Willa B.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

May 4, 2016

0120141497 (E.E.O.C. May. 4, 2016)

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

Willa B.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120141497

Agency No. HS-ICE-22167-2012

DECISION

The Commission accepts Complainant’s appeal2 from the July 24, 2013 final Agency decision
(FAD) 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the FAD.

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 In her appeal, Complainant represented that she received the July 24, 2013 FAD on March
11, 2014, and filed her appeal by fax on the same day. In response, the Agency argued that
Complainant’s appeal should be presumed untimely. Although Complainant has not explained
the delay in her receipt of the FAD, the Commission notes that the Agency has likewise
provided no evidence of when Complainant received the FAD or established a presumption of
constructive receipt by providing a signature of receipt. See 29 C.F.R. § 1614.402; Pazinick
v. U.S. Postal Serv., EEOC Request No. 05930337 (Sept. 10, 1993). Thus, under the
circumstances present, the Commission finds that the Agency has not met its burden to
establish the date on which Complainant received the FAD. As such, the Commission finds
that the Agency failed to show that the appeal was filed in an untimely manner.

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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Assistant at
the Agency’s Office of Investigations facility in San Diego, California. In March 2011,
Complainant expressed an interest to her first-level supervisor (S1) in attending a seminar
called the “Indispensable Assistant.” S1 responded to Complainant that she would review the
information and get back to Complainant. S1 subsequently denied the request based on
budgetary constraints. Additionally, Complainant expressed an interest in attending Collateral
Duty Safety Officer (CDSO) training so that she would be able to be a Health and Safety
Officer. S1 informed Complainant that she did not believe that Complainant would have
enough time to handle the duties of a CDSO because she would soon be assigning her more
purchasing assignments.

On May 8, 2012, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and color (dark-skinned) when on or
around March 30, 2012, she was denied the opportunity to attend the Indispensable Assistant
and Collateral Duty Safety Officer (CDSO) training.3

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, S1 stated that Complainant attended a similar course to
the CDSO training a few months prior and that she did not believe that Complainant would be
able to complete her additional purchasing assignments if she attended the course. Further, S1
affirmed that Complainant never formally requested any type of CDSO training; rather,
S1indicated that she was responding to Complainant’s request for information about the
training. The Agency concluded that Complainant failed to show that management’s reasons
for its actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that it is untrue that she previously attended a similar course
to the one at issue; rather, she claims that she attended a one-day seminar for administrative
assistants. Complainant alleges that S1 ignored her requests to attend even after she offered to
3 The Agency dismissed four additional claims for untimely EEO counselor contact.
Complainant did not challenge these dismissals on appeal; therefore, the Commission will not
address them in this decision.

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pay to attend the course herself. Accordingly, Complainant requests that the Commission
reverse the FAD.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination, record
evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for its
actions. With respect to the Indispensable Assistant course, S1 stated that she discussed
Complainant attending the course with her supervisor, but the request was denied because the
Agency was operating under a continuing resolution at the time. ROI, at 136. Management
subsequently approved Complainant’s request to attend an administrative conference on May
18, 2011. Id. at 134. Regarding the CDSO training, S1 affirmed that Complainant did not
formally request CDSO training, but she did not believe that Complainant would have enough
time based on upcoming assignments and staff shortages. Id. at 104-05, 136.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

The Commission notes that there is evidence that S1 had some personality conflicts with
Complainant and other employees, to which her supervisor attributed to S1’s management style
and lack of communication. The Commission notes that Title VII is not a civility code.
Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the
victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. At all
times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the
evidence that the Agency's reasons were not the real reasons and that discriminatory animus

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was a factor in its actions. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
as alleged
CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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).

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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

May 4, 2016
Date