Porter P.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

May 4, 2017

0120151254 (E.E.O.C. May. 4, 2017)

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

Porter P.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120151254

Agency No. HS-CBP-00144-2013

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated July 10, 2013,
finding no discrimination concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

In his complaint filed on November 19, 2012, Complainant alleged discrimination based on race
(African American), age (over 40), and in reprisal for prior EEO activity when on October 21,
2012, he learned that he was not reassigned to the Passenger Operations Division (POD). After
completion of the investigation of the complaint, Complainant requested a final Agency decision
without a hearing. The Agency thus issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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.
0120151254

2
ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incident. At the relevant time, Complainant was employed by the Agency
as a Deputy Chief/Supervisory Customs and Border Protection Officer (SCBPO), Office of Field
Operations, New York Field Office, John F. Kennedy International Airport (JFK Airport),
Trade/Cargo Branch, Jamaica, New York. Complainant claimed that prior to his current
assignment in Trade Operations in February 2009, he worked his entire career in the Passenger
Operations Division (about 32 years). On October 21, 2012, he learned that he was not
reassigned to POD even through another supervisor (Person A), who left POD for the Tactical
Branch at the same time as he, was being reassigned back to POD.

Complainant’s Port Director (PD) stated that as a PD, she was responsible for enforcing the
Agency’s supervisory rotational policy which became effective in January, 2009. The PD
indicated that in August, 2012, she tasked her Assistant Port Directors (APDs) to get together
and to present to her recommendations for rotations among the supervisors. With regard to the
specific rotation at issue, the PD indicated that: she reviewed the productivity of the rover team
and knew that another identified SCBPO (Person A) was considered nationally to be an expert in
rover operations and contraband interdiction; she felt the rover team at JFK Airport was under-
performing; she knew that Person A’s skill set was in high demand throughout the country and
felt JFK Airport would be best served by having him back in charge of the rover team; and she
instructed APDs to rotate Person A back to that assignment – the roving team. The PD indicated
that at the relevant time, she knew both Complainant and Person A were rotated out of POD at
the same time in 2009; and neither of them asked her to be rotated back to POD. The PD noted
that at the relevant time, she was not aware of Complainant’s prior EEO activity and she was not
aware of the racial or age breakdown of all officers assigned to the POD.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as he
alleged.

CONCLUSION
0120151254

3

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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:

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.

0120151254

4
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

May 4, 2017
Date