EEOC Appeal 2020001199

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Windy H.,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 2020001199
Hearing No. 480-2017-00163X
Agency No. HS-10-CIS-005621
DECISION
On November 9, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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. The
Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405.
BACKGROUND
From 2003 through 2010, Complainant was a temporary student intern through the Agency’s
Student Temporary Experience Program (STEP).2 	Specifically, Complainant worked as an
Immigration Services Clerk for the Agency’s Field Office in Portland, Oregon.
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 Individuals are able to renew their positions within the program as long as they maintain their
eligibility and funding is available. Complainant’s position was renewed approximately 16 times
during his seven years with the Agency.

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In mid-August 2010, he was notified that his position would be terminated effective September
30, 2010. 	Effective August 30, 2010, Complainant was placed in non-duty status with pay.
Believing that these actions were discriminatory, and that he was subjected to unlawful harassment
by his supervisor, Complainant filed a formal EEO complaint on July 15, 2010, based on race
(black), national origin (Senegalese), color (black), and sex (male).
After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). 	Complainant timely requested a hearing. 	However, the AJ later
granted the Agency’s July 25, 2011 Motion for Summary Judgment. 	In her November 6, 2011
decision, the AJ found no discrimination. The Agency issued a final order implementing the AJ’s
decision. On January 17, 2012, Complainant appealed the decision to the Commission.
In Complainant v. Department of Homeland Security, EEOC Appeal No. 0120121312 (Jan. 9,
2014), the Commission concluded that the AJ erred in issuing a summary judgment decision
finding no discrimination. Due to conflicting evidence on material facts that would require
resolution, the decision concluded that summary judgment was not appropriate, and a hearing
should have been held. In addition, it was noted that although reprisal was not raised in counseling
or in the formal complaint, Complainant raised more than twenty instances of retaliation during
the investigation. 	In the Commission’s view, the investigator should have followed up on
Complainant’s efforts to add this basis, and reprisal would be considered on remand. 	The
Agency’s decision was vacated, and the matter was remanded for further processing by the AJ.
Thereafter, on June 19, 2014, after considering Complainant’s Motion to Amend and the Agency’s
Motion to Remand, the AJ sent the case for a supplemental investigation. The following claims
were included in the inquiry:
(1) Between 2005 and August 2010, Complainant’s supervisor yelled at him, made in
appropriate and threatening remarks, was disrespectful toward him, and relieved
him of his duties;
(2) Since 2005, Complainant was denied compensatory time for work completed
outside of his duty hours;
(3) On September 28, 2009 Complainant learned that his temporary student intern
position would not be extended beyond September 30, 2009, but it was extended to
September 30, 2010;
(4) On June 10, 2010, Complainant was instructed to provide verification of his current
student status from the school’s registrar. After Complainant failed to do so, 	he
was 	informed 	that 	his 	employment 	would 	be 	terminated 	if 	the 	requisite
documentation was not received by June 25, 2010;

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(5) On August 16, 2010, Complainant was advised that his internship, through STEP,
would be terminated effective September 30, 2010; 3
(6) On August 30, 2010, Complainant was placed on non-duty status with no loss in
pay; and,
(7) On or about October 11, 2010, the Agency mailed a box of documents to
Complainant’s home, which included confidential information about employees
who had participated in the Combined Federal Campaign (CFC).
Upon completion of the investigation, the case returned to the AJ. A hearing was held on July 30-
31, 2019. On August 15, 2019, the AJ issued a bench decision finding no discrimination.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” 	Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.
Credibility Determination
In her bench decision, before addressing the merits of the complaint, the AJ set forth her views
regarding the credibility of Complainant and some of his supporting witnesses. 	The AJ
acknowledged that Complainant “appears to be almost universally respected, admired, and well-
liked by his colleagues and friends” and “impressed many with his professionalism, dedication
and enthusiasm for his job.” 	However, the AJ found that “record evidence also clearly
demonstrates that Complainant was misguided in his perceptions of discrimination; thanks in part,
it appears, to the unfortunate influence of a disgruntled co-worker [Employee-H] who was an
utterly untruthful witness and yet who also managed to actually undermine Complainant’s
allegations of discrimination in this case before her testimony was abruptly halted by the
undersigned AJ due to her wildly dishonest factual representations.”
3 The record reflects that Complainant was initially informed in December 2009 that that would
be the last extension of his STEP position.

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According to the AJ, Complainant’s perceptions of discrimination were based on his “erroneous
sense of entitlement to permanent employment . . . as a result of his work performance as a
temporary student intern which . . . conferred no such right.” 	Further, the AJ found that
Complainant himself had his own “significant and numerous credibility problems”. Specifically,
the AJ determined that not only did Complainant fail to provide credible supportive evidence to
substantiate his claims, but the AJ determined further that Complainant “repeatedly made
numerous misleading and outright false statements under oath in an attempt to support his
[claims].”
AJ's credibility determinations are entitled to deference due to the judge's first-hand observation
of the demeanor and conduct of the witnesses at the hearing. Willis v. Dept. of the Treasury, EEOC
Request No. 05900589 (July 26, 1990). Such determinations will be accepted unless documents
or other objective evidence so contradicts the testimony or the testimony so lacks in credibility
that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter
9, at § VI.B. (Aug. 5, 2015). Therefore, it is within such framework that we shall review the AJ’s
August 15, 2019 decision.
Disparate Treatment
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). 	He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. 	Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). 	The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). 	To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. 	Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant alleges that the Agency’s decision not to extend his internship (claims (3), (4), and
(5)) was discriminatory. The Agency’s proffered legitimate, non-discriminatory reason was that
funding from Agency headquarters for STEP employees was ending. The Agency stated that this
nationwide policy would have an impact upon all Agency student interns. Complainant has not
met his burden in proving that the Agency’s reasons were pretext to mask unlawful discriminatory
animus.
In claim (3), Complainant appears to argue that in prior years he had been told his position was
ending, only to have it extended. This past occurrence, however, does not support his belief that
the Agency’s determination to now deny the extension is somehow discriminatory.

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In fact, in addition to the end of national STEP funding, Complainant no longer met the STEP
participation requirements.
In late April 2010, Complainant was informed that he could only continue in his position until his
graduation in June 2010, or September 30, 2010, whichever occurred first. Citing the new Agency-
wide policy from headquarters, management required Complainant to provide verification of his
current student status from his school’s registrar (claim (4)).
While Complainant contends this requirement was discriminatory, he has not provided any
evidence whatsoever, indicating that the request was connected to any of his protected basis.
Instead, the record reflects that the request was sent to all Agency student employees. The STEP
Coordinator informed Complainant’s school, Portland State University, that STEP participants
were required to “be enrolled in an accredited school as degree-seeking student, taking at least a
half-time course load” and maintain at least a “C” average. Complainant, however, was unable to
produce the requested documentation. As noted by the AJ, Complainant’s records indicated that,
although he had completed 225 units and only 180 were need for a bachelor’s degree, he was
nevertheless 71 units short of the credit necessary for a degree. 	Because he was not genuinely
seeking a bachelor’s degree nor enrolled at least half-time, Complainant was no longer qualified
for the STEP program. 	Complainant has failed to meet his burden in showing that the student
verification requirement and the determination that he did not meet the conditions were
discriminatory.
To the extent Complainant believed that his performance in the STEP program entitled him to a
permanent position, the record shows otherwise. 	An Agency witness repeatedly stated that
Complainant was in STEP, not the Student Career Intern Program. While the Agency hired other
former STEP interns, they were brought on at a lower, GS-4, level. Complainant, in contrast, was
unwilling to take a position at his current GS-4 level, believing he should be a GS-5 or GS-7. In
her bench decision, the AJ specifically cited Complainant’s testimony regarding this issue in
illustrating her belief that he provided misleading or false statements. As Complainant testified
that he applied at the GS-4 level, his own witnesses stated that he was unwilling to do so, only
seeking GS-5 or higher.
We find that the AJ’s decision finding no discrimination, regarding his STEP position, is supported
by substantial evidence.
In claim (6), Complainant asserts that his placement in a non-duty status was discriminatory.
However, the AJ credited the testimony of management officials who stated that, beginning at the
time of the April 28, 2010 meeting, Complainant began a pattern of erratic and potentially
threatening behavior. This behavior continued following the determination that Complainant no
longer qualified for STEP. According to an Agency official, Complainant’s behavior included the
following actions: threats of suicide, incoherent emotional declarations, vague and overt threats
of violence against others, and wearing the same clothes for several consecutive days. 	These
actions led management to consult with Federal Protective Services, who went to Complainant’s
residence.

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Due to the ongoing nature of Complainant’s concerning actions, the Agency placed him in the
non-duty, with pay, status for the remainder of his time (one month) in the STEP program.
Complainant acknowledges that the Agency was aware that he was “low”, “stressed out”, and even
suicidal, when asked about FPS coming to his apartment. During one phone call with an Agency
official, Complainant described not eating for days and feeling very weak. 	While Complainant
believes that no other employees were required to make daily check-in calls while on non-duty
status, the record reflects this action was taken out of concern for Complainant’s well being rather
than discriminatory animus. Based on the instant record, Complainant has not established that his
placement in non-duty status was due to his race, national origin, sex, color or prior EEO activity.
In claim (2), Complainant’s alleges he was denied overtime since 2005. 	Management officials
attested that in order to work overtime, an employee must first obtain approval from his supervisor.
Before approving an overtime request, supervisors must consult with Operations Support and
confirm that overtime funds are available. Agency records reflect that over the years, Complainant
was paid for many hours of overtime. Any denial of overtime was not recorded, as the request slip
was returned to the employee. At the hearing, the timekeeper testified that her review of records,
from 2005 through 2010, revealed only one hour of overtime that Complainant was not paid for.
She explained the error appeared to be due to miscommunication with Complainant’s supervisor
and the timekeeper had corrected the error. 	Complainant has not shown that he requested and
obtained approval to work overtime hours which he was not then paid for, nor that the failure to
pay him was due to one of his protected basis.
When Complainant left the office on August 30, 2010, after being placed in non-duty status, he
took some of her personal belongings with him. However, some items remained. In early October
2010, the Agency mailed these items, including some documents, to Complainant (claim (7)). In
her bench decision, the AJ credited Employee-H with suggesting to Complainant that the Agency
was trying to “set him up” by including confidential documents (i.e. the CFC paperwork) that
should not have left the office. The AJ found no credible evidence to support Complainant’s belief.
At the hearing, Complainant explained that when he discovered the CFC documents, with
employees’ personal information, he returned them to the Agency. 	When asked if the Agency
took any action against him, as a result of the incident, Complainant stated that he was never
contacted. 	Therefore, not only has Complainant failed to make any connection to his protected
bases, but in claim (7) he has failed to even allege a personal harm or loss to a term, condition, or
privilege of his employment.
Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
statutorily protected class; (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

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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). 	The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
The AJ concluded that Complainant did not present any credible evidence to substantiate his
harassment claim. In particular she noted Complainant’s belief that his supervisor’s remark, that
she “didn’t like his face”, was indicative of racial discrimination. 	At the hearing, however,
Complainant admitted that his allegation was at odds with the context of the remark. Complainant
had smirked at the supervisor after revealing an error she made to another employee. Further, the
AJ noted that Employee-H, who had not witnessed the incident, suggested to Complainant a
discriminatory motive: that the remark meant “black”. 	In another incident, Complainant was
“scolded” by his supervisor for committing a security breach. While Complainant denied engaging
in any such conduct, the AJ found it was undisputed that he had violated security protocols by
allowing an unauthorized individual to enter data using his access. 	The AJ concluded that
Complainant’s inability to admit his own part in the incident damaged his credibility. Although
the supervisor’s reaction may have been emotional, there was no evidence indicating the action
was 	motivated 	by 	discriminatory 	animus 	rather 	than 	concern 	over 	a 	security 	violation.
Additionally, Complainant alleged that his supervisor assisted a female STEP employee with her
application for a permanent position, but did not assist him. Both the management official and the
female colleague deny the claim. The supervisor attested that she would not provide help to any
employee in the office if there were open vacancy announcements. 	She did review employees’
resumes, including Complainant’s, when there were not job openings. According to the female
STEP employee, the only assistance given was information regarding “key words” to include in
applications, which was also sent to Complainant.
In sum, we do not find that the alleged events comprising the claim of harassment occurred as
described by Complainant. Further, even if they had, Complainant has not shown a nexus between
the harassment and any of his protected bases. We find that the AJ’s conclusion, that Complainant
was not subjected to discriminatory harassment, is supported by substantial evidence.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s
decision finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.

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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
October 1, 2020
Date