Edmund L.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

2019002323 (E.E.O.C. Sep. 10, 2019)

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

Edmund L.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 2019002323

Hearing No. 480-2018-00018X

Agency No. HSCBP003822017

DECISION

On March 11, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 11, 2019, final order 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Special Operations
Supervisor, GS-1896-13, at the Agency’s San Diego Headquarters facility in Chula Vista,
California.

On December 26, 2016, Complainant filed an EEO complaint alleging that the Agency subjected
him to harassment and discrimination on the bases of national origin (Mexican)2 and age.

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 Complainant described this basis as “race”, which he identified as Mexican.
2019002323

2
In his complaint, Complainant alleged the following instances of discriminatory harassment: (a)
since November 2011, he had been the subject of an internal investigation; (b) around July 2015,
he was removed from emails associated with command staff information; (c) in September 2015,
May 2016, and September 2016, he was assigned to work on special projects with various
temporary supervisors; (d) in October 2015, he received a “low rating” of 3.0 on his annual
performance appraisal for Fiscal Year 2015; (e) in September 2016, he was reassigned from an
office to a cubicle and directed not to park his government or personal vehicle at the San Diego
Sector Headquarters; (f) on September 23, 2016, he was directed to stay away from the San
Diego Sector Garage and its employees; and, (g) on December 14, 2016, he was asked to prepare
the morning brief, but he was not permitted to present it.3

Complainant also alleged the Agency subjected him to discrimination on the bases of age and
national origin when he received a low rating of 3.18 on his annual performance appraisal for
Fiscal Year 2016.

The Agency accepted the complaint and conducted an investigation, which produced the
following facts.

On July 23, 2015, Complainant was informed that, because of a report in November 2011, he
was the subject of an administrative investigation involving misconduct at the San Diego garage.
He alleged that the Agency deliberately kept the investigation open for an excessive amount of
time, thereby preventing him from competing for promotional opportunities and restoring his
reputation. He also alleged that the Agency reassigned him from his chain of command and
supervisory duties to administrative and/or temporary positions and, starting around the same
time he learned of the investigation, excluded him from managerial emails relating to such things
as budgets, hiring, personnel management, significant incident reports, and pay.

Management explained that Complainant was the subject of an internal investigation relating to
allegations that he allowed garage personnel to work on his personal vehicle. Upon conclusion of
the investigation, the matter was referred to the Discipline Review Board. Although the
Discipline Review Board initially proposed to remove Complainant for several charges, on
August 22, 2017, it issued a final decision finding the charges were not sustained.

Management also explained that Complainant’s position description does not require or entitle
him to supervise the Fleet program, and such positions are subject to be changed, based on need
or preference, with great flexibility.

3 The Agency found the alleged instances in (c) and (d) also raised independent claims of
disparate treatment discrimination, which it dismissed pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact. In so doing, the Agency noted that Complainant initially
contacted an EEO Counselor on November 16, 2016, more than 45 days after the occurrence of
the alleged events. Upon review of the record, we agree that dismissal of these allegations as
independent claims was proper, but we will consider them as part of the evidence proffered by
Complainant in support of his overall claim of harassment.
2019002323

3
Complainant’s duties were changed while he was under investigation. With respect to
management emails, employees are included on the distribution list on a “need to know basis”
and, when an employee’s position changes, he may be removed based on position and whether
he has a “need to know.”

Complainant alleged that, while he was on temporary assignments, he was subjected to
numerous harassing events, including being instructed to stay away from the garages and certain
garage employees; moved from an office to a cubicle; and told that he could no longer park his
personal vehicle or government vehicle at San Diego Sector Headquarters and should park at
another specified location.

Management explained that Complainant’s core duties did not involve the garage or its
personnel, but he was frequently there, interacting with individuals that were part of the
investigation. Therefore, he was directed to not frequent the garage unless he had a compelling,
duty-related reason to do so.

Regarding Complainant’s being placed into a cubicle, management explained that office space
was tight at the time and the Acting Deputy Director was afforded office space over
Complainant. Once there was a larger office space, Complainant was assigned an office in the
new space.

Regarding the parking situation, management explained that Complainant, along with three other
employees, were instructed to stop their practice of driving from home, parking their personal
vehicle at Headquarters, and then getting into a government vehicle and finishing the commute
to the Logistics office. Complainant was always allowed to park his government or personal
vehicle at Headquarters.

Complainant also alleged that, on December 14, 2016, he was asked by an acting deputy director
to give a morning brief to management on December 15, 2016, because the acting deputy
director was unavailable. Later that day, he was told it would not be necessary for him to do the
briefing, as the director would be there. However, the director later called in sick.

The Director explained that this was not a formal briefing but was a staff meeting and, when he
is unable to attend, it is appropriate for the Acting Deputy to attend. When he heard the Acting
Deputy was unable to attend, he decided there was no need to send anyone, as there was nothing
that needed to be briefed or highlighted from Logistics that morning.

Complainant indicated that his “achieved expectations” performance ratings of 3.001 and 3.18,
for Fiscal Year (FY) 2015 and 2016, respectively, were unexpectedly low.

Management explained that Complainant’s FY 2015 performance rating reflected his
performance during that rating period. He demonstrated adequate achievement of his core
competencies and was able to sufficiently achieve his performance goals.
2019002323

4
All comments reference an adequate knowledge or completion of a task and there is no mention
of any stand out actions, accomplishments, or tasks above or beyond the regular scope of duty.

With respect to Complainant’s FY 2016 performance rating, management explained that
Complainant’s performance was commensurate with “achieved expectations,” which is not a low
rating. There was not a low comment on his performance evaluation and management did not
witness anything in Complainant’s performance warranting a higher rating.

At the conclusion of the 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.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 18,
2018, motion for a decision without a hearing and issued a decision without a hearing on January
31, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The instant appeal followed. On appeal, Complainant asserts that the Agency did not adequately
conduct an appropriate investigation, alleging that the Agency did not take statements from his
witnesses and interviews were one-sided and only given to management. He asserts that there is
a prima facie case that clearly shows harassment, prejudicial treatment, and humiliation. He also
states that he was under investigation and was not guilty, but the Agency initially requested
termination. He restates his contention that he was subjected to ridicule, slander, and humiliation
that halted his career advancement.

In response, the Agency asserts that the AJ’s decision applied the correct legal standards based
on the evidence presented in the Report of Investigation and the submission of the parties. It
notes that Complainant has not argued that the decision was erroneous and asks that we affirm its
final decision.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party.
2019002323

5
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Harassment Claim

Complainant has alleged the Agency subjected him to harassment, noting numerous alleged
instances. 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 to the Agency. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also,
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8,
1994).

In other words, to prove his harassment claim, Complainant must establish that she 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 a protected basis – in this case, his
national origin or age. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.

Although Complainant asserts that the Agency acted discriminately, there is insufficient
evidence to support the allegation that Complainant’s national origin or age played any role in
the incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to support a
claim of discriminatory harassment. Most of Complainant’s harassment allegations can generally
be described as relating to managerial decisions, such as disagreements with assignments, office
space, parking spaces, and performance assessments. Without evidence of an unlawful motive,
we have found that similar disputes do not amount to unlawful harassment.
2019002323

6
See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record
established that the issues between the complainant and the supervisor were because of
personality conflicts and fundamental disagreements over how work should be done and how
employees should be supervised, and there is no indication that the supervisor was motivated by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes,
trivial slights and petty annoyances between a supervisor and a complainant do not rise to the
level of harassment).

Disparate Treatment Claim – FY 2016 Performance Evaluation

Complainant has alleged that the Agency treated him disparately in his FY 2016 performance
evaluation. A claim of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to
prevail, he must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of
Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that Complainant’s performance was commensurate with
“achieved expectations,” and management did not witness anything in Complainant’s
performance warranting a higher rating. Although Complainant has alleged discrimination, he
has not established by a preponderance of the evidence, that the legitimate, non-discriminatory
reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by
some unlawful discriminatory animus with respect to this claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

2019002323

7
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
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.
2019002323

8
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

September 10, 2019
Date