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

Equal Employment Opportunity Commission

Feb 19, 2016

0120143090 (E.E.O.C. Feb. 19, 2016)

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

Xochiti B.,
Complainant,

v.

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

Appeal No. 0120143090

Hearing No. 480-2013-00236X

Agency No. HS-ICE-01988-2011

DECISION

Complainant filed an appeal from the Agency’s July 28, 2014 final order 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. For
the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Legal Assistant within the Office of the Chief Counsel in San Diego,
California, under the direct supervision of the Deputy Chief Counsel (DCC). On May 14, 2012,
Complainant filed an EEO complaint in which she alleged that the DCC discriminated against
her on the basis of sex (female) and retaliated against her for previously initiating EEO
counseling. She claimed that the DCC delayed her request for sick leave for twelve days until
August 29, 2011, and that on September 12, 2011, he prevented her from getting paid on time.

Complainant submitted a request for leave on August 18, 2011, which the DCC did not approve
until August 29th. Investigative Exhibit (IE) 9, p. 7; Complainant’s Interrogatory (CI), pp. 8-10.
The DCC averred that Complainant had been detailed to Enforcement and Removal Operations
1This 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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(ERO) and was under the impression that her detail supervisor in ERO was the one to approve
her leave requests. He further testified that as soon as he became aware that leave approval
authority still rested with him as her nominal supervisor, he approved the request. IE 8, pp. 3-4;
IE 9, p. 8; Administrative Judge’s Exhibit (AJE) 3, ¶ 7.

Complainant averred that on September 12, 2011, the Legal Assistant responsible for handling
payroll informed her that she could not process her pay statement without a sign-in sheet, and
that requiring a sign-in sheet was contrary to the Agency’s established policy and practice. CI,
pp. 17-18. The DCC responded that everyone who worked in the Chief Counsel’s Office was
required to complete a sign-in sheet, even managers and supervisors. IE 8, p. 5; AJE 3, ¶ 5.

Complainant requested a hearing prior to the completion of the investigation, since more than
180 days had elapsed since she had filed her complaint. At the conclusion of the investigation,
the Agency submitted its report directly to the Equal Employment Opportunity Commission
Administrative Judge (AJ) assigned to the case. Over Complainant’s objections the AJ granted
the Agency’s June 18, 2013, motion for summary judgment and on May 1, 2014, issued a
decision without holding a hearing. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving pay and leave, even if
mistakes were made, unless there is evidence of a discriminatory motivation on the part of the
officials responsible for making those decisions. See Texas Department of Community. Affairs
v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on her disparate
treatment claim, Complainant would have to present enough evidence to raise a genuine issue of
material fact as to whether the DCC was motivated by unlawful considerations of her gender and
previous EEO activity in connection with the incidents comprising her complaint. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

Complainant can do so in circumstantial-evidence cases such as this by presenting documents or
sworn testimony showing that the reasons articulated by the DCC for his actions are pretextual,
i.e., not the real reason but rather a cover for sex discrimination or reprisal. St. Mary’s Honor
Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext
can include discriminatory statements or past personal treatment attributable to the DCC,
comparative or statistical data revealing differences in treatment across gender lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v.
United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why she believed that the DCC was motivated by considerations
of her sex and previous EEO activity, Complainant responded that the timing of the DCC’s
actions strongly suggested reprisal. CI, pp. 19-20. She did not provide a response to the inquiry

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regarding sex discrimination. Complainant’s entire reprisal claim appears to rest on the notion
that establishing a prima facie case is all that is necessary to prevail. This is simply not true.
We definitely agree that the close temporal proximity of her prior EEO complaint and the
incidents in question suggests a causal connection between them. However, this by itself is not
enough to prove the existence of such a connection without at least one of the indicators of
pretext listed above. And on this crucial issue, Complainant did not provide evidence of any of
those indicators. At most, the delay in her leave approval resulted from a mix-up in
communication between the DCC and Complainant’s detail supervisor in ERO as to who had the
authority to approve Complainant’s leave while she was on that detail. As to her contention that
the sign-in sheet requirement was inconsistent with the Agency’s time and attendance policies,
Complainant has not submitted any sworn statements from other witnesses or documents that
contradict the DCC’s assertion that sign-in sheets were required of everyone in the office or
which call the DCC’s veracity into question. We therefore find, as did the AJ, that no genuine
issue of material fact exists with respect to the DCC’s motivation in connection with
Complainant’s leave approval being delayed or Complainant being asked to support her leave
request with a sign-in sheet.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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.

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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).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 19, 2016
Date