Bryce M.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 14, 2019

0120172355 (E.E.O.C. Feb. 14, 2019)

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

Bryce M.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120172355

Agency No. HS-CBP-26733-2016

DECISION

On June 26, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s May 26, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Border Patrol Agent (BPA) at the Agency’s
El Centro Sector, Calexico Station facility in Calexico, California.

On August 4, 2016, Complainant filed a formal complaint alleging that the Agency unlawfully
retaliated against him for engaging in prior EEO activity when:

1. on May 26, 2016, management intentionally manipulated the training schedule to
disrupt his scheduled leave and required him to attend firearms training;

2. on July 10, 2016 and continuing, management deliberately assigned individuals to
supervise him, against whom Complainant had previously filed EEO complaints
alleging harassment;

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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3. on July 10, 2016 and continuing, management manipulated the schedule in order to
assign him to a High-Risk Encounter Area (HREA);

4. on August 11, 2016, management failed to take action after a co-worker made a
derogatory remark toward him;

5. on October 2, 2016, management deliberately assigned individuals to supervise him,
against whom Complainant had previously filed EEO complaints alleging
harassment;

6. on October 2, 2016, management manipulated the schedule to assign him to a HREA;

7. on October 5, 2016, a supervisor exhibited unprofessional behavior when he
questioned why Complainant was not turning in his keys to armory personnel;

8. on October 6, 2016, a supervisor exhibited unprofessional behavior, once again, when
he questioned why Complainant was not turning in his keys to armory personnel;

9. on October 6, 2016, a supervisor exhibited unprofessional behavior after Complainant
approached the supervisor, and the supervisor informed him that he can no longer
exchange duty assignments with his co-workers;

10. on November 7, 2016, a co-worker exhibited unprofessional conduct and harassment
by engaging Complainant in a verbal confrontation, and the co-worker was later
defended by the Patrol Agent in Charge;

11. on January 18, 2017 and continuing, a supervisor deliberately assigned him to the
toxic river area although the supervisor was aware that it caused him to experience
several adverse medical symptoms;

12. on or around January 18, 2017, management failed to provide him with proper
assistance, guidance, and a reasonable amount of time to complete Office of Workers’
Compensation Program (OWCP) documentation, and later advised him that he should
not inform his physician about his adverse medical symptoms, until he was in the
examination room, implying that Complainant should “lie” to his physician; and

13. on or around February 13, 2017, management ordered him to submit a memorandum
regarding his VirTra Training.2

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative

2 The record reflects that claims 4 – 13 were later amended to the instant formal complaint.
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Judge. In accordance with Complainant’s request, the Agency issued a final decision on May
26, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant, on appeal, argues that the Agency’s final decision “is
a fraud, issued in bias, unfounded, and without merit.” Complainant further argues that he had
been “vilified, singled out, intimidated, and humiliated.”

ANALYSIS AND FINDINGS

To establish a claim of hostile environment harassment, Complainant must show that: (1) he
belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his 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 liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected basis – in this case, his prior EEO activity.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, as discussed below, Complainant simply has not proven
his claim that his treatment was motivated in any way by his prior EEO activity.

Regarding claim 1, Complainant asserted that on May 26, 2016, management intentionally
manipulated the training schedule to disrupt his scheduled leave and required him to attend
firearms training.

The Watch Commander stated that during the relevant period, he was Complainant’s second
level supervisor. The Watch Commander explained that at that time, a named supervisor was
responsible for setting the employees’ schedule. The Watch Commander explained that the
original schedule indicated that Complainant was initially scheduled for day of duty on May 29,
2016, off duty on May 30, 2016, firearms qualification on May 31, 2016, use of force training on
June 1, 2016, and day off duty on June 4, 2016.

Further, the Watch Commander stated that during the relevant period, Complainant “asked for
and received a schedule change. That change was May 31 and June 1 [2016] becoming regular
work days and June 2 and June 3 [2016] becoming firearms qualifications and use of force
training in that order.”

The Deputy Patrol Agent in Charge (unknown prior protected activity) stated at that time, he was
Complainant’s third level supervisor. Complainant asserted that the training schedule was
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manipulated to further inflict malicious acts of retaliation and harassment to disrupt his recovery.
However, the Deputy stated that he explained to Complainant several occasions “why we
schedule agents for training after they have been off or on leave. Training takes place during the
day time. For agents who work nights/swing shift like Complainant, it is easier on them if we
schedule training on the date immediately following a day off or leave as to not interfere with
sleep patterns and to prevent the short turnaround from working swing shift and returning for
training.”

Regarding claims 2 and 5, Complainant alleged that on July 10, 2016, October 2, 2016 and
continuing, management deliberately assigned individuals to supervise him, against whom
Complainant had previously filed EEO complaints alleging harassment.

The Watch Commander stated that while the management official identified by Complainant is a
first-line supervisor, he is not in a position to supervise Complainant. The Watch Commander
stated that a review of the schedule indicated that Complainant was assigned to Zone 17 on July
10, 2016 “which is an open desert zone and not normally considered a HREA. Furthermore,
[first line supervisor] was on annual leave on the day in question, July 10, 2016.”

The Watch Commander stated that on October 2, 2016, there was a new rotation and “the
supervisors changed shifts again. The changes are seniority based and had nothing to do with
[Complainant].” The Watch Commander noted that Complainant “normally choses swing shift.
He has had numerous disagreements with management. Any time that something is done or the
supervisor makes a decision that is unpopular with him, he states that its retaliation which puts
the supervisor on the defensive.”

The Patrol Agent in Charge stated at that time, he was Complainant’s fourth level supervisor.
Complainant asserted that management attempted to frustrate him into confrontation. However,
the Patrol Agent stated that there was no attempt to get Complainant written up for disciplinary
action. Furthermore, the Patrol Agent in Charge stated that Complainant never requested to be
moved to another shift.

Regarding claims 3 and 6, Complainant claimed that on July 10, 2016, October 2, 2016, and
continuing, management manipulated the schedule in order to assign him to a High-Risk
Encounter Area (HREA).

With respect to the October 2, 2016 incident, the Watch Commander stated that Complainant
was assigned to Zone 13/East Fence which could be considered a HREA. The Watch
Commander explained that the reason Complainant was assigned that particular zone was “due
to the propensity for illegal activity. A lot of our areas could be considered high risk. We try to
assign four agents in vehicles and two agents on bikes at a minimum.”

Moreover, the Watch Commander stated at that time, the first line supervisor was the scheduling
supervisor and “the schedule was likely changed because changes are made daily based on
staffing needs/levels, but not for the purpose of assigning Complainant to a HREA.”
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The Patrol Agent in Charge acknowledged that Complainant was assigned to an HREA but not
based on retaliation. The Patrol Agent in Charge stated that Border Patrol Agent work “is
inherently dangerous. For the purpose of heightened awareness for our agents, we have
designated areas as HREA. Assignment to those areas occurs daily…these assignments are
necessary to the mission and are not assigned to harm agents.”

Regarding claim 4, Complainant alleged that on August 11, 2016, management failed to take
action after a co-worker made a derogatory remark to him.

The Supervisory BPA stated that he was not aware of the event when it occurred. The Supervisor
BPA further stated that after Complainant complained to management concerning the co-worker
making derogatory remark to him, management instructed him, a named BPA and the co-worker
to write up memoranda concerning the incident. Furthermore, the Supervisor BPA stated there
were approximately 10 to 15 people in the large room during that time “participating in several
different conversations. I was not involved in that conversation and I was not made aware that it
had occurred. I did not hear any of the exchange Complainant described in his complaint.”

The BPA stated that she observed Complainant making a joke with the co-worker but she was
not sure if the co-worker responded to Complainant’s remark. The BPA stated that prior to the
August 11, 2016 incident, she and other BPAs have joked “in the past without either of us taking
offense. If he had said something to me at the time, I would have told him that I didn’t mean any
offense. If I would have known, I would have apologized.”

Moreover, the BPA stated that approximately one month after the August 11, 2016 incident, she
received a letter of caution from the Patrol Agent in Charge and “the letter stated that I should be
professional at all times when interacting with Complainant. I have not spoken to Complainant
about the incident.”

Regarding claims 7 and 8, Complainant asserted that on October 5 and 6, 2016, a supervisor
exhibited unprofessional behavior when he questioned why Complainant was not turning in his
keys to armory personnel.

Another Supervisory BPA (Supervisor BPA 2) stated during the relevant period he was on light
duty as he recovered from a heart attack. The Supervisor BPA stated that on October 5, 2016, he
was reviewing files when Complainant walked in. The Supervisor BPA stated at that time, he
was not aware that the Watch Commander instructed Complainant to turn the keys in to a
supervisor and, “I just asked him why he was turning the keys in here and whether anyone was at
the armory. He told me that Watch Commander told him to turn them into a supervisor. I then
took the keys from him. After I took the keys from him, we did not exchange any further words.
At no time was I loud or unprofessional.”

The Watch Commander stated that on October 6, 2016, he was at the armory with Supervisory
BPA 2 and they were discussing fantasy football when another Supervisory BPA (Supervisory
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BPA 3) came in and said something jokingly to Supervisory BPA 1. The Watch Commander
stated at that time. Complainant was at the armory window and claimed they were talking about
him. The Watch Commander stated that he and the other supervisors told Complainant “that we
were talking about fantasy football. I attempted to get Complainant to join in the consideration
about fantasy football, but he said that he did not have time for that when Complainant said
“something in jest to [Supervisor BPA 3]. Complainant came back to the window and accused
us of talking about him, but nothing had been said about him.”

The record contains a copy of the Watch Commander’s memorandum dated December 6, 2016
to the Patrol Agent in Charge concerning Complainant’s unprofessional conduct on October 6,
2016. Therein, the Watch Commander explained that due to Complainant’s history of making
frivolous accusations, many supervisors “’walk on eggshells’ in his presence and go out of their
way to promptly address any of his issues…even with this in mind, [Complainant] is treated with
the utmost professionalism. Such so, that he garners treatment that other agents do not, such as
not being assigned to a specific area and having input on when he’s scheduled for quarterly
training.”

Regarding claim 9, Complainant claimed that on October 6, 2016, a supervisor exhibited
unprofessional behavior after Complainant approached the supervisor, and the supervisor
informed him that he can no longer exchange duty assignments with his co-workers.

The Watch Commander stated that he was not aware of Supervisor 1 doing anything wrong on
October 6, 2016. The Watch Commander stated that he does not recall telling Complainant he
can no longer exchange duty assignments with his co-workers. The Watch Commander
explained that prior to October 6, 2016, management decided “to prohibit agents from
exchanging duty assignments. I do not recall addressing this issue one-on-one with
Complainant.”

Regarding claim 10, Complainant alleged that on November 7, 2016, a co-worker exhibited
unprofessional conduct and harassment by engaging Complainant in a verbal confrontation, and
the co-worker was later defended by the Patrol Agent in Charge.

The record reflects that Complainant claimed that on November 7, 2016, his co-worker exhibited
unprofessional conduct when a named BPA increased speed in his vehicle and cut off
Complainant in a parking area, and another BPA placed his hand and middle finger against the
passenger window toward Complainant.

The Patrol Agent in Charge acknowledged Complainant informed him of the incident. The
Patrol Agent in Charge noted that following their discussion, one of the two BPAs spoke to
Complainant about the incident and Complainant stopped by his office again to discuss the
incident. The Patrol Agent in Charge stated that he asked Complainant what he would like him
to do and Complainant “told me that he didn’t want me to do anything and that he was only
telling me because he believed the other agents were going to file complaints against him.”
Further, the Patrol in Agent in Charge stated that he told Complainant that he “did not expect to
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receive any complaints from the other agents. I did not receive any complaints regarding the
matter from the other agents.”

Regarding claim 11, Complainant claimed that on January 18, 2017 and continuing, a supervisor
deliberately assigned him to the toxic river area although the supervisor was aware that the
assignment caused Complainant to experience several adverse medical symptoms.

The Watch Commander stated that on January 18, 2017, Complainant was assigned “to the area
just north of the Calexico West Port of entry known as ‘the Salida,’ which is east of the New
River. Because the position is in the same zone as the New River, agents have to work in close
proximity to the river. The complainant, as with all agents, is probably assigned to the New
River area on a weekly basis. The staffing of this area is a requirement.”

With respect to Complainant’s allegation that the Watch Commander instructed supervisors to
reassign him to work at the New River after being aware that he experienced several adverse
medical symptoms, the Watch Commander denied it. Specifically, the Watch Commander stated
that supervisors “were never instructed not to assign complainant to the New River.
Complainant was told we would work with him if possible until he could get the required
medical documentation…the complainant has stated that he experienced symptoms when
assigned there but has presented no medical evidence or doctor’s excuse related to his complaint
of illness.”

Regarding claim 12, Complainant asserted that on or around January 18, 2017, management
failed to provide him with proper assistance, guidance, and a reasonable amount of time to
complete OWCP documentation, and later advised him that he should not inform his physician
about his adverse medical symptoms, until he was in the examination room, implying that he
should “lie” to his physician.

The record reflects that Complainant claimed he asked the Watch Commander for permission to
file a CA-2 form to document his exposure to the toxic river area and seek treatment.

The Watch Commander explained that Complainant does not need permission to file a CA-2 and
that he “has been given time on multiple occasions to file a CA-2 since approximately July 2016.
I believe complainant already has a CA-2 on file for this same claim.”

Regarding Complainant’s allegation that the Watch Commander advised him not to inform his
physician about the adverse medical symptoms he experienced by the toxic river area, the Watch
Commander stated that he advised Complainant “not to claim it was work-related injury because
this is something the doctor would need to diagnose. Complainant stated that when he called the
doctor, he informed them that it was a work-related condition. I explained that because he is
claiming a work injury, the doctor expects a CA-16, which he is not entitled to at this time, and
an OWCP claim.”

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Further, the Watch Commander stated that Complainant was advised to see a doctor at his own
expense and “get diagnosed. If the doctor establishes and document that his condition is work
related, only then does it become an OWCP claim. Complainant has been told this multiple
times, but… since July 2016 but did not want to go to a doctor at his own expense even though if
his claim is proven, he would more than likely be reimbursed.”

Regarding claim 13, Complainant alleged that on or around February 13, 2017, management
ordered him to submit a memorandum regarding his VirTra Training.

Another Supervisory BPA (Supervisory BPA 3) (unknown prior protected activity) explained
that all agents are required to explain their actions when they have an unauthorized absence from
scheduled training. The Supervisory BPA 3 stated that he received an order from the Chief
Patrol Agent to have Complainant submit a memorandum explaining why he was absent from
scheduled training on February 9, 2017. The Supervisory BPA 3 stated that Complainant “has
been treated the same as any other agent who is absent without leave (AWOL) at a scheduled
training; a memorandum is requested and forwarded up the chain-of-command.”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext designed to mask retaliatory animus.

CONCLUSION

We AFFIRM the Agency’s finding that the preponderance of the evidence of record does not
establish that unlawful retaliation occurred.

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
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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)

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.

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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 14, 2019
Date