a duty call when he was
not on duty.

(6) On October 30, 2013, during a meeting, S1 refused his request for a witness to be present,
would not allow him to leave the meeting, and criticized him about his performance.
After he informed S1 that he filed a discrimination complaint against S1, S1 told him that
he better have “all his ducks in a row.”

(7) On November 1, 2013, he was called into the office of ASAC, was denied a witness, and
was ordered to discuss his problems with S1.

(8) Since November 1, 2013, S1 has stopped engaging in conversation with him and has
become more critical of his performance.

(9) On May 30, 2014, S1 denied his request for night differential pay.

(10) S1 has continuously restricted his ability to perform his assigned job duties.

After completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency then issued its
final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut.

ANALYSIS AND FINDINGS

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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").

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 legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was a Specialist Agent, GS-
12, assigned to the Human Trafficking Group in the McAllen, Texas office. As a Special Agent,
Complainant’s duties involved identifying, disrupting, and dismantling criminal organizations
and/or individuals violating the laws enforced by Homeland Security Investigations.
Complainant’s primary assignment area was human trafficking and immigration related crimes
while assigned to the Human Trafficking-Human Smuggling Group under S1.

Regarding claim (1), Complainant claimed that on August 8, 2011, he began working at the
McAllen office under S1 and “[S1] introduced himself as being half-White and half-Mexican,
but went on to say he was really ‘100% Mexican in camouflage.’” Complainant indicated that
S1 always talked about differences in race and ethnicity in the office and made racial remarks
and statements. Complainant also indicated that S1 believed that Complainant hated Mexicans
because when people in the office told him to date “Valley girls” (referred to as McAllen locals
who were mostly Hispanic), “I told them I was half Italian so I only wanted to date Italian girls.”

S1, Caucasian, denied treating Complainant differently, accusing him of being racist in front of
other agents, or making derogatory and racist remarks as alleged. S1 noted that the McAllen
office was always very busy because it was located on the U.S./Mexico border. S1 noted that
other agents informed him that Complainant had a negative opinion about the McAllen area and
Hispanic people and S1 thereafter told Complainant that some of the agents did not appreciate
his opinion. S1 stated that Complainant never told him that he was harassed by him or his
remarks at the relevant time, and he did not do so until October 30, 2013, as described in claim
(6). Complainant acknowledged that he did not complain to S1 that he was harassed by S1’s
conduct and that he did not bring the matter to upper management at the relevant time.

Regarding claim (2), S1 denied making derogatory remarks as alleged. Specifically, S1
indicated that Complainant had a minor injury in his pursuit of an undocumented alien and asked
S1 for the process for filing a workers’ compensation claim. S1 indicated that he referred
Complainant to the Investigative Assistant who handled the workers’ compensation claims for
the office. When Complainant submitted his CA-1 form, S1 signed it on the same day.

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Regarding claim (3), S1 denied sending the email at issue from Complainant’s computer as
alleged. S1 however noted that agents had done this to each other in the office in the past as a
joke and no one had complained about these types of emails to him. A number of special agents
agreed with S1’s statement. These agents stated that they also did not believe the email at issue
was actually sent by Complainant. The agents stated that it was not uncommon for agents in the
office to send emails like the one at issue from other agents’ computers when they were left
unlocked and that this type of incident had happened before this email incident at issue and after.
Complainant acknowledged that he did not see S1 send out the email at issue.

Regarding claim (4), S1 denied he tried to persuade Complainant to resign from ICE as alleged.
S1 stated that although he personally never heard Complainant say that he disliked the McAllen
area or working in the McAllen office, several other agents in the office told him that
Complainant was having a hard time adjusting to the area and made negative comments about
the area and the local people. Specifically, S1 indicated that during the June 18, 2012 meeting,
S1 met with Complainant and another agent and S1 told Complainant that other agents in the
group had told S1 that he was miserable in McAllen and had made negative comments about the
area and that if he felt this job was not for him, that maybe he should look elsewhere.

Complainant acknowledged that he did tell his coworkers when they asked him about how he felt
about the McAllen area, “It’s okay but not home for me. I want to get home.” Complainant
stated that he was cautious not to offend people by saying bad things about their hometown.

Regarding the assignment, S1 indicated that he assigned all his agents, including Complainant, in
a rotation basis, to work with the investigative team/Fraud Intelligent Smuggling Terrorism
(FIST) team and other border patrol intel units. Specifically, S1 noted that all agents, including
Complainant, were rotated every few days to work with the investigative team and not as a
punishment as alleged. Other agents acknowledged the foregoing statement.

Regarding claim (5), S1 indicated that he sent an email message individually to every agent,
including Complainant, under his supervision with an attachment that had the comments he had
drafted for each of their 2013 performance appraisals. Specifically, S1 stated that the comments
he sent to Complainant were not negative; rather he was merely stating that Complainant needed
to conduct self-generated, more proactive investigations and not to depend on reactive responses
to calls for assistance from other entities. S1 stated and Complainant acknowledged that the
comment at issue was not actually included in his final performance appraisal for the period
ending September 30, 2013.

Regarding the duty call assignment, S1 stated that on October 29, 2013, a special agent from
another group was assigned to the duty call assignment, i.e., the first point of contact for all
immigration related calls from Border Patrol. S1 received a call from FIST requesting assistance
as soon as possible to conduct a consent search. S1 notified the duty agent’s supervisor but was
told that the duty agent had a couple of duty cases he had responded to already and would not be
able to respond immediately. S1 stated that he then contacted Complainant who was out in the
field, thinking he would be able to respond quicker to assist FIST with the consent search until
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the duty agent could respond to take over. S1 asked Complainant if he was available to assist
FIST, but Complainant was unwilling to take the lead on the matter. S1 thus advised the duty
agent to respond to the call as soon as possible to which the duty agent responded.

Regarding claim (6), S1 indicated that on October 30, 2013, he scheduled a one-on-one meeting
with Complainant, as he did for all his agents, to discuss how he felt he could improve on his
previous year’s job performance and how S1 as his supervisor could enhance the office
performance as a group. On that day, stated S1, Complainant came in as scheduled to S1’s office
but he came in with another identified special agent (C1) and when S1 told C1 that “I’ll get
together with you at another time,” Complainant raised his voice and stated that S1 was always
belittling him and he had the right to have a witness present. After C1 left, Complainant asked
S1 if he could have a witness present. S1 told him he could get one of the other supervisors in the
office as a witness and Complainant then walked to the office next to S1’s office and came back
in with another supervisor (SS1).

Complainant indicated that at the relevant time, he wanted a witness present at the meeting
because he recently filed an EEO complaint against S1. We note that the record indicates that on
October 22, 2013, Complainant contacted an EEO Counselor regarding the claims in this
complaint. Complainant stated that during the meeting, he told S1 about S1’s unfair,
disrespectful comments, and treatment toward him concerning work assignments and that he
filed an EEO complaint against S1. It appears that S1 asked Complainant about how specifically
S1 mistreated Complainant and they became confrontational. S1 acknowledged that after
hearing Complainant’s purported accusation that S1 mistreated him, S1 told Complainant that it
was his right to file a complaint but “you better make sure you have all your ducks in a row”
because the complaint he was making was serious.

Regarding claim (7), the ASAC (Complainant’s second level supervisor) indicated the purpose
of the November 1, 2013 meeting was to discuss the event, described in claim (6), the issues
Complainant had with S1, and to try to resolve the matter. During the meeting, the ASAC
indicated that Complainant repeated the same claims against S1 and informed them he was filing
a discrimination complaint.

Regarding claim (8), S1 denied Complainant’s claim that S1 stopped engaging in conversation
with him and has become more critical of his performance. Specifically, S1 stated that he
changed nothing on his part regarding his communications and supervisory responsibilities with
Complainant.

Regarding claim (9), S1 indicated that Complainant was denied his request for night differential
pay because the ASAC previously informed all supervisors and agents, including Complainant,
assigned to monitoring the wire that they would not get any overtime or night differential pay for
the first week of the T-III assignments; rather they would be compensated under Law
Enforcement Availability Pay. S1 noted that his two other agents, who were also assigned to the
wire, also did not receive night differential pay. Complainant does not dispute this.

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S1 however acknowledged that he, on behalf of other supervisors, mistakenly approved the
timesheets of other agents who were assigned to other supervisors, wherein which they
mistakenly were given night differential pay despite the ASAC’s instruction not to do so. S1
indicated that at that time, he was not aware those agents were also assigned to the wire schedule
and he assumed their respective supervisors had verified the timesheets as being correct. S1
noted that the above agents’ timesheets were corrected later.

Regarding claim (10), S1 indicated that Complainant, as one of new agents in the office, was in a
two-year on-the-job training program. S1 stated that he always encouraged his agents, including
Complainant, who were in the job training, to go out with another agent who was more
experienced for investigative actions, such as surveillance and field interviews. S1 noted that he
held all agents, including Complainant, to the same requirements and standards of their position
duties.

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 the severity of the conduct in question or that it was
related to any protected basis of discrimination. Furthermore, 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. It appears that Complainant was unsatisfied with
S1’s management approach, i.e., a hands-on approach, very involved in agents’ casework and
productivity, and S1’s attention to time and attendance. However, there is no evidence that S1’s
management style was based on discrimination as Complainant alleged. Regarding claim (6), we
find that there is no indication that S1’s actions were an attempt to deter Complainant from
pursuing his EEO rights or that S1’s actions would reasonably deter an individual from pursuing
his EEO complaint. The record indicates that on July 1, 2014, Complainant was subsequently
reassigned to another group (the Immigration Response Group) under a different supervisor in
the McAllen office. This matter is not at issue in this case. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as he
alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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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
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)

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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

August 2, 2018
Date