Micki C.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0120141806 (E.E.O.C. Sep. 8, 2016)

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

Micki C.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120141806

Hearing No. 520-2013-00298X

Agency No. HS-CBP-23087-2012

DECISION

The Commission accepts Complainant’s appeal from the Agency’s May 4, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-06 Secretary
at the Agency’s Newark Liberty International Airport in Newark, New Jersey. Complainant
was diagnosed with Crohn’s Disease 18 years ago, and underwent surgery for the condition in
2007. Complainant noted that the disease has been in remission since 2007, and that her
condition does not affect any major life activities.

In July and August 2012, Complainant claimed that she worked “two pay periods of
overtime.” On August 24, 2012, Complainant alleged that her second-level supervisor (S2)

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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told her that she could not continue to work overtime due to budgetary issues. As a result, she
and another secretary no longer worked overtime; however, Complainant claimed that
Agriculture Technicians and Agriculture Specialists continued to work overtime.

Additionally, in August 2012, Complainant claimed that S2 stated to her that her “hair is
different.” Complainant had recently changed her hairstyle prior to S2’s comment.
Complainant further alleged that the Deputy Chief Customs and Border Protection Officer
(DCO) told her that Complainant “was not professional enough.” In addition, in August 2012,
Complainant alleged that a co-worker (CW1) entered her office and stated that Complainant
“might shoot him.” Complainant replied by stating “that’s not nice.” CW1 explained that he
made the comment in a friendly manner because he did not want to inconvenience Complainant
by making a second request for pens within a relatively brief period of time.

Complainant claimed that she received a promotion in 2005, and was assigned to Newark
Liberty International Airport. Complainant believed that the move would lead to career
growth; however, she claimed that she learned in November 2012, that other employees had
been converted to the GS-07 level in 2006. Complainant explained that she learned from an
article on the Agency’s website that “support positions” were eligible for the upgrade, and no
action was required by employees as those eligible would be moved into the new CBP
Technician position and converted to the GS-07 level. Complainant stated that she is still at
the GS-06 level despite meeting the time-in grade requirement to be promoted and having
satisfactory performance appraisals.

On December 4, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American) and disability as evidenced by multiple incidents including, inter alia, she
was informed that she could not work overtime; a co-worker and supervisors made
inappropriate comments; and she learned in January 2006, that a new position, CBP
Technician, was created and all employees integrated into the position through the original
conversion were converted at the GS-07 level, but she was not elevated to the GS-07 level.2

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). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on March 31, 2014.

In the decision, the AJ assumed that Complainant established a prima facie case of
discrimination and found that the Agency articulated legitimate, nondiscriminatory reasons for

2 The Agency dismissed several additional claims for untimely EEO counselor contact.
Complainant did not specifically challenge the dismissal of these claims on appeal. The
Commission will consider the claims as background evidence in support of Complainant's
overall hostile work environment claim.
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its actions. Specifically, as to her overtime claim, management stated that Complainant
worked overtime in August 2012, but was not scheduled for any further overtime because of
budgetary concerns. Management confirmed that only those performing mission-critical tasks
would be offered overtime, and overtime was dispersed only for mission-critical tasking.
Complainant’s supervisor determined that Complainant was not performing mission-critical
tasks; therefore, she was not offered overtime hours to work during that time.

With regard to her position conversion claim, the Agency stated that Complainant was not
converted to a GS-07 in 2006, because she held a GS-06 position with a full performance level
of a GS-06. Thus, Complainant would not have been eligible to move to the CBP Technician
position without competing for the position via a vacancy announcement because the CBP
Technician position had a full performance level of a GS-07. Furthermore, in 2006, the Plant
Protection Specialist position and the Customs Technician position were abolished and the
duties for those positions were subsumed into the CBP Technician position, however, the
Secretary position remained.

Finally, as to her harassment claim, the AJ determined that the alleged incidents were not
sufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found
that there was no evidence of discriminatory animus. Complainant admitted that S2’s comment
about her hair looking different could be because her hair did look different in that it was in a
different, braided style. DCO, who is also African-American and has stated that she has the
same hair texture as Complainant, made one comment about Complainant not being
professional enough. The AJ found that the final alleged comment about Complainant wanting
to “shoot” CW1, viewed from an objective person in Complainant’s position, also did not rise
to the level of severity or frequency to be a violation of Title VII. No other comments or
incidents occurred after these comments were made. Thus, the AJ determined that
Complainant’s hostile work environment claim must fail.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. The Agency subsequently issued a
final order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant raises no new arguments, and simply submits documents previously
provided to the Agency. Complainant claims that the Agency failed to add these “revised
Investigative File Responses” that she submitted during discovery to the record.3

3 The Commission notes that it appears that Complainant submitted the documents at issue only
to the Agency during discovery with the expectation that they would be added to the
investigative file. There is no evidence that Complainant submitted the documents to the AJ;
nevertheless, the Agency included the documents as exhibits attached to its Motion for
Summary Judgment. Accordingly, the Commission finds no evidence that the Agency acted
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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she 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 her 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 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).

Therefore, to prove her 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 her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory animus. For example, with regard to overtime, S2
confirmed that he met with Complainant and informed her that she would no longer be able to
work overtime due to budget limitations. ROI, at 122. The Operations Specialist explained
that overtime expenses had to be monitored and dispensed as needed for mission-critical
tasking, and only those performing mission-critical tasking as needed by management were to
be assigned overtime. Id. at 137-38.

improperly. The Commission has reviewed the documents; however, they do not alter our
decision herein.
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Regarding her conversion claim, the Supervisory Human Resources Specialist stated that
Complainant held a position in 2006 with a full performance level of GS-06. ROI, at 144. As
a result, she would not have been eligible to move to the CBP Technician position without
competing for the position through a vacancy announcement as that position had a full
performance level of GS-07. Id. The Agency abolished its Plant Protection Specialist and
Customs Technician positions and reclassified the employees as CBP Technicians. Id. at 145.
Complainant’s position was not abolished in 2006, and was thus not eligible for conversion.
Id.

Finally, as to the comments, S2 affirmed that Complainant came to work with a new hairstyle
and he simply made a comment that her hairstyle looked nice. ROI, at 123. S2 stressed that it
was not his intent to be disrespectful or offensive. Id. DCO denied telling Complainant that
she was not professional enough. Id. at 118. Finally, CW1 stated that if he made the “might
shoot me” comment, he meant it in a friendly manner because he did not want to
inconvenience Complainant by making a second request for pens within a relatively short
period of time. Id. at 132.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was pretext for discrimination. As a
result, the Commission finds no basis to disturb the AJ's summary judgment decision finding
that Complainant was not subjected to discrimination or a hostile work environment 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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence 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:

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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).

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
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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 8, 2016
Date